Technical Minds. Legal Muscle.

Securing the Benefits of Traditional Cultural Expressions

and Knowledge for Local Communities

Jorge GoldsteinSenior Director, SKGF

11 June 2019

WIPO-CPIP George Mason University

V01 13213644 22 May 2019

privileged and confidential © Sterne Kessler 2018 22

• Traditional Cultural Expressions (TCEs) and Traditional Knowledge (TK) in local communities

• Developed-world legal concepts (especially IP) and their relation to TK/TCEs

• Economic Social and Cultural Human Rights (ESCRs)• Access and Benefit Sharing (ABS): The Convention for

Biological Diversity and the Nagoya Protocol• Applying developed-world IP to redeem ESC rights

Outline

Traditional Cultural Expressions and Traditional Knowledge

privileged and confidential © Sterne Kessler 2018 44

• Traditional Cultural Expressions (“folklore”) include:− Verbal expressions, such as folk tales, poetry, riddles, signs, words− Musical expressions, such as songs and instrumental music− Expressions by action, such as dances, plays, rituals− Tangible expressions, such as Drawings, paintings, sculptures, pottery, jewelry, baskets, textiles Crafts Instruments Architectural forms

Basic definitions: TCEs

privileged and confidential © Sterne Kessler 2018 55

• Traditional Knowledge generally refers to know-how in scientific and technical areas, such as −Local biodiversity, e.g., animal behavior−Local genetic resources, such as plants −Derivative applications, such as Traditional medicine remedies

Basic definitions: TK

privileged and confidential © Sterne Kessler 2018 66

• In 2000, the Olympic Museum of Lausanne reproduced Australian aboriginal artworks without consent or permission− Dispute arose in copyright and moral rights issues, settled with an

apology and money• Sampling of indigenous music and then copyrighting new arrangements

− 1992: “Deep Forest” CD mixed music from Ghana, African pygmy, and Solomon Isl. with techno-dance rhythms

− Dispute over rights to South African melody “Lion Sleeps Tonight.”• Mass producing computer mouse pads, T-shirts, coasters, calendars, with

traditional arts and crafts designs.• Violating sacred sites (e.g., by filming a movie on Mt Taranaki, a god-like

volcano in Maori mythology)

Examples of (mis-) appropriation of TCEs

privileged and confidential © Sterne Kessler 2018 77

• Embodying traditional designs into mass-produced fabrics and clothing−Kente cloth in Ghana−Tipi designs from North American tribes− “Traditional Appalachian” quilts made in

China• Photographing traditional costumes

followed by postcard sales• Mayan and Guatemalan huipil

(Mis…) appropriation of TCEs (cont’d)

$120.00 on eBay

Developed-World Legal Concepts, Especially IP

privileged and confidential © Sterne Kessler 2018 99

• Basic concepts− Contracts− Ownership

• IP concepts− Originality, authorship, inventorship − Public domain− Protection Copyrights, design patents; Geographical indications; Passing off / counterfeiting; Moral rights

Developed-world legal concepts in traditional communities

privileged and confidential © Sterne Kessler 2018 1010

Developed-World IP Chronological Progression

Birth of Idea or Concept =

Secret

Idea or Concept protected by IP =

Published

Idea or Concept enters the public domain = Usable by all

Length of Protection

Patents = 20 years© = Life of author + 70 years® = As long as used

Idea or Concept

not protected

by IP

privileged and confidential © Sterne Kessler 2018 1111

Protecting TCEs: Protecting TCEs already in the public domain (Consolidated Analysis, WIPO 2003)

Contemporary TCEs

Copyright and Related Rights

Industrial Property (industrial designs,

trademarks, GIs)

Pre-existing TCEs (Public domain)

Performances of TCEs (WPPT, 1996)

Defensive prevention of uses of TCEs in certain cases – Unfair competition, consumer protection laws and/or registration system

U.S. Indian Arts and Crafts Act (1990)

privileged and confidential © Sterne Kessler 2018 1212

Misrepresentation of Indian produced goods and products.

It is unlawful to offer or display for sale or sell anygood, with or without a Government trademark, in amanner that falsely suggests it is Indian produced,an Indian product, or the product of a particularIndian or Indian tribe or Indian arts and craftsorganization, resident within the United States.

U.S. Indian Arts and Crafts Act of 1990

Economic Social and Cultural Human Rights

privileged and confidential © Sterne Kessler 2018 1414

Two classes of human rights• Civil and political rights – U.S. Constitution Bill of Rights:

−Speech, assembly, religion, search and seizure

• Economic, Social and Cultural rights (ESCRs) -Roosevelt’s 1944 State of Union, Second Bill of Rights; 1966 UN Covenant on ESCRs: −Right to food / clean water; health; shelter; jobs;

education; development

privileged and confidential © Sterne Kessler 2018 1515

• Intellectual property is not a recognized fundamental human right, although …

• The right to benefit from one’s creations is an ESCR: • International Covenant on ESCRs (U.N. 1976) (signed but

never ratified by the U.S.)Art. 15 (1) (emphases added): The States Parties to thepresent Covenant recognize the right of everyone: …(c) To benefit from the protection of the moral and materialinterests resulting from any scientific, literary or artisticproduction of which he is the author.

Overlap between ESCRs and IP

privileged and confidential © Sterne Kessler 2018 1616

Tension between developed–world IP and ESC rights

• IP rights promote technological developments, many of which are humanitarian, e.g., medicines, food, shelter.

• In regions of poverty or lack of development, the IP system as we know it in the developed world does not always function properly, e.g., −Patented AIDS drugs or vaccines in Africa or Latin America−Patented mono-cultivars (e.g., transgenic soy beans) and the

loss of biodiversity−Misappropriation of TCEs and TKs

Access and Benefit Sharing

privileged and confidential © Sterne Kessler 2018 1818

• 1993: Convention on Biological Diversity (“Rio Treaty”)−Conservation of genetic resources−Sustainable use of its components−Fair and equitable sharing of

benefits from genetic resources• U.S. signed but did not ratify• 2010: Nagoya Protocol on Access

and Benefit Sharing

Principles of ABS

Rio Treaty

Nagoya Protocol

Applying Developed-World IP to Redeem ESC Rights

privileged and confidential © Sterne Kessler 2018 2020

Developed-world efforts to reconcile IP and ESC Rights

• PIIPA: Clearinghouse for IP customers in developing countries and worldwide providers

• Light Years IP: Ethiopian coffee farmers• Kaski v. Nike (2002): “No child labor”- Nike's ads • WIPO Global Challenges: Humanitarian licensing• AU Law School clinic: Challenge to “TRIPS-Plus”• USPTO: Competition for humanitarian technologies• Google/DotOrg: Corporate responsibility• Gates Foundation• Patent pools: Essential medicines

privileged and confidential © Sterne Kessler 2018 2121

Our own firm’s Pro Bono IP work• SKGF’s Vision:

SKGF's Pro Bono practice strives to develop Human Rights-conscious IP lawyers through the proper interplay of Intellectual Property principles and Economic, Social and Cultural Rights.

• Sets a balanced and nuanced tone:−Patent system is not the root cause of intractable ESC

problems… −But neither is patent laissez faire able to solve them.

privileged and confidential © Sterne Kessler 2018 2222

Two approaches:

1. Prevent exploitation

2. Promote “reverse technology transfer”

Pro bono IP and ESCRs: focus on Traditional Knowledge

privileged and confidential © Sterne Kessler 2018 2323

Prevent exploitation: The maca case

privileged and confidential © Sterne Kessler 2018 2424

Finding pre- AIA prior art

privileged and confidential © Sterne Kessler 2018 2525

“Reverse technology transfer”

Central ideaUse the developed-world IP system to monetize IP generated in the developing world.

25

$$

privileged and confidential © Sterne Kessler 2018 2626

Ecoflora SAS’s EdiBlue® (Colombia)

privileged and confidential © Sterne Kessler 2018 2727

EdiBlue as a colorant for foods, cosmetics, medicines and textiles

27

privileged and confidential © Sterne Kessler 2018 2828

ABS statement in the patent

privileged and confidential © Sterne Kessler 2018 2929

Commercialization of EdiBlue: three phases• Patenting the Technology

− Process for stabilizing blue colorant at low pH− Powder formulations− Chemical structure of stable adduct− Consumer goods comprising the blue compositions

• Obtaining FDA approval• Negotiating with food (and other) additive multinationals

− IP (not supply) contracts− Fields of Use restricted to patented uses (foods, cosmetics, medicines)

29

privileged and confidential © Sterne Kessler 2018 3030

Lucas Tyree (Monacan Tribe, Va.): Foliar feeding formulation and uses

privileged and confidential © Sterne Kessler 2018 3131

• Traditional Cultural Expressions− Consolidated Analysis of the Legal Protection of Traditional Cultural

Expressions/Expressions of Folklore, Background Paper No. 1 (WIPO 2003)• Traditional Knowledge

− Hansen et al, “Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property,” in: Intellectual Property Management in Health and Agricultural Innovation – a handbook of best practices, Vol. 2, Chapter 16.6. (2007)

• ESC Rights− Goldstein, J., “Protecting rainforest-derived technology equitably,” in WIPO

Magazine, February 2019

Bibliography