Protecting Shared Traditional Knowledge

By Manuel Ruiz Muller Peruvian Society for Environmental Law

Issue Paper No. 39

ICTSD Programme on Innovation, Technology and Intellectual PropertyOctober 2013

Protecting Shared Traditional Knowledge Issues, Challenges and Options

l ICTSD Programme on Innovation, Technology and Intellectual Property

By Manuel Ruiz Muller Peruvian Society for Environmental Law

Protecting Shared Traditional KnowledgeIssues, Challenges and Options

Issue Paper 39

October 2013

ii M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options

Published by International Centre for Trade and Sustainable Development (ICTSD)International Environment House 27 Chemin de Balexert, 1219 Geneva, SwitzerlandTel: +41 22 917 8492 Fax: +41 22 917 8093E-mail: [email protected] Internet: www.ictsd.org

Ricardo Meléndez-Ortiz: Chief ExecutiveCore Team:Christophe Bellmann: Programmes DirectorPedro Roffe: Senior Associate, Innovation, Technology and Intellectual PropertyAhmed Abdel Latif: Senior Programme Manager, Innovation, Technology and Intellectual Property

AcknowledgmentsThe author would like to thank ICTSD for its support in the completion of this paper and Ahmed Abdel-Latif, Kiyoshi Adachi, Jorge Cabrera, Graham Dutfield, Pedro Roffe, Christoph Spennemann, Brendan Tobin and Joseph Vogel for their useful comments and insights. The author is also grateful to commentators and participants at an ICTSD side event at WIPO’s IGC meeting, in July 2013, where a draft of the paper was presented and discussed.

ICTSD wishes gratefully to acknowledge the support of its core and thematic donors, including: the UK Department for International Development (DFID), the Swedish International Development Cooperation Agency (SIDA); the Ministry of Foreign Affairs of the Netherlands, Directorate-General of Development Cooperation (DGIS); the Ministry of Foreign Affairs of Denmark, Danida; the Ministry for Foreign Affairs of Finland; and the Ministry of Foreign Affairs of Norway.

Manuel Ruiz Muller is the Director and Principal Researcher of the International Affairs and Biodiversity Program at the Peruvian Society for Environmental Law.

The views expressed in this publication are the author’s personal views and do not necessarily reflect the views of any institution with which he is affiliated or the views of ICTSD’s funding institutions.

For more information about ICTSD’s Programme on Innovation, Technology and Intellectual Property visit our website at http://ictsd.org/programmes/ip/

ICTSD welcomes feedback and comments to this document. These can be sent to Ahmed Abdel Latif ([email protected]).

Citation for the Issue Paper:

Ruiz Muller, Manuel; (2013); Protecting Shared Traditional Knowledge: Issues, Challenges and Options; ICTSD Programme on Innovation, Technology and Intellectual Property; Issue Paper No. 39; International Centre for Trade and Sustainable Development, Geneva, Switzerland, www.ictsd.org

Copyright © ICTSD, 2013. Readers are encouraged to quote this material for educational and non-profit purposes, provided the source is acknowledged. This work is licensed under the Creative Commons Attribution-Non-commercial-No-Derivative Works 3.0 License. To view a copy of this license, visit http://creativecommons.org/licenses/bync-nd/3.0/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, US.

ISSN 1684-9825

iiiICTSD Programme on Innovation, Technology and Intellectual Property

TABLE OF CONTENTS

LIST OF ACRONYMS AND ABBREVIATIONS ivFOREWORD vEXECUTIVE SUMMARY 11. INTRODUCTION 22. A BRIEF OVERVIEW OF INTERNATIONAL AND NATIONAL POLICY AND

LEGAL EFFORTS TO PROTECT TRADTIONAL KNOWLEDGE 43. THE PREVAILING TRENDS TO PROTECT TRADITIONAL KNOWLEDGE 64. THE NATURE AND FEATURES OF TRADITIONAL KNOWLEDGE 85. THE CHALLENGE OF IMPLEMENTING PRIOR INFORMED CONSENT

AND CONSULTING PRINCIPLES IN THE CONTEXT OF SHARED AND WIDELY DISTRIBUTED TRADITIONAL KNOWLEDGE 10

6. THE POLICY AND LEGAL OPTIONS 137. RECOMMENDATIONS 178. CONCLUSION 19ENDNOTES 20REFERENCES 28

iv M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options

LIST OF ACRONYMS AND ABBREVIATIONS

ABS Access and benefit sharing

ARIPO African Regional Intellectual Property Organization

CBD Convention on Biodiversity

FAO United Nations Food and Agriculture Organization

GEF Global Environment Facility

GIs Geographical indications

GRs Genetic resources

IGC Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

IP Intellectual property

IPRs Intellectual property rights

MS Multilateral system

NGOs Nongovernmental organizations

OAPI Organisation Africaine de la Propriété Intellectuelle

PIC Prior informed consent

TK Traditional knowledge

TKDL Traditional Knowledge Digital Library

TRIPS Agreement on Trade Related Aspects of Intellectual Property

UNESCO United Nations Educational, Scientific and Cultural Organization

WIPO World Intellectual Property Organization

WTO World Trade Organization

vICTSD Programme on Innovation, Technology and Intellectual Property

FOREWORD

More than a decade since the inception of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), there is increased awareness about the need to protect traditional knowledge (TK) at the international, regional and national level against misappropriation. There is also widespread recognition of the value and importance of such protection, and numerous legal instruments that seek to facilitate and improve it. Since 2009, the IGC has witnessed an acceleration of its work, as it was given a mandate by the WIPO General Assembly to work speedily towards the development of an international instrument(s) that would protect genetic resources (GRs), TK and traditional cultural expression.

During these years, the International Centre for Trade and Sustainable Development (ICTSD) has actively contributed to the debate on the protection of TK and GRs with timely policy-oriented research aimed at identifying options and addressing knowledge gaps that could contribute to discussions on these issues at the international level. Against this background, the present study, by Manuel Ruiz Muller, seeks to shed light on widely shared TK, an issue that has been overlooked in international discussions, but that has significant implications for the design and effectiveness of any international regime for TK protection that emerges from the IGC deliberations.

Traditional knowledge that is widely shared and dispersed within communities and across national boundaries seems to be the rule rather than the exception and presents many challenges to the establishment and implementation of policy and legal frameworks that would facilitate and improve TK protection. Most notably, situations where this is the case render the identification of right holders a difficult task, complicate the establishment of access and benefit-sharing agreements and make it virtually impossible to ensure that prior informed consent conditions are met.

While there have been growing concerns about the policy implications of these situations, the issue has largely been treated in international discussions as an exceptional circumstance, which seems to be premised on the notion that TK is held within one single community or country. Yet, TK, like GRs, is seldom confined to one single indigenous group or community. Instead, the prevailing evidence suggests that TK is often transboundary in nature.

The present study offers a comprehensive overview of current policy and legal mechanisms that have sought to protect TK, noting their merits and shortcomings. In this regard, it contributes to a better understanding of the progress that has been made in policy developments regarding TK protection, building on previous ICTSD work in this area.

Moving beyond this, the main merit of the study lies in identifying and reviewing the legal and policy options for the protection of shared and widely distributed TK. Among these options, the paper argues for the establishment of national and international compensatory funds and dwells on this proposal at length. It contends that this approach is especially advantageous in instances where TK is shared and widely disseminated and invites IGC negotiators to consider incorporating this proposal, in particular, in the IGC’s draft legal text on the protection of TK.

By shedding light on the prevalence of widely shared and disseminated TK and offering recommendations that may present the means to overcome some of the challenges it presents, this paper is both timely and instructive.

In a knowledge-based economy, a better understanding of intellectual property rights (IPRs) is imperative for informed policymaking in virtually all areas of development. This has been the central objective of the ICTSD Programme on Innovation, Technology and Sustainable Development. The programme focuses on ensuring a proper balance between the different interests at stake in designing appropriate IP regimes that are supportive of development objectives. An additional central

vi M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options

objective has been to facilitate the emergence of a critical mass of well-informed stakeholders in developing countries – including decision-makers and negotiators as well as actors in the private sector and civil society - able to define their own sustainable human development objectives in the field of IP and effectively advance them at the national and global levels.

We sincerely hope that you will find this issue paper a useful contribution to current efforts and international discussions on the protection of TK.

Ricardo Meléndez-Ortiz Chief Executive, ICTSD

1ICTSD Programme on Innovation, Technology and Intellectual Property

EXECUTIVE SUMMARYThis paper offers some initial suggestions on how to address issues concerning the traditional knowledge (TK) of indigenous peoples, which is shared and distributed widely among communities and beyond. In a scenario where there is growing international and national interest to legally protect TK related to biodiversity, the question of how to achieve this when TK is shared is particularly complicated. Who has rights, who consents to access and use of TK, how are benefits shared and between whom, are just some of the vexing questions that must be addressed to advance and inform policymaking and the development of legal standards.

The Convention on Biological Diversity (CBD) and the World Intellectual Property Organization (WIPO) have been the key drivers of international initiatives to protect TK – but they are hardly the only ones. National and regional processes are also underway. The paper focuses on TK as it relates to biodiversity and does not address – given time, resources and scope limitations - other critically important dimensions, such as traditional cultural expressions of indigenous peoples.

The study reviews some of the legal and policy options that exist for the protection of shared and widely distributed TK. The author notes that a trade secret approach may be suitable in situations where TK is shared among communities, but maintains some level of confidentiality. Conversely, in situations where TK has been more widely disseminated and has entered the public domain, protection could be obtained through the establishment of registries, by employing the “domain public payant” approach that has been used in the copyright system, or through bio-cultural community protocols, which stipulate the conditions that must be met for the access and use of TK and genetic resources (GRs). ‘Soft’ IP tools, such as geographical indications (GIs) and collective marks, are presented as further instruments that can be marshalled to offer protection to TK when it is embodied in goods and services.

Finally, the paper notes that across the board, TK could benefit from the establishment of national and international compensatory funds. This approach is especially advantageous in instances where TK is shared and widely disseminated. The author concludes by asserting that it would be beneficial to incorporate these critical recommendations in the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) draft legal text on the protection of TK.

2 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options

1. INTRODUCTION

Since the Convention on Biological Diversity (CBD) entered into force in 1993, countries and multilateral and regional organizations have been developing a wide range of conceptual proposals, policies and legislation to protect the TK and collective intellectual rights of indigenous peoples, as they relate to biodiversity. The issue is not whether, but rather, how TK can be legally protected in an effective manner in the absence (often) of tailored legal tools and instruments.

Many initiatives to date suggest the use of classic intellectual property (IP) tools adapted to respond to TK features, in combination with non-IP tools, such as contracts, registers and funds. Within this context, sui generis proposals for TK protection are in the making.1

Classic IP instruments – especially patents, breeder´s rights, and copyrights - are consid-ered unsuitable to protect indigenous peoples’ intellectual interests, both for technical reasons and often ideological reasons. It is argued that these IP instruments promote individual recog-nition (in contrast to collective aspects of in-digenous peoples’ livelihoods); grant monopoly, exclusionary rights, which affect the interests of other indigenous individuals and especially, groups; require specific identification of a cre-ator or innovator (then again, impacting collec-tive interests); result in high transaction costs (i.e. administrative processes, negotiation of licenses, legal fees, maintenance of right fees, etc.); and grant rights over creations and inno-vations, which need to have a pre-defined de-gree of creativeness and innovation. This is just to mention a few reasons TK does not, naturally at least, ‘fit’ into IP protection frameworks and templates.

As part of these developments, growing evidence demonstrates that shared and widely disseminated TK is the prevailing rule, rather than the exception, in the context of indigenous peoples’ cultures and livelihoods. Though certain TK is still secretly guarded by specific leaders and figures in communities (i.e. the

shaman, the elder, the healer, and specific men and women), it is not surprising that a portion of this special knowledge is also kept by other leaders and figures in neighbouring communities, is often distributed across jurisdictions and is transboundary in nature. There is also evidence that a broader set of knowledge that is neither secret nor confidential, but that can still be considered part of the cultural heritage and livelihood of communities, is even more broadly shared among and within communities and has furthermore been disseminated among non-indigenous individuals, sometimes even codified in research papers and books. For some, this latter TK would fall under the public domain.2

Traditional knowledge is not only shared, but also often develops and evolves simultaneously and in parallel in various indigenous contexts. Similar and shared biodiversity and eco-systems inhabited by indigenous peoples imply similar responses and adaptation methods, which explains (to some extent) why TK is, more often than not, shared and widely distributed.

In addressing the protection of TK, progress has been made at the conceptual and legal levels through numerous proposals and instruments – i.e. the Nagoya Protocol on Access and Benefit Sharing, Andean Community legislation, the African Union Model Law and the African Regional Intellectual Property Organization (ARIPO) instrument. However, discussions regarding existing legal instruments, including the draft international regime on TK protection under the aegis of the WIPO IGC, acknowledge that the issue of shared TK among communities and across national borders remains an area for which policy and legal solutions are still to be thought through and devised.

The debate on shared TK echoes some elements of the discussions on shared and widely disseminated GRs. The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (2010), expressly mentions shared TK and hints at the possibility for future


negotiations on specific multilateral approaches and options for transboundary situations (Articles 10 and 11).

It is quite a paradox that in the context of the Nagoya Protocol and other texts, an exceptional

measure is suggested for a situation that is, in fact the general rule or norm, i.e. that biodiversity, TK and GRs know no borders and are widely shared, especially among ecoregions (the Amazon, the Andes, Mesoamerica, etc.) and between indigenous peoples.3


2. A BRIEF OVERVIEW OF INTERNATIONAL AND NATIONAL POLICY AND LEGAL EFFORTS TO PROTECT TRADITIONAL KNOWLEDGE

In broad terms, international interest and efforts to protect TK can be traced to the 1960s, when the WIPO and the United Nations Educational, Scientific and Cultural Organization (UNESCO) recognised the need to develop measures to protect expressions of folklore, mostly linked to national, cultural and artistic heritage and patrimony, and joined efforts to do so. This phase ended in 1985, with the adoption of the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions.4

A second wave of interest in TK began in the 1980s in the United Nations Food and Agriculture Organization (FAO) as part of discussions on farmers’ rights and the efforts and intellectual contribution of small farmers - especially in centres of origin and diversification - to the conservation and development of agrobiodiversity and native seeds.5 The FAO International Treaty on Plant Genetic Resources for Food and Agriculture (2001) later included protection as one of the dimensions in the area of farmers’ rights.6

The third phase or period when TK was once again part of international debates began in the late 1980s and culminated with the adoption of the CBD in 1992. The CBD expressly recognises the importance of TK (knowledge, innovations and practices) in the conservation, management and development of biodiversity and its components. The CBD also calls for prior informed consent (PIC), participation of indigenous and local communities and benefit sharing as conditions for the use of TK and falls just short of specifically and expressly demanding the legal protection of TK.

The CBD and its discussions on access and benefit sharing (ABS) also triggered many of the existing TK protection processes, initiatives and frameworks.7 Most notably, the Nagoya Protocol, which was a direct result of the ongoing and evolving CBD process, incorporates a series of provisions addressing TK. While the

Nagoya Protocol does not specifically call for the protection of TK, its general provisions offer in practice, tools and mechanisms that are driven by this underlying objective. The Nagoya Protocol provides, inter alia, that access to and use of TK should be subject to the PIC of indigenous peoples and that indigenous peoples should participate in the benefits derived thereof.8 The right to determine access to TK is one of the dimensions that TK protection regimes generally regulate.

Early on, the CBD also permeated World Trade Organization (WTO) debates and discussions regarding the review of article 27.3 of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). The protection of TK was an initial starting point of these debates. Discussions then moved on to address the disclosure of origin and legal provenance, as part of defensive protection mechanisms.9 This can be attributed to the effects and spin-offs of the CBD dynamic during the late 1990s and from 2000 onward.

In 2001, and as a result of the WIPO’s interest and institutional competence in IP as well as its mandate to protect intellectual rights, an international process was launched to explore how to legally protect TK (basically related to biodiversity) and folklore. The IGC was created for this specific purpose. After ten years of work and very difficult negotiations, there is now a draft (albeit very bracketed) text for the protection of TK.10

Finally, though much broader in its scope and goals, the United Nations Declaration on the Rights of Indigenous Peoples (2007) is arguably the most important international non-binding instrument addressing indigenous peoples’ rights, including the protection of their IP, collective creations and innovations.11

International initiatives for TK protection have been rapidly followed, and almost surpassed, by a series of regional and national policy and legal initiatives. Their coverage, status, impacts and


overall effectiveness vary considerably. However, they do reflect a dynamic policy and legal trend explained in part by the international drive and in part by the role and influence of national actors and indigenous peoples’ representative organizations in particular.

Important milestone-setting regional and na-tional examples in this regard include: the Af-rican Union Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources (adopted by the African

Union in 2000); The Swakopmund Protocol for the Protection of Traditional Knowledge adopt-ed by the African Regional Intellectual Property Organization (ARIPO) in 2010 and a similar in-strument adopted by the Organisation Africaine de la Propriété Intellectuelle (OAPI) in 2007;12 Law 21 of Panama for the protection of TK and folklore expressions (adopted in 1998) and its regulation, and Law 27811 for the protection of biodiversity-related TK in Peru (adopted by the Peruvian Congress in 2001), respectively.13 A few other policy processes are also underway in the Pacific Region and other countries.


3. THE PREVAILING TRENDS TO PROTECT TRADITIONAL KNOWLEDGE

From 1992 onwards, much has been written and done in the field of TK protection. Literature and conceptual analyses have multiplied, and awareness about the importance of TK protection has been raised substantially among a wide range of stakeholders – not the least indigenous peoples. More important, as mentioned previously, policy and legal measures have been developed both at the international and national levels. Participation and informed involvement of indigenous peoples in policy and legal processes has also intensified, though maybe not at the rate and in the quality and degree that may be desired.14

The term ‘protection’ was initially used very loosely, meaning different things to different people. Only recently has analysis focused on the different facets of protection and a more systematic approach developed to understand what exactly it may mean.15 In a classic IP context, protection refers to granting exclusionary rights to inventors and creators through IP tools – patents, breeders’ rights, copyrights, etc. In the IP realm, protection may also mean compensation, social recognition through moral rights, benefit sharing and maintaining, preserving and controlling access and uses of TK through unfair competition principles.16 Defensive protection is yet another form of safeguarding rights pertaining to TK and GRs (see endnote 9).

Though TK protection initiatives vary consi-derably in form and substance, there are some common features that stand out. First, most policy and legal instruments (i.e. Peruvian law for TK protection, Costa Rica Law 7788, Panama Law 21) recognise PIC as a critical condition that must be met as a prerequisite for accessing and using TK for any purpose (in general terms). This involves some kind of bilateral approach or negotiation between a user and an indigenous peoples´ representative.

Second, almost invariably, TK-related policies and instruments include registers as a tool to support protection measures, whether defensively or to positively help in assigning rights to indigenous peoples. This is the case of existing laws in Costa Rica, Panama, Peru and the Traditional Knowledge Digital Library (TKDL) initiative in India, among others. This is not to say that registers are free from controversy, especially with respect to the fact that they systematize TK under certain pre-established criteria and provide an informational platform that is often alien to indigenous peoples and communities – in content and process. Registers and their role have been strongly contested over time by some indigenous peoples´ organizations and nongovernmental organizations (NGOs).

Third, when discussing and developing these policies and laws, it is often suggested that classic IP tools – mainly patents, breeders’ rights and copyrights - are intrinsically unsuitable to protect indigenous peoples’ intellectual efforts and creations. This has been explained above (see Introduction). This assertion, however, must be qualified, given that there may be alternatives in ‘soft’ IP tools, such as collective marks or geographical indications, or even in the use of unfair competition law principles, which could, under certain circumstances, provide some forms of protection to these efforts and creations (further reflection is provided below).

Finally, and one of the most critical but often overlooked aspects in the development of policies and legal frameworks, are the very general references to ‘traditional knowledge’ without a precise definition of the concept.

This last issue – together with unclear scope - is one potential limitation that could affect the implementation of legal and regulatory frameworks. Do these policies and norms refer to TK as an intangible per se, or in its more tangible expression (i.e. a technique, a


process, a product)? Do they cover only TK that is publicly accessible or do they mostly refer to TK that is still maintained as confidential by communities or specific community members?

Without exception, broad definitions and scope facilitate legal drafting,17 but often complicate practical implementation, as is currently being experienced in many countries and regions.18


4. THE NATURE AND FEATURES OF TRADITIONAL KNOWLEDGE

What is TK? Even though there is no universally accepted definition of TK, some progress has been made to elaborate on its substantial content. In the text on draft articles for TK protection (2013), the WIPO IGC defines TK as including“…know-how, skills, innovations, practices, teachings and learnings of indigenous [peoples] and [local communities] that are dynamic and evolving, and that are intergenerational/and that are passed on from generation to generation, and which may subsist in codified, oral or other forms.” It further proposes that TK “[…may be associated, in particular, with fields such as agricultural, environmental, healthcare and indigenous and traditional medical knowledge and medical knowledge, biodiversity, traditional lifestyles and natural resources and genetic resources, and know-how of traditional architecture and construction technologies].”

The IGC elaborates a little more in conceptual terms. It describes TK as

…referring in general to the content or substance of knowledge resulting from intellectual activity in a traditional context, and includes the know-how, skills, innovations, practices and learning that form part of traditional knowledge systems, and knowledge embodying traditional lifestyles of indigenous and local communities, or contained in codified knowledge system passed between generations. It is not limited to any specific technical field, and may include agricultural, environmental and medicinal knowledge, and knowledge associated to genetic resources.19

Traditional knowledge can, therefore, mean many things at the same time.

The CBD approach to TK is to consider it entailing “knowledge, innovations and practices.”20 It is actually quite useful to separate the elements of TK into three distinct, albeit related, categories: an intangible (knowledge per se); a tangible (material products or material innovations themselves), and processes or

procedures (expressed in the form of techniques or more sophisticated technologies that can be expressed in some form – orally, in writing, through representations or exemplification). Such an approach helps to focus protection efforts on more specific and somewhat better defined categories, rather than relying on interpretation of broad and general concepts.

Of course, these different categories are often closely interrelated and can overlap. For example, a material product or innovation is the result of developing and using knowledge. It is the material support that expresses a knowledge application. The same is true in the case of a technique or technology that is based on knowledge and sometimes results also in a material product or innovation. Depending on the specific dimension or category of TK, a particular form of protection may be required or applicable.

A second feature of TK relates to its development and how it responds and dynamically adapts to environmental, social, cultural and economic pressures and demands. Traditional knowledge is all but static. It is continuously subjected to social and environmental tests to prove its effectiveness and relevance over time. This feature contrasts with the commonly held belief that TK is ‘traditional’ simply because of the passing of time and its limited variations. There are indeed some very old, often religiously based expressions of TK, that have not suffered major changes over time, but these are mostly linked to cultural, spiritual and social traditions and ceremonies. Day-to-day adaptation by indigenous peoples to continuously changing environments requires rapid responses and adjustments of TK – especially in its applications.

A third feature of TK is who participates (and how) in this dynamic, evolving process. Traditional knowledge is generally the result of a collective, intergenerational effort in the sense that it evolves in a social context (i.e. communal) where social actors play different roles in creating, maintaining, applying, and adapting TK over time according to needs and


circumstances. Often, TK is part of a defined cultural, environmental, religious and social context in which different actors play different roles. They each understand their roles as part of tradition and rigorously respect the established order. Traditional knowledge is managed through a complex social system of customs and rules. Outside of this context, TK simply dissipates and loses its special connotations. The ‘holistic’ nature of TK is its most distinct feature. Having said this, it is especially difficult for policymaking and legal constructions to capture and reflect, translate (appropriately) and incorporate these features in an IP tool, framework or legal mechanism.

A fourth defining feature of TK is that only in very exceptional cases is TK confined to a single indigenous peoples group or community. The rule is that TK is mostly shared between communities (in many cases across countries), which is not to say that there is no distinct and geographically confined TK. Many shamans, healers and certain farmers in rural communities have developed and hold TK that has not been passed to younger generations or community members at all, and thus is maintained in secrecy.21

But, confined, confidential, very unique TK is the exception rather than the rule. Though hard

to quantify, there is agreement among experts that most TK is shared between communities in countries and even across geographical borders.22 Sometimes it is shared consciously; sometimes it inadvertently passes and flows to neighbouring communities, and sometimes even foreigners play a role in disseminating it more widely.23

Traditional knowledge manifests itself in many different forms and ‘packages’ – sometimes as knowledge per se, but often as part of a process or in a product. With a very broad set of indigenous peoples and communities dispersed all over the world, with extremely diverse conceptions, traditions, practices and cultural frameworks, it is not surprising that efforts to conceptualize TK protection faces very complex challenges, not the least in determining the subject matter and potential right holders. Furthermore, applying western legal concepts to a very distinct reality has often been deemed inappropriate, in as much as these concepts and approaches are very utilitarian and anthropocentric – excluding variables and elements, which in the view of indigenous peoples and communities have to be part of the whole and clearly reflected in whatever framework is devised. Most policy and legal frameworks recognise this, but seldom do they effectively reflect this in content and form.


Traditional knowledge in its more classic form (as an intangible), is information. Information-related policy, management and institutional and regulatory frameworks have long been studied, and abundant literature has been produced regarding its socio-economic role and implications, particularly in the context of markets, decision-making and intellectual property.24

The economics of information theories is a good starting point to understand the best policy and legal options available, especially in the context of TK as information that is shared by and widely distributed among communities or indigenous peoples.25

Very simply, and in the context of indigenous peoples, certain types of goods (i.e. a medicinal potage, a food recipe, a cultivating technique or knowledge about the venomous feature of a plant) take considerable time to be produced and developed. These ‘intellectual investments’ often involve physical effort, passage of time, continued observation, repeated trial-and-error processes, further testing and validation and the existence of cultural contexts under which they can effectively evolve.

At the same time, these categories of goods follow principles that are applicable to other informational goods. On one hand, they are cheap to replicate. Any member of a community or a stranger can, with some observation, replicate the good at a very low marginal cost or effort. In very exceptional cases, certain information or TK is maintained, closely guarded and known only by a particular member of the community. These goods are also non-rival and non-exclusionary in the sense that a person´s consumption or use does not deprive another from potentially exactly the same consumption or use opportunity.

Furthermore, these goods (and more specifically the TK embedded in them) once released by the creator – whether a single individual or a collective - cannot be easily controlled or managed. Information and TK in this case flow freely, unimpeded and easily.26 It is almost impossible to keep TK confined to a community or cultural context. In practice, TK can become part of the public domain and/or, at the very least, freely accessible to many.27 This applies to TK that effectively ‘escapes’ a single person´s control and becomes part of the collective knowledge assets that indigenous peoples and communities hold and claim to have rights over (often collective rights).

If this holds true, basic underlying economics and IP principles concerning access to and use of informational goods may be applicable. However, classic IP tools may not be fully suitable or effective in the case of TK, given some additional variables, including difficulties in determining a right holder or singling out an inventor or creator, cultural resistance to assigning monopoly-like property rights, plus the collective nature of the innovation process within communities and trans-generational passing on of specific TK, among others.

Indigenous peoples and their communities generally share TK and are faced with its wide dissemination and distribution outside community contexts. This includes broad dissemination within and also across national borders, with growing concerns regarding the policy and legal implications of this ‘transboundary’ situation. Only recently has the issue, and related problems, of shared and widely distributed TK (and GRs) been placed on the international agenda – albeit timidly.28

What makes TK different from other forms of shared and disseminated information and knowledge may lie in the cultural context under

5. THE CHALLENGE OF IMPLEMENTING PRIOR INFORMED CONSENT AND CONSULTING PRINCIPLES IN THE CONTEXT OF SHARED AND WIDELY DISTRIBUTED TRADITIONAL KNOWLEDGE


which TK develops and the fact that classic IP tools seem unable to offer appropriate protection responses.

The Nagoya Protocol on ABS is a good starting point to address shared TK. Article 10 (Global Multilateral Benefit Sharing Mechanism) of the Protocol establishes that:29

Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally.

These may be situations where TK is so disseminated and shared so extensively that it is, in practice, impossible to celebrate a contractual agreement and ensure PIC conditions of any sort. For these situations, which here again may be the prevailing rule, a potential protection policy option may be to develop a multilateral funding mechanism (or use existing mechanisms, such as the Global Environment Facility (GEF), a global trust fund recommended under the FAO International Treaty)– that ensures some form of benefit sharing for accessing and using GRs and TK.

A funding option does not curtail the possibility of other regulatory alternatives, but offers – arguably - a low-transaction-cost mechanism if designed adequately.30

The Nagoya Protocol, furthermore, recognises in Article 11 (Transboundary Cooperation) that:

1. In instances where the same genetic resources are found in situ within the territory of more than one Party, those Parties shall endeavour to cooperate, as appropriate, with the involvement of indigenous and local communities concerned, where applicable, with a view to implementing this Protocol.

2. Where the same traditional knowledge associated with genetic resources is shared by one or more indigenous and local communities in several Parties, those Parties shall endeavour to cooperate, as appropriate, with the involvement of the indigenous and local communities concerned, with a view to implementing the objective of this Protocol.

This provision leaves it to parties to develop a cooperation scheme to ensure benefit sharing is realized in situations of shared, similar TK. Some national legal frameworks (including Andean Decision 391, the African Union Model Law, etc.) have also acknowledged the issue of shared resources and TK but have not really overcome a key challenge at the implementation level: how to technically and efficiently guarantee optimum solutions in situations where subject matter (TK) is disseminated and widely distributed. Furthermore, engaging a legitimate and valid identifiable right holder remains a major challenge.31


Box No. 1 Examples of the treatment of shared or widely disseminated TK in some existing legal instruments

Legal instrument ProvisionLaw 27811, for the protection of collective knowledge in Peru (2001)

Article 6. The indigenous representative organization, whose prior informed consent is sought [representative organization are deemed the legitimate TK negotiating body on behalf of communities], must inform the widest possible number of communities holders of the same knowledge that it is entering into negotiations, and take into account their interests .

Decision 391 of the Andean Community on ABS (1996)

First, Final Provision. In the negotiation of the terms of access contracts, in cases where more than one Member States is country of origin of genetic resources or derived products, as well as in regards to access activities, the National Competent Authority will take into account the interests of the other countries sharing these resources …

Nagoya Protocol on ABS (2010)

Article 10. Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally.

Nagoya Protocol on ABS (2010)

Article 11.2 Where the same traditional knowledge associated with genetic resources is shared by one or more indigenous and local communities in several Parties, those Parties shall endeavour to cooperate, as appropriate, with the involvement of the indigenous and local communities concerned, with a view to implementing the objective of this Protocol.

The main limitations affecting bilateral, contractual negotiations when TK is shared are: a) how can a contract be negotiated (or PIC obtained) when there is no single, clearly defined right holder? b) even if this is possible, assuming TK is in the public domain or publicly available, is it feasible and economically viable to negotiate an advantageous contract? and c) what are the

effects of economic pressures (impacting benefit potential) when TK is in practice found and accessible from various sources?

One additional dimension affecting bilateral contracts related to shared TK –and any TK, for that matter - are the information asymmetries that indigenous peoples and their representatives may face in these particular circumstances.


6. THE POLICY AND LEGAL OPTIONS

The issue of shared and widely distributed TK has become part of international agendas rather recently. The IGC early in its process recognised that obtaining PIC in cases where right holders are not defined could be a problem and, more importantly, could affect and create tensions between communities sharing similar resources and TK but with different views about what to do with them. This includes situations where TK might even be in the public domain and publicly available. These two well-established principles in the IP realm have been strongly contested by indigenous peoples who claim their rights over TK extend beyond whether or not they have lost control over their TK or whether their TK is now disseminated in the public domain or readily available and accessible.

To define the best and most effective policy and legal option regarding the protection of shared and widely disseminated or distributed TK, decisions could bear in mind the following situations:

TK that is maintained confidential among different communities (and is ‘shared’)

Many communities may possess the same or share very similar confidential and/or sacred TK.32 In this case, there are unlimited options to obtain and access this TK from multiple sources – or at least as many options as there are communities with this TK. The almost certain scenario is that only one or a few selected communities involved in a specific bioprospecting or ethnobotany project will directly participate in the benefits derived from it. Project proponents will enter into negotiations with one, two or a group of well-represented communities willing to participate. Negotiating with each and all communities may be, in practice, impossible.33

At least in cases of indigenous peoples in the Andes and Amazon and other remote areas of the world, it is very hard to imagine any possibility for a fair, informed and balanced engagement in bilateral negotiations – even if good, pro bono legal advice is available and provided, as often occurs. Isolation, remoteness and limited, if

any, understanding of western-inspired legal and economic principles are just a few of the complex challenges indigenous peoples need to overcome.

If TK is restricted to one or just very few, closely related and integrated communities, applying a trade secret-based approach may be one option to secure a certain level of exclusivity and control in this category of TK.34 This would require a certain level of agreement and coordination between communities to ensure the trade secret is kept confidentialover time.

The advantage of this approach is that trade secrets are universally recognised and are present in almost all national legislations. One disadvantage is that there is a certain level of expertise and capacity required to enter into contractual negotiations that define the conditions upon which this TK will be shared and used, apart from a legal framework that facilitates trade secret protection.

These capacities are almost certainly not available in communities today, or at least not in most. An unfair competition framework may also be required, which is flexible enough to incorporate and consider indigenous peoples’ TK as trade secrets. Finally, in the case of shared and confidential TK, there is a potential downside to seeking trade secret protection, especially if there is the real possibility that the knowledge will eventually ‘escape’ or be removed – by chance or on purpose - from a confidential context. This may happen when many communities share the TK and are not that closely integrated in a nation, tribe, group or whatever category is used.

The holder of the trade secret may be a representative member of a community(ies) or the specific individual holding the TK, on behalf of the community(ies). In this latter case, it would be expected that some form of internal benefit sharing is foreseen to ensure there is no single, individual beneficiary. But, this will depend on customs and practices that socially organize the community(ies). It


should be recognised a priori that there may be inevitable exclusions of communities or individuals who hold similar TK but who – given the specific circumstance - will be unable to engage and participate directly in the project and its benefits .

Apart from trade secrets as a protection tool, national law may develop ad hoc tools to support registration of confidential TK and ensure its use only for defensive purposes – through specific action by IP authorities or bodies responsible for preventing misappropriation or misuse of natural resources and TK.35

The advantage of this approach is that all indigenous people and communities that possess this category of TK may be protected and defended (provided they register their knowledge or are all recognised by the register as holders of TK) against misuse or ‘biopiracy.’ The protection measure becomes immediately effective (potentially at least) and benefits a general group of indigenous people and communities. The potential shortcoming of this option is whether or not the registered TK – which is confidential - can validly be presented to IP (patent) authorities to challenge novelty and inventiveness based on action from national authorities or entities managing this register or database.36

Shared TK that has passed and is already in the public domain

As mentioned earlier, the most common situation is that TK is broadly and widely shared between communities and has entered the public domain in its more classic form (i.e. it has been described in publications or is widely used by and documented outside rural, community contexts, for broader society).

In this particular case, and based on IP-related principles, TK cannot be strictly protected, although certain limitations could be imposed on its use. Three possibilities that may offer a certain degree of ‘protection’ come into mind. In this context, protection is defined broadly, as indicated in point two above – mainly as

exclusive rights, control, compensation and defensive protection.

First, defensive protection measures could be implemented. The registration of TK may support the prevention of misappropriation of TK, even if it is in the public domain or rather because of this factor.37 With respect to either specific, individual TK or a broad set of systematized TK entries and registrations, national authorities may be in a position to use these registers to challenge novelty and inventiveness related to patents.38 This approach has the advantage that it benefits a broad and general set of indigenous peoples and communities, even though it does not secure benefit sharing. Defensive protection only defends against wrongful or openly illegal patents over biodiversity innovations and related TK. It does not secure monetary or any other type of benefit.

Second, though this has not been explored in detail in this paper, the copyright derived principle of ‘domaine public payant’ may also be potentially useful, in this case in a compensatory context. In simple terms, this principle applies to works, crafts and arts that have lost copyright protection and are in the public domain but for some specific reason are deemed important enough to receive special policy attention that is expressed in the obligation to pay the state (for subsequent distribution) a fee for the use of these works, crafts and arts.39

Third, a relatively new tool that is being explored as a means to ensure protection of TK (and other indigenous people values and resources) is ‘biocultural or community protocols.’40 These are basically management and planning tools elaborated by specific communities that determine the conditions upon which their resources and TK may be accessed and utilized.41

Protocols are not binding on third parties, but do provide with ex ante guidance regarding what to expect if projects and activities are planned in the lands or territories of indigenous peoples and communities. To some extent, they


contribute to legal certainty. The most notable advantage of these tools is that, regardless of the category or condition of TK, rules are freely set (including PIC principles in some cases) to offer guidance for researchers or entrepreneurs who are interested in accessing and using TK.

Finally, even if TK is clearly in the public domain, widely shared, available and known by broader sectors of society, recognition of TK holders and indigenous peoples in general in publications, audio and visual media materials, official campaigns and other means, can serve an important goal in the revaluation of TK and social inclusion processes.42 This is another variant of the ‘protection’ concept that has little to do with substantial rights, compensation or control, but rather focuses on the distinct nature and socially valuable feature of TK, which has, almost as a historic trend, been overlooked – until recently.

All forms of TK

The FAO International Undertaking process of the 1980s offers an important, albeit often overlooked, lesson regarding policy options for addressing widely distributed resources.43 The FAO Undertaking recognised early on that given the interdependence between countries with respect to plant GRs for food and agriculture and the fact that these resources have become widely distributed among countries, the most practical and effective international measure to implement farmers’ rights44 was to establish an international (compensatory) fund.45 Though the fund never materialized, it is an interesting example of a multilateral mechanism that sought to overcome operational and management complexities concerning farmers’ rights .

At the same time, the FAO International Treaty on Plant Genetic Resources for Food and Agriculture (2001) also created a funding mechanism that seeks to ensure that benefits derived from seeds or materials accessed from a multilateral system (MS) for commercial purposes are distributed to farmers in the countries of origin.46 The MS is applied to a defined and agreed pool of common GRs.

In the case of TK, there is already relatively good and precise data and information on where indigenous people and communities are located worldwide. This coincides and overlaps almost perfectly with centres of megadiversity. This data gives a good idea of the identity of potential TK holders and, thus possible beneficiaries of a multilateral fund-like TK benefit-sharing scheme.47

If in the context of shared or widely disseminated TK, PIC is too complicated to achieve. More important, frictions and tensions begin to appear when certain indigenous groups are excluded from negotiations over TK that they claim is theirs. Thus, there may be a need to revisit contractual options and look at alternative possibilities. However, compensatory funds are one of these possibilities.48

Paradoxically, funds offer – in comparison - an easier and more practical approach to address situations of shared and widely disseminated TK, at least more so than seeking PIC and agreeing to contracts where no defined right holders can be identified. Such arrangement risk inequity if all communities or groups who share the TK do not participate in the benefits being negotiated.49 Transaction costs are reduced to the operational costs of the system.

Rather than create new taxes or impose additional burdens on the private sector, or seek additional resources from already stretched international cooperation and funding agencies, under an international agreement or decision, a small, fixed percentage (i.e. 1-2 percent)50 of existing taxes on sales of a certain category of products (i.e. natural products, biotrade products, natural cosmetics and pharmaceuticals), could contribute to an international compensatory fund, which would then direct monies to conservation and sustainable use projects in selected areas of the world (pre-defined and identified by countries in an official list).51

Ideally, a binding international agreement would provide the basis for implementing this obligation and ensuring companies and profit-making institutions commit to it.


This approach does not run counter to existing options, including those under consideration by the draft text in IGC – which leaves considerable leeway for action at the national level. However, agreeing and developing a list of such products or goods may not be simple. If there is a lesson to be learned from international processes, the FAO International Treaty managed to develop a closed (for the moment) list of plant GRs for food and agriculture for which very specific rules and a MS on ABS applies. Even this agreement was considered by many to be a “nightmarish process,” especially in the definition of resources covered by the MS. Under the MS rules, it is almost irrelevant where genetic resources come from or originate as long as they are designated as part of this pool of resources for which all contributing countries receive a portion of benefits (both monetary and non-monetary).

The main advantages of a fund/compensatory approach include the following. First, there is de facto recognition that access and use of TK will be compensated (regardless of its form or status). Second, all indigenous people and communities are entitled to participate in the benefits derived from the fund, because they are recognised as indigenous and communities. Third, there is no need for a negotiation between indigenous peoples and communities and a specific company, project or enterprise; thus, there are no transaction costs involved – at the negotiating level. Fourth, indigenous people and communities are not selling their TK, but merely receiving compensation due to a legal recognition of its value. Finally, TK can continue to flow and develop and benefit the broader society and still be protected by other non-compensatory schemes. Indigenous peoples should have an informed participation and

involvement in discussions and debate regarding the formal and substantial operational features of such a mechanism, whether at a national or international level.

A comment on ‘soft’ intellectual property tools

Geographical indications and collective marks are often cited as IP tools that may, under certain circumstances, offer protection to indigenous people’s intellectual interests. They do not protect TK per se, but could protect its use in goods and services of a collective or grouping. What are the circumstances under which these interests may be protected? First, GIs and collective marks are intrinsically related to markets and imply interactions with it. This is important, because it means that indigenous people using these tools will probably be groups that have a close (or closer) relation to relatively well developed markets and rely on TK as a source of income.

Second, GIs and collective marks provide an option under which products developed through the use of shared TK, technologies and practices can be protected. Furthermore, they guarantee a regulated system under which whoever (indigenous peoples groups or associations) seeks to use the GI or collective mark does so under a common, and freely accepted, framework.

Finally, GIs and collective marks require certain levels of formalization on behalf of indigenous peoples. Whether through an association, a cooperative or a company, there is the need for a process under which a tribe, a community or a group of communitiescan be recognised administratively by the state as an entity that can be granted exclusionary rights and benefit from this protection.


7. RECOMMENDATIONS

Options and text-based language for IGC discussions

The IGC process in the WIPO and the existing draft text for an international regime for TK protection offers nations a broad range of tools that may serve to protect TK and indigenous peoples’ intellectual interests.

In the case of shared knowledge and widely disseminated TK, there seems to be no perfectly equitable or fair technical solution to protect this category of TK. Control or exclusive rights are impossible to exercise; or certain indigenous peoples or communities will be excluded from the benefits that could be generated from use of the TK; or PIC is impossible to obtain (because there is no defined right holder, or representative group); or tensions and frictions may be created among and between indigenous peoples and communities – some of which participate in benefits and some of which are excluded from them.

If this is the case – and it should so be recognised - there is the need to acknowledge the potential for a set of measures and tools that may include: defensive protection, “domaine public payant”-based schemes, biocultural or community protocols or a funding, compensatory mechanism. The advantage of the latter option is that it is inclusive rather than exclusive and may have the potential to effectively implement practical measures that generate direct benefits to a broad set of indigenous people, groups and communities. These funds – whether at the international level or at the national level - at the very least secure social recognition of TK, place an economic value on TK, ensure benefits accrue directly to indigenous people and communities and are targeted toward conservation and sustainable use projects.

One recommendation for the ongoing IGC process may be to consider incorporating a draft article that refers to widely disseminated and distributed TK and the need to explore

policy and regulatory options thatreduce transaction costs, prevent tension and frictions among indigenous people and communities and ensure that monetary benefits from the use of TK (even if in the public domain) are equitably shared with these groups.

A suggested draft article for the IGC text on TK protection may read,

In cases where traditional knowledge is shared across borders, between two or more indigenous peoples or communities, in two or more countries, Member States/Contracting Parties, will collaborate to identify, develop and implement, with participation of indigenous peoples and communities, appropriate, feasible, fair and equitable protection and compensatory mechanisms.

A fund or permanent financial mechanism that engages private sector and commercial actors that directly or indirectly use TK and promotes mandatory contributions according to sales of natural or biodiversity products, could offer a cost-effective way for an ‘across-the-board’ solution to compensate indigenous peoples and communities for their intellectual contributions.

As a pilot phase for this type of scheme, a list of potential endeavours or businesses that use biodiversity and its components and to a lesser or greater extent benefit from TK (past or present) could include, for a start: biotrade activities; natural products development and cosmetics (that use natural products). Their contributions to a fund would not be an additional tax or cost, but could be designed as part of express state incentives (reflected in taxes, for example) directed specifically at promoting, preserving and developing biodiversity and TK in particular.

This alternative should not be seen as replacing other potentially useful national


or international approaches, but could be prioritized as a practical multilateral option, which reduces transaction costs and overcomes classic problems related to identifying a right holder, implementing a valid and legitimate PIC

procedure and potentially excluding indigenous peoples and communities from direct benefit-sharing arrangements, etc. It is, as in other cases, a second-best solution to an otherwise (almost) technically insurmountable problem.


8. CONCLUSION

In the context of TK protection discussions, there is a widespread belief that TK (in its intangible form) can, in fact, be controlled and subjected to effective use restrictions. Information is one of the most complicated goods to control and protect, especially once it becomes shared and spreads among social structures. Traditional knowledge is mostly shared, dispersed and disseminated among communities and indigenous peoples. This is not to say that there may be very valuable TK that is still maintained and kept confidential within community structures – but, for this category of TK, other alternatives should be kept open.

Except in very few cases where TK is still unique, maintained by single individuals or for some reason has not escaped very confined communal contexts, control and restrictions are difficult (and extremely costly) to put into practice. When TK is – or becomes – part of the public domain or is freely accessible, protection possibilities are more limited still.

Intellectual property was designed to protect informational goods. A highly complex, albeit

effective, IP system governs creation and dissemination of ideas and innovation in its many forms. Though the use of certain IP tools for the protection of TK, in particular, is very difficult in the best of cases, there may be instances where certain IP tools (i.e. trade secrets or copyright) could serve the purpose of protecting certain intellectual interests of indigenous peoples and communities. However, the actual use and application of these tools requires careful definition of the element of TK for which protection is sought: knowledge, a product or a process.

As in the case of GRs, TK is almost invariably shared – to some extent or degree. This is not the exception but, rather, the rule. As a result, the complete text of the draft “Protection of TK” should be understood in a broad sense (i.e. exclusive rights, control, compensation, maintenance of TK, etc.), more like a strategic goal, than as an IP-exclusive type of right. Depending on the emphasis placed on each element of protection, a specific tool or mechanism might be applied, including in the case where TK is shared.


ENDNOTES

1 This sui generis option should not be confused with the sui generis alternative proposed by article 27.3.b of the Trade Related Aspects of Intellectual Property Agreement (TRIPS), which refers to a combination of UPOV-type and patent protection for new varieties of plants. The draft text for an international regime for the protection of TK under the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) of the World Intellectual Property Organization (WIPO) is one recent example of a sui generis approach to the protection of TK, which combines a wide set of IP and non IP tools and instruments.

2 Not all widely distributed and disseminated TK is part of the public domain. This will depend on the extent that the TK has been documented, is described in literature (i.e. academic journals and books) and is available from sources such as libraries, internet, publications, etc. For a detailed analysis of the issue of “public domain,” see http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_inf_8.pdf Note on the Meanings of the Term “Public Domain” in the Intellectual Property System, with Special Reference to the Protection of Traditional Knowledge and Traditional Cultural Expressions.

3 For a description of the CBD and Nagoya Protocol and arguments on why ongoing policy and regulatory approaches regarding access to GRs – based on bilateral contracts regarding shared resources- may be flawed and misguided, see Zamudio, Teodora, Vogel, Joseph, Ruiz, Muller. Logic Should Prevail: a New Conceptual and Operational Framework for an International Regime of Access to Genetic Resources. Research Document. Initiative for the Prevention of Biopiracy. SPDA, Year V, No. 13, March, 2010. Lima, Peru. The main argument of the paper is that existing access and benefit-sharing (ABS) policy and legal frameworks have lost sight of a fundamental characteristic of GRs: their informational nature. Genetic resources are not tangible material, but intangible, coded information, regardless of the legal definitions of the CBD. This fact –understood well by scientists but less so by politicians- substantially alters the policy, economic and legal approach which should be given to ABS, as this information is widely shared and disseminated across national borders.

4 See http://unesdoc.unesco.org/images/0006/000684/068457mb.pdf for the full text of the Model Provisions.

5 Under FAO Resolution 5/89, farmers’ rights are defined as “…rights arising from the past, present and future contribution of farmers in conserving, improving and making available plant genetic resources … These rights are vested in the International Community, as trustee for present and future generation of farmers, for the purpose of ensuring full benefits for all farmers …” http://data.iucn.org/dbtw-wpd/htm/EPL057-expguide-international-treaty/Article9.html

6 According to Article 9.9.2(a), the responsibility to realize farmers’ rights rests with national governments, and measures to protect these rights may include:[…] (a) Protection of traditional knowledge relevant to plant genetic resources for food and agriculture. […]

7 See Chapter 2, The Current Law on Plant Genetic Resources and Traditional Knowledge, In: Biber-Klemm, Susette and Cottier, Thomas (Editors) 2006. Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives. CABI. United Kingdom. pp. 56-110

8 Article 7 establishes that “In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and


informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established “.

Article 12 of the Nagoya Protocol establishes that:

1. In implementing their obligations under this Protocol, Parties shall in accordance with domestic law take into consideration indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources.

2. Parties, with the effective participation of the indigenous and local communities concerned, shall establish mechanisms to inform potential users of traditional knowledge associated with genetic resources about their obligations, including measures as made available through the Access and Benefit-sharing Clearing-House for access to and fair and equitable sharing of benefits arising from the utilization of such knowledge.

3. Parties shall endeavor to support, as appropriate, the development by indigenous and local communities, including women within these communities, of:

(a) Community protocols in relation to access to traditional knowledge associated with genetic resources and the fair and equitable sharing of benefits arising out of the utilization of such knowledge;

(b) Minimum requirements for mutually agreed terms to secure the fair and equitable sharing of benefits arising from the utilization of traditional knowledge associated with genetic resources; and

(c) Model contractual clauses for benefit-sharing arising from the utilization of traditional knowledge associated with genetic resources.

4. Parties, in their implementation of this Protocol, shall, as far as possible, not restrict the customary use and exchange of genetic resources and associated traditional knowledge within and amongst indigenous and local communities in accordance with the objectives of the Convention.

9 Defensive protection was initially conceived in the early 1990s, during the Andean process for the development of an ABS regime. In simple terms, defensive protection creates a linkage between patent regimes and ABS and TK protection regimes. To grant a patent right or process a patent application in the field of biotechnology or natural products, the applicant is required to demonstrate the legal origin or provenance of materials or TK utilized –directly or indirectly- in the innovation. For a review of the origin of the concept see Caillaux, Jorge, Tobin, Brendan, Ruiz, Manuel. 1999. Acceso a Recursos Genéticos. Lecciones y Experiencias. WRI, SPDA. Lima, Perú. For a more detailed conceptual analysis of defensive protection see, Henninger, Thomas. Disclosure requirements in patent law and related measures: a comparative overview of existing national and regional legislation on IP and biodiversity. In: Werth, Alexander, Reyes, Susanne (Editors) 2010. Triggering the Synergies between Intellectual Property Rights and Biodiversity. GIZ, Eschborn, Germany. p. 293-226

10 See The Protection of Traditional Knowledge: Draft Articles at, http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=238182

11 Article 31 (1) of the United Nations Declaration on the Rights of Indigenous Peoples expressly determines that “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as


the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.”

12 For a critical assessment of the ARIPO initiative, see Munyi, Peter. Progress or Setback? An African Regional Instrument for the Protection of Traditional Knowledge and Folklore. See http://ictsd.org/i/news/bioresreview/12091/

13 For a review of existing legal instruments and tools for TK protection, See http://www.wipo.int/tk/en/laws/tk.html

14 International Labor Organization (ILO) Convention 169 on Indigenous and Tribal Peoples in Independent Countries and the UN Declaration on the Rights of Indigenous Peoples, have been important catalysts and justifications to promote and demand open, transparent and participatory process.

15 Dutfield has undertaken extensive analysis regarding TK and its special features. See Dutfield, Graham. Protecting Traditional Knowledge and Folklore. A Review of Progress in Diplomacy and Policy Formulation. UNCTAD-ICTSD. Intellectual Property Rights and Sustainable Development. Issue Paper No. 1. June 2003.

16 Most existing policy and legal initiatives are based on a sui generis approach to TK protection which entails the rational combination of different tools (i.e. registers, contracts), mechanisms (i.e. PIC), and procedures (i.e. consultation) which “protect” TK. The most notable example of this may be Law 27811 of Peru which combines: registers, licenses, trade secret and competition law principles and defensive protection principles, to ensure TK of indigenous people related to biodiversity is safeguarded and protected. See Venero, Begoña. Mitos y verdades sobre la biopiratería y la propiedad intelectual. En: Anuario de Derechos Intelectuales. Kresalja, Baldo. Editor. Palestra, Lima, 2004.

17 The TRIPS Agreement does not define an invention in its text, but establishes criteria upon which an invention is measured: novelty, inventiveness and industrial application. These are technical concepts which over time have been described precisely in terms of content and their specific boundaries.

18 Just as an example of the potential problems of inexistence of definitions, recently in India, the Supreme Court determined that Novartis would not be awarded a new patent over Gleevec (a cancer treating drug), basically because the “new” “invention” was not deemed significantly different from the original version of the drug. See http://www.nytimes.com/2013/04/05/opinion/the-supreme-court-in-india-clarifies-law-in-novartis-decision.html?_r=0

19 See WIPO IGC, The Protection of Traditional Knowledge: Draft Gap Analysis: Revision 4. WIPO Doc. WIPO/GRTKF/IC/13/5/(b) Rev. (2008) http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_13/wipo_grtkf_ic_13_5_b_rev.pdf

20 The Nagoya Protocol refers only to “traditional knowledge”, which begs the question whether this means an implicit exclusion of innovations and practices from its scope, especially since in contras, article 8(j) of the CBD refers to knowledge, innovations and practices as a sort of single, all embracing concept.

21 This poses a continued and complex problem regarding the loss of TK. Increasingly, TK is not being passed on to younger generations simply because these generations are not interested


and have been influenced by market-based and western type elements (i.e. money, jobs) which dramatically affect and change social structures and relations within community members. The “city lights” effect has been extensively documented and is considered a strong foundation for the erosion and loss of traditional cultures.

22 When referring to shared and widely distributed TK, this paper focuses on specific TK which relates to medicinal uses and application of plants and natural products, conservation techniques for seeds, and knowledge regarding specific characteristics of biodiversity. Certainly, if the religious, spiritual and symbolic variables which surround TK are taken into account, they add considerable differentiation between communities and cultures. Nevertheless, in trying to set some boundaries and defined features, it could be argued that the specific TK (as knowledge, an innovation or a practice) is common to many indigenous peoples and groups.

23 Laird, Sarah (Editor) 2002. Biodiversity and Traditional Knowledge. Equitable Partnerships in Practice. People and Plants Conservation Series. WWF, UNESCO, Royal Botanic Gardens Kew. Earthscan Publications Ltd. London. New York.

24 See Boyle, James. The Second Enclosure Movement and the Construction of the Public Domain. Duke University, 2003, Available at, http://law.duke.edu/pd/papers/boyle.pdf

25 Joseph Vogel, since 1992, has been an active (often lonely) critic of how little information economics has been considered and assessed in the context of ABS and TK related negotiations, especially in the CBD. Vogel argues that the most limiting but overlooked flaw in the CBD and the Nagoya Protocol is, precisely, ignoring the informational nature of GRs and TK and their effects on sovereignty and contractual approaches to ABS. See Vogel, Joseph. 1994. Genes for Sale. New York: Oxford University Press.

26 This explanation is taken and adapted from, Vogel, Joseph (Editor). 2000. The Biodiversity Cartel. Transforming Traditional Knowledge into Trade Secrets. CARE. Quito, Ecuador.

27 WIPO makes a useful distinction between TK in the public domain and freely accessible TK. It is often assumed that TK is mostly in the public domain and therefore available for free. However, it cannot be assumed that this TK has no owner or does not belong to an indigenous peoples group, community or indigenous individual. It may be possible to impose certain conditions and limitations on access to and use of TK which is in fact in the public domain. Furthermore, being in the public domain does not mean that it is in practice freely accessible: on the contrary there may be some very simple situations such as electronic safeguards (in the case of data bases), or remote and isolated archives, or very limited editions of certain publications, etc. which make the principle of freely accessible almost impossible to be realized. See http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_inf_8.pdf

28 Vogel argues that even the Nagoya Protocol falls short of adequately addressing the true nature of genetic resources (coded, natural information) and shared and widely distributed TK. See Vogel, J., Alvarez-Berríos, N., Quiñones-Vilche, J.L., et.al (2001). The Economics of Information, Studiously Ignored in the Nagoya Protocol on Access and Benefit Sharing. 7/1 Law Environment and Development (LEAD) Journal (2011), p. 51-65, available at http://www.lead-journal.org/content/11052.pdf

29 The rationale for articles 10 and 11 of the Nagoya Protocol is rather fuzzy. What is known is that very late in the negotiations of the Protocol (during COP 10 in Nagoya), the African Group insisted on incorporating provisions addressing GRs outside national jurisdictions and shared and widely disseminated resources and TK, among others. It is suspected than some of the ideas that Vogel and a few others had been advocating since the early nineties, finally permeated


part of the policy discussions. Another point of interest is that an initial draft text of the Nagoya Protocol included a provision –now missing- regarding TK in the public domain.

30 A detailed study on whether and to what extent funding mechanisms effectively lower transaction costs is yet to be undertaken. Furthermore, resources –other than donor contributions- have to become sustainable end embedded in the system itself. The funding mechanism under the FAO IT, where commercial uses of plant GRs have yet to materialize in monetary benefits, offers a useful albeit relatively new experience. What is certain is that existing regulatory and institutional frameworks offer few if any advantages in terms of supporting the realization of benefits and sharing them thereafter.

31 Andean Decision 391 on a Common Regime on Access to Genetic Resources, 1996, and applicable in Bolivia, Colombia, Ecuador and Peru, includes a specific provision which recognizes that Member States may share resources and when this is the case, each State should take into consideration the interests of the other states when negotiating access agreements. The problem has been over time that countries are struggling to implement the Decision and safeguard their own interest, with little if any incentive to consider neighboring countries interests. On the other hand, article 10 of Law 27811 for the protection of collective knowledge in Peru establishes that collective knowledge may pertain to various indigenous people. More interestingly, article 6 establishes that “…the indigenous representative organization, whose prior informed consent is sought [representative organization are deemed the legitimate TK negotiating body on behalf of communities], must inform the widest possible number of communities holders of the same knowledge that it is entering into negotiations, and take into account their interests … […].” See http://www.bnp.gob.pe/portalbnp/pdf/ley_27811.pdf

32 Clearly, sharing “the same” TK is ontologically impossible. What is shared is very similar or even almost identical TK related to biodiversity or GRs uses and applications.

33 The Peruvian International Cooperative Biodiversity Group Project (ICBG) (1994-2002) is an example of different representative organizations –of the same indigenous peoples nation, with member communities sharing TK became estranged when the Consejo Aguaruna Huambisa decided to leave the project and the National Confederation of Amazon Nationalities (CONAP) decided to replace it and participate in the project – with the logical tensions and frictions created along the way. See José C. Aponte, Abraham J. Vaisberg, Rosario Rojas, Michel Sauvain, Walter H. Lewis, Gerardo Lamas, César Sarasara, Robert H. Gilman and Gerald B. Hammond. A Multipronged Approach to the Study of Peruvian Ethnomedicinal Plants: A Legacy of the ICBG-Peru Project. In: J. Nat. Prod., 2009, 72 (3), pp. 524–526

34 In classic IP law, and according to the TRIPS Agreement, to be considered a trade secret information (i.e. secret or confidential TK), must: be secret; have some kind of commercial or potential value and have been subject to reasonable steps to be kept confidential. There must be a conscious act of maintaining TK secret – but formally allowed for use in a specific commercial or industrial endeavor.

35 The Peruvian National Commission for the Prevention of Biopiracy (Law 28216, of 2004), is formally responsible for identifying and taking action in cases where Peruvian biodiversity or its communities TK have been accessed illegally or misappropriated through granting of wrongful IP and patents in particular. See http://www.biopirateria.gob.pe

36 The Traditional Knowledge Digital Library (TKDL) in India for example, only uses the registered TK for defensive purposes and IP authorities can only access this database for these purposes: to review novelty and inventiveness. There are no other uses allowed, even for research purposes. For review of the role, dimensions and functions of TK registers, see Chamudeswaari,


K, Alexander, Merle, Kambu, Alphonse, Tobin, Brendan, Ruiz, Manuel. The Role of Registers and Databases in the Protection of Traditional Knowledge: A Comparative Analysis. United Nations University, Institute of Advanced Studies. Japan, January, 2004.

37 The case of the Traditional Knowledge Digital Library in India is a case in point. Traditional Indian medicinal knowledge (Ayurvedic, Unani and Sidha formulations), widely shared, disseminated and firmly in the public domain (i.e. it has been documented and published for centuries), is systematized and organized in a database used for defensive protection and to prevent ‘biopiracy.’ It is used only for this purpose. This entails institutional arrangements between the Council for Scientific and Industrial Research (CSIR) in India, and the most important IP offices in the world: the European Patent Office (EPO), the Japanese Patent Office (JPO) and the Unites States Patent and Trademark Office (USPTO). See http://www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng Another example is action undertaken by the Peruvian IP office (INDECOPI, which is also responsible for implementing the law for the protection of TK), which ex officio as well as upon request from indigenous people, is responsible for registering TK in formal, State recognized databases which may be used for defensive purposes. See Venero, Begoña. La Protección Jurídica de los Conocimientos Tradicionales en el Perú. En: Kresalja, Baldo. Editor. Anuario Andino de los Derechos Intelectuales. No. VI, 2009. Lima, Perú. p. 86-102 INDECOPI s activities in this regard may be reviewed at http://www.indecopi.gob.pe

38 Interestingly, in 1996 Peru adopted a national regulation on breeders rights (Supreme Decree 008-1996-ITINCI, 1996) which included the obligation of applicants to demonstrate the legal origin of GRs and TK which may have been used in the development of the new variety as a pre requisite for processing the plant breeders right application. This extended defensive protection measures to PBR. However, after adopting UPOV 91, as part of an obligation in the FTA with the US, the regulation was derogated and these requirements eliminated, in a clear example of the downside effects of adopting UPOV like regimes – and stricter IP rules in FTAs.

39 See the work of the UNESCO Committee of Non-Governmental experts on the ‘Domaine Public Payant’, Copyright Bulletin, vol.XVI, no 3, 1982, 49. See also Dietz, Adolf, “A Modern concept for the right of the community of authors (domaine public payant)”, Copyright Bulletin, 1990, XXIV, n°4, 13-28 Jerome Reichmann, a notable critic of the “enclosure movement”, has also contributed to this conceptual debate, see Reichman, Jerome, Maskus, Keith. The Globalization of Public Knowledge Goods and the Privatization of Global Public Goods. In: Maskus and Reichman, Editors. Journal of International Economic Law. 7(2)-279-320.

40 For specific examples of biocultural protocols in Africa, South East Asia, Asia and South America, see http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_inf_8.pdf

41 The Nagoya Protocol recognizes community protocols. Article 12 of the Nagoya Protocol establishes that: […] 3. Parties shall endeavor to support, as appropriate, the development by indigenous and local communities, including women within these communities, of: (a) Community protocols in relation to access to traditional knowledge associated with genetic resources and the fair and equitable sharing of benefits arising out of the utilization of such knowledge; […]

42 A notable example of this form of recognition is happening now in Peru. Through an intense and profoundly inclusive campaign to revalue national gastronomy, a potent side effect has been for very broad sectors of society to recognize, acknowledge and appreciate the value of TK and indigenous peoples’ contribution to the conservation, development and maintenance of native crops which are crucial to the “gastronomic boom” of the country. Peru is one of the three world preferred gastronomy destinations, a feat which has been achieved over a period


of a decade or so of close collaboration between the State, the private sector, social actors (including communities) and a group of visionary cooks and chefs who have placed biodiversity and agro-biodiversity in particular, on the national agenda. Sustainably using resources and TK is one way to secure “protection.” For an analysis of this process, see Ruiz, Manuel. 2009. Agrobiodiversity Zones and the Register of Native Crops: Learning from Ourselves. Genetic Resources Policy Initiative, SPDA, Lima, Peru. p. 55-86 Available at: http://www.spda.org.pe/ver-publicacion.php?id=150

43 The International Fund for Plant Genetic Resources was created as the tool to realize farmers’ rights and compensate them for their contribution to the maintenance, conservation, development and dissemination of plant GRs (FAO Resolution 5/89).

44 At the time, FAO Resolution 5/89 defined farmers’ rights as “rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly those in the centers of origin/diversity. These rights are vested in the International Community, as trustee for present and future generations of farmers, for the purpose of ensuring full benefits to farmers, and supporting the continuation of their contributions, as well as the attainment of the overall purposes of the International Undertaking) in order to:

a) ensure that the need for conservation is globally recognized and that sufficient funds for these purposes will be available;

b) assist farmers and farming communities, in all regions of the world, but especially in the areas of origin/diversity of plant genetic resources, in the protection and conservation of their plant genetic resources, and of the natural biosphere;

c) allow farmers, their communities, and countries in all regions, to participate fully in the benefits derived, at present and in the future, from the improved use of plant genetic resources, through plant breeding and other scientific methods.”

45 FAO Resolution 3/91 established that […] “Farmers’ Rights will be implemented through an international fund on plant genetic resources which will support plant genetic conservation and utilization programs, particularly, but not exclusively, in the developing countries.” This fund was to be operated by the donors of GRs, funds and technology through the Commission on Plant Genetic Resources.

46 The Multilateral System on Access and Benefit Sharing was designed and developed due to the recognition that countries are interdependent in regards to plant GRs for food and agriculture in particular and that efficient mechanisms are required to ensure continued flows of this special category of resources for breeding, conservation and to sustain agricultural systems worldwide, including plant breeding. A Standard Material Transfer Agreement adopted in 2001, is a contractual tool which ensures expeditious access to the resources included in a list of resources – a common pool. For a detailed review of the International Treaty, see Moore, Gerald, Tymowski, Wytold. 2005. Explanatory Guide to the FAO International Treaty on Plant genetic Resources for Food and Agriculture. IUCN Environmental Law Programme. Environmental Law and Policy Paper No. 57. IUCN, Gland.

47 This multilateral “protection” scheme would focus on the compensatory element (benefit sharing) and co-exist with parallel specific positive and defensive protection measures to be implemented at the national level.


48 Graham Dutfield discusses the possibility of establishing and creating national “private collective management institutions” to monitor use of TK, issue licenses to users, and distribute fees to right holders in proportion to the extent to which TK is utilized by researchers, industry, etc. These functions could also be assigned to a public institution, depending on specific national contexts and to what extent indigenous people place their trust in the State. See Dutfield, Ibid. at 14, p. 7.

49 This paper does not analyze in depth the economic viability of an international or national fund. Both may be potential alternatives to promote compensatory measures for access to and use of shared TK. The author acknowledges that creating and subsequently maintaining a fund may not be easy nor politically acceptable –at this moment, anyway.

50 This suggested percentage is a general figure. It is not the result of an in depth economic analysis. The point to be made is that the percentage should be derived from existing taxes and not impose additional costs. For this to be acceptable, there would need to be an analysis of this impact on public finances – given political (budgetary) implications for governments.

51 This assumes that States will have the political will to agree on this type of scheme, and in parallel leave the option open for existing IP based protection schemes, contractual negotiations, etc.


REFERENCES

Aponte, José. C, Vaisberg, Abraham J. , Rojas, Rosario, Sauvain, Michel, Lewis, Walter H., Lamas, Gerardo, Sarasara, César, Gilman, Robert H., and Hammond., Gerald B. A Multipronged Approach to the Study of Peruvian Ethnomedicinal Plants: A Legacy of the ICBG-Peru Project. In: J. Nat. Prod., 2009, 72 (3), pp 524–526

Biber-Klemm, Susette and Cottier, Thomas (Editors). 2006. Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives. CABI. United Kingdom. pp. 56-110

Boyle, James. 2003. The Second Enclosure Movement: and the Construction of the Public Domain. Duke University

Caillaux, Jorge, Tobin, Brendan, Ruiz, Manuel. 1999. Acceso a Recursos Genéticos. Lecciones y Experiencias. WRI, SPDA. Lima, Perú

Chamudeswaari, K, Alexander, Merle, Kambu, Alphonse, Tobin, Brendan, Ruiz, Manuel. 2004. The Role of Registers and Databases in the Protection of Traditional Knowledge: A Comparative Analysis. United Nations University, Institute of Advanced Studies. Japan

Dietz, Adolf. 1990. “A Modern concept for the right of the community of authors (domaine public payant),” Copyright Bulletin, XXIV, n°4, 13-28.

Dutfield, Graham. 2003. Protecting Traditional Knowledge and Folklore. A Review of Progress in Diplomacy and Policy Formulation. UNCTAD-ICTSD. Intellectual Property Rights and Sustainable Development. Issue Paper No. 1.

Henninger, Thomas. 2010. “Disclosure requirements in patent law and related measures: a comparative overview of existing national and regional legislation on IP and biodiversity,” in: Werth, Alexander, Reyes, Sussane (Editors) Triggering the Synergies between Intellectual Property Rights and Biodiversity. GIZ, Eschborn, Germany

Kresalja, Baldo ( Editor). 2009. Anuario Andino de los Derechos Intelectuales. No. VI, Lima Perú

Laird, Sarah (Editor) 2002. Biodiversity and Traditional Knowledge. Equitable Partnerships in Practice. People and Plants Conservation Series. WWF, UNESCO, Royal Botanic Gardens Kew. Earthscan Publications Ltd. London. New York.

Moore, Gerald, Tymowski, Wytold. 2005. Explanatory Guide to the FAO International Treaty on Plant genetic Resources for Food and Agriculture. IUCN Environmental Law Programme. Environmental Law and Policy Paper No. 57. IUCN, Gland

Munyi, Peter. 2008. “Progress or Setback? An African regional Instrument for the Protection of Traditional Knowledge and Folklore,” Bridges Trade BioRes Review 2:2 http://ictsd.org/i/news/bioresreview/12091/

Reichman, Jerome, Maskus, Keith. 2004. “The Globalization of Public Knowledge Goods and the Privatization of Global Public Goods,” in: Maskus and Reichman, Editors. Journal of International Economic Law. 7(2)-279-320

Ruiz, Manuel. 2009. Agrobiodiversity Zones and the Register of Native Crops: Learning from Ourselves. Genetic Resources Policy Initiative, SPDA, Lima, Peru

UNESCO 1982. Committee of Non-Governmental experts on the ‘Domaine Public Payant’, Copyright Bulletin, vol.XVI, no 3, 49


Venero, Begoña. 2004. « Mitos y verdades sobre la biopiratería y la propiedad intelectual, » in: Anuario de Derechos Intelectuales. Kresalja, Baldo. Editor. Palestra, Lima

Vogel, Joseph. 1994. Genes for Sale. New York: Oxford University Press.

Vogel, Joseph (Editor). 2000. The Biodiversity Cartel. Transforming Traditional Knowledge into Trade Secrets. CARE. Quito, Ecuador

Vogel, J., Alvarez-Berríos, N., Quiñones-Vilche, J.L., et.al. 2011. “The Economics of Information, Studiously Ignored in the Nagoya Protocol on Access and Benefit Sharing,” 7/1 Law Environment and Development (LEAD) Journal

WIPO IGC. 2002. Traditional Knowledge – Operational Terms and Definitions 11, WIPO Doc. WIPO/GRTKF/IC/13/9

WIPO IGC. 2008. The Protection of Traditional Knowledge: Draft Gap Analysis: Revision 4. WIPO Doc. WIPO/GRTKF/IC/13/5/(b) Rev.

Zamudio, Teodora, Vogel, Joseph, Ruiz Muller. 2010. Logic Should Prevail: a New Conceptual and Operational Framework for an International Regime of Access to Genetic Resources. Research Document. Initiative for the Prevention of Biopiracy. SPDA, Year V, No. 13, Lima, Peru

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These and other ICTSD resources are available at http://www.ictsd.org

ICTSD has been active in the field of intellectual property since 1997, among other things through its programme on on Innovation, Technology and Intellectual Property (IP), which since 2001 has been implemented jointly with UNCTAD. One central objective of the programme has been to facilitate the emergence of a critical mass of well-informed stakeholders in developing countries that includes decision-makers and negotiators, as well as representatives from the private sector and civil society, who will be able to define their own sustainable human development objectives in the field of IP and advance these effectively at the national and international level. The programme has generated an issue paper series on Intellectual Property Rights and Sustainable Development with the intention of offering a clear, jargon-free synthesis of the main issues to help policy makers, stakeholders and the public in developing and developed countries to understand the varying perspectives surrounding different IPRs, their known or possible impact on sustainable livelihoods and development, and different policy positions over the TRIPS Agreement and other relevant international intellectual property arrangements. This issue paper series is the consequence of a participatory process involving trade negotiators, national policy makers, as well as eminent experts in the field, the media, NGOs, international organizations, and institutions in the North and the South dealing with IPRs and development.

Previous publications under this Series include:

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• Fast-tracking Green Patent Applications: An Empirical Analysis. Issue Paper No. 37 byAntoine Dechezleprêtre, 2013.

• Unpacking the International Technology Transfer Debate: Fifty Years and Beyond. IssuePaper No. 36 by Padmashree Gehl Sampath and Pedro Roffe, 2012.

• Realizing the Potential of the UNFCCC Technology Mechanism. Perspectives on the WayForward. IssuePaperNo.35by JohnBarton,PadmashreeGehl Sampathand JohnMugabe,2012.

• BridgingtheGaponIntellectualPropertyandGeneticResourcesinWIPO’sIntergovernmentalCommittee(IGC).IssuePaperNo.34byDavidVivas-Eugui,2012.

• The Influence of Preferential Trade Agreements on the Implementation of IntellectualPropertyRights inDevelopingCountries. IssuePaperNo.33byErmiasTekesteBiadglengandJean-ChristopheMaur,2011.

• Intellectual Property Rights and International Technology Transfer to Address ClimateChange:Risks,OpportunitiesandPolicyOptions.IssuePaperNo.32byKeithE.MaskusandRuth L. Okediji, 2010.

• IntellectualPropertyTrainingandEducation:ADevelopmentPerspective.IssuePaperNo.31byJeremydeBeerandChidiOguamanam,2010.

• An International Legal Framework for the Sharing of Pathogens: Issues and Challenges.IssuePaperNo.30byFrederickM.Abbott,2010.

• Sustainable Development in International Intellectual Property Law – New ApproachesFromEUEconomicPartnershipAgreements?IssuePaperNo.29byHenningGrosseRuse–Khan, 2010.

• TheTechnicalAssistancePrinciplesof theWIPODevelopmentAgendaandtheirPracticalImplementation.IssuePaperNo.28byC.Deere-BirkbeckandR.Marchant,2010.

• FreeTradeofPharmaceuticalProducts:TheLimitsofIntellectualPropertyEnforcementattheBorder.IssuePaperNo.27byXavierSeuba,2010.

Forfurtherinformation,visitwww.ictsd.org

About the International Centre for Trade and Sustainable Development

Foundedin1996,theInternationalCentreforTradeandSustainableDevelopment(ICTSD)isanindependent think-and-do-tank based in Geneva, Switzerland and with operations throughout the world, includingout-posted staff in Brazil, Mexico, Chile, Senegal, Canada, Russia, andChina. By enabling stakeholders in trade policy through information, networking, dialogue,well-targeted research and capacity-building, ICTSD aims to influence the international trade system so that it advances the goal of sustainable development. ICTSD co-implements all of its programme through partners and a global network of hundreds of scholars, researchers, NGOs, policymakers and think-tanks around the world.

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Documents

Protecting Shared Traditional Knowledge