Intellectual Property Rights, Legislated Protection, Sui Generis Models and Ethical Access in the Transformation of Indigenous Traditional Knowledge

Abstract

This dissertation arises out of deep concerns over how Indigenous Intellectual Property and Traditional Knowledge should be ethically accessed and used and reviews existing mechanisms of protection. It focuses on how Indigenous Intellectual Property and Traditional Knowledge should best be ethically, legislatively and legally treated in the public domain and in other public usage - and what mechanisms are required to protect it - particularly regarding Indigenous cultural expression. The dissertation argues that existing regimes of protection - such as copyright, patent, trade secrets, trademark, commercial law, and international regulation and convents - do not provide adequate protection for certain forms of Indigenous Intellectual Property and Traditional Knowledge; and that, therefore, new systems of protection need to be considered, developed and implemented. The purposes of this dissertation are: 1) to outline and establish principles in the use of Indigenous Traditional Knowledge for commercial, industrial, and other public purposes, and in cultural practice, artworks and other tangible and intangible cultural expressions; 2) to establish theoretical frameworks on Indigenous peoples' transformation of Traditional Knowledge through their cultural practice; and 3) to develop useful models and concepts to regulate the use of Traditional Knowledge by third parties in the contemporary contexts. In order to achieve these purposes, this dissertation will review the history of Indigenous and European knowledge systems and the interface between the two systems. It will also examine the development of Indigenous, national and International regulatory mechanisms and how the current discourse is evolving at these levels.