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- Title
INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE: A PSYCHOLOGICAL APPROACH TO CONFLICTING CLAIMS OF CREATIVITY IN INTERNATIONAL LAW.
- Authors
Simon, Bradford S.
- Abstract
There is mounting evidence that current intellectual property (IP) rights laws are harming those they purport to benefit by fencing off the intellectual commons to future creators, transferring wealth from poor to rich states, and denying affordable access to such critical products as lifesaving drugs and seeds. Still, these laws persist and continue to expand their reach. IP laws are justified primarily by the seemingly neutral utilitarian argument that, by conferring incentives to individual inventors and creators, these laws foster individual creativity and benefit society at large. Recently, IP scholars have unveiled the individualistic romantic author conception at the heart of IP laws as part of an effort at rebalancing public and private benefits. At the same time, groups primarily from the developing world have asserted a counter-discourse to the IP regime, framed in part from outside the IP regime and in response to the globalization of IP laws. This counter-discourse has crystallized under the rubric of traditional knowledge, or "TK." The TK proponents call into question the cultural assumptions in the IP model and its distributive effects. Their central prescriptive solution calls for a sui generis legal regime to protect community rights. As yet there has been no attempt to compare the TK and IP models apart from their competing but parallel claims to rights and assertions of conflicting cultural norms. This Article assesses these competing models by enlisting a more encompassing perspective on the psychological nature of human cognition: namely creativity and bias. I argue the TK discourse mistakenly iterates a conceptual frame that contrasts individual knowledge and consciousness of people from "complex" societies with group knowledge and the collective consciousness of people from "simple" societies. At the same time, current findings from social psychology and the cognitive science of creativity reveal that the individual romantic conscious actor model of creativity embedded in the IP regime is largely inadequate while the assumptions underlying the TK model are a better reflection of the nature of creativity. Prevalent cognitive biases explain a vital aspect of how the IP model is sustained and accepted, including by those it is likely to harm. The power of these biases brings into focus the limitations of the authorship critique. Finally, I suggest that in the shorter term, "interest-based approaches to the conflict between the treatment of TK and industrial knowledge are likely to be more fruitful than "rights"- or "power"-based approaches. In the longer term, for a truly global legal regime to foster creativity it should be based not only on diverse cultural norms, let alone simplistic and inaccurate economic incentive models of creativity, but also on scientific understandings of human creativity.
- Subjects
INTELLECTUAL property; TRADITIONAL knowledge; INTERNATIONAL law; INTELLECTUAL property (International law); PROPERTY rights; CREATIVE thinking; INVENTIONS
- Publication
Berkeley Technology Law Journal, 2005, Vol 20, Issue 4, p1613
- ISSN
1086-3818
- Publication type
Article