“PERUVIAN EXPERIENCE IN THE PROTECTION OF TRADITIONAL KNOWLEDGE” Presentation by Minister Counsellor Betty Berendson, Deputy Permanent Representative of Peru to the WTO

APPROACH FOR THE PROTECTION AND SUSTAINABLE USE OF BIODIVERSITY PERUVIAN APPROACH FOR THE PROTECTION AND SUSTAINABLE USE OF BIODIVERSITY 1.Enactment of a new Environmental Code 2.Implementation of a National Strategy 3.Enactment of a Law on the National Protected areas 4.Proposal on a protection regime for the collective knowledge of indigenous peoples 5.Regulation of access to genetic resources

APPROACH FOR THE PROTECTION AND SUSTAINABLE USE OF BIODIVERSITY PERUVIAN APPROACH FOR THE PROTECTION AND SUSTAINABLE USE OF BIODIVERSITY 1.Special constitutional mandates on: –Sustainable use of natural resources –Environmental protection –Development of the Amazonia –Integral development of groups originating in the Amazonia 2.Introduction of new institutional framework: –National Institute for Natural Resources (INRENA) –National Environmental Council (CONAM)

THE STUDY OF A PERUVIAN REGIME FOR THE PROTECTION OF COLLECTIVE KNOWLEDGE OF INDIGENOUS PEOPLES Objetive: to implement CBD dispositions Means: in 1996 establishment of a Multisectorial Committee to draft legislation Participation of 15 national entities (governmental and NGO’S) related to intellectual property, environment, research and development, public health, industry, agriculture and fisheries.

THE MANDATE OF THE MULTISECTORIAL COMMITTEE ON “TK”  To make a diagnosis of the forms of organization of the indigenous communities in Peru and the mechanism of benefit sharing distribution;  Draw up an inventory of the genetic resources in Peru;  Explore possibilities of regulation of access to genetic resources;  Explore possibilities of protection of traditional knowledge; and  To develop didactic material and strategy for training indigenous communities.

THE MAIN ELEMENTS OF THE PROPOSAL FOR THE PROTECTION OF “TK” 1.Scope of protection: is based solely on TK associated with the biodiversity. Other kinds of TK are not regulated here. 2.Objectives of the regime : –to promote respect and protection of TK –to preserve TK –to promote equitable benefit sharing, and –the use of TK in benefit of humanity 3.Right holders: the regime recognizes the indigenous communities ownership and associate rights over their traditional knowledge.

THE MAIN ELEMENTS OF THE PROPOSAL FOR THE PROTECTION OF “TK” 4.Prior inform consent (PIC).- Indigenous communities have the right to decide if they authorize or not that their knowledge is used with commercial, industrial or scientific purpose. 5.TK in the public domain.- It is considered that TK is in the public domain when it has been established that someone not belonging to the indigenous community has acquired this knowledge through the media (publications, TV) or directly from indigenous community.

THE MAIN ELEMENTS OF THE PROPOSAL FOR THE PROTECTION OF “TK” 6.Term of protection.- These rights are timeless. They are considered national heritage. 7.Register.- The purpose is to preserve the knowledge. The register is voluntary and confidential. 8.License agreements.- One or more indigenous community may grant licenses authorizing the use of a TK. 9.Development Fund.- TK shared by more than one community. Instead of granting licenses a fund is established (0.5 % of economic revenues from marketing products based on TK).

BIOPROSPECTIONS CONTRACTS REGULATING BENEFITS FROM USE OF GENETIC RESOURCES AND “TK”  Only parties to the contracts receive benefits  There is a high transaction cost for the parties  Most communities are unaware of the legal regime in force  There is little community negotiation capacity

REGIME FOR THE PROTECTION OF TK + BIOPROSPECTIONS CONTRACTS  It establishes clear rules to facilitate the conclusion of private bioprospections contracts;  Prevents abuses in these contracts;  Reduces the transaction costs, so that all parties can benefit from them.

PROPOSAL ON THE PROTECTION OF AGRO BIODIVERSITY PROPOSAL ON THE PROTECTION OF AGRO BIODIVERSITY  Traditional knowledge associated with agro biodiversity of Andean indigenous peoples is crucial for local food and health security and plays an important role in maintaining the security of the ecosystem and for the development of sustainable models of agriculture in the region.  During the last decade, the need to integrate traditional knowledge and management systems into agricultural development programmes have been widely acknowledged. International conventions have recognized the role of indigenous peoples and other traditional societies in the sustainable management of agro biodiversity. This debate has been particularly active within the work Convention on Biological Diversity and the process of implementation of Article 8(j).  Indigenous peoples have participated only marginally in the development of policy or legislation aimed at protecting their knowledge and practices. This lack of participation has meant that existing frameworks to protect traditional knowledge have failed to integrate indigenous peoples cosmovision and customary laws into such arrangements.

INDIGENOUS PEOPLES COSMOVISION ON TK PROTECTION  Studies about how indigenous peoples in Peru conceptualize their own rights and the protection of their knowledge and practices associated with plant genetic resources are yet few. The Peruvian Andes is an important centre of origin and diversity of many crops of global significance and such experiences are crucial for the development of effective in-situ conservation and adaptive management strategies.  Give the opportunity to indigenous communities to enforce those rights outside their countries, thus participating in the economic benefits derived from TK.  Reduce the misappropriation and unauthorized exploitation of TK.  Diminish the risk of erosion or destruction of those intangible goods and ancestral cultures that created them.

OBJETCTIVES OF THE PROTOCOL a)To research and finalize a sui-generis protocol for the protection of indigenous knowledge and genetic resources based indigenous peoples on customary laws; b)To develop guiding principles for community involvement in the management and conservation of agro biodiversity c)To share the research experiences with a larger constituency of indigenous communities in the Andean region

AIMED RESULTS a)To draft a sui-generis local protocol that will regulate indigenous knowledge and associated genetic resources based on customary laws. b)To establish guidelines for the involvement of indigenous communities in the management and conservation of agro biodiversity. c)To help indigenous communities in the Andean region better understand issues related to access to genetic resources and equitable benefit sharing and learn the process of developing local measures for the protection of knowledge and resources and guidelines for an effective and appropriate participation in activities related to the conservation and sustainable use of agro biodiversity.

THE ANDEAN COMMUNITY DECISION 391 ON BIODIVERSITY: 4 QUESTIONS 1.Should the regime should address biodiversity conservation and protection measures and only thereafter ABS (access to genetic resources and benefits sharing) issues? 2.What was the legal status of genetic resources in the region, and therefore the rights and role of the state? 3.Should the system focus on strict control of access to and use of genetic resources or rather regulate more flexibly an ongoing flow of these resources? 4.How to deal with the issue of indigenous communities rights over their TK, innovations and practices related to biodiversity and how an ABS could address it?

THE ANDEAN COMMUNITY DECISION 391 ON BIODIVERSITY: OBJETIVES 1.Establish conditions for a just and equitable participation in the benefits; 2.Establish the basis for the recognition and valuation of genetic and biological resources and their derived products as well as of their intangible components, particularly in the case of indigenous communities; 3.Promote the conservation and sustainable use of biodiversity; 4.Promote the development and enhancement of local, national and regional capacities; 5.Strengthen the negotiating capacities of Member States.

THE ANDEAN COMMUNITY DECISION 391 ON BIODIVERSITY: INTANGIBLE COMPONENTS Intangible components is, defined as “knowledge, innovation or individual or collective practices, with real or potential value, that is associated with the genetic resources, its by-products or the biological resources, whether or not protected by intellectual property regimes”.

THE ANDEAN COMMUNITY DECISION 391 ON BIODIVERSITY: THE RIGHTS OF INDIGENOUS COMMUNITIES Article 7 of Decision 391 states that “pursuant to this decision and supplementary domestic legislation, the Member Countries, recognize and uphold the rights and decision-making authority of indigenous, afro-american and local communities, over their knowledge, innovations and traditional practices associated with genetic resources and their by-products”.