Cumberland Professor’s Fulbright Research Could Help Clarify Intellectual Property Law

by Sean A. Flynt

At first glance, legal education and study of folk culture seem to be greatly diverging professional paths—the stuff of conflicts between idealistic undergraduates and practical parents. Yet students in Cumberland School of Law Professor Paul Kuruk’s courses learn just how profoundly international law can affect folk culture, especially in developing nations. Kuruk specializes in the intersection of intellectual property law and the art, craft, knowledge and other resources of indigenous societies. As a recipient of a prestigious Fulbright Senior Scholar Award for fall 2002, Kuruk will pursue this research in residence at the Max-Planck Institute for Foreign and International Patent, Copyright and Competition Law in Munich, Germany.

Professor Paul Kuruk will use Fulbright award to study in Germany.

The Fulbright experience will be only the latest international research opportunity for Kuruk, whose expertise is widely recognized. In addition to consulting with the Alabama state government and serving as the secretary of the International Law Section of the Alabama State Bar Association, he is a consultant to a number of United Nations agencies, including the United Nations Educational, Scientific and Cultural Organization [UNESCO] and World Intellectual Property Organization [WIPO]. He also serves on a team established by UNESCO to draft an international treaty for the protection of cultural heritage. In spring 2003, Kuruk will serve as visiting professor of law at Oxford University.

As a native Ghanaian and legal scholar, Kuruk said it made perfect sense to him that he should specialize in the use of intellectual property law to protect indigenous culture against undue exploitation. Unfortunately, he has found that the law as developed by western societies is ill-suited for protecting the resources of non-Western societies, such as his native West Africa.

“For example,” he said, “intellectual property law requires protected works to have been written or recorded, and protection is generally granted for a limited duration, such as 20 years in the case of patents. Traditional knowledge cannot meet these criteria, because it is often passed orally through generations of people over the centuries and therefore is of ‘unlimited duration.’”

Kuruk said the culture gap in intellectual property law is particularly evident in the development of medicine. He cited Madagascar’s native periwinkle plant, used in cancer treatment, as one of the most widely recognized examples of the law’s failings. “The plant was patented and marketed, netting the [pharmaceutical] company some $100 million, 88 percent of which was profit to the company,” said Kuruk.

Such apparent economic injustice has raised international concern that traditional knowledge and native resources are being exploited without adequate compensation to the owners of that intellectual property. Kuruk said the fear is that benefits to indigenous communities or developing nations “pale in comparison to the huge profits made by the Western exploiters.”

Kuruk noted that although the technical difficulty of resolving such conflicts has attracted scholarly attention, critical issues such as how traditional communities recognize and protect their own resources are under-explored. He addresses these issues in his own research, though, and hopes the work will lead to new, more equitable criteria for the legal protection of traditional culture.

Since Kuruk’s research will inform his specific suggestions to UNESCO, there can be little doubt about the international impact of his scholarship. And as he continues to teach at Cumberland, there can be little doubt that his students will learn that folk culture and the law are inextricably linked.