Indigenous Peoples’ Cultural Rights and the Controversy over Commercial Use of Their Traditional Knowledge

Traditional knowledge represents an essential element of indigenous peoples’ cultural identity and distinctiveness. Indigenous peoples’ traditional knowledge – which is often inextricably linked with biogenetic resources – in some cases may provide formidable opportunities of exploitation for commercial purposes in particularly important fields of human life, like nutrition, health care, resource management, etc. This situation has led to an explosion of the practice commonly defined as ‘biopiracy’, consisting in stealing examples of indigenous peoples’ traditional knowledge and patenting them as new inventions. The present regulation of international law on intellectual property rights provides a florid ground for this kind of practice; at the same time, it does not take into account the specificity of traditional knowledge, with the result that the usual schemes of intellectual property rights are of very little help in allowing indigenous peoples to adequately safeguard their knowledge and traditions. In order to find a solution to this problem, the present contribution advocates the elaboration of specific sui-generis regimes which are flexible enough to ensure proper safeguarding of traditional knowledge in its multifaceted expressions.