Saving the village: Conserving jurisprudential diversity in the international protection of traditional knowledge

Introduction: Protect the knowledge but betray the tradition? In early ecclesiastical law, “tradition” was the crime of handing over sacred texts and information about the community to persecutors; indeed the word “tradition” shares its roots with “traitor” and “betrayal,” which invokes the concept that “handing over” or “passing on” of knowledge need not be benign, but may be injurious, even perfidious. “Tradition” does more positively connote customs, laws, practices and beliefs that are passed down within a community. However, the two-edged nature of the word recalls that some forms of transmitting traditional knowledge (TK) and making it available to the public can be seen as a betrayal or a violation of customary laws, which causes offence or gravely damages a community. Jefferson's characterization of knowledge, establishing it as the iconic non-rivalrous public good – “he who receives an idea from me … as he who lights a taper at mine, receives light without darkening me” – may not convince those communities who fear that careless acts by others to gain illumination from TK may in fact diminish, or extinguish, the original flame, and darken their communities' future. Many local and indigenous communities are concerned that growing global interest in their TK and traditional cultural expressions is not matched by respect for the customs, laws and beliefs that identify and sustain their communities and that shape the very heritage that appeals to external consumers.