Why Is Traditional Knowledge Different from All Other Intellectual Property?

Washburn University School of Law

Scholars and activists who advocate enhancing the rights of indigenous groups have frequently argued that such knowledge is analogous to the kinds of knowledge that are eligible for protection under intellectual property laws—in particular, copyright law and patent law—and thus should enjoy comparable legal status. In this brief essay, I argue that this analytical strategy is unhelpful. Traditional knowledge differs in fundamental ways from the kinds of inventions and works of art to which we are accustomed to extend intellectual property protection. Identification of those differences leads not to the conclusion that indigenous groups should not enjoy any enhanced legal rights, but rather to the conclusion that the rights they are given need not—and should not—resemble patents or copyrights.