Transcript Outcome of UNCTAD X

Trade , Environment and Development
Harnessing Traditional Knowledge
for Development and Trade
UNCTAD
Module 7
Background
• The knowledge, innovations and practices of
indigenous and local communities (referred to as
“traditional knowledge”, TK) has many applications
that can help in alleviating poverty in rural areas,
providing food and medical care, generating
incomes for local and indigenous communities, and
conserving biodiversity
• An UNCTAD Expert Meeting emphasized the
important role of TK in the development process, in
particular in sectors such as traditional medicine,
traditional agriculture and folklore/handicrafts
TrainforTrade: Trade, Environment and Development
Value of TK
• TK-holding communities depend on it for
their livelihoods and well-being
• Large parts of populations in developing
countries depend on TK for food, health and
livelihoods (e.g. traditional medicine, food)
• TK has industrial applications
• TK-based trading opportunities
• However: commercial value is difficult to
estimate
TrainforTrade: Trade, Environment and Development
Background/Characteristics of TK
• Usually TK is held collectively (although certain types of
TK may be the purview of specific individuals or sub-groups
within the community)
• TK tends to be transmitted orally from generation to
generation; accordingly, it is usually undocumented
• TK is not static, but dynamic, evolving over time as
communities respond to new challenges and needs
• What makes TK ‘traditional’ “is not its antiquity, but
the way it is acquired and used. The social process
of learning and sharing knowledge, which is unique
to each…[traditional] culture, lies at the very heart
of its traditionality.” (Four Directions Council, 1996)
TrainforTrade: Trade, Environment and Development
Background/concerns
From a trade and development perspective,
major concerns are the following:
• TK is being lost as traditional communities
become more integrated into modern
society
• TK may be appropriated, adapted and
patented by scientists and industry
without appropriate compensation to the
indigenous custodians of this knowledge
TrainforTrade: Trade, Environment and Development
Background/benefits
There are many benefits of protecting TK.
In particular, appropriate TK protection:
• Provides rights to TK holders
• Preserves knowledge base of communities
• Creates value added for humankind
• Increases opportunities for socio-economic
development
• Provides opportunities for benefit-sharing
• Enables participation in world markets
• Helps to alleviate poverty
TrainforTrade: Trade, Environment and Development
Objectives of this module [1]
• To raise awareness of the importance of TK for
development, in particular with regard to
biodiversity, food and agriculture and medicine
• To identify objectives of the protection of TK
• To provide basic information and analysis
concerning the international debate on several
aspects of TK in different intergovernmental
organizations (IGOs)
• To assist interested beneficiary countries in
participating effectively in WTO negotiations (the
Doha Ministerial Declaration explicitly refers to the
protection of TK)
TrainforTrade: Trade, Environment and Development
Objectives of this module [2]
• To examine key concepts relevant for access and
benefit sharing and transfer of technology as
they related to TK
• To examine basic conditions for the possible
commercialization of TK (including TK-based
innovations
• To examine instruments available for the
protection of TK
• To identify capacity building needs of developing
countries seeking to harness TK for their trade
and development
TrainforTrade: Trade, Environment and Development
Immediate objectives
• This training module aims at assisting
Governments, traditional communities and other
stakeholders by
– providing objective information and analysis,
– facilitating policy dialogues
– helping to identify capacity building needs
• It also facilitates workshops aimed at promoting
coordination at the national level and an
exchange of national experiences among
developing countries
TrainforTrade: Trade, Environment and Development
Structure of this presentation
•
•
•
•
•
•
Appropriation of TK
The commercial potential of TK
Systems for protecting TK
The international debate
Capacity building needs
Issues for discussion
TrainforTrade: Trade, Environment and Development
Appropriation of TK
TrainforTrade: Trade, Environment and Development
Appropriation
• Developing countries seek to regulate access to
biodiversity and associated TK so as to ensure fair
and equitable sharing of benefits, including
through transfer of technology and finance
• The Convention on Biological Diversity has a
number of provisions (to be discussed under “the
international debate”
TrainforTrade: Trade, Environment and Development
Misappropriation
• The word “biopiracy” is used to refer to the
unauthorised and or/improper use of TK or
biological resources and/or the patenting of
spurious inventions based on such knowledge or
resources without compensation
• Examples
• The tumeric patent
• The neem patents
• The quinoa patent
TrainforTrade: Trade, Environment and Development
Improper granting of patents
• Some countries have legally challenged patents
– For example, India has succeeded in getting
patents, that were granted in other countries,
revoked
– Legal challenges, however, are expensive
• Search for a misappropriation regime, e.g:
– Documenting TK
– Prohibiting patents
– Disclosure of the source of TK
See also: section on the International Debate, WTO
TrainforTrade: Trade, Environment and Development
Documenting TK
• By documenting TK, patent examiners can
determine the existence of “prior art” resulting in
rejection for lack of novelty
• A database could be developed for use in national
patent offices (India’s proposal in the WIPO
Standing Committee on Information Technologies
was accepted)
TrainforTrade: Trade, Environment and Development
Prohibiting patents without PIC
• Prohibiting patents without Prior Informed
Consent. Several developing countries have passed
such measure in their access legislation
• Denying patents on multicellur life forms, as
allowed under Article 27.2 of TRIPS may help to
prevent biopiracy. However, as patents are
granted under national law and have territorial
application only, other WTO Members can grant
patents to life forms
TrainforTrade: Trade, Environment and Development
Disclosure
• In the negotiations leading to the recent adoption
of the Patent Law Treaty, some developing
countries suggested the inclusion of provisions
aimed at preventing patenting involving
unauthorized use of TK, for example through
compulsory disclosure of the source of TK and/or
PIC
• Some have proposed that Article 29 of TRIPS
concerning conditions on patent applications could
be used to include the requirement of a clear
mention of the biological source material and the
country of origin
TrainforTrade: Trade, Environment and Development
The commercial potential of TK
TrainforTrade: Trade, Environment and Development
The commercial potential of TK
Background
• Using the commercial potential of TK can help
indigenous and local communities in promoting
sustainable development and protecting their TK
• Commercialization may inter alia require intellectual
property protection to enhance the value of TKbased products (e.g. geographical indications), but
without adversely affecting traditional values
• Certain categories should be considered as “offlimits” for commercialization
TrainforTrade: Trade, Environment and Development
The commercial potential of TK
What needs to be done?
• Raise awareness of the importance of TK and its
preservation
• Further develop TK-based innovation
• Exploit the opportunities for commercialization of
TK-based products and services
TrainforTrade: Trade, Environment and Development
The commercial potential of TK
Some caveats/constraints
• For many traditional communities TK may have
cultural and spiritual values that preclude
commercialisation
• Problems with marketing, standardisation, and
scaling up production to meet market demand
• Possibility of over-harvesting economically
significant TK-based natural products
• Preservationist conservation policy may not allow
any kind of harvesting
TrainforTrade: Trade, Environment and Development
The commercial potential of TK
Capacity building needs
• Awareness raising
• Identifying aspects of TK that could be of wider
interest and a basis for commercialization
• Developing capacities to meet stringent standards
• Developing IPR systems that can enhance the
value of TK-based products
• Obtaining market information
• Developing partnerships
• Promoting innovation
TrainforTrade: Trade, Environment and Development
Systems for protecting TK
TrainforTrade: Trade, Environment and Development
SYSTEMS for protecting TK
 Customary and common law regimes
 Contractual agreements
 National access and benefit-sharing legislation,
embodying the prior informed consent principle
 Conventional IPR regimes
 Sui generis systems
• Non-legally binding forms of protection
• Voluntary guidelines
• Codes of conduct
TrainforTrade: Trade, Environment and Development
Customary and
common-law regimes
 Informal regimes govern the use and
transmission of TK at community level through
rules, rights and obligations
• Customary law results from repeated practices
• Monitored and enforced by elders, spiritual and
religious leaders
• Customary law is not usually applicable outside
the community
TrainforTrade: Trade, Environment and Development
Contractual agreements
[1]
• Standard modus operandi of a number of
corporations to access biological resources within
indigenous and local community territories
• Not required or guided by legislation: mutual trust
between communities and researchers/collectors
TrainforTrade: Trade, Environment and Development
Contractual agreements
[2]
• Advantages
Practical approach to promote equitable
sharing of benefits and to protect a
community’s IPRs
• Disadvantages
Non-binding on third parties
High transaction costs
Unfamiliarity of indigenous and local
communities with formal national legal
systems
Disparity in bargaining power
TrainforTrade: Trade, Environment and Development
Access and benefit sharing
• Over fifty countries are currently in the process of
writing ABS legislation
• In many cases such legislation refers explicitly to
the protection of TK
• Countries having enacted or preparing legislation
include the Andean Pact Members, Brazil, Costa
Rica, India, Panama, Philippines, and Thailand
TrainforTrade: Trade, Environment and Development
Access and benefit sharing
•
•
•
•
•
•
•
Definitions
Ownership
Traditional knowledge
Institutional issues
Access conditions
Benefit sharing
Transfer of technology
TrainforTrade: Trade, Environment and Development
Conventional IPR regimes
These include
• patents
• copyrights
• trade secrets
• trademarks
• geographic indications/appellations of origin
TrainforTrade: Trade, Environment and Development
Patents
TRIPS, Art. 27 (Patentable Subject Matter)
To be patentable, an invention must:
• be new
• involve an inventive step
• be capable of industrial application
TK tends to be collective in nature and handed down
across generations:
» In most cases patents may not be appropriate to
protect TK
TrainforTrade: Trade, Environment and Development
Trademarks
• Market-based instrument, allowed under TRIPS
• In the United States, the Intertribal Agricultural
Council licenses use of its “Made by the American
Indians” mark for the promotion of agricultural
and other Indian-made products and or processed
by members of recognized tribes
TrainforTrade: Trade, Environment and Development
Sui generis systems
[1]
• Systems “of their own kind” (outside the abovementioned areas of IPR law specified in the
TRIPS Agreement) that provide IP protection in
specific cases
• Examples:
• Breeders’ rights as provided by UPOV
• EU Directive on the Legal Protection of Data
Bases
• Internet Domain Names
TrainforTrade: Trade, Environment and Development
Sui generis systems
[2]
• Legislation that recognizes the creativity of
indigenous and local communities may be
enacted without violating the TRIPS Agreement
• Sui generis systems to protect TK are being
developed in several countries
• Few developing countries have yet enacted
legislation
TrainforTrade: Trade, Environment and Development
Codes of conduct
• Many institutions have introduced codes of
conducts or guidelines for conduct regarding
working with indigenous and local communities
and respecting their rights to privacy, the
protection of their traditional knowledge and to
fair dealing
• The effectiveness of institutional codes of
ethics/conduct will depend partly on how willing
the administering bodies are to investigate alleged
infringements and take action against guilty
members
TrainforTrade: Trade, Environment and Development
The international debate
TrainforTrade: Trade, Environment and Development
International debate:
Need for a balance
• The vast majority of plant genetic resources and
other forms of biodiversity are found in - or
originate from - developing countries
• Need to find a balance between:
– Developed countries’ needs to access
biodiversity resources
– Developing countries seek to ensure that access
is regulated so as to ensure fair and equitable
sharing of benefits, including through transfer of
technology and finance
TrainforTrade: Trade, Environment and Development
TrainforTrade: Trade, Environment and Development
Issues/institutions
Biodiversity-related TK
CBD
Genetic resources for
food and agriculture
FAO (International
Intellectual property
aspects of TK
Health (trad. medicine)
WIPO, WTO
Expressions of folklore
WIPO, UNESCO
Undertaking, now International
Convention, on PGRFA)
WHO
Traditional forest-related UN Forum on Forests
knowledge (TFRK)
(UNFF)
Human rights
ILO, UNCHR
Development and trade
(commercialization)
UNCTAD, ITC, UNDP
Biodiversity
CBD: Article 8(j)
“Each contracting Party shall, as far as possible
and as appropriate, “respect and maintain knowledge,
innovations and practices of indigenous and local
communities embodying traditional lifestyles relevant
for the conservation and sustainable use of
biodiversity and promote the wider application with
the approval and involvement of the holders of such
knowledge, innovations and practices and encourage
the equitable sharing of benefits arising from the
utilisation of such knowldege, innovations and
practices”
TrainforTrade: Trade, Environment and Development
Other key CBD provisions
Biodiversity
Art 3 and 15
States have svereign rights over their biological and
genetic resources
Art
15.3 (MAT)
15.4 (PIC)
Access to genetic resources can only occur on
mutually agreed terms [MAT] and with the “prior
and informed consent” [PIC] of States, unless
States have otherwise determined
Art 15.7
Eequitable sharing of benefits
Art 15.6
User countries to promote the participation of
provider countries in scientific research based on
genetic resources provided by them
Art 16.3
User countries to allow participation of provider
countries in scientific research based on genetic
resources provided by them
TrainforTrade: Trade, Environment and Development
Biodiversity
Working Groups
• Ad-hoc open-ended inter-sessional working group
on Article 8(j) and related provisions of the
Convention on Biological Diversity
• Ad Hoc Open-ended Working Group on Access and
Benefit-Sharing (ABS)
TrainforTrade: Trade, Environment and Development
Biodiversity
Working Group on ABS
[1]
Ad Hoc Open-ended Working Group on Access
and Benefit-Sharing (ABS)
Mandate: to develop guidelines and other
approaches to assist Parties and stakeholders
in addressing elements as relevant to ABS,
inter alia:
• Terms for PIC and MAT
• Participation of stakeholders
• Relevant aspects relating to in situ and ex
situ conservation and sustainable use
TrainforTrade: Trade, Environment and Development
Biodiversity
Working Group on ABS
[2]
• Mechanisms for benefit-sharing, for example
through technology transfer and joint research
and development
• Means to ensure the respect, preservation and
maintenance of TK relevant for the conservation
and sustainable use of biological diversity
***
The WG also considers capacity-building,
including assessments, information
management, negotiation and legal drafting
skills and means for the protection of TK
TrainforTrade: Trade, Environment and Development
Genetic resources for food
and agriculture
Food and Agriculture

Uniqueness:

Essential for food security

Intra-species diversity is important

High degree of interdependence among
countries
• Development of multilateral regimes
TrainforTrade: Trade, Environment and Development
International
Undertaking
(IU)and
Plant
Genetic
Genetic resources
Resources
for
forfood
Food
on Plant
Resources
andGenetic
agriculture
Agriculture
(PGRFA)


After seven years of difficult negotiations, the
revised International Undertaking (IU) -- now
International Convention (IC) -- on PGRFA was
adopted by the Conference of FAO on 3 Nov
1991
Some countries are concerned about consistency
with TRIPS. It remains uncertain whether the IC
will be ratified by these countries
TrainforTrade: Trade, Environment and Development
Farmers’ rights
Food and Agriculture
• National governments should take measures to
protect and promote Farmers’ Rights, including:
– protection of traditional knowledge
– equitably participation in sharing benefits
– right to participate in making decisions, at the
national level
• nothing in the Article “shall be interpreted to limit
any rights that farmers have to save, use,
exchange and sell farm-saved seed and
propagating material, subject to national law”
TrainforTrade: Trade, Environment and Development
Food and Agriculture
Multilateral System
• Governments are developing a Multilateral System
for Access and Benefit Sharing, taking into account
the special characteristics of biodiversity for food
and agriculture
– The spread of agriculture around the world has
made all countries inter-dependent
– Benefit-sharing must be multilateral, because the
concept of country of origin cannot be the basis
for benefit-sharing
TrainforTrade: Trade, Environment and Development
The UPOV Convention
Food and Agriculture
• The International Convention for the Protection of
New Varieties of Plants (UPOV) was signed in
Paris in 1961 and entered into force in 1968
• The Convention established the International
Union for the Protection of New Varieties of
Plants, based in Geneva
• It was revised in 1972, 1978 and 1991
• UPOV provides a framework for IP protection of
plant varieties, often referred to as plant
breeder’s rights
TrainforTrade: Trade, Environment and Development
Farmer’s privilege
Food and Agriculture
The right to re-sow seed harvested of protected
varieties is known as “farmer’s privilege”
– UPOV 1978: no mention
– UPOV 1991: left to national Governments to
uphold the farmer’s privelige or not
TrainforTrade: Trade, Environment and Development
Word Health Organization (WHO)
Health
• The World Health Assembly has adopted a number
of resolutions drawing attention to the facts that
– most populations in various developing
countries depend on traditional medicine for
primary health care
– the work force represented by practitioners of
traditional medicine is a potentiallyimportant
resource for the delivery of health care
– medicinal plants are of great importance to the
health of individuals and communities
TrainforTrade: Trade, Environment and Development
Traditional forest-related knowledge
(TFRK)
Forests
From a trade, environment and development
perspective, it is interesting to examine to whether
and how TFRK can be included in
 Criteria and indicators for sustainable
management of forests
 Criteria for certification of forests and forest
products
TrainforTrade: Trade, Environment and Development
WTO
World Trade Organization
Intellectual property aspects of TK
• TRIPS Council
• Committee on Trade and Environment
• Trade-Related Aspects of Intellectual Property
Rights (TRIPs) and the environment (item 8)
• Doha Ministerual Declaration: TK is mentioned
explicitly for the first time
TrainforTrade: Trade, Environment and Development
Article 27.3(b)
A WTO Member:
• May exclude from patentabilty plants, animals and
essentially biological processes for the production of
plants and animals
• Must provide protection for plant varieties, but has
the option to do so through patents or effective sui
generis systems
• Must allow patents for micro-organisms and nonbiological and micro-biological processes for the
production of plants and animals
TrainforTrade: Trade, Environment and Development
Doha Ministerial Declaration
(para. 19)
• The Council for TRIPS is instructed to examine
inter alia:
– The relationship between the TRIPS Agreement
and the Convention on Biological Diversity
– The protection of TK and folklore
– Other relevant new developments raised by
Members pursuant to Article 71.1
• In undertaking this work, the TRIPS Council shall
be guided by the objectives and principles set out
in TRIPS Articles 7 and 8 and shall take fully into
account the development dimension
TrainforTrade: Trade, Environment and Development
Proposals concerning TK
• Developing countries have made several proposals
to incorporate provisions related to the protection of
TK and avoidance of misappropriation in the TRIPS
Agreement.
• These relate to:
– Article 27.3(b)
– Article 29
– Article 71.1
TrainforTrade: Trade, Environment and Development
Article 27.3(b)
• African Group: To harmonize Article 27.3(b) with
the CBD and the IU, inter alia by allowing
developing countries to implement sui generis law
that can provide for the protection of the
innovations of indigenous and local farming
communities in developing countries
• African Group: To clarify, in the review of Article
27.3, that plants and animals as well as
microorganisms and all other living organisms and
their parts cannot be patented, and that natural
processes that produce plants, animals and other
living organisms should also not be patentable
TrainforTrade: Trade, Environment and Development
Article 29
• India: To make it obligatory in all patent
applications for biotechnological innovations, to
include the country of origin of the germplasm as
well as to indicate whether PIC consent was
obtained for the biological genetic resource or TK
so as to facilitate benefit-sharing arrangements
TrainforTrade: Trade, Environment and Development
Article 71.1
• Venezuela: to establish within the TRIPS
Agreement, a system for the protection of IP, with
an ethical and economic content, applicable to TK
and recognition of the need to define the rights of
collective holders
• Cuba, the Dominican Republic, Honduras and
Nicaragua): to include a new Article specifying the
rights of indigenous peoples and local communities
in Part I ("General provisions and basic
principles") of the Agreement
TrainforTrade: Trade, Environment and Development
Proposals
Bolivia, Colombia, Ecuador, Nicaragua, and Peru:
• To carry out studies, in collaboration with other
relevant international organizations, on the most
appropriate means of recognizing and protecting
TK as the subject matter of IPRs
• On the basis of these recommendations, initiate
negotiations with a view to establishing a
multilateral legal framework that will grant
effective protection to TK
TrainforTrade: Trade, Environment and Development
WIPO
• 1998-99 programme: exploratory work on IP
aspects of TK
• Global Intellectual Property Issues
• New approaches to the use of IPRs for new
beneficiaries, such as
• IP needs of holders of TK and genetic
resources, e.g. in agriculture and medicine
• Feasibility of data bases on TK
• Biodiversity and biotechnology
• Protection of expressions of folklore
http://www.wipo.org/
TrainforTrade: Trade, Environment and Development
WIPO Intergovernmental Committee
• The Intergovernmental Committee on Intellectual
Property and Genetic Resources, TK and Folklore is
a forum to discuss intellectual property issues that
arise in the context of:
– Access to genetic resources and benefit-sharing
– The protection of TK
– Innovations and creativity
the protection of expressions of folklore
• The work of the l Committee will be consistent
with and complementary to the work of the CBD
and FAO
TrainforTrade: Trade, Environment and Development
UNCTAD/CBTF contribution
TrainforTrade: Trade, Environment and Development
UNCTAD activities
• Expert meeting
• TrainforTrade
• UNCTAD/UNDP project on Trade and
Environment: Policy Implications for Viet Nam
• Biotrade Initiative
• Project proposal: Harnessing Traditional
Knowledge for Trade and Environment
TrainforTrade: Trade, Environment and Development
Recommendations to Governments
• Raise awareness of the role and value of
traditional knowledge (TK)
• Support the innovation potential of local and
indigenous communities
• Facilitate research on TK-based products and
services,
• Promote, where appropriate, the
commercialization of TK-based products and
services
TrainforTrade: Trade, Environment and Development
…. to the international community
• Promote training and capacity-building
• Promote fair and equitable sharing of benefits
derived from TK
• Encourage the WTO to discuss the protection of
TK
• Exchange information on national systems to
protect TK and to explore minimum standards for
internationally recognized sui generis system for
TK protection.
TrainforTrade: Trade, Environment and Development
…. To UNCTAD
[1]
• Analytical work and regional workshops (to
exchange national experiences and examine
strategies on TK-related issues)
• TrainforTrade
• Capacity-building to protect and promote the
further development of traditional medicine (in
cooperation with WHO)
• Harnessing TK for trade and development, through
CBTF and the Biotrade Initiative;
• Commercialization of TK-based products (in cooperation with ITC)
TrainforTrade: Trade, Environment and Development
…. To UNCTAD
[2]
• Assist interested developing countries in exploring
ways for the protection of TK, recognizing and
supporting the ongoing activities at WIPO;
• Support the work of the WIPO Intergovernmental
Committee and the CBD Working Group on the
Implementation of Article 8(j) and Related
Provisions
All papers have been published on the UNCTAD
web site. A hardcopy will be available in early 2002
TrainforTrade: Trade, Environment and Development
Possible CBTF follow up
• Raising awareness of the importance of TK for
development
• Identifying capacity building needs to harness TK
for their trade and development
• Examining basic conditions for the possible
commercialisation of TK (including TK-based
innovations)
• Examining key concepts relevant for access and
benefit sharing and transfer of technology as they
relate to TK
• Exchanging national experiences
TrainforTrade: Trade, Environment and Development
Issues for discussion
TrainforTrade: Trade, Environment and Development
Protection of TK
• What should be the objectives for protecting TK?
• What systems are available to achieve different
objectives?
• How can national systems for the protection of TK
and instruments such as PIC be supported by
policies and measures implemented by user
countries or at the multilateral level?
• To what extent have benefit sharing
arrangements been successful? What are the
conditions for effective benefit sharing
arrangements?
TrainforTrade: Trade, Environment and Development
Harnessing TK for development/trade
• What are the experiences of developing countries
[and donor programmes] in promoting trade in
TK-based products?
• How do these programmes relate to programmes
for EPPs and fairtrade products?
• What is the role of modern IPR instruments in
promoting trade in TK-based products from
developing countries?
• How can developing countries obtain greater
benefits from the commercialization of TK-based
products
TrainforTrade: Trade, Environment and Development
Capacity building needs
What are Vietnam’s needs for capacity
building in the following areas:
•
Enhancing the role of TK in the development
process?
•
Developing or strengthening systems to protect
TK?
•
Commercialization of TK?
•
Effective participation of developing countries in
international deliberations?
TrainforTrade: Trade, Environment and Development
How can CBTF contribute?
• Awareness raising?
• Policy dialogues?
• Studies?
• Promoting the exchange of
information on experiences of other
countries?
• Supporting effective participation in
international debates?
TrainforTrade: Trade, Environment and Development
Thank you
TrainforTrade: Trade, Environment and Development