Goading a Reluctant Dinosaur: Mutual Recognition Agreements as a Policy Response to the Misappropriation of Foreign Traditional Knowledge in the United States

Abstract

The objective of this Article is to evaluate the extent to which traditional knowledge issues are addressed under U.S. law, and propose the use of mutual recognition agreements as remedial measures. Part One surveys various government legislative initiatives on indigenous cultural heritage and describes the use of Native American tribal courts to control the exploitation of traditional knowledge. Part Two discusses some constitutional issues regarding domestic protection, including public domain, intellectual property rights, free access to information, freedom of religion, and free speech. After an assessment of the nature of international commitments (not) assumed by the U.S. in relation to traditional knowledge, Part Three summarizes the U.S. stance on ongoing debates at various global fora regarding the adoption of a binding international arrangement for the protection of traditional knowledge. Part Four proposes mutual recognition agreements ("MRAs") as alternatives to binding international treaties and highlights the need for the provision of adequate incentives to ensure U.S. commitment to protect traditional knowledge. It also suggests that only through a narrowly tailored approach which targets foreign traditional knowledge and eschews politics would there be any realistic hope of overcoming the deep-seated inertia in U.S. government circles regarding traditional knowledge.