Whose Ancient Wisdom Is It — and Who Has the Right to Profit from It?

Can Knowledge Be Publicly Available and Still Belong to a Community?

Imagine a company finding an account of a traditional method of preparing a plant online. It appears in a digital library, accessible without a password and readily turned into advertising copy. The company develops a product from it, adds a story about an “ancient secret,” and charges for its service. It includes a link to the library in its documentation; nobody asks anything of the people whose ancestors preserved that knowledge. Has the company thereby fulfilled all its obligations?

The legal answer is not always straightforward. If information is not protected by a valid exclusive right, certain uses may be permissible under a particular legal system. It does not follow that the bearers of the tradition have consented, that the company has fairly described the origin, or that it has established equitable terms of cooperation. Public availability of information, the legal ability to use it, and cultural consent are not the same thing. The World Intellectual Property Organization (WIPO) draws on precisely this distinction in some of its explanations of traditional knowledge and traditional cultural expressions. [1][2]

In everyday language, “public” means that something is visible to us. In law, the public domain is not simply another name for something posted online: depending on the type of right and the jurisdiction, it may mean that certain copyright or other exclusive protection does not exist or has expired. Special regimes for traditional knowledge may treat public accessibility differently. This, too, varies by country and type of protection. Once knowledge has been described in a book or archive, its treatment when the novelty of a patent application is assessed may change; that does not resolve every moral relationship connected to how the knowledge came into being. A particular record may be openly visible while special legislation or the rules of its knowledge holders still impose conditions on its use; the extent to which those conditions are legally enforceable depends on the case. [1][3]

There is another misleading shortcut. To claim that every piece of traditional knowledge invariably belongs to one unchanging “owner” would be to treat a living tradition as an object in a warehouse. Traditions are passed on, diverge, change, and are often shaped together by multiple generations or interconnected communities. Even within the same setting, people do not always agree on what should be public, who may speak on its behalf, or whether a particular sale is acceptable. Ownership alone is therefore not the whole question. We must ask who has the authority to decide, through what process, and about which specific use.

Here, an outside supplier may have an enormous commercial advantage. Someone else can afford a brand, lawyers, translations, advertising, and international distribution, while the people whose knowledge underpins the product have no comparable ability to set the terms. This is not proof that every such case is unlawful or that every use is harmful. It is a reason to treat the imbalance of negotiating power as part of the story, not a footnote. [1][4]

When the Law Looks for an Individual Author but Tradition Lives Collectively

With a modern book, it is usually possible to ask who wrote it and when. A patent application is examined for the inventor, novelty, and other statutory requirements. A trademark distinguishes goods or services in the marketplace. A trade secret depends on certain conditions of confidentiality. Each of these mechanisms protects something, but none automatically encompasses the entire relationship among a community, its knowledge, rituals, plants, and stories developed across generations. [1][2]

Consider a song preserved through group performance, or knowledge of a plant passed down among relatives, healers, and teachers. The demand for one identifiable modern author and a fixed starting date for protection may not fit the way such heritage came into being. Even where a new individual performance, recording, or text can be protected under ordinary rules, this does not mean the tradition as a whole is protected. The distinction matters especially when a company acquires rights in its packaging or a recording and then gives the public the impression that it has also gained cultural authority over the entire tradition. [1][3]

That is why WIPO distinguishes between defensive protection and positive protection of traditional knowledge. The first seeks to prevent a third party from improperly acquiring an exclusive right over something that is not its new invention. The second looks for ways that traditional knowledge holders themselves might control certain uses or assert rights. These approaches do not constitute a single global law, and they do not in themselves guarantee that every seller will pay a specified share to a community. They address different legal questions, which marketing narratives often collapse into one: “This knowledge is old, so it is free for anyone to use” — or, conversely, “This knowledge is ours, so we are automatically entitled to a share of every present-day sale.” Neither conclusion is that simple. [2]

Commercial benefit does not, moreover, arise only from exclusive rights. It can arise from a business model, access to customers, control over distribution, and the story told about origins. A company might not try to patent an old technique at all; it might rename it and sell it in a new language. The legal dispute may therefore differ from the ethical one. A patent office can reject an unjustified claim to an invention; that alone cannot answer whether it is fair for a community to appear as an anonymous backdrop in a marketing story.

The same applies to the word authentic. There is no universal seal that automatically confers cultural credibility on every gathering, product, or teacher. Practices can legitimately change; people are entitled to create something new. But freedom to create is not permission to invent a line of transmission or to speak on behalf of a community that has granted no such authority. [4][5]

Who Is Entitled to Decide — and Who Can Say No?

A legal system's difficulty in identifying one author does not mean that the people involved have no rules, responsibilities, or boundaries. Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples expressly addresses the right to maintain, control, protect, and develop cultural heritage, traditional knowledge, and cultural expressions. It calls on states, in conjunction with Indigenous peoples, to take effective measures to recognize and protect these rights; it is not itself an international treaty establishing a directly enforceable system of private licences. It is an important international normative framework, but it does not establish a universal private licence specifying the contracting party, payment, or compensation for every use. [6]

UNESCO's Ethical Principles for Safeguarding Intangible Cultural Heritage move closer to the practical relationship at issue. Their fourth principle refers to transparent collaboration, dialogue, negotiation, and the free, prior, sustained, and informed consent of communities. The seventh draws attention to the moral and material interests of heritage bearers, while the tenth emphasizes their decisive role in identifying threats such as decontextualization, commodification, and misrepresentation. At the same time, the eighth calls for respect for the living and dynamic nature of heritage, and the fifth for respect for customary practices governing access, even when they limit general public access. These principles are ethical guidelines, not licensing contracts in themselves. [4]

That last point also guards against easy romanticization. Tradition bearers are not obliged to repeat an identical form forever just so an outsider will consider them “genuine.” They can adapt, teach, perform, establish businesses, publish, and sell. Sometimes they wish to share their knowledge with the world, and sometimes they do not; some elements are intended for wider audiences, others only for particular people and circumstances. Insisting that they remain outside the economy can be another way of taking away their power to decide. [4][5]

But who, exactly, can grant consent? A community is not necessarily a company with one authorized signatory. It may have representative institutions, kinship relationships, teaching lineages, access rules, and differing internal perspectives. Speaking to one person does not automatically amount to the consent of everyone. An outside organization therefore cannot prove cultural authorization merely by showing a photograph of a local collaborator or a receipt for raw materials. In a specific case, it must be clear what use was consented to, who gave that consent, and whether they had the authority to make that decision. These are investigative and ethical questions; legal procedures vary among countries and kinds of knowledge. [4][7]

Nor is consent a thank-you added at the end of an event. If a provider designs a programme, publishes an advertisement, and only then includes a community's name among its “inspirations,” that does not necessarily mean it has respected the community's wishes. Conversely, the absence of a publicly available contract is not grounds for concluding that no consent was given. Some agreements are private; others concern sensitive aspects of heritage that do not belong in public research materials. Investigative journalism should insist on what can be verified, not on disclosing everything at any cost.

When Traditional Knowledge Becomes a Patent Trail

India developed the Traditional Knowledge Digital Library (TKDL) so that patent examiners could more easily identify previously documented knowledge from certain traditional medical systems. Part of the problem was very specific: a patent application might formulate a claim of novelty in a language and classification that obscures an earlier description held in another language or collection. Digitized, systematically organized documentation can thus help show that a purported invention is not new. Access to the TKDL database itself is not an unrestricted public online right: patent offices obtain access under specific nondisclosure agreements that limit the disclosure of its contents to third parties. [8][21]

Such work can provide an effective defence against an unwarranted monopoly. If a patent office rejects an unjustified exclusive claim on the basis of relevant evidence, the market does not acquire a new private owner of an already known solution. But imagine that a company uses the same knowledge without a patent and sells a service built around its reputation. TKDL's success in examining patent novelty does not, by itself, mean that a community has been brought into the commercial relationship or paid. Preventing an unjustified patent is not the same thing as establishing equitable benefit-sharing. [2][8]

Documentation has another side, too. In its guidance, WIPO warns that poorly considered publication of traditional knowledge may reveal information its holders never wished to make widely available. Once something is online, copying becomes easier, regardless of whether the cultural conditions of its transmission were respected. A good registry must therefore distinguish between material intended for examiners under agreed conditions, documentation to which community access is restricted, and genuinely publicly released material; none of those categories automatically eliminates all other rights or obligations. [9][21]

This is not an argument against archives. Without archiving, languages, names, documents, and traces of historical injustices may be lost. But safeguarding knowledge should not become a process in which a researcher first demands full disclosure and then tells a community it can no longer control what has been published. Research rigour does not require an article to reproduce restricted ceremonial formulas, private practices, or details their bearers do not want revealed. [9]

Here we see the limits of good intentions. A digital collection may reduce the risk of unjustified patents while raising new questions of access. Its value depends not just on how much information it contains, but also on who decides what may be documented, who may see it, and what happens when the rules governing its use change.

Three Different Paths to Legal Recognition

National and international responses are often mentioned as though they all accomplish the same thing. Yet the examples of Peru, New Zealand, and the WIPO treaty show that legislation can protect very different interests: control over certain knowledge, recognition of cultural origin, or transparency in patent procedures. None of these models can fairly be presented as a universal solution. [10][11][12]

Peru: collective knowledge associated with biological resources. Peru's Law No. 27811 establishes a special system of protection for the collective knowledge of Indigenous peoples associated with biological resources. It addresses the role of representative organizations, prior informed consent, public, confidential, and local registers, and certain conditions for use and licensing. Peru's INDECOPI has also prepared an explanatory guide for communities, including versions in Spanish, Quechua, Aymara, Asháninka, and Awajún. The choice of languages itself demonstrates why rights must not be discussed solely in the language of a government office. [10][13]

For access intended for commercial or industrial use, Article 7 provides for a licensing agreement. Article 27(c) requires such an agreement to include an initial monetary or other form of compensation and, where relevant sales arise, at least 5% of the gross sales value before tax for Indigenous peoples in respect of products developed directly or indirectly from their collective knowledge. Separately, Article 8 provides for at least 10% of gross sales before tax to go to the Fund for the Development of Indigenous Peoples when products developed from collective knowledge are marketed. The law also addresses the particular issue of knowledge that is already in the public domain, so these percentages cannot be applied unconditionally to every published tradition. They are percentages prescribed by a specific Peruvian regime; they do not establish that payments were actually made in particular transactions. [20]

The law does not mean that any community anywhere in the world can invoke it to control every old story, meditation practice, or artistic expression. Its subject matter is defined: collective knowledge associated with biological resources within Peru's legal framework. Nor does the existence of statutory percentages prove that a fair agreement was concluded in every transaction or that benefits were in fact paid. Assessing that would require contracts, information about authority to act, circumstances, and independent evidence. [10]

New Zealand: recognition of the origin of the Ka Mate haka. The Ka Mate haka is associated with the chief Te Rauparaha and the Ngāti Toa Rangatira people. New Zealand's Haka Ka Mate Attribution Act 2014 expressly recognizes the cultural significance of this expression and the community's right to attribution in legally specified uses. Its schedule also recounts Ngāti Toa perspectives on their connection to Ka Mate and their role as guardians (kaitiaki). Guidelines from the responsible ministry, developed together with Ngāti Toa Rangatira, explain how and when Te Rauparaha must be clearly and sufficiently prominently acknowledged as its composer. These are documented views of a particular community, presented in legal materials and jointly developed guidelines, not assertions on behalf of all Māori. [11][14]

The limits of the Act are just as important. The attribution requirement applies to certain commercial publications, public communications, and films, but section 10 expressly exempts performances themselves (including those by kapa haka groups), educational uses, and material prepared for criticism, review, or reporting on current events. Exemptions for certain further public communications are also linked to noncommercial purposes. The Act does not create a blanket ban on performing Ka Mate, nor does it give the community exclusive ownership of every haka. It provides meaningful symbolic and legal recognition of a connection; for a breach of the attribution right, it principally provides for declaratory relief or an order requiring compliance, rather than a general claim to royalties. A right to be credited is not, in itself, a right to a percentage of the revenue from every performance. [11][14]

WIPO: disclosure in patent applications. WIPO member states adopted the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge on 24 May 2024. At its core are disclosure requirements in patent applications: where an invention is based on genetic resources, the country of origin or source is relevant; where associated traditional knowledge is involved, the provisions call for identification of the Indigenous people or local community that provided the knowledge, or the source of that knowledge if direct identification is unknown or inapplicable. This is not a general treaty on the marketing of cultural ceremonies, nor does it automatically entitle every community to a fee when a product is sold. [12][15]

The actual timeline of its legal status also matters. Adoption in 2024 did not mean entry into force. According to WIPO's public record as of 8 July 2026, reviewed again on 15 October 2026, the treaty had not yet entered into force: the deposited instruments listed were those of Malawi (2024), Uganda (2025), Albania (2026), and Peru (2026). Fifteen ratifications or accessions are required for entry into force. This describes the status at the time of review, not a permanent property of the treaty, and it must therefore be checked again before online publication. [12][16]

These three examples show why it is not enough to say that “tradition is legally protected.” The Peruvian regime concerns a defined category of collective knowledge associated with biology; New Zealand's law recognizes the origin of a particular haka; the WIPO treaty concerns patent disclosure in a specified field. Each measure can correct something important. None, by itself, answers every question about who may profit, who determines cultural meaning, or who has the right to refuse a use.

Which Right Addresses Which Problem?

How to read this table: This comparison addresses different legal and ethical mechanisms, not actual payments or a universal consent procedure. The Peruvian 5% and 10% thresholds stem from different statutory provisions and do not form a universal combined rate. The WIPO treaty status is time-sensitive and must be rechecked before publication.

When Does a Benefit Amount to Fair Exchange?

If an Indigenous community sells its own produce, runs educational programmes, or authorizes the use of particular knowledge on agreed terms, payment can form part of its economic development. It is not respectful to demand that people always provide outsiders with their labour and heritage free of charge. UNESCO's materials on living traditions point to the economic dimensions of heritage and the importance of livelihoods for its bearers. Yet recognizing an economic opportunity is not proof that the benefits of a specific commercial transaction have been shared fairly. The Peruvian example shows that a narrowly defined legal regime can even prescribe minimum percentages; whether an individual agreement has been carried out remains a separate evidentiary question. [5][17][20]

The Nagoya Protocol provides a narrower but important legal example. Its Article 7 concerns access to traditional knowledge associated with genetic resources, with the prior informed consent or approval and involvement of the relevant communities and on mutually agreed terms, in accordance with domestic law. Article 12 addresses customary law, community protocols, and procedures; Article 16 addresses compliance measures. These are not rules that automatically govern every meditation workshop, dance performance, or sale of a spiritual book; in particular, access to a genetic resource must not be conflated with access to associated traditional knowledge. The scope is narrower and also depends on implementation in domestic law. [7][18][19]

Within that scope, however, the Protocol illustrates an important principle: a benefit need not be a voluntary donation made afterwards to whoever supplied the knowledge. It can be the subject of an advance agreement about access, cooperation, and use. A fair benefit does not necessarily take the form of a bank transfer alone. It might include paid participation, access to research results, support for local infrastructure, community projects, or other agreed arrangements. But the appropriate extent and beneficiaries are not determined by what sounds good in an advertisement; they must be established through actual processes and agreements. [7][17]

The distinction between purchasing something and collaborating with its knowledge holders can be decisive. A company may buy a plant from a grower at a fair price. That does not mean it has also bought permission to advertise its method as the official heritage of an entire community. Conversely, a community may help design a programme and decide that certain stories will remain unpublished. This, too, is a form of real control, even if it does not appear in the price of an individual ticket.

Such arrangements require sensitivity to internal power relations. An outside client may find one willing interlocutor, while other knowledge holders believe the decision did not follow customary procedures. A box checked in advance on a contract does not therefore guarantee ethical legitimacy. Equally, a public critic who does not know the particulars cannot simply assume that an agreement does not exist or that someone has kept the profits. What needs scrutiny is authority, the scope of consent, actual participation, the distribution of benefits, and the possibility of continuing oversight. [4][7]

When revenue takes centre stage, people often demand a single number: what percentage belongs to the community? Without specifying the country, the kind of knowledge, and the applicable legal framework, any universal percentage would be invented. Peru's minimum percentages illustrate one specific national rule, not a rule for every culture or product. [20] But we can ask a sharper question: Could the community set the terms before someone else began selling a story about its knowledge? If there is no answer, a slogan about respecting tradition is not enough. If there is an answer, it must be understood in its real scope, not inflated by marketing.

Open Access Has Limits, Too

Modern archives allow someone to find a text, illustration, recording, or study from a place far removed from their everyday world within minutes. This can be invaluable to scholars, teachers, communities rediscovering displaced heritage, and people who want to understand history. Yet digital accessibility is not neutral. Material recorded for research purposes or with limited consent can become a product, course, or decorative motif in a new setting. [3][9]

An advocate of completely open access will point out that strict restrictions can place control in the hands of a small group of intermediaries and make access harder even for members of the communities themselves. That is a serious concern. But the opposite extreme — publishing everything and then declaring it all free raw material — can reproduce an old imbalance of power: an institution decides what goes in the archive, a company decides how to market it, and knowledge bearers live with the consequences. Both access and accountability for setting its boundaries therefore matter.

UNESCO's fifth ethical principle expressly acknowledges that customary community practices may govern access to intangible heritage, even if this limits general public access. The principles also emphasize that heritage bearers themselves should decide its value and future uses. That does not mean every community rule automatically becomes the law of every country. It does mean that a researcher or publisher cannot end the ethical discussion by saying, “But it's already online.” [4]

Self-appointed authority is particularly dangerous. Someone may cite a book accurately yet falsely imply that a community has authorized them to lead its ceremony. Another person may describe the cultural origin honestly but fail to disclose that they are using their own modern adaptation. A third may collaborate with community representatives and give a verifiable account of that collaboration. These cases are distinguished not by the attractiveness of their websites, but by the traceability of their claims: what is the source, who was consulted, what has actually been authorized, and what remains a personal interpretation?

The task of critical journalism is therefore not to publish as many confidential details as possible to demonstrate investigative prowess. It is to establish the limits of what can be substantiated. A journalist can verify the existence of a law, a public agreement, an attribution statement, or official guidance. But if there is no access to a contract, that limitation must be disclosed, without alleging concealed profits. If a community restricts access to details of a ceremony, the right to impose those limits can be discussed without publishing the very details it wishes to protect. [1][9]

We Can Ask a Different Question About the Right to Profit

Stories about the commercialization of ancient wisdom often set up two supposedly irreconcilable camps. The first says that knowledge belongs to everyone and nobody should stand between buyer and seller. The second seeks to treat every tradition as private property, for which every outside user must obtain the same permission. Both views miss an important part of reality. Knowledge can be both part of humanity's broader history and the subject of specific relationships, duties, and rights belonging to its bearers. The law may protect some of those relationships but not others. [1][6]

Before advertising that it sells an “ancient method,” a provider should be able to answer some fairly ordinary questions. Is it describing a historical document, a living practice of a particular community, or its own contemporary adaptation? Whose testimony shaped the story, who took part, and who had the authority to decide how names, images, and knowledge would be used? Are there restrictions on disclosing certain elements? If the provider claims to return benefits to knowledge holders, what does that claim actually mean and which part can be verified? If circumstances change, who can initiate a conversation about future use?

This test is not a universal legal form. Different questions will matter for a patent application than for a photograph, training programme, medicinal plant, or public performance. Agreements between states are governed by different rules from those for a single guest appearance. Cultural expressions are not the same as biological resources, either. Yet these cases share one dangerous shortcut: because someone may lawfully publish, use, or sell something, they start speaking as though they have also acquired the right to determine its origin and meaning. [2][7][11]

The most revealing case is not necessarily the one involving the highest price. With the Ka Mate haka, the law can recognize origin without prohibiting performances. In India, it is possible to guard against unjustified patents without thereby automatically arranging compensation. Peru's regime for certain collective knowledge associated with biological resources provides not only for control and agreements but also for statutory minimum benefit-sharing obligations. The 2024 WIPO treaty, meanwhile, targets patent disclosure and, according to the latest official record reviewed, had not yet entered into force as of 15 October 2026. Different mechanisms entail different kinds of responsibility; no single solution eliminates every imbalance. [8][10][11][12][16][20]

We therefore need not prove that every new use of a tradition is theft in order to criticize its market. It is enough to take seriously the concrete differences among access, attribution, consent, control, and benefit-sharing. A community that chooses to share its knowledge and earn money from it is not less authentic because payment is involved. Nor does an outside seller become its authorized representative merely by properly citing a book or buying a raw material.

Perhaps, then, the central question is not who can claim the word “wisdom,” but who has the power to turn that word into a product — and who can set the terms on which that happens at all. Once that becomes the measure, the debate shifts away from a romantic notion of a free-of-charge past and toward the much more concrete question of present-day relationships: whose knowledge has become someone else's commercial advantage, who was present when the decision was made, and who was left without a say.

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