LIJDLR

MISAPPROPRIATION OF INDIGENOUS TRADITIONAL DESIGNS: THE NEED FOR SUI GENERIS PROTECTION

Zainab Zubair, BA.LLB (H), 9th Semester, Student at UPES, Dehradun (India)

There exists a vast cultural heritage of indigenous peoples all over the globe, which is demonstrated through traditional artistic patterns and designs, bearing significant cosmological and spiritual importance for communities of indigenous peoples. Yet, intellectual property law of today is hardly designed to protect it. Indigenous traditional knowledge (ITK) and traditional cultural expressions (TCEs) are communal, intergenerational, and spiritually rooted knowledge systems that existing legal regimes including copyright, trademark, and design patent protection — were not designed to accommodate. The weaknesses inherent in the existing intellectual property systems in protecting indigenous traditional designs against commercial exploitation are analyzed in this research, which posits that only a sui generis legal system can provide effective protection. This study evaluates the various domestic sui generis initiatives in four different nations – New Zealand, Panama, Australia, and India, using a comparative approach to identify the common elements of successful design protection systems. In addition, this study considers the existing international legal framework in relation to the Nagoya Protocol on Access and Benefit Sharing, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and WIPO-IGC negotiations on genetic resources, traditional knowledge and folklore. The research work provides the sui generis model framework based on the comparative and normative analysis. Some of its elements are voluntary registration, moral rights for the sake of cultural integrity, obligation to share benefits, prior informed consent, collective rights of indigenous people, and enforceable civil remedies. According to the conclusions reached by the research work, the protection of indigenous traditional designs should include legislative measures both on the national and international levels because it involves matters of cultural self-determination and indigenous dignity.

📄 Type 🔍 Information
Research Paper LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 2, Page 2597–2621.
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