Trade, Environment and Development UNCTAD Module 7 Harnessing Traditional Knowledge for Development and Trade

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 TK- based products (e.g. geographical indications), but without adversely affecting traditional values Certain categories should be considered as “off- limits” 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 above- mentioned 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

Issues/institutions Biodiversity-related TKCBD Genetic resources for food and agriculture FAO (International Undertaking, now International Convention, on PGRFA) Intellectual property aspects of TK WIPO, WTO Health (trad. medicine)WHO Expressions of folkloreWIPO, UNESCO Traditional forest-related knowledge (TFRK) UN Forum on Forests (UNFF) Human rightsILO, UNCHR Development and trade (commercialization) UNCTAD, ITC, UNDP TrainforTrade: Trade, Environment and Development

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” Biodiversity TrainforTrade: Trade, Environment and Development

Other key CBD provisions Biodiversity Art 3 and 15States 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 15.6User countries to promote the participation of provider countries in scientific research based on genetic resources provided by them Art 16.3User countries to allow participation of provider countries in scientific research based on genetic resources provided by them TrainforTrade: Trade, Environment and Development

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) Biodiversity TrainforTrade: Trade, Environment and Development

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 Biodiversity TrainforTrade: Trade, Environment and Development

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 Biodiversity TrainforTrade: Trade, Environment and Development

Genetic resources for food and agriculture Uniqueness:  Essential for food security  Intra-species diversity is important  High degree of interdependence among countries Development of multilateral regimes Food and Agriculture TrainforTrade: Trade, Environment and Development

International Undertaking (IU) on Plant Genetic Resources 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 Genetic resources for food and agriculture Plant Genetic Resources for Food and Agriculture (PGRFA) Food and Agriculture TrainforTrade: Trade, Environment and Development

Farmers’ rights 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” Food and Agriculture TrainforTrade: Trade, Environment and Development

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 Food and Agriculture TrainforTrade: Trade, Environment and Development

The UPOV Convention 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 Food and Agriculture TrainforTrade: Trade, Environment and Development

Farmer’s privilege 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 Food and Agriculture TrainforTrade: Trade, Environment and Development

Word Health Organization (WHO) 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 Health TrainforTrade: Trade, Environment and Development

Traditional forest-related knowledge (TFRK) 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 Forests TrainforTrade: Trade, Environment and Development

WTO World Trade Organization 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 Intellectual property aspects of TK 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 non- biological 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 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 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 co- operation 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