Grafting Traditional Knowledge onto a Common Law System

Grafting Traditional Knowledge onto a Common Law System

Modern legal systems are not usually designed to protect Indigenous traditional knowledge or traditional cultural expressions but are, more often, historically complicit in their misuse or suppression. The undefined status of traditional knowledge has left Indigenous communities vulnerable to harms not readily cognizable by either common or civil law systems: exploitation of those communities’ genetic resources and medical knowledge, demeaning of their sacred symbols, and further alienation from their culture and land following colonial dispossession. Indigenous groups have therefore sought greater protection of traditional knowledge through a range of domestic and international legal avenues. This Article examines the experience of Australia as the common law jurisdiction that has likely gone furthest in protecting traditional knowledge. Aboriginal Australian claimants have found varying degrees of success through mechanisms such as copyright law, patent law, consumer protection, fiduciary claims, and privacy rights. Even at their most successful, however, these claimants have not obtained recognition of the unique interests represented by traditional knowledge. Instead, they have been forced to translate their claims into terms close to the conventional utilitarian or personality-based justifications for intellectual property. Australia therefore illustrates the potential of a common law system’s ability to incrementally adapt to novel claims—but also that system’s ultimate inadequacy.

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