Folklore, Traditional Knowledge Folklore, Traditional Knowledge and Benefit Sharingand Benefit Sharing

ATRIP CONGRESS 2003

Tokyo

August 4-6, 2003

QUESTIONS ?QUESTIONS ?

What is Traditional Knowledge (TK) ?

What are the Problems facing TK holders ?

Why is Protection of TK Important ?

What is the Challenge ?

THE CHALLENGETHE CHALLENGE ….. …..

IP mechanisms do not cover

non- systematic,

undocumented knowledge

Customary law is not applicable outside the community

……. IN SEARCH OF A . IN SEARCH OF A MODELMODEL

Need to find common ground

IP system

TraditionalKnowledge

A global assessment of needs & expectations of holders of Traditional Knowledge

WIPO’S RESPONSEWIPO’S RESPONSE

Roundtable on IP & indigenous peoples (1998) Panel discussion on IP & human rights (1998) 4 regional consultations on protection of folklore (1999) Cooperation with IGOs & NGOs Integration into WIPO’s cooperation for development

activities Roundtable on IP and TK (1999) FFM

WIPO FACT-FINDING MISSIONSWIPO FACT-FINDING MISSIONS

North America

South America

Central America

Caribbean Countries

South Asia

South Pacific

Arab Countries

West Africa Southern & Eastern Africa

Bangladesh

Uganda & Tanzania

Mali

WIPO FFM FINDINGSWIPO FFM FINDINGS

Common to all countries

TK systems are frameworks for continuing creativity & innovation

TK is a constantly renewed source of

wealth

All branches of IP law are relevant to TK

Discussions in the SCP / Discussions in the SCP / Diplomatic Conference on Diplomatic Conference on

the PLT - proposal to set up the PLT - proposal to set up a distinct bodya distinct body

INTERGOVERNMENTAL COMMITTEE INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES,TRADITIONAL GENETIC RESOURCES,TRADITIONAL

KNOWLEDGE AND FOLKLOREKNOWLEDGE AND FOLKLORE

Themes for the Committee -

– Access to Genetic Resources and Benefit- Sharing

– Protection of Traditional Knowledge

– Protection of Expressions of Folklore, including Handicrafts

ACCESS TO GENETIC RESOURCES ACCESS TO GENETIC RESOURCES AND BENEFIT - SHARINGAND BENEFIT - SHARING

Contractual Agreements for access to Genetic Resources

Legislative, administrative and policy measures to regulate access to genetic resources and benefit - sharing

Multilateral Systems for facilitated access to genetic resources and benefit sharing

Protection of biotechnological inventions, including certain related administrative and procedural issues

PROTECTION OF TRADITIONAL PROTECTION OF TRADITIONAL KNOWLEDGEKNOWLEDGE

– Terminological and Conceptual Issues– Standards concerning the availability, scope and

use of intellectual property rights in traditional knowledge

– Criteria for the application of technical elements of standards - legal criteria for the definition of prior art and administrative and procedural issues related to the examination of patent applications

– Enforcement of Rights

PROTECTION OF EXPRESSIONS PROTECTION OF EXPRESSIONS OF FOLKLORE, INCLUDING OF FOLKLORE, INCLUDING

HANDICRAFTSHANDICRAFTS To make use of earlier deliberations

Development of Sui - generis systems

Importance of handicrafts

APPROACHAPPROACH

Consultations with about 3,000 stakeholders Series of over 20 regional and national consultative

meetings - helped to shape regional positions Studied 80 substantive documents Series of wide-ranging surveys of national laws and

other forms of practical experience with legal protection

Development of a set of practical tools for legal protection

CROSS-CUTTING ISSUESCROSS-CUTTING ISSUES

Operation of established forms of IP protection

Underlying principles of IP law

Experiences with sui-generis forms of legal protection

INTERACTION OF IP LAW WITH INTERACTION OF IP LAW WITH NON-IP LEGAL SYSTEMSNON-IP LEGAL SYSTEMS

Internationally

– IP systems and CBD– FAO International Treaty

on Plant Genetic Resources for Food and Agriculture

– existing and emerging instruments dealing with cultural heritage and cultural diversity - UNESCO conventions

Domestic Law

– contract law– environmental

protection law– cultural heritage law– laws governing access to

biological resources and protected territories

– laws concerned with Indigenous people

COMPREHENSIVE POLICY COMPREHENSIVE POLICY DEBATEDEBATE

Interplay between capacity - building activities and policy discussions concerning legal norms

Constraints impeding right holders from deriving the benefits of IP protection – lack of capacity to exercise rights in practice – gaps in the rights available in national laws,

corresponding regional and international systems

– combination of both factors.

PRINCIPLE OF PRINCIPLE OF ‘PRIOR INFORMED CONSENT’‘PRIOR INFORMED CONSENT’

Access should only be granted if the access provider is sufficiently well informed about the – implications of the proposed access– full range of possible ways of structuring access– determination of the share of benefits from the

access Issue both of capacity building and of precise legal

formulation

to achieve outcome of

optimal equitable sharing of benefits when access occurs

COMPLEMENTARY POLICY COMPLEMENTARY POLICY OBJECTIVESOBJECTIVES

To develop a respect for TK To ensure that it is preserved and

maintained To promote use in association with right

holders To enable equitable sharing of benefits

Diverse range of regulatory and legal tools needed to achieve these goals

PROTECTION OF TKPROTECTION OF TK

Positive Protection - active assertion of rights

Defensive Protection - preventing others from illegitimate gain of rights

POSITIVE PROTECTION POSITIVE PROTECTION IP APPROACHIP APPROACH

Use of rights by holders to stop unauthorized acts and to seek remedies if such use occurs

Use of rights as the basis for commercial, research etc dealings with external partners

Community may use IP rights to stop illegitimate or unauthorized use of a traditional design by a manufacturer (Carpet case)

Community may use rights commercially itself or license to others and define benefits from such use (Canada/ NZ)

POSITIVE PROTECTION POSITIVE PROTECTION NON - IP APPROACHNON - IP APPROACH

Legal means Other forms of

legislation Bilateral Contracts Agreements and

licenses

Technical Means Use of Information

Technology– Data security

systems– electronic

databases

Can be used in conjunction with IP protection

DEFENSIVE PROTECTIONDEFENSIVE PROTECTION

Third parties do not gain illegitimate or unfounded IP rights over TK subject matter and related genetic resources

Measures to preclude or oppose:– Patent rights on claimed inventions – Trade mark rights making use of TK subject matter – Assertion of copyright in literary or artistic works

that make illegitimate use of traditional cultural works

DEFENSIVE PROTECTIONDEFENSIVE PROTECTION Documentation of TK as a form of defensive strategy

– portal of on-line databases– inventories of

–periodicals containing TK subject matter–on-line databases (TK material)

– incorporation of periodicals within the minimum documentation for the PCT

– revision of the IPC to include categories specifically for TK subject matter

CONCLUSIONS FROM THE CONCLUSIONS FROM THE JULY SESSION JULY SESSION

Immediate steps need to be taken to safeguard the interests of those communities who have developed and preserved TK and traditional cultures

IGC should move towards concrete outcomes - focus on the international aspects of protection of TK and TCEs

Views differed over the appropriate form and legal

status of these outcomes– conclusion of a legally binding international instrument

by 2005

– draw on international understanding in the short term - possibility of legally binding outcomes for the future.

Strengthen and extend international recognition of customary law relating to traditional knowledge

Enhance representation of indigenous and local communities in any international process

Improve coordination of work with other international processes - CBD, FAO and UNESCO

TK protection

– deliberation on possible approaches for legal protection

– definitions

– policy issues in protection as IP

– options for sui generis protection

Genetic resources and TK

– considered defensive approaches to ensure that TK and genetic resource material are not the subject of illegitimate patent claims

– moves to modify core elements of the IPC and the PCT

– ‘SINGER’ database (System-wide Information Network for Genetic Resources- data of genetic resources held in trust internationally) was linked to a WIPO on-line portal to help patent examiners take greater account of existing TK and genetic resources when assessing the validity of patent claims

Protection of TCEs

– important policy challenges highlighted for new approaches to protection of TCEs (notion of the ‘public domain’)

– concern that documentation of TK does not lead to an unintentional loss of rights or of control over it

– development of Tool kit - if a community chooses to document their TK, necessary safeguards in place to avoid undermining the community’s own interests

The General Assembly The General Assembly meeting in September 2003 meeting in September 2003

will consider future directionswill consider future directions

THANK YOUTHANK YOU