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Ruth L. Okediji, Traditional Knowledge and Private Law, in The Oxford Handbook of the New Private Law (Andrew S. Gold, John C. P. Goldberg, Daniel B. Kelly, Emily Sherwin & Henry E. Smith eds., 2020).

Abstract: Many proponents of traditional knowledge (TK) seek legal protection comparable to the bundle of exclusive rights afforded creators of knowledge goods in the conventional intellectual property (IP) system. This chapter argues that the nature of the harm caused by such misuse differs meaningfully from the interests with which standard intellectual property law is occupied. It maps how private law claims have been applied, notably in Australia, to address TK misuse and highlights formal adherence by courts to the boundaries of private law subjects. Important aspects of the problem, such as how TK misuse disables cultural mechanisms designed to foster the production of knowledge goods for sustainable growth in Indigenous communities, while also posing a risk to cross-border scientific research important for pressing public health and environmental challenges, however remain beyond private law’s reach.The chapter identifies three types of harm that flow from the misuse of TK: relational harm, communal harm, and developmental harm. For such harms, individual private property—and common property for that matter—offers limited recourse. The chapter reflects on other private law tools that could extend to TK and that offer protection well beyond IP rights, but all are without the classic welfare limits attendant to knowledge goods under the IP system. The misalignment of harms, claims and remedies point to sui generis regimes as a more meaningful prospect for regulating TK.