Indigenous Knowledge: A Moral Reflection on Current Legal Concepts of Intellectual Property

Abstract

Indigenous knowledge of underdeveloped countries or of underdeveloped peoples within developed or developing nations is a sought after commodity in today's marketplace. These commercialisation pressures will increase in the globalised climate of the new-world economic order. Since knowledge is intangible, legal protection of intangible knowledge is minimal. However, when the knowledge is expressed in a tangible form, societies have seen fit to offer protection under the rubric of intellectual property laws. In addition, these developments have emerged from a 'Western' or 'developed' legal tradition and are often inadequate to deal with the scenarios in which indigenous knowledge often resides. Several examples from patent, trademark, and copyright present these shortcomings. In addition, the cultural differences between concepts of developed versus indigenous property further highlight the problem of achieving a harmonised and universal set of legal protections. The result is a disparity of access to existing intellectual property of others by indigenous and developing peoples. More critical for the purpose of the present discussion is a second disparity in the inadequacy of existing intellectual property regimes to protect indigenous culture and knowledge from development, and often exploitation. In response to this, a discussion of ethical implications of the disparity is undertaken in an attempt to provide a moral basis upon which past practices and future protection mechanisms can be evaluated. In conclusion, a list of principles are forwarded identifying the moral-legal rights indigenous peoples have in their own knowledge and in their right to access the intellectual knowledge of others.