Intellectual Property and the Protection of

Traditional Knowledge, Genetic Resources and

Folklore

Overview Introduction

Terminology - What is Traditional Knowledge (TK) and Traditional Cultural Expressions (TCES)

Examples and case studies

Background to WIPO’s work

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

IGC Outcomes

Legal Technical Assistance and Capacity Building

Indigenous Participation and Involvement

Traditional values and IP at odds?What does WIPO have to do with ‘traditional knowledge’?

Proponents and opponents of IP raised concerns:

– “imposing an IP straitjacket on traditional cultures,” “overriding collective values of indigenous communities”

– IP concerns ‘mainstream’ technology; commercialises & commodifies knowledge & culture; facilitates misappropriation of TK and cultural expressions

– IP rights are private, individual - at odds with values of traditional communities

– IP is concerned with innovation, not tradition

Towards resolution: back to basicsThe IP system criticized for misappropriating TK/TCEs, neglecting the interests of Indigenous & local communities. But these very concerns often expressed in terms that echo core principles of the IP system:

promoting equity and balance, reconciling private and collective interests,recognizing distinctive origins and the legitimate source of innovation and creativity, suppressing free-riding and unjust enrichment,defending distinctive reputations from illegitimate exploitation, providing for rights of attribution and integrity

This observation is the essence of an emerging consensus

What is Traditional Knowledge (TK)?

Traditional Cultural Expressions (TCE)?

Terminology

Definitions shouldn’t create firm boundaries:

• Cultural Heritage - expressions of folklore or traditional cultural expressions (TCEs)

• Traditional Knowledge (TK) - ‘technical’ know how - e.g. medicinal knowledge

• Genetic resources - ownership, custody, traditional relationship

EXAMPLES

Representative of the Saami Council

Kuna Mola

Chiva Colombia

Misappropriation of TK and TCEs

• Unauthorized commercial use

• Culturally offensive, derogatory and fallacious use

• No acknowledgement of source

• False association with “tradition”/borrowing of style

EXAMPLESLeft: Banduk Marika Djanda and the Sacred Waterhole (lino print)

Right: Indofurn’s ‘Djanda and the Sacred Waterhole’ carpet

Are traditional cultural expressions economic assets?

• Indigenous visual arts and crafts industry worth $130 million in Australia (2002 report)

• “World music” - Graceland, 1986 sold over 3.5 million copies worldwide

EXAMPLESHAKA

Authentic Commercial Use

LEGO AND MAORI

EXAMPLES

Background to WIPO’s Work

Berne Convention for the Protection of Literary and Artistic Works

- Article 15(4) attempts to introduce copyright protection for folklore at international level and provides some form of protection where if the identity of the author is unknown he/she may still be entitled protection

Tunis Model Law on Copyright for Developing Countries (1976)

- adopted with the assistance of WIPO and UNESCO, and provides specific protection for works of national folklore

WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1982)

- drafted in response to concerns that expressions of folklore were susceptible to improper exploitation have been used by countries within their national legislations

WIPO Performances and Phonograms Treaty (WPPT)

- adopted in 2002, provides definition of “performer” to include performer of expression of folklore

Background to WIPO’s Work

WIPO-UNESCO World Forum on the Protection of Folklore - Phuket, Thailand (1997)

-discussed issues and needs related to IP and folklore, and recognized the need for new international standard of protection

WIPO Report on Fact-finding Missions on Intellectual Property and TK (1998 - 1999)

- fact-finding missions in 28 countries to identify IP-related needs and expectations of TK-holders

Background to WIPO’s Work

WIPO-UNESCO Regional Consultations on the Protection of Expressions of Folklore (1999)

- four regional consultations organized and each regional consultation adopted recommendations identifying IP needs and issues, and proposals for future works. Also recommended the establishment of a committee to facilitate future work in this area.

Background to WIPO’s Work

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

(IGC)

Where did the IGC come from, where is it going?

1998-99 fact-finding missions (60 locations; dialogue with around 3,000 representatives of TK holder communities)

– new program based on direct learning of the needs & expectations of TK holders themselves– these insights still central

IGC established in 2001– clarifies that this is an existing area of IP law and practice; many laws and practical cases worldwide, within and beyond the conventional IP system– what is the international dimension?

INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE (IGC)

Forum in which discussions can proceed among Member States on three primary themes, namely intellectual property issues that arise in the context of

(i) access to genetic resources and benefit sharing; (ii) protection of traditional knowledge, whether or not associated with those resources; and (iii) protection of expressions of folklore

New IGC Mandate 2004-05

Continue work on questions included in previous mandate new work to focus on consideration of international dimension, without prejudice to work in other fora no outcome is excluded, including the possible development of an international instrument(s) the IGC urged to accelerate its work and to present a progress report International Bureau to continue to assist by providing necessary expertise and documentation

Tangible Outcomes

• Series of Studies and Analysis of Positive Protection of TK and TCEs• Analysis of elements of sui generis protection systems for TK• Practical Analysis of terminology concerning TK and TCEs• Practical tools for the positive and defensive protection of TK• TK Portals• Inventories of periodicals and databases to promote search and

examination• Publication of practical case studies on TCES/Folklore• Publication of case studies concerning access to genetic resources

and associated benefit-sharing

• Toolkit for Managing Intellectual Property when Documenting TK and Genetic Resources

• WIPO Practical Guide on the Legal Protection of Traditional Cultural Expressions

• Guide on Contractual Practices and Clauses relating to Intellectual Property, Access to Genetic Resources and Benefit-Sharing

• Customary Law Study

• Portal of Online Databases and Registries of Traditional Knowledge and Genetic Resources

IGC Continuing Work

Outcomes of IGC 6The IGC commissioned:

• Draft policy objectives and core principles for TK protection

• An outline of policy options and legal elements for TK

• Questionnaire on prior art criteria relevant to TK and draft recommendations for patent search and examination concerning TK systems

• Drafts policy objectives and core principles for the protection of TCEs

• An outline policy options and legal elements for TCEs

• Enhance participation of indigenous and local communities in the IGC

Outcomes of IGC 7Results of the most recent meeting

• Discussion of key documents focusing on key draft policy objectives and core principles for TK and TCEs

• Enhanced indigenous participation

LEGAL TECHNICAL ASSISTANCE AND CAPACITY BUILDING

LEGAL TECHNICAL ASSISTANCE AND CAPACITY BUILDING

• Regional and National Activities

• Expert and Fact-finding Missions

• Legislative Development

• Education and Training • Indigenous Participation and Involvement

Regional and national activities

The main objectives of the activities are to:

• provide Member States, Indigenous and local communities, relevant organizations and other stakeholders with a series of fora where they can consider and reflect on the technical, legal and policy dimensions of the issues that arise in the context of the mandate of the IGC

• ensure that States, Indigenous peoples and local communities, and other stakeholders have a clear idea of the work and mandate of the IGC, so that they may contribute to its deliberations in an effective way.

Expert and Fact-finding Missions

Fact-finding mission to China on the Legal Protection of National Folklore - November 28 and December 4, 2002

Fact-finding mission to China on the Protection of Traditional Chinese Medicines - November 10 to 14, 2003

Legislative developmentWithin the context of the Secretariat’s normal and ongoing Development Cooperation

functions:- contributed comments and information on the protection of TCEs and TK to

many countries which have requested this as part of their drafting of IP laws or review of existing laws.

Requests also received from regional IGOs. e.g.:

(1) Legal and policy options for the intellectual property protection of traditional knowledge for the African Regional Industrial Property Organization (ARIPO), as technical cooperation in the context of developing an integrated policy approach to traditional knowledge.

(2) Similar resource materials were drawn on in consultations on legal and policy options with the African Intellectual Property Organization (OAPI).

Legislative Drafting, Comments and Information

Regional Framework for the Protection of TK and TCEsAt the request of Pacific Island States through the Secretariat of the Pacific Community (SPC) and the Pacific Islands Forum Secretariat (PIFS), the Secretariat has provided information and legislative drafting comments and advice in relation to the development of a Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture for Pacific Island countries.

Practical Guide on TCE for LDCs

Practical Guide providing legal technical assistance to States to implement or improve existing IP Systems at a National Level

Outreach and publications

Awareness-raising publications

Booklets

> Intellectual Property and Traditional Knowledge; > Intellectual Property and Traditional Cultural Expressions

(expressions of folklore);> Intellectual Property and Access to Genetic Resources.

Background Papers

> The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore;

> Intellectual Property and Traditional Knowledge; > Consolidated Analysis of the Legal Protection of Traditional

Cultural Expressions;> Intellectual Property and Access to Genetic Resources.

Education and Training

WWA Distance Learning Courses

DL-203 "Traditional Knowledge and

Intellectual Property"

http://www.wipo.int/academy/en/dl101/index.htm

Coming Soon!

Specialized Course on IP and Traditional KnowledgeDL - 203

Course outline: The course shall present a general overview of the TK/IP nexus, in particular how the IP system relates to the protection of TK.

The course shall be comprised of six (6) substantive modules: • the notion of “traditional knowledge”, • its value and importance in the cultural, scientific and commercial

spheres,• current practices representing a threat to TK,• the rights TK holders want recognized,• possible models of protection of TK,• institutions and processes relevant to TK and IP.

Indigenous Participation and Involvement

NEW!! Accredited Non-Governmental Organizations' (NGOs) Page

NGOs play active and important role in the work of the IGC since its inception.

Apart from the NGOs already accredited to WIPO, around 95 additional NGOs have been accredited especially for the IGC many of which are representatives of local indigenous communities.

The IGC itself and the WIPO Assembly have both stressed the need to enhance the participation of local and indigenous communities in its work.

Currently under consideration, the possibilities of enhancing indigenous participation (document WIPO/GRTKF/IC/7/12)

Future of IP and TK

Role of WIPO

Other International Foras

Thank You

Susanna Chung