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Abstract

Traditional cultural expressions (“TCE”), which include dances, songs, and pottery, and traditional knowledge (“TK”), which includes plant properties, agricultural practices, and artistic techniques, are inarguably valuable both to the groups that create them and to outsiders who wish to use or sell them. International law broadly, and intellectual property (“IP”) law more specifically, are not well-suited to protect the interests of creators of TCE and TK. A persistent pattern of exploitation of traditional expressions and knowledge has been well-documented. But responses have been dissatisfying, and sometimes begin from a place of disregarding the value of these contributions. At present, when a dispute occurs, there is often no clear path forward for an Indigenous or Global South community to demand accountability, particularly in cases where the expressions or knowledge fit poorly with pre-existing IP law. There is also no established model for groups wishing to partner to use these resources in a non-exploitative fashion. This note recommends transferring restorative justice principles—which emphasize accountability and forming longer-term, sustainable relationships— to this context. Under the restorative justice model, communities with these valuable expressions and knowledge take the lead in determining what agreements or restitution best suit their cultural and economic values, and outsiders work to adhere to those wishes and requirements. While there are limitations to a restorative justice approach, the benefits are meaningful and worthy of ongoing development.

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