Wandering Footloose: Traditional Knowledge and the "Public Domain" Revisited

Journal of World Intellectual Property
Vol. 21, No. 5-6 (2018), pp. 306-325

Ongoing interdisciplinary theoretical interests over the “ownership of culture” is a complex conversation that has pitched traditional knowledge (TK) and its holders against other knowledge systems in a manner that implicates significant power relations and plural philosophical orientations over the governance of knowledge. Nowhere is the pressure on TK more pronounced than in the new- found interest of the United States and its allies over the public domain, as evident in the work of the WIPO's special committee charged with negotiating sets of legal instruments for effective protection of TK, genetic resources, and folklore (a.ka. traditional cultural expressions). TK stakeholders are put on the defensive on the assumption that effective protection of TK would undermine the public domain. Ironically, led by the United States, countries who worked tirelessly over the decades to ratchet up intellectual property protection at the expense of the public domain have now reconstituted themselves into its later day champions when it comes to TK. However, it is not as if the Indigenous and local community custodians of TK have no approximation of the public domain in their customary laws, practices and dealings with knowledge production. There has yet to be an interest in non-Eurocentric conceptions of the public domain. Such an interest presents an opportunity to revisit the public domain imperative in order to adumbrate an inclusive and multicultural jurisprudence of the phenomenon.

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