Law and Policy on Intellectual Property, Traditional Knowledge and Development : Legally Protecting Creativity and Collective Rights in Traditional Knowledge-Based Agricultural Products Through Geographical Indications

In the wake of its emergence on the international scene, the world’s major international intellectual property tool - the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) - has evoked anger and dismay among indigenous people and local communities, mainly in the developing countries. Beyond the burden of setting up institutions that they previously did not have, the TRIPS expects developing countries to devote their meagre resources to the revision and introduction of legislation that provides for criminal sanctions against violations of intellectual property rights, the administration of such legislation and the enforcement of border measures. The fact that most of these countries are importers of most of the intellectual property-bound products in question has resulted in high outflows of foreign currency - adding to the pressures related to the costs of compliance and making it difficult for them to satisfy the health needs of their citizens, provide educational materials and cope with the soaring price of agricultural inputs. Despite the onerous requirements, the TRIPS Agreement does not address the concerns of the majority of the countries that are obligated to comply with it. The manner in which traditional knowledge (TK) is treated in the agreement demonstrates how the global intellectual property (IP) regime addresses the concerns of developing countries and the interests of their component indigenous peoples and local communities. The TRIPS requires WTO members to protect TK to the extent that such knowledge fits within the forms of intellectual property protection that the agreement recognizes. The problem is that these forms of intellectual property protection tools - while they have proved instrumental to owners of technological and biotechnological knowledge and skill - do not fit well with TK and, thus, have only facilitated its misappropriation and abuse. As a result, efforts to find modes of protecting traditional knowledge have surfaced in various forums of international and national law-making, as well as in the works of public-interest groups and academicians. These efforts stem from divers philosophical roots, and thus the approaches adopted and the methods proposed take varied forms. As such, the extent and mode of protection they offer as well as their effectiveness are varied. With the increasing awareness that rendering the knowledge bearer attentive to the value of his/her knowledge will encourage the holders to appreciate TK as “continuous and additive innovation” and thus a resource that further develops their culture, geographical indications (GIs) are touted as having the potential to offer advantages to developing-country agricultural producers. This article discusses the use of geographical indications in the protection of traditional knowledge-based agricultural products in the international intellectual property framework, and assesses the challenges and prospects of geographical indications to efforts to cater to the needs of indigenous people and local communities