Folklore, Traditional Knowledge and Benefit Sharing ATRIP CONGRESS 2003 Tokyo August 4-6, 2003

QUESTIONS ? What is Traditional Knowledge (TK) ? What are the Problems facing TK holders ? Why is Protection of TK Important ? What is the Challenge ?

THE CHALLENGE ….. IP mechanisms do not cover non- systematic, undocumented knowledge Customary law is not applicable outside the community

…. IN SEARCH OF A MODEL …. IN SEARCH OF A MODEL Need to find common ground IP system Traditional Knowledge A global assessment of needs & expectations of holders of Traditional Knowledge

WIPO’S RESPONSE l Roundtable on IP & indigenous peoples (1998) l Panel discussion on IP & human rights (1998) l 4 regional consultations on protection of folklore (1999) l Cooperation with IGOs & NGOs l Integration into WIPO’s cooperation for development activities l Roundtable on IP and TK (1999) l FFM

WIPO FACT-FINDING MISSIONS North America South America Central America Caribbean Countries South Asia South Pacific Arab Countries West Africa Southern & Eastern Africa Bangladesh Uganda & Tanzania Mali

WIPO FFM FINDINGS Common to all countries TK systems are frameworks for continuing creativity & innovation TK is a constantly renewed source of wealth All branches of IP law are relevant to TK

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 l 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 l Contractual Agreements for access to Genetic Resources l Legislative, administrative and policy measures to regulate access to genetic resources and benefit - sharing l Multilateral Systems for facilitated access to genetic resources and benefit sharing l 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 PROTECTION OF EXPRESSIONS OF FOLKLORE, INCLUDING HANDICRAFTS l To make use of earlier deliberations l Development of Sui - generis systems l Importance of handicrafts

APPROACH l Consultations with about 3,000 stakeholders l Series of over 20 regional and national consultative meetings - helped to shape regional positions l Studied 80 substantive documents l Series of wide-ranging surveys of national laws and other forms of practical experience with legal protection l Development of a set of practical tools for legal protection

CROSS-CUTTING ISSUES l Operation of established forms of IP protection l Underlying principles of IP law l 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 l Interplay between capacity - building activities and policy discussions concerning legal norms l 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’ l 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 l 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 l To develop a respect for TK l To ensure that it is preserved and maintained l To promote use in association with right holders l To enable equitable sharing of benefits Diverse range of regulatory and legal tools needed to achieve these goals

PROTECTION OF TK l Positive Protection - active assertion of rights l Defensive Protection - preventing others from illegitimate gain of rights

POSITIVE PROTECTION IP APPROACH l Use of rights by holders to stop unauthorized acts and to seek remedies if such use occurs l Use of rights as the basis for commercial, research etc dealings with external partners Community may use IP rights to stop illegitimate or unauthorized use of a traditional design by a manufacturer (Carpet case) Community may use rights commercially itself or license to others and define benefits from such use (Canada/ NZ)

POSITIVE PROTECTION NON - IP APPROACH Legal means l Other forms of legislation l Bilateral Contracts l Agreements and licenses Technical Means l Use of Information Technology –Data security systems –electronic databases Can be used in conjunction with IP protection

DEFENSIVE PROTECTION l Third parties do not gain illegitimate or unfounded IP rights over TK subject matter and related genetic resources l 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 l 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 l Immediate steps need to be taken to safeguard the interests of those communities who have developed and preserved TK and traditional cultures l IGC should move towards concrete outcomes - focus on the international aspects of protection of TK and TCEs

l 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. l Strengthen and extend international recognition of customary law relating to traditional knowledge l Enhance representation of indigenous and local communities in any international process l 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

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