The contribution of databases and customary law to the protection of traditional knowledge

Abstract

The current situation of traditional knowledge (TK) is somewhat paradoxical. At the same time as it is eroding, it is becoming the object of growing interest by scientists. In this context, TK holders complain about the misappropriation of their knowledge and formulate two sets of claims. First, they ask for some protection of their intellectual property. Second, they demand the respect of their customary laws, arguing that they do not ask to be granted new rights but to have their existing rights respected. Regarding the first claim, little progress has been made after many years of debate; probably because participants rely on right‐based justifications that offer little guidance to design effective and transferable property rights. I suggest following a double approach: first, looking at the practices of TK holders, second, using a utilitarian justification that provides useful insights to design effective property rights. I conclude that there are strong arguments in favour of the creation of a database of traditional knowledge. Regarding the second claim, no progress has been made because it is perceived as a political demand for self‐determination. I also suggest adopting a utilitarian approach that makes us regard this claim as a demand of articulation between custom or norms‐based systems of innovation and the legal system of intellectual property law. This enables us to look at solutions that have already been tested for other norms‐based systems of innovation that also have had to organise their insertion in the legal system of intellectual property.