Wandering footloose: Traditional knowledge and the “Public Domain” revisited

Abstract

Ongoing interdisciplinary theoretical interests over the “ownership of culture” is a complex conversation that has pitched traditional knowledge (TK) and its holders against other knowledge systems in a manner that implicates significant power relations and plural philosophical orientations over the governance of knowledge. Nowhere is the pressure on TK more pronounced than in the new‐found interest of the United States and its allies over the public domain, as evident in the work of the WIPO's special committee charged with negotiating sets of legal instruments for effective protection of TK, genetic resources, and folklore (a.ka. traditional cultural expressions). TK stakeholders are put on the defensive on the assumption that effective protection of TK would undermine the public domain. Ironically, led by the United States, countries who worked tirelessly over the decades to ratchet up intellectual property protection at the expense of the public domain have now reconstituted themselves into its later day champions when it comes to TK. However, it is not as if the Indigenous and local community custodians of TK have no approximation of the public domain in their customary laws, practices and dealings with knowledge production. There has yet to be an interest in non‐Eurocentric conceptions of the public domain. Such an interest presents an opportunity to revisit the public domain imperative in order to adumbrate an inclusive and multicultural jurisprudence of the phenomenon.

The Unusual Extension of Imperial Intellectual Property Laws to Colonies in Africa

“…49 Oguamanam has argued that traditional knowledge is affirmed in the customary laws and norms of indigenous peoples and categories of local communities as an aspect of their sovereignty and self-determination. 50 Thus, in many indigenous worldviews, for example, the conceit of humankind as an unbridled determiner of the fate of all biotic and abiotic resources is renounced. 51 This may explain why the appropriation logic does not have an exact parallel in indigenous worldviews.…”

Towards a Tiered or Differentiated Approach to Protection of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) in Relation to the Intellectual Property System

“…While there is not yet a consensual understanding of the approach across IGC delegates, there is wide acceptance of the idea that the approach would not countenance use, or continued use, of any TK or TCE without permission and accountability. Essentially, the approach recognises that some TK and TCEs are already publicly available or diffused, albeit by default through various forms of diffusion and appropriation, some legitimate some not (Oguamanam, 2018a;Okediji, 2017). As such, according to the approach, where the TK or TCE is already in the public domain or publicly available, there should not be ex post facto attempts, especially in regard to the former situation, to force the genie inside the bottle, i.e., to take the TK or TCE out of the public domain and provide exclusive IP rights or related rights to its custodians.…”