Developing an Indigenized Limitations and Exceptions Framework within the Global Intellectual Property System

• 成果类型: Article
• 署名作者: Majekolagbe, Faith O.
• 署名单位: University of Alberta; Harvard University
• 刊物名称: HARVARD INTERNATIONAL LAW JOURNAL
• ISSN/ISSBN: 0017-8063; 2153-2494
• 发表日期: 2025
• 页码: 209-244
• 关键词: TRADITIONAL KNOWLEDGE

摘要

A key issue in international intellectual property (`IP) negotiations for protecting Indigenous interests in genetic resources, traditional knowledge, and cultural expression is the integration of the framework of limitations and exceptions (`L&Es). This framework allows certain acts that would otherwise infringe on IP rights and protection, limiting the scope of exclusive rights and legal protection for rightsholders to create a balanced IP system. However, L&Es can undermine Indigenous rights if applied without sensitivity to the cultural, spiritual, and economic interests of Indigenous people. This Article argues for an Indigenized L&Es framework, which may necessitate excluding L&Es in certain legal instruments. The 2024 World Intellectual Property Organization Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, which omits L&Es, is cited as a positive example. While L&Es may be appropriate in other contexts, such as proposed treaties on traditional knowledge and cultural expressions, they must be developed and implemented with meaningful Indigenous participation to avoid harmful impacts and must respect Indigenous knowledge governance frameworks.