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The Protection of Traditional Knowledge/Indigeous Innovation and Creativity

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Doris Estelle Long
added 4 research items
The presence of foreign investment and the subsequent development of a commercial culture that facilitates participation in the global marketplace can have an adverse impact on indigenous culture. The “Coca-colonization” of non-Western, non-capitalist societies has become the new economic imperialism of developed countries. From eco-tourism to cultural tours and souvenir artifacts, culture has been transformed into a commodity that can be merchandised and sold across international borders. This “commodification” of culture is often achieved without the consent or participation of the holders of such cultural rights, particularly when those holders are indigenous peoples. This Article contends that even though the commodification and de-culturization of native and indigenous culture may be enhanced by the intellectual property protection regimes enacted by the developing countries at the behest of foreign investors, intellectual property does not have to play so narrow a role. To the contrary, despite the potential for misuse in supporting the commodification and de-culturization of native and indigenous culture, properly-crafted intellectual property laws may not only meet the protection demands of foreign investors but can actually shield a country’s cultural heritage against the leveling forces of globalizing de-culturization. The Article suggests several methods developing countries can use to create the intellectual property regimes demanded by foreign investors while also preserving indigenous culture from unwanted commodification. It demonstrates how copyright, moral rights, trade secret, patent and even trademark laws can be modified to protect indigenous culture while meeting international standards under TRIPS. While balancing the contrasting goals of economic growth and protection of indigenous culture is not an easy one, it may well be a matter of cultural survival.
What are the challenges facing the protection of traditional knowledge internationally? Can the protection of such rights, which have traditionally existed outside the boundaries of intellectual property, be achieved in the face of current challenges to protection epitomized by such emerging international movements as enhanced access to information and culture as a human right? This article examines some of the emerging issues in this hotly contested area and suggests that such movements are not actually adverse to intellectual property or traditional knowledge rights and should be used to craft a new method for addressing the issue of traditional knowledge protection internationally.
While intellectual property has long been perceived as a method for protecting, and ultimately valuing, innovation, it is an imperfect measure. With its traditional bias in favor of innovation as delimited by Western views of individuality and technological progress, intellectual property is not only an imperfect measure, but also one that has contributed to the undervaluing of non-Western innovation and creativity. This undervaluation has denied developing and least-developed countries a right of compensation for local innovation, which has contributed to the continuing imbalance in economic development. Recognizing a broader definition of compensable innovation that includes non-Western concepts, including innovation and creativity based on so-called traditional knowledge, would allow the holders of such knowledge to participate as partners in emerging knowledge-based industries. Ultimately, protection of “generational” innovation could provide a strong tool for wealth transfer that serves to make developing nations active participants in their own sustainable development. More significantly, establishing a rational system of protection for traditional knowledge would bring social justice back into the issue of innovation protection. As we remake innovation systems in response to the changes demanded by the global digital marketplace, rational protection for traditional knowledge must be a part of that change if we are to achieve equitable, sustainable values for innovative activity in the twenty-first century.