Securing the Benefits of Traditional Cultural …...Technical Minds. Legal Muscle. Securing the...
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Technical Minds. Legal Muscle.
Securing the Benefits of Traditional Cultural Expressions
and Knowledge for Local Communities
Jorge GoldsteinSenior Director, SKGF
11 June 2019
WIPO-CPIP George Mason University
V01 13213644 22 May 2019
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• Traditional Cultural Expressions (TCEs) and Traditional Knowledge (TK) in local communities
• Developed-world legal concepts (especially IP) and their relation to TK/TCEs
• Economic Social and Cultural Human Rights (ESCRs)• Access and Benefit Sharing (ABS): The Convention for
Biological Diversity and the Nagoya Protocol• Applying developed-world IP to redeem ESC rights
Outline
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Traditional Cultural Expressions and Traditional Knowledge
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• Traditional Cultural Expressions (“folklore”) include:− Verbal expressions, such as folk tales, poetry, riddles, signs, words− Musical expressions, such as songs and instrumental music− Expressions by action, such as dances, plays, rituals− Tangible expressions, such as Drawings, paintings, sculptures, pottery, jewelry, baskets, textiles Crafts Instruments Architectural forms
Basic definitions: TCEs
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• Traditional Knowledge generally refers to know-how in scientific and technical areas, such as −Local biodiversity, e.g., animal behavior−Local genetic resources, such as plants −Derivative applications, such as Traditional medicine remedies
Basic definitions: TK
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• In 2000, the Olympic Museum of Lausanne reproduced Australian aboriginal artworks without consent or permission− Dispute arose in copyright and moral rights issues, settled with an
apology and money• Sampling of indigenous music and then copyrighting new arrangements
− 1992: “Deep Forest” CD mixed music from Ghana, African pygmy, and Solomon Isl. with techno-dance rhythms
− Dispute over rights to South African melody “Lion Sleeps Tonight.”• Mass producing computer mouse pads, T-shirts, coasters, calendars, with
traditional arts and crafts designs.• Violating sacred sites (e.g., by filming a movie on Mt Taranaki, a god-like
volcano in Maori mythology)
Examples of (mis-) appropriation of TCEs
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• Embodying traditional designs into mass-produced fabrics and clothing−Kente cloth in Ghana−Tipi designs from North American tribes− “Traditional Appalachian” quilts made in
China• Photographing traditional costumes
followed by postcard sales• Mayan and Guatemalan huipil
(Mis…) appropriation of TCEs (cont’d)
$120.00 on eBay
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Developed-World Legal Concepts, Especially IP
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• Basic concepts− Contracts− Ownership
• IP concepts− Originality, authorship, inventorship − Public domain− Protection Copyrights, design patents; Geographical indications; Passing off / counterfeiting; Moral rights
Developed-world legal concepts in traditional communities
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Developed-World IP Chronological Progression
Birth of Idea or Concept =
Secret
Idea or Concept protected by IP =
Published
Idea or Concept enters the public domain = Usable by all
Length of Protection
Patents = 20 years© = Life of author + 70 years® = As long as used
Idea or Concept
not protected
by IP
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Protecting TCEs: Protecting TCEs already in the public domain (Consolidated Analysis, WIPO 2003)
Contemporary TCEs
Copyright and Related Rights
Industrial Property (industrial designs,
trademarks, GIs)
Pre-existing TCEs (Public domain)
Performances of TCEs (WPPT, 1996)
Defensive prevention of uses of TCEs in certain cases – Unfair competition, consumer protection laws and/or registration system
U.S. Indian Arts and Crafts Act (1990)
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Misrepresentation of Indian produced goods and products.
It is unlawful to offer or display for sale or sell anygood, with or without a Government trademark, in amanner that falsely suggests it is Indian produced,an Indian product, or the product of a particularIndian or Indian tribe or Indian arts and craftsorganization, resident within the United States.
U.S. Indian Arts and Crafts Act of 1990
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Economic Social and Cultural Human Rights
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Two classes of human rights• Civil and political rights – U.S. Constitution Bill of Rights:
−Speech, assembly, religion, search and seizure
• Economic, Social and Cultural rights (ESCRs) -Roosevelt’s 1944 State of Union, Second Bill of Rights; 1966 UN Covenant on ESCRs: −Right to food / clean water; health; shelter; jobs;
education; development
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• Intellectual property is not a recognized fundamental human right, although …
• The right to benefit from one’s creations is an ESCR: • International Covenant on ESCRs (U.N. 1976) (signed but
never ratified by the U.S.)Art. 15 (1) (emphases added): The States Parties to thepresent Covenant recognize the right of everyone: …(c) To benefit from the protection of the moral and materialinterests resulting from any scientific, literary or artisticproduction of which he is the author.
Overlap between ESCRs and IP
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Tension between developed–world IP and ESC rights
• IP rights promote technological developments, many of which are humanitarian, e.g., medicines, food, shelter.
• In regions of poverty or lack of development, the IP system as we know it in the developed world does not always function properly, e.g., −Patented AIDS drugs or vaccines in Africa or Latin America−Patented mono-cultivars (e.g., transgenic soy beans) and the
loss of biodiversity−Misappropriation of TCEs and TKs
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Access and Benefit Sharing
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• 1993: Convention on Biological Diversity (“Rio Treaty”)−Conservation of genetic resources−Sustainable use of its components−Fair and equitable sharing of
benefits from genetic resources• U.S. signed but did not ratify• 2010: Nagoya Protocol on Access
and Benefit Sharing
Principles of ABS
Rio Treaty
Nagoya Protocol
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Applying Developed-World IP to Redeem ESC Rights
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Developed-world efforts to reconcile IP and ESC Rights
• PIIPA: Clearinghouse for IP customers in developing countries and worldwide providers
• Light Years IP: Ethiopian coffee farmers• Kaski v. Nike (2002): “No child labor”- Nike's ads • WIPO Global Challenges: Humanitarian licensing• AU Law School clinic: Challenge to “TRIPS-Plus”• USPTO: Competition for humanitarian technologies• Google/DotOrg: Corporate responsibility• Gates Foundation• Patent pools: Essential medicines
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Our own firm’s Pro Bono IP work• SKGF’s Vision:
SKGF's Pro Bono practice strives to develop Human Rights-conscious IP lawyers through the proper interplay of Intellectual Property principles and Economic, Social and Cultural Rights.
• Sets a balanced and nuanced tone:−Patent system is not the root cause of intractable ESC
problems… −But neither is patent laissez faire able to solve them.
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Two approaches:
1. Prevent exploitation
2. Promote “reverse technology transfer”
Pro bono IP and ESCRs: focus on Traditional Knowledge
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Prevent exploitation: The maca case
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Finding pre- AIA prior art
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“Reverse technology transfer”
Central ideaUse the developed-world IP system to monetize IP generated in the developing world.
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Ecoflora SAS’s EdiBlue® (Colombia)
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EdiBlue as a colorant for foods, cosmetics, medicines and textiles
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ABS statement in the patent
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Commercialization of EdiBlue: three phases• Patenting the Technology
− Process for stabilizing blue colorant at low pH− Powder formulations− Chemical structure of stable adduct− Consumer goods comprising the blue compositions
• Obtaining FDA approval• Negotiating with food (and other) additive multinationals
− IP (not supply) contracts− Fields of Use restricted to patented uses (foods, cosmetics, medicines)
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Lucas Tyree (Monacan Tribe, Va.): Foliar feeding formulation and uses
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• Traditional Cultural Expressions− Consolidated Analysis of the Legal Protection of Traditional Cultural
Expressions/Expressions of Folklore, Background Paper No. 1 (WIPO 2003)• Traditional Knowledge
− Hansen et al, “Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property,” in: Intellectual Property Management in Health and Agricultural Innovation – a handbook of best practices, Vol. 2, Chapter 16.6. (2007)
• ESC Rights− Goldstein, J., “Protecting rainforest-derived technology equitably,” in WIPO
Magazine, February 2019
Bibliography