Traditional Knowledge and Arbitration Dispute Resolution: Indigenous People and Local Communities

Traditional Knowledge and Arbitration Dispute Resolution: Indigenous People and Local Communities

Venu Parnami Tuteja (Amity University, Noida, India)
DOI: 10.4018/978-1-7998-1835-9.ch005
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The unique requirements of the Indigenous people with respect to the intellectual property are very different. There are many conflicts regarding the questions of culturally appropriate usage, sharing of knowledge, and proper attribution. The process followed by courts may not resolve their issues. They have distinct social, cultural, and economic needs. The redressal system should be such that it helps to maintain and protect their position. ADR is one of the best to resolve their disputes as it offers a number of possibilities. The main methods of ADR are negotiation, mediation, and conciliation. WIPO plays a role in providing ADR arbitration rules in regards to the Indigenous people and local communities. The WIPO Arbitration and Mediation Centre was established in 1994 providing the resolution among the private parties regarding their international commercial disputes across borders. Through this chapter, questions such as the extent of ADR in resolving these issues and can this centre be considered as an appropriate forum for addressing the issues and settling them are presented.
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Traditional knowledge is a set of cumulative knowledge, which is handed down from one generation to another generation through cultural transmission. One of the definitions can be “a body of knowledge built by a group of people through generations living in close contact with nature”. It is generally described as information, which exists in a society passed by previous members of the society. The information mainly includes the use, the method and even the manner of manufacturing of the products majorly used by the natives or the members of the society (Anderson, 2012).

Traditional Knowledge can be classified into the following categories:

  • Information is known to society with or without the documentation and its constant use by people, e.g., the common use of Neem, Turmeric, and Tulsi.

  • Information that is adequately documented or commonly known outside the group.

  • Information is known only to a few individuals and members of a few families.

The issue of the protection of the Traditional Knowledge of the local and Indigenous communities seems to have become one of the most contentious and complicated nowadays (Simon, 2005).


Historical Background On Traditional Knowledge

The holders of Traditional Knowledge, who are trying to protect their knowledge through the Intellectual Property system, have three major constraints. They are as follows:

  • 1.

    Most traditional knowledge is ancient and does not meet the criteria of novelty or “inventive step”.

  • 2.

    Traditional Knowledge is a collective effort as there is no particular individual who can be termed as the inventor and thus in whose name the application can be filed.

  • 3.

    The cost involved in drafting and prosecuting the application form, the acquisition, the maintenance and finally, the enforcement of Intellectual Property Rights.

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