Customary Law and Intellectual Property

This page provides an introduction to: (i) the role of the customary laws and protocols of indigenous and local communities in relation to their traditional knowledge (TK), genetic resources and traditional cultural expressions (TCEs)/expressions of folklore, and (ii) the relationship of customary laws with the intellectual property (IP) system.

Introduction

Customary laws are central to the very identity of many indigenous, local and other traditional communities. These laws concern many aspects of their life as communities. They can define rights and responsibilities of community members on important aspects of their life, culture and world view: customary law can relate to use of and access to natural resources, rights and obligations relating to land, inheritance and property, conduct of spiritual life, maintenance of cultural heritage and knowledge systems, and many other matters.

Maintaining customary laws can be crucial for the continuing vitality of the intellectual, cultural and spiritual life and heritage of many communities. For instance, customary laws can define how traditional cultural heritage is shared and developed, and how TK systems are appropriately sustained and managed within a community.

So maintaining customary laws even within the original community is an important concern; it is often a key aspect of preserving the community's very cultural identity. But communities have also called for various forms of respect and recognition of their customary laws beyond the scope of the communities themselves. This can raise complex issues in national constitutional law, and may arise, for example, in claims over land and natural resources.

Such issues can also arise in considering the interface between customary laws and practices and the conventional IP, and in the consideration of appropriate forms of protection of TK and TCEs against misuse and misappropriation.

Basic resources:

• WIPO revised issues paper [PDF]
• WIPO study on customary law in the Andean region, prepared by indigenous legal expert Rodrigo de la Cruz (Spanish [PDF]) (English [PDF]):
  - report on regional workshop [PDF]
  - indigenous peoples in the Andean region [PDF]
  - materials on Bolivia [PDF]
  - materials on Peru [PPT]
  - materials on Ecuador [PPT]
  - materials on Colombia [PDF]
  - materials on Venezuela [PDF]
• Extensive bibliography prepared by Preston Hardison, Tulalip Tribes [XLS]
• A set of suggested guidelines for study papers [PDF]