Traditional knowledge, biogenetic resources, genetic engineering and intellectual property rights

The advent of patent law in international law has drastically transformed one of the most important aspects of human relations related to the use and management of economic resources. The need of encouraging scientific research and maximizing the potentialities of human fantasy and creativity has led the international community to reach a global consensus on the recognition of legally protected exclusive rights in favour of the authors of discoveries and inventions as a form of reward for their contribution to human development. Hence, there is no doubt that patent law represents a very powerful engine for the social progress of the world society. Its operation, however, is not immune from significant side-effects. Many traditional societies – whose model of life was mainly based on solidarity and sharing of common resources and knowledge – have in fact been upset by the new rules of patent law, according to which single individuals retain exclusive rights of management and use of newly developed knowledge, making it available to the collectivity only through paying a price to its holder(s). These side-effects are today particularly exacerbated by the fact that the rules in point – although applicable in principle only to ‘new’ discoveries and inventions – are often used for appropriating knowledge that has been shared by a collectivity from time immemorial, but that, having always been unknown to the general public in its specific characters, may be easily miscoloured as ‘original’ and ‘new’. This is the case, in particular, of ‘traditional knowledge’ originally developed by groups and communities and used by them throughout the centuries as part of their social life and distinctive identity. It is objectively indispensable that such knowledge is adequately safeguarded through effective forms of protection, for preventing biopiracy and to avoid it becoming the object of wild and uncontrolled exploitation by adventurers or scientific researchers. In this regard, the conclusion of this study is that only an ad hoc sui generis system of protection of TK (developed at the international level as part – directly or not – of the WTO system), able to take into account all the implications of such knowledge and flexible enough to adjust to the specific peculiarities of its different manifestations and to the different goals pursued by its holders through its use, may be considered as really effective for achieving such a task.