As intellectual property continues to expand its domain, proposals exist to extend its reach to the artifacts of traditional knowledge, songs, tribal art work, medicines, know-how that 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 modern. 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.

My argument is that the terms of the traditional knowledge debate are actually very traditional, the continuation of tensions between North and South in ownership and control of resources. At stake also are the tensions between the growth of a market culture and a communitarian, gift-based culture. Even though these tensions are played out in the arena of intellectual property, it is important to recognize the difference between the traditional knowledge debate and debates over the expansion of intellectual property in other areas, such as with academic culture or with the Internet. The traditional knowledge debate occurs in the context of a culture clash between the developing and developed worlds, between different social structures in the South and in the North (as well as structures within those two regions). The questions of whether an artifact of traditional knowledge should have owners and of who the owner should be determine issues of development, sovereignty, and control over resources.

Later in this paper I analyze in detail patents over neem, basmati rice, and turmeric, but let me briefly touch on the neem patent for the sake of illustration. Neem, also known as the Indian lilac, is the source of many medicinal and cosmetic products. The bark and leaves of the tree can be used for therapeutic purposes, many of which have been known within India for centuries. There are also, very likely, many uses that have not been discovered yet. What role should intellectual property play in defining the ownership and control of these uses, both old and new? Those who are skeptical of intellectual property (and in many other respects, I consider myself in this camp) may argue that intellectual property should play no role, that neem and its uses should remain unowned and in the "public domain." But placing neem in the public domain does not necessarily mean that it will be unowned. The public domain is a sanctuary only from the control of intellectual property law; contract, the rule of force, and technology can be used to capture items, including need from the public domain. An alternative, in order to ensure that traditional groups can continue to use and further exploit neem, is to vest an intellectual property right in the traditional group itself. Who that group is, what the contours of the right is, and what uses are protected are all questions that will need to be faced. But the creation of a right vested appropriately resolves many problems that are raised by putting neem in the public domain. Specifically, intellectual property rights can provide a countervailing force to those of multinational companies that may exploit the products on traditional knowledge for their own benefit.