As many of the articles in this issue illustrate, advancements in STEM disciplines make essential contributions to quality of life and productivity. Legally, these advancements are often protected by intellectual property laws. However, important contributions to scientific knowledge also lie beyond the scope of Intellectual Property (“IP”) protection.

The traditional knowledge (“TK”) of Indigenous peoples has made valuable contributions to what we call STEM disciplines, and continues to do so today. Numerous historical examples exist: aspirin derived from salicylate-rich willow bark, quinine from the South American Cinchona tree, and South Asian turmeric, a culinary and medicinal root. This rich knowledge can also be “‘encoded’… into different types of resources — epic poems, religious texts, marriage and family customs, music, artistic designs, healing treatments, and so on.”¹

Traditional knowledge has benefited many, yet certain features of IP protection inhibit legal recognition. At times, the IP system even favors its exploitation in unfair ways, as is the case in relation to “biopiracy.”²

One such aspect of certain IP rights is the emphasis on “new” creation.

Tension between Novelty and Traditional Knowledge

The explicit purpose of copyright and patent regimes is to encourage new creation, whether new types of “useful art, process, machine, manufacture, or composition”³ that are patentable, or “original” creative works eligible for copyright protection. This is a core tenet. Once the inventor or creator meets this threshold requirement, patents and copyright respectively offer the benefit of a temporary monopoly. The goal is to encourage dissemination by “incentivizing” creators.

However, TK by definition is not “new.” Rather, it is knowledge gathered and accumulated by communities over time, usually involving complex interactions between humans and their environment. It is said to have been known “since time immemorial.” Concepts such as novelty or originality neither reward its holders nor encourage them to share.

Rights, if not ownership

While late, there is a growing awareness that those who have developed TK should receive legal recognition. However, this will require a modified understanding of IP regulation. In contrast to IP rights, the objectives of recognition for TK would be twofold: to provide modern validation for TK, and to protect it from misappropriation. Still, as with an inventor or creator, the fundamental policy question remains the same: not to determine whether knowledge exists, but to ensure that its holders can be rewarded while society benefits.

Encouraging and rewarding sharing

While no solution currently exists, proposals have been made to close this gap. In 2010, the Nagoya Protocol⁴ was ratified by 117 states, confirming two rights for TK holders: (1) the right to obtain free, prior, and informed consent for the use of their traditional knowledge and (2) the right to equitable benefit sharing from the use of traditional knowledge.

Canada is not one of those countries. However, in 2016, Canada signed on to the UN Declaration on the Rights of Indigenous Peoples⁵, subsequently implementing regulations that recognize the value of TK and the right to hold that knowledge in confidence, at least in the limited context of environmental project reviews and regulatory decisions.⁶

While developing a wholly new and distinct form of protection for TK will require both creativity and a new perspective, neither should be an insurmountable barrier: creativity and novelty are the stock and trade of STEM — or at least of IP.

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1. https://ipkitten.blogspot.com/2015/07/traditional-knowledge-and-cultural.html | ↩
2. https://en.wikipedia.org/wiki/Biopiracy; see also https://blog.jipel.law.nyu.edu/2019/08/the-nagoya-protocol-a-sui-generis-approach-to-traditional-knowledge-protection/ | ↩
3. As in our Patent Act, s. 2, 27; mirrored in Article 1, Clause 8, Section 8, of the US Constitution, https://constitution.congress.gov/browse/article-1/section-8/clause-8/ | ↩
4. https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf | ↩
5. In 2007, the Declaration was adopted, acknowledging the rights of indigenous peoples to “maintain, control, protect and develop” TK. See here | ↩
6. For example, see the Canada’s Indigenous Knowledge Policy Framework for Proposed Project Reviews and Regulatory Decisions | ↩