Intellectual Property (IP) law regimes and their related protections are recognized as being imperative to fostering innovation. Globally, countries including Canada are dedicating millions to IP initiatives to try and access the innovation and growth that seems to follow IP. In today’s technology-driven world, IP is a valuable asset, and demand for it is only increasing.
However, what hides behind the veneer of innovation is an inherent conflict that exists between what existed before and the advancements of today. IP, with all its touted benefits, shows a different face when it encounters culture and tradition. Instead of being a source of protection and innovation, IP can be used as a tool of cultural appropriation and exploitation instead. For groups such as the Amazonian Indigenous peoples, whose traditional use of the ayahuasca vine was patented by an American entrepreneur, IP is a source of frustration rather than protection.
The discord between IP and culture manifests in the inequitable experience that cultural groups have when trying to commercialize their Traditional Knowledge (TK), the practices, skills, and innovations of cultural groups. The underlying principles and requirements of IP inadvertently skew the scale against cultural groups who try to commercialize TK. Partial towards a conception of inventions that sees ideas and products as being the genius of a “lone inventor”, IP law requirements can exclude cultural groups from obtaining IP protection. Take patents, for example. When applying for a patent, the major requirements are that the idea or product has to be new, useful, and inventive. For communities who are trying to patent ideas or methods that have been in their culture for generations, the requirement of being “new” just does not fit. Other requirements that need “all inventors” to be named are also an issue for communities who hold shared and inherited ownership of these ideas.
At the same time that cultural groups struggle to have their TK recognized as IP assets, there are other groups who are succeeding in commercializing the same. Pharmaceutical, cosmetics, and food companies are targeting Indigenous bush foods and medicine as sources of new (to them) biological resources that they then try to monopolize. Through this practice known as biopiracy, these companies are often able to patent medicines and products traditionally used by cultural groups and profit off of their TK. That the same TK that cultural groups struggle to gain IP protection for are patentable by other parties shows that there is a problem when it comes to IP and the assets of cultural groups.
Governments and IP organizations seem to think that the solution to this problem is increased IP awareness for cultural groups. However, awareness and access are futile if IP regimes are still structurally incompatible with TK. If the intention is to offer access to IP protection, then there needs to be allowances made regarding the characteristics of TK that make it unique; the shared ownership and historical origins of TK should not preclude these ideas from being offered IP protection.
Written by Anabelle Tung, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.