As intellectual property continues to expand its domain, proposals exist to extend its reach to such cultural artifacts as folk songs, tribal art work, medicines, know-how, which are part of what is sometimes referred to as traditional and sometimes referred to as indigenous knowledge. The World Intellectual Property Organization published in 2001 a substantive study, based on years of extensive research, focused on the intellectual property needs of traditional groups in various countries. The goal of this study, and the more general expansion of intellectual property law to cover such varied artifacts from Hopi dance and kachinas to uses of neem, is in most cases to preserve certain cultural artifacts and protect them from marketing by industry in the developed world. In other cases, the goal is to promote marketing by traditional groups of their artifacts. Whether the goal is one of preservation or of commodification, there is something strange about this use of intellectual property. A grant of exclusive rights by the government, intellectual property is often justified by serving the goal of promoting innovation and progress. The exclusive right is justified as necessary to create new products and their markets. The production of traditional knowledge, however, does not need to be “incentivized;” the knowledge and its artifacts already exist. The application of intellectual property rights to items like traditional music and dance or signs and devices or know- how about medicine is arguably misguided. Scholars have criticized the increased propertization of intellectual property to the detriment of the public domain and non-market values. For such scholars, protecting traditional knowledge through patent, copyright, and trademark is another example of the pernicious trend. In addition, treating the artifacts of traditional knowledge as intellectual property, as in the same class as pop music, the great American novel, Cipro, Mickey Mouse, and The Terminator, subverts the notions of traditional and modem. Intellectual property law falls victim to post-modern impulses to sever the signifier (the forms of intellectual property) from the signified (innovation, newness, originality). The traditional knowledge debate seems a topsy-turvy one indeed.

Columbia Journal of Asian Law, Vol. 17 No. 1 (2003)