Intellectual Property and Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions: Overview of Issues, Options and Recent International Developments Wend Wendland, Director, Traditional Knowledge Division, WIPO

Outline Update on Negotiations at WIPO Issues Traditional Knowledge and Traditional Cultural Expressions Genetic Resources Options at the National Level

Update on Negotiations at WIPO

Text-based negotiations with the objective of reaching agreement on a text(s) of an international legal instrument(s) which will ensure the effective protection of genetic resources, traditional knowledge and traditional cultural expressions WIPO Intergovernmental Committee

Diverse stakeholders, diverse objectives International coherence: fragmentation of international norm-setting Top-down or bottom up: minimal successful national experience Participation: challenges to inclusivity Challenges... Legislative approach: interface with practical mechanisms

Historical opportunity: first developing country-led IP normative process Cutting edge: fresh uses for age-old IP values and principles Narrowing the trust-gap: growing confidence in the process International comity: IP and mutual supportiveness Opportunities...

Traditional knowledge: draft sui generis instrument Traditional cultural expressions: draft sui generis instrument Genetic resources: consolidated document comprising objectives, principles and optional mechanisms

Program IGC 19 July 2011 WIPO GA September 2011 IGC 20 February 14 – 22, 2012 IGC 21 TK April 16-20, 2012 IGC 22 TCEs July 9-13, 2012 GA September 2012

Issues: Traditional Knowledge and Traditional Cultural Expressions

Traditional knowledge (TK), traditional cultural expressions (TCEs) and genetic resources (GRs) are valuable and important They are under threat, however Therefore, Indigenous Peoples, local communities and many States call for the greater recognition, protection, safeguarding, preservation and promotion of TK, TCEs and GRs

Innovations and creations based on TK and TCEs are generally patentable and copyrightable ‘Underlying’ TK and TCEs are ‘public domain’ (unprotected) Basic question: Should underlying TK and TCEs – which ‘belong’ to indigenous and local communities - be ‘protected’ in an IP sense? and, if so, what does ‘protected’ mean and what options are there?

“Intellectual property” – creations and innovations of the human mind Intellectual property “protection” – provides creators and innovators with possibility to manage access to and use of their works, if they so wish Proprietary (e.g. exclusive rights) and non-proprietary rights (e.g. moral rights, right to compensation) Balance and proportionality: IP rights do not provide perfect control: limitations and exceptions/the public domain IP “protection” is not equivalent to “preservation/safeguarding” The world of IP is in transformation – e.g. a2k movement “Intellectual property protection”. 1

“Intellectual property protection”. 2 “ A song or story is not a commodity or a form of property but one of the manifestations of an ancient and continuing relationship between people and their territory ” (Daes, 1995)

What do we mean by “protection” of TK/TCEs? Positive protection (an IP right in TK/TCEs, to authorize or prevent use) Defensive protection (avoidance of IP rights in TK/TCEs – e.g.., TKDL; USA’s Native American Insignia Database) “Intellectual property protection”. 3

“Intellectual property protection”. 4 Prevention of access and use without prior and informed consent [exclusive rights model] and/or Acknowledgement of source. Prevention against derogatory use. No passing off [moral rights/unfair competition model], and/or Benefit-sharing/compensation? [access and benefit- sharing/compensatory liability models]

Draft text on traditional knowledge (WIPO/GRTKF/IC/21/4) Objectives General guiding principles Substantive articles 1.Subject Matter of Protection 2.Beneficiaries of Protection 3.Scope of Protection 4.Sanctions, Remedies and Exercise of Rights 5.Administration of Rights 6.Exceptions and Limitations 7.Duration of Protection 8.Formalities 9.Transitional Measures 10.Consistency with the General Legal Framework 11.National Treatment and Other Means of Recognizing Foreign Rights and Interests 12.Trans-boundary Cooperation

Some of the key questions Definitional issues What is “traditional” knowledge? Should all TK and TCEs receive protection? Who should be the beneficiaries of new rights in TK and TCEs? Technical issues How would special protection for TK/TCEs interact with protection available under existing IP? How should publicly available TK/TCEs and transboundary (“shared”) TK/TCEs be addressed? What scope of rights strikes the right balance? Which exceptions and limitations might be appropriate? How long should protection last? Operational issues What role, if any, should registration/documentation play in the protection of TK/TCEs? Procedural issues What belongs in an “international instrument” and what should be left to national legislation?

Issues: Genetic resources

IP and genetic resources: what are the issues? Genetic resources are not “intellectual property” – access and benefit-sharing in GRs are dealt with in other conventions and treaties (CBD (+ Nagoya), FAO)

Inventions based on or derived from GRs may be patentable. This raises questions concerning the relationship between patent law and the CBD: ‘defensive protection’ of GRs: prevention of erroneous patents: databases proposal “quality of patent examination” issue tracking compliance with the CBD: proposed mandatory disclosure requirement “support of IP system for CBD” issue

Options at the National Level

Options for protection of TK and TCEs Policy Legal Infrastructure Practical Strategy

Policy and legal questions and options Defining objectives “positive” and “defensive” protection Identifying subject matter Owners and beneficiaries Defining rights and exceptions

Infrastructure registers, inventories and databases institutional issues Practical tools and measures contracts guidelines protocols training and awareness-raising

Sign up for the TK e-Newsletter and Updates END