Whether you celebrate it or not, Halloween provides a great occasion to reflect on another type of human creativity: folklore, also called 'Traditional Knowledge' in legal jargon. Volha Parfenchyk explores intellectual property and traditional knowledge and sets out the protection mechanisms that apply.
Although the Halloween holiday has been certainly monetised (just look at the number of Halloween-related patents), at the core of the holiday lies a type of human creation that has less obvious relationships with marketing, capitalism and the intellectual property (IP) rights regime that enables them.
The origins of Halloween
The origins of Halloween itself lie in the Celtic-Christian traditions of remembering the dead, with the roots of many modern attributes of this holiday to be found in old legends and customs. The familiar vampire theme, for instance, links back to one of the most well-known stories about vampires, Bram Stocker's Dracula, which is itself believed to have been inspired by old Central European folk tales of the blood-thirsty Count Dracula.
Are intellectual property and traditional knowledge friends or foes?
Due to its nature, traditional knowledge does not lend itself very easily to IP protection. It can be difficult to capture under the IP regime, as it does not always meet the formal legal criteria required to classify traditional knowledge as IP and grant it protection.
According to the Berne Convention for the Protection of Literary and Artistic Works, for example, works are protected by copyright only if expressed in a tangible form. Likewise, copyright protection is always limited in time. Folklore, however, does not always have a 'physical' shape, as it is often passed from generation to generation orally. In addition, much traditional knowledge lies outside the timeframes that would allow it to be protected by copyright. Similarly, traditional knowledge is not always easy to establish as 'original', another criterion required by the copyright protection system.
Doubts also have been raised as to whether intellectual property and traditional knowledge can co-exist. There are concerns that claiming IP rights on traditional knowledge could lead to its misappropriation, with traditional communities having no or little say about how their creations should be used. One of the most notorious examples of this is the 1995 patent granted by the US Patent and Trademark Office (USPTO) to protect the use of turmeric; a plant that has been used in Indian Ayurvedic medicine for centuries to heal wounds (among other uses).
While it was eventually revoked due to a lack of novelty and inventive step (two requirements for patent protection), this was due to the efforts of the Indian government, which had managed to find written sources confirming the existence of the prior art regarding the use of turmeric as wound-healing substance.
Mechanisms for protection
Concerns about the right form and degree of protection of traditional knowledge gave rise to several initiatives looking to solve these problems.
At the local level, some countries have implemented a sui generis ('of its own kind') approach to intellectual property and the protection of traditional knowledge. As this approach considers the peculiar character of traditional knowledge, it can be a more suitable legal regime for the protection of this type of human creation. In contrast, other countries have opted to place traditional knowledge within the existing IP regime, as can be seen in the Ghana Copyright Act 2005, for example.
At the international level, efforts have also been made to develop a suitable legal framework for protecting traditional knowledge, including the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge adopted in May 2024. Among other things, this Treaty obliges patent applicants to disclose any local communities which provided the traditional knowledge underlying inventions.
It's not easy to tell yet (if at all) which approach is better for protecting traditional knowledge. What is clear, however, is that IP law, as law in general, is also a type of human creation. It is not set in stone and can be modified to protect communities and assets requiring protection.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.