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Intellectual Property and Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions: Overview of Issues, Options and Recent International Developments
Wend Wendland, Director, Traditional Knowledge Division, WIPO
Outline
Update on Negotiations at WIPO
Issues
Traditional Knowledge and Traditional Cultural Expressions
Genetic Resources
Options at the National Level
Update on Negotiations at WIPO
Text-based negotiations with the objective of reaching agreement on a text(s) of an international legal instrument(s) which will ensure the effective protection of genetic resources, traditional knowledge and traditional cultural expressions
WIPO Intergovernmental Committee
Diverse stakeholders, diverse objectives
International coherence: fragmentation of international norm-setting
Top-down or bottom up: minimal successful national experience
Participation: challenges to inclusivity
Challenges . . .
Legislative approach: interface with practical mechanisms
Historical opportunity: first developing country-led IP normative process
Cutting edge: fresh uses for age-old IP values and principles
Narrowing the trust-gap: growing confidence in the process
International comity: IP and mutual supportiveness
Opportunities. . .
Traditional knowledge: draft sui generis instrument
Traditional cultural expressions: draft sui generis instrument
Genetic resources: consolidated document comprising objectives, principles and optional mechanisms
http://www.wipo.int/tk/en/igc/index.html
Program
IGC 19 July 2011
WIPO GA September 2011
IGC 20 February 14 – 22, 2012
IGC 21 TK
April 16-20, 2012
IGC 22 TCEs
July 9-13, 2012
GA September 2012
Issues: Traditional Knowledge and Traditional Cultural Expressions
Traditional knowledge (TK), traditional cultural expressions (TCEs) and genetic resources (GRs) are valuable and important
They are under threat, however
Therefore, Indigenous Peoples, local communities and many States call for the greater recognition, protection, safeguarding, preservation and promotion of TK, TCEs and GRs
Innovations and creations based on TK and TCEs are generally patentable and copyrightable
‘Underlying’ TK and TCEs are ‘public domain’ (unprotected)
Basic question:
Should underlying TK and TCEs – which ‘belong’ to indigenous and local communities - be ‘protected’ in an IP sense?
and, if so, what does ‘protected’ mean and what options are there?
“Intellectual property” – creations and innovations of the human mind
Intellectual property “protection” – provides creators and innovators with possibility to manage access to and use of their works, if they so wish
• Proprietary (e.g. exclusive rights) and non-proprietary rights (e.g. moral rights, right to compensation)
• Balance and proportionality: IP rights do not provide perfect control: limitations and exceptions/the public domain
• IP “protection” is not equivalent to “preservation/safeguarding”
• The world of IP is in transformation – e.g. a2k movement
“Intellectual property protection”. 1
“Intellectual property protection”. 2
“A song or story is not a commodity or a form of property but one of the manifestations of an ancient and continuing relationship between people and their territory”
(Daes, 1995)
What do we mean by “protection” of TK/TCEs?
Positive protection (an IP right in TK/TCEs, to authorize or prevent use)
Defensive protection (avoidance of IP rights in TK/TCEs – e.g.., TKDL; USA’s Native American Insignia Database)
“Intellectual property protection”. 3
“Intellectual property protection”. 4
Prevention of access and use without prior and informed consent [exclusive rights model]
and/or
Acknowledgement of source. Prevention against derogatory use. No passing off [moral rights/unfair competition model],
and/or
Benefit-sharing/compensation? [access and benefit-sharing/compensatory liability models]
Draft text on traditional knowledge (WIPO/GRTKF/IC/21/4)
ObjectivesGeneral guiding principlesSubstantive articles
1. Subject Matter of Protection2. Beneficiaries of Protection3. Scope of Protection4. Sanctions, Remedies and Exercise of Rights5. Administration of Rights6. Exceptions and Limitations7. Duration of Protection8. Formalities9. Transitional Measures10. Consistency with the General Legal Framework 11. National Treatment and Other Means of Recognizing Foreign Rights and
Interests12. Trans-boundary Cooperation
Some of the key questions
Definitional issues
What is “traditional” knowledge? Should all TK and TCEs receive protection?
Who should be the beneficiaries of new rights in TK and TCEs?
Technical issues
How would special protection for TK/TCEs interact with protection available under existing IP?
How should publicly available TK/TCEs and transboundary (“shared”) TK/TCEs be addressed?
What scope of rights strikes the right balance? Which exceptions and limitations might be appropriate? How long should protection last?
Operational issues
What role, if any, should registration/documentation play in the protection of TK/TCEs?
Procedural issues
What belongs in an “international instrument” and what should be left to national legislation?
Issues: Genetic resources
IP and genetic resources: what are the issues?
Genetic resources are not “intellectual
property” – access and benefit-sharing in
GRs are dealt with in other conventions and
treaties (CBD (+ Nagoya), FAO)
Inventions based on or derived from GRs may be patentable. This raises questions concerning the relationship between patent law and the CBD:
‘defensive protection’ of GRs: prevention of erroneous patents: databases proposal
“quality of patent examination” issue
tracking compliance with the CBD: proposed mandatory disclosure requirement
“support of IP system for CBD” issue
Options at the National Level
Options for protection of TK and TCEs
Policy
Legal
Infrastructure
Practical
Strategy
Policy and legal questions and options
Defining objectives
“positive” and “defensive” protection
Identifying subject matter
Owners and beneficiaries
Defining rights and exceptions
Infrastructure
registers, inventories and databasesinstitutional issues
Practical tools and measures
contracts
guidelines
protocols
training and awareness-raising
