Protection of Traditional Knowledge: Rethinking Intellectual Property Frameworks in the Global South

Abstract

The protection of traditional knowledge (TK) remains one of the most persistent structural challenges within international intellectual property law. Conventional IP regimes—built around individual authorship, novelty, fixation, and market-based exclusivity—are fundamentally misaligned with knowledge systems that are collective, cumulative, intergenerational, and embedded in social, cultural, and spiritual practices. This article undertakes a doctrinal and critical examination of how international intellectual property frameworks have attempted to address traditional knowledge, focusing on the TRIPS Agreement, the Convention on Biological Diversity, the Nagoya Protocol, and norm-development efforts within the World Intellectual Property Organization. Drawing on Third World Approaches to International Law (TWAIL) and legal pluralism, and grounded in comparative statutory experiences from India, Kenya, and Brazil, with reference to Peru, South Africa, the Philippines, and Bolivia, the article argues that prevailing approaches to TK protection remain constrained by the epistemic assumptions of intellectual property law itself. It contends that meaningful protection requires a shift away from property-centric models toward plural, community- governed legal frameworks grounded in self-determination, distributive justice, and epistemic recognition.