Legal protection for traditional knowledge raises difficult questions at the intersection of innovation policy and knowledge governance, with important implications for Indigenous peoples’ rights. A significant source of tension has been the difficulty in delineating entitlement interests in traditional knowledge consistent with prevailing doctrinal limits to intellectual property rights, such as the public domain. This paper advances the idea that, properly applied, the public domain does not constitute a barrier to the effective protection of traditional knowledge, and that a thoughtfully designed, custom-built public domain for traditional knowledge would align traditional knowledge protection with the overall architecture of the global innovation framework.
Ruth Okediji is a CIGI senior fellow and chair of the expert working group on international intellectual property, traditional knowledge and genetic resources. She is the Jeremiah Smith, Jr. Professor of Law at Harvard Law School and serves as co-director of the Berkman Klein Center for Internet & Society.