Intellectual Property, Traditional Knowledge, and Bioprospecting: Searching for Efficient Balance of Rights

摘要

The dissertation comprises five chapters examining interrelated legal and economic aspects of the protection of Traditional Knowledge (TK). Chapter One describes the value that Traditional Medicinal Knowledge (TMK) has and the alarming rate of loss it faces. The chapter outlines the various issues of contention from defining 'traditional knowledge,' to the argument surrounding if and how TK should be protected. Chapter Two examines economic rationales for the need to protect TK through the lens of the public goods literature. It outlines the three key causes of TK loss and alternative methods of producing TK. Building on such discussion, Chapter Three develops the 'incentive to codify' argument which forms a core part of the thesis, as distinguished from the currently dominant 'incentive to conserve' rationale. The chapter discusses existing piecemeal attempts to codify TK and posits that a proactive use of such database will enable these initiatives to realize their real potential. Chapter four outlines the legal framework which may be justified given the public goods nature of TMK and the need to codify and disclose it to users. It advocates for the establishment of a bioprospecting right which can reflect the interest of TK holders and users. It also outlines what form TK codification should take. Lastly, Chapter Five examines whether an international TK protection mechanism is necessary. It outlines existing international deliberations on TK protection including the Draft Articles of the World Intellectual Property Organization, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC). The chapter concludes with analysis of the key features that an international forum should consider to provide baseline protection.