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Defining an intellectual property right on traditional medicinal knowledge: a process-oriented perspective

In this paper - which is targeted at national-level policy makers - the author explores the complex issue of traditional knowledge protection, and deems its protection to be necessary on utilitarian grounds.

The author argues that attempts to define traditional knowledge (TK) should focus on demarcating the nature of contribution that such knowledge could have to industrial research and development. The emphasis on the nature of the information itself serves as the best parameter of what the limits of "community/communities" are, and what sort of knowledge ought to be protected and made contractible through an intellectual property right.

The most effective options to protect traditional medicinal knowledge - the focus of the paper -  appear to be those of trade secrecy or a system of community intellectual property rights. Categories of TK that do not fall within such criteria could be documented into databases to prevent third parties from claiming patents on already existing knowledge.

But a well defined right is only the first step in empowering communities. A large onus rests on the design of institutions that will put this right into an enforceable framework. These institutions would have two tasks: to represent communities effectively and to provide rules of contract formation that take into account the difficulties of dealing with information as a resource. The author acknowledges that the effective operation of such institutions may not be at all easy to achieve.