Protecting Traditional Knowledge in International Intellectual Property Law: Imperatives for Protection and Choice of Modalities, 14 J. Marshall Rev. Intell. Prop. L. 25 (2014)

The need for protecting traditional knowledge (TK) has been acknowledged in discussion and negotiations under the umbrella of a number of inter-governmental organizations that deal with biodiversity, the environment, indigenous peoples’ rights, human rights, food and agriculture, among others. It has, however, proved difficult to arrive at a consensus on the proper modality that can serve the needs and desires of Indigenous and Local Communities (ILCs) in their economic and cultural participation. The article examines the imperatives for the protection of TK and explores the modalities of TK protection at the international level for regulating the control of, access to and utilization of biodiversity associated with it. It is argued that any modality of TK protection should incorporate defensive and positive protection that address gaps in protecting TK. Protection of TK should, therefore, involve identifying different modalities, including those based on IP, to fit the nature and use of TK in particular contexts. The article makes a case for a shift in strategy for protecting TK by adopting a pluralistic modalities that address the protection needs of ILCs, depending on the purpose and the context in which the knowledge is practiced