0.8 Traditional knowledge  (Page 20/24)

Arguments based on Preservation. Another reason to advocate for protection of TK is that unlike many forms of intellectual property, cultural expressions may require protection in order to preserve their value. For example, religious ceremonies and sacred rituals may be valuable to a culture in part because they are not widespread; their rarity is integral to their place in the culture. In order to maintain the value of these traditions, it may be necessary to restrict their use.

Arguments based on Reparations. A third argument in favor of protection for TK is based upon the idea that many indigenous cultures have been damaged by invasive colonialism practiced by Western countries in the past few centuries. Supporters of this argument believe that protection of TK is a way of providing reparations, symbolic as well as monetary, for the wrongs committed against these indigenous groups.

How should tk be protected?

Traditional ip modes of protection

Copyright

As we have seen, many nations have used copyright law (either alone or in conjunction with  sui generis  laws) to protect TK. However, there are many arguments against using standard copyright to protect TK.

1. The fixation requirement.  Some copyright systems require that a work be fixed in a material form. This is an obstacle in the protection of TCEs, which are not always manifested in tangible expressions.
2. Originality.  Copyright law requires that a work be "original" in order to merit protection. Since most TK is "traditional" rather than new, this originality requirement will often be difficult to satisfy.
3. Authorship.  Much cultural expression develops gradually over time, through the contributions of several members of a community. If no single author or group of authors can be identified, it will be difficult for copyright protection to be obtained.
4. The term of protection.  The term of protection for copyright in most countries is traditionally limited, and not infinite. Many forms of TK are in fact older than the copyright term. As a result, copyright protection may be unavailable for them.

To avoid these difficulties, it is possible for countries to modify copyright legislation so that it has different requirements for folklore or cultural expression. For example, the  Tunis Model Law for Copyright in the Developing Countries , adopted in 1976, advocates extending copyright protection to works of folklore without requiring fixation and with an unlimited term of protection.

Trademark law

Some expressions of folklore might be registered as trademarks. Trademark law protects not only graphic representations, but also words and (in some countries) sounds. An advantage of protection through trademark law is its near indefinite term of protection, and its lack of a novelty requirement; it is sufficient for purposes of protection that the trademark has a "distinctive character." However, at least in some countries, trademark protection, unlike copyright and patent protection, requires that the applicant demonstrate use of the mark in commerce. Many cultural expressions do not have a direct link to commerce and are not used as designations of source to the consuming public. Furthermore, the application of trademark law to TK is complicated, since by registering a mark the community makes public TK that the community may desire to keep secret for religious or other reasons.