Indigenous communities maintain a unique cultural heritage and are deeply connected to their ancestral lands. These communities possess traditional knowledge, which encompasses a wide range of cultural practices and expressions, including medicinal uses of plants, agricultural techniques, art, music, spiritual practices, and genetic resources. As industries increasingly turn to natural resources and ancient practices for innovation, traditional knowledge becomes critical, not just for the communities themselves but for the world at large. Unfortunately, this valuable knowledge is often vulnerable to exploitation through biopiracy, where companies commercialize it without permission or fair compensation.

The UN’s Declaration on the Rights of Indigenous Peoples, the 2024 WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge, and Indigenous Knowledge Databases offer some protections. However, many argue that these measures still fall short of fully safeguarding traditional knowledge.

Challenges in protecting traditional knowledge

A fundamental challenge in protecting traditional knowledge lies in the tension between indigenous knowledge systems and the Western parameters of intellectual property. Western IP systems typically recognize individual ownership, while traditional knowledge is usually collectively owned and passed down orally, making it difficult to fit into conventional IP categories such as patents, copyrights, and trademarks.

Another significant barrier has been the lack of formal documentation of traditional knowledge. Indigenous knowledge is often transmitted orally, making it less accessible to patent examiners or legal systems reliant on written records. This has led to instances where traditional knowledge has been exploited by external parties 

who claim patents on practices or resources that indigenous communities have used for centuries. The gap in documentation has left indigenous groups vulnerable to biopiracy, as their knowledge, not formally recorded, is treated as ‘new’ by legal systems that do not recognize oral traditions.

Real-world examples of biopiracy 

The Hoodia Case: The San people of Southern Africa have used the Hoodia plant as an appetite suppressant for centuries. When pharmaceutical companies sought to develop a weight-loss drug from the plant, they did so without first consulting or compensating the San people. After years of legal battles, the San were eventually compensated.

The Turmeric Case: Similarly, a patent was granted in the US for turmeric’s wound-healing properties, despite this knowledge being known and used by Indian communities for centuries. 

The patent was eventually overturned, but only after significant legal intervention. These examples illustrate the legal struggles and exploitation that indigenous peoples have faced over the years.

It is essential to recognize that traditional knowledge is not merely a resource to be extracted, but a living tradition intertwined with the identity, values, and spirituality of the people who maintain it. In some cases, such as the protection of tatreez embroidery and dabke folklore dancing in Palestine, this sense of identity is directly linked to community survival.

The UN Declaration and WIPO Treaty

The UN Declaration on the Rights of Indigenous Peoples already provides a foundation for recognizing indigenous peoples’ right to control their cultural heritage. However, it is clear that more must be done to implement these rights effectively in the context of IP and traditional knowledge.

Additionally, the adoption of the WIPO Treaty in May 2024 marks a significant step forward in recognizing the need to protect indigenous knowledge. The treaty mandates that patent applicants disclose the origins of any genetic resources or traditional knowledge used in their inventions, ensuring transparency. It also emphasizes benefit-sharing, requiring industries to compensate the indigenous communities whose knowledge contributes to commercial products.

However, critics argue that the declaration and the Treaty’s measures are not comprehensive enough, as their implementation remains largely optional for WIPO member states. This means that countries can choose not to fully implement these protections. This flexibility arguably undermines the Treaty’s effectiveness in providing the legal protections that indigenous communities urgently need.

Furthermore, the Treaty lacks clear enforcement mechanisms. While it calls for transparency and benefit-sharing, it does not outline specific penalties or legal recourse if companies or nations fail to comply. This creates an environment where the misuse of indigenous knowledge may still go unchecked.

Indigenous knowledge databases

In an effort to safeguard traditional knowledge and prevent biopiracy, databases have been created for indigenous communities to document and register their knowledge.

These databases, such as India’s Traditional Knowledge Digital Library, allow indigenous groups to officially record their practices, from medicinal uses of plants to agricultural techniques. By documenting traditional knowledge, communities can establish prior art, preventing companies from falsely claiming patents on knowledge that has long existed within indigenous cultures.

However, the process of recording knowledge in these databases has raised concerns. First, there are fears that once traditional knowledge is made publicly accessible, it could still be misused or commercialized without appropriate benefit-sharing with indigenous communities. Second, the act of formalizing traditional knowledge into digital databases risks stripping it of its cultural context and spiritual significance, reducing it to something that can be easily commodified by external parties. Some communities are understandably hesitant to participate, fearing that sharing their knowledge might actually expose them to exploitation.

Moving forward: what needs to be done?

Going forward, indigenous communities must be actively involved in decision-making processes related to their knowledge. This involves creating legal mechanisms that not only ensure transparency and benefit-sharing but also require consultation and consent at every stage. Furthermore, enforcement mechanisms must be put in place to hold companies and governments accountable when they fail to respect the rights of indigenous peoples.

Indigenous peoples’ traditional knowledge is invaluable and must be preserved, with the benefits rightfully belonging to them. While strides have been made in protecting traditional knowledge through intellectual property mechanisms, such as the 2024 WIPO Treaty, this is just the beginning of a much longer journey. The evolving IP framework must be strengthened with stronger enforcement measures, clearer obligations for states, and a deeper understanding of the cultural significance of indigenous knowledge.