Customary laws may play an important role in preserving and regulating the use of traditional knowledge in certain local/indigenous communities. Such laws are generally based on the principles of collective right and free flow of knowledge. Seeking to extend existing modern systems of IPRs protection to such communities might undermine their existing customary systems, and defeat many of the objectives that IPRs are supposed to contribute to.
The protection of TRM could potentially be addressed through the enforcement of the customary laws of local/indigenous communities, rather than by the application of the current IPRs models178. The success of a customary law approach would depend on the its formal recognition, accompanied by adequate legal arrangements concerning matters such as self-determination, land rights and biodiversity protection. The recognition of communities’ customary law, hence, raises delicate political issues in the framework of the modern nation state, the relationship between indigenous peoples and national governments being problematic in many countries179.
178 The Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity, requested further consideration of the role of customary laws and practices in relation to the protection of genetic resources and TK, innovations and practices, and their relationship with intellectual property rights (Decision VI/24 C 3(b),The Hague, 7 - 19 April 2002).
179 “Some indigenous peoples understand themselves to be a nation within a nation or a nation whose peoples cross the borders of two or more nations. Some governments consider themselves to be the sole and entirely sufficient voice of all the peoples within their sovereign territory” (The Crucible Group, 2000, p. 77).
An important limitation of the customary law approach is that, if adopted at the national level, it would not encompass - very much like in the case of sui generis regimes discussed above- recognition of the rights conferred in foreign countries, unless specific agreements on the matter are put in practice under international agreements or unilaterally under national laws.
Under the current UK patent law, for instance, the presumption of inventorship in favour of the applicant can be overridden when another person was entitled by virtue of “any foreign law, treaty, or international convention” (Section 7.2.b.ii). Thus, if customary law were recognised in the country where the traditional knowledge originated, this provision might result in protection of the original holders of knowledge (who may get the transfer of ownership of the patent obtained by a third party or request its invalidation).