How Can Traditional Knowledge Best Be Regulated? Comparing a Proprietary Rights Approach with a Regulatory Toolbox Approach

Abstract

Traditional knowledge is increasingly being seen as a potential source of economic value in the Pacific Islands region. As a result of this, and a belief that traditional knowledge is currently at risk in a number of respects, a move to protect it has developed over the past decade. This move has largely focused on the creation, through legislation, of a sui generis inalienable and perpetual property right in traditional knowledge, vested in its “owners” or “holders.” However, to date, very little attention has been paid to the issue of determining who these owners or holders should be. The first part of this article seeks to fill this gap by highlighting the institutional and normative issues implicated in any legislation that envisages group ownership over traditional knowledge. The second part proposes an alternative approach to the regulation of traditional knowledge, one that is not based on the creation of new proprietary rights. It argues that this alternative “regulatory toolbox” approach can achieve the same objectives for the protection of traditional knowledge that have been articulated in the push for the development of sui generis legislation, while avoiding many of the potential sites of conflict inherent in such an approach.