Traditional knowledge. Cultural heritage or intellectual property?

The international rules for the protection of intellectual property, codified in the TRIPs agreement (=the agreement on Trade Related Aspects of Intellectual Property Rights) do not seem fit to address the complexity of the indigenous phenomenon and, specially, the protection of traditional knowledge (TK). The problem emerged during the Rio Conference of 1990, which adopted, among others, Principle n. 22, according to which “indigenous peoples and their communities […] have a vital role in environmental management and development because of their knowledge and traditional practices”. In fact, the rules on copyright or patents are mainly focused on providing an inventor an adequate economic reward, besides legal and effective remedies against unfair use of the products of the innovation, while other aspects, as the need to grant the use of land and natural resources - i.e. elements concurring in the social and cultural identity of the local communities- are not taken into account. From this point of view, the rewards granted to those who purchase indigenous resources or know-how, raise a serious concern, because they have a role in depriving indigenous communities of any control on their native land, and negatively impact on the sound use of natural resources. The analysis focuses the approach followed by the International Organizations where problems relating to TK protection are debated, first of all within the WTO-TRIPs system and other organizations belonging to the United Nations system, where the need has been highlighted to grant local communities unlimited access to genetic resources, to save the traditional context and practices and prevent misappropriation of cultural expressions. In this respect, reference is also made to the drafting of an “advanced text” within the WIPO Intergovernmental Committee to accelerate progress in the protection of TK. The incorporation of some legal safeguards into the TRIPs and in some bilateral trade and investment agreements, though showing a positive tendency towards reducing the pressure on countries providing genetic resources and giving more weight to the cultural heritage dimension, does not feature a sui generis system at the international level, whose principles would prevail over intellectual property rights.