Transcript PCIPD Roundtable

ATRIP CONGRESS
2003
Folklore, Traditional Knowledge
and Benefit Sharing
Tokyo
August 4-6, 2003
QUESTIONS ?
What is Traditional Knowledge (TK) ?
Why is Protection of TK Important ?
What are the Problems facing TK holders ?
What is the Challenge ?
THE CHALLENGE …..
IP mechanisms
do not cover
nonsystematic,
undocumented
knowledge
Customary
law is not
applicable
outside the
community
…. IN SEARCH OF A
MODEL
Need to find common ground
Traditional
Knowledge
IP system
A global assessment of needs & expectations of
holders of Traditional Knowledge
WIPO’S RESPONSE
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Roundtable on IP & indigenous peoples (1998)
Panel discussion on IP & human rights (1998)
4 regional consultations on protection of folklore
(1999)
Cooperation with IGOs & NGOs
Integration into WIPO’s cooperation for development
activities
Roundtable on IP and TK (1999)
FFM
WIPO FACT-FINDING MISSIONS
North America
Caribbean
Countries
Central
America
Arab Countries
Bangladesh
South Asia
South Pacific
Uganda &
Tanzania
South America
West Africa
Mali
Southern &
Eastern Africa
WIPO FFM FINDINGS
TK systems are frameworks for
continuing creativity & innovation
Common to all countries
All branches of IP law are
relevant to TK
TK is a
constantly
renewed
source of
wealth
Discussions in the SCP /
Diplomatic Conference on
the PLT - proposal to set up a
distinct body
INTERGOVERNMENTAL COMMITTEE
ON INTELLECTUAL PROPERTY AND
GENETIC
RESOURCES,TRADITIONAL
KNOWLEDGE AND FOLKLORE

Themes for the Committee – Access to Genetic Resources and
Benefit- Sharing
– Protection of Traditional Knowledge
– Protection of Expressions of Folklore,
including Handicrafts
ACCESS TO GENETIC RESOURCES
AND BENEFIT - SHARING

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Contractual Agreements for access to
Genetic Resources
Legislative, administrative and policy
measures to regulate access to genetic
resources and benefit - sharing
Multilateral Systems for facilitated access to
genetic resources and benefit sharing
Protection of biotechnological inventions,
including certain related administrative and
procedural issues
PROTECTION OF TRADITIONAL
KNOWLEDGE
– Terminological and Conceptual Issues
– Standards concerning the availability, scope and
use of intellectual property rights in traditional
knowledge
– Criteria for the application of technical elements
of standards - legal criteria for the definition of
prior art and administrative and procedural
issues related to the examination of patent
applications
– Enforcement of Rights
PROTECTION OF EXPRESSIONS
OF FOLKLORE, INCLUDING
HANDICRAFTS

To make use of earlier deliberations

Development of Sui - generis systems

Importance of handicrafts
APPROACH
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Consultations with about 3,000 stakeholders
Series of over 20 regional and national
consultative meetings - helped to shape regional
positions
Studied 80 substantive documents
Series of wide-ranging surveys of national laws
and other forms of practical experience with legal
protection
Development of a set of practical tools for legal
protection
CROSS-CUTTING ISSUES

Operation of established forms of IP
protection

Underlying principles of IP law

Experiences with sui-generis forms of legal
protection
INTERACTION OF IP LAW WITH
NON-IP LEGAL SYSTEMS
Internationally
– IP systems and CBD
– FAO International
Treaty on Plant Genetic
Resources for Food
and Agriculture
– existing and emerging
instruments dealing
with cultural heritage
and cultural diversity UNESCO conventions
Domestic Law
– contract law
– environmental
protection law
– cultural heritage law
– laws governing access to
biological resources and
protected territories
– laws concerned with
Indigenous people
COMPREHENSIVE POLICY
DEBATE

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Interplay between capacity - building activities
and policy discussions concerning legal norms
Constraints impeding right holders from deriving
the benefits of IP protection
– lack of capacity to exercise rights in practice
– gaps in the rights available in national laws,
corresponding regional and international
systems
– combination of both factors.
PRINCIPLE OF
‘PRIOR INFORMED CONSENT’

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Access should only be granted if the access provider is
sufficiently well informed about the
– implications of the proposed access
– full range of possible ways of structuring access
– determination of the share of benefits from the
access
Issue both of capacity building and of precise legal
formulation
to achieve outcome of
optimal equitable sharing of benefits when
access occurs
COMPLEMENTARY POLICY
OBJECTIVES
To develop a respect for TK
 To ensure that it is preserved and
maintained
 To promote use in association with right
holders
 To enable equitable sharing of benefits

Diverse range of regulatory and legal
tools needed to achieve these goals
PROTECTION OF TK

Positive Protection
- active assertion of rights

Defensive Protection - preventing others from
illegitimate gain of rights
POSITIVE PROTECTION
IP APPROACH

Use of rights by holders
to stop unauthorized
acts and to seek
remedies if such use
occurs
Community may use IP
rights to stop illegitimate or
unauthorized use of a
traditional design by a
manufacturer (Carpet case)

Use of rights as the
basis for commercial,
research etc dealings
with external partners
Community may use
rights commercially itself or
license to others and define
benefits from such use
(Canada/ NZ)
POSITIVE PROTECTION
NON - IP APPROACH
Can be used in conjunction with IP protection
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Legal means
Other forms of
legislation
Bilateral Contracts
Agreements and
licenses

Technical Means
Use of Information
Technology
– Data security
systems
– electronic
databases
DEFENSIVE PROTECTION

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Third parties do not gain illegitimate or
unfounded IP rights over TK subject matter and
related genetic resources
Measures to preclude or oppose:
– Patent rights on claimed inventions
– Trade mark rights making use of TK subject
matter
– Assertion of copyright in literary or artistic
works that make illegitimate use of traditional
cultural works
DEFENSIVE PROTECTION

Documentation of TK as a form of defensive
strategy
– portal of on-line databases
– inventories of
–periodicals containing TK subject matter
–on-line databases (TK material)
– incorporation of periodicals within the minimum
documentation for the PCT
– revision of the IPC to include categories
specifically for TK subject matter
CONCLUSIONS FROM THE
JULY SESSION

Immediate steps need to be taken to safeguard
the interests of those communities who have
developed and preserved TK and traditional
cultures

IGC should move towards concrete outcomes focus on the international aspects of protection of
TK and TCEs

Views differed over the appropriate form and legal
status of these outcomes
– conclusion of a legally binding international instrument
by 2005
– draw on international understanding in the short term possibility of legally binding outcomes for the future.

Strengthen and extend international recognition of
customary law relating to traditional knowledge

Enhance representation of indigenous and local
communities in any international process

Improve coordination of work with other
international processes - CBD, FAO and
UNESCO
TK protection
– deliberation on possible approaches
for legal protection
– definitions
– policy issues in protection as IP
– options for sui generis protection
Genetic resources and TK
– considered defensive approaches to ensure that
TK and genetic resource material are not the
subject of illegitimate patent claims
– moves to modify core elements of the IPC and the
PCT
– ‘SINGER’ database (System-wide Information
Network for Genetic Resources- data of genetic
resources held in trust internationally) was linked
to a WIPO on-line portal to help patent examiners
take greater account of existing TK and genetic
resources when assessing the validity of patent
claims
Protection of TCEs
– important policy challenges highlighted for
new approaches to protection of TCEs (notion
of the ‘public domain’)
– concern that documentation of TK does not
lead to an unintentional loss of rights or of
control over it
– development of Tool kit - if a community
chooses to document their TK, necessary
safeguards in place to avoid undermining the
community’s own interests
The General Assembly
meeting in September 2003
will consider future directions
THANK YOU