Borrowed Patterns: Traditional Knowledge, Cultural Expressions, and the Gaps in Western Intellectual Property
By Casey Scott McKay ·
Intellectual property law was built around identifiable authors, fixed works, novel inventions, and finite terms, and traditional knowledge fits none of those categories. This article explains why: why a design held collectively for two hundred years has no copyright, why a plant use known to a community for generations is unpatentable prior art that nonetheless supports someone else's patent, and why the doctrines that would seem to help — moral rights, the right of publicity, unfair competition — reach individuals rather than peoples. It sets out the mechanisms that do exist in United States law, including the Indian Arts and Crafts Act, the section 2(a) bar on falsely suggesting a connection, and the tribal insignia database, and then the international architecture that is moving faster: the Nagoya Protocol's access and benefit sharing regime and the 2024 WIPO treaty introducing a disclosure requirement for genetic resources and associated traditional knowledge. It closes with what a practitioner advising a company that wants to use such material should actually do, which is mostly contract, consultation, and attribution rather than law.
IP and Technology > Copyright | Article | Published 15 September 2024 - Updated 17 April 2026 | Casey Scott McKay - marksy.us
Summary. Intellectual property law was built around identifiable authors, fixed works, novel inventions, and finite terms, and traditional knowledge fits none of those categories. This article explains why a design held collectively for two hundred years has no copyright, why a plant use known to a community for generations supports someone else's patent, and why the doctrines that would seem to help reach individuals rather than peoples. It sets out the mechanisms that do exist in United States law, then the international architecture that is moving faster, and closes with what a practitioner advising a company that wants to use such material should actually do.
Keywords: traditional knowledge · traditional cultural expressions · indigenous intellectual property · Indian Arts and Crafts Act · section 2(a) false suggestion · tribal insignia database · WIPO genetic resources treaty · Nagoya Protocol · access and benefit sharing · biopiracy · defensive publication · TK Labels · free prior and informed consent · NAGPRA · geographical indications
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