1. Intellectual Property Rights: A Part of the Problem?
Eliamani Laltaika
Open A.I.R. Fellow

2. What is intellectual property?
All Property can be grouped into three main categories:
(a) movable property such as cars
(b) immovable property particularly land and things fixed on it such as houses
(c) intellectual property i.e. property emanating from creations of the human mind “intellect”

3. Intellectual Property rights
Trade marks, patents and copyright materials are the main types of intellectual property rights
Other branches of IP include design, database, semi conductor topography and plant breeders rights, rights over trade secrets, confidential information and other rights that prevent or redress specific acts of unfair competition.

4. Intellectual Property Cont…
A list of “intellectual property” is given by the Convention establishing the World Intellectual Property Organization (WIPO):
i) literary, artistic and scientific works
(ii) performances of performing artists, phonograms, and broadcasts
(iii) inventions in all fields of human endeavor
(v) industrial designs
vi) trade marks, service marks and commercial names and designations
(vii) protection against unfair competition

5. Why Protect Intellectual Property?
Two main theories used to justify legal protection of intellectual property rights (IPRs).
Utilitarianism
Labor theory of property

6. The territoriality principle
As a general rule, all IPRs are territorial in nature, i.e. The rights granted are limited to one country.
However, IPRs exploitation is crossboarder
As a result two International Conventions were entered upon to recognize IPRs outside ones country
These are the Berne Convention for the Protection of Literary and Artistic Works of 1883 and the Paris Convention for the Protection of Industrial Property of 1883
Both of these treaties underscore the principle of National Treatment

7. The concept of biocultural heritage
bio-culture is a relatively new term that presupposes the link between biological or living resources, culture and knowledge of the people
Biocultural heritage is the totality of living and non living resources and the knowledge and cultural attachment of a people to such resources.

8. Challenge 1 Conventional IP vs Indigenous heritage
The current IP landscape is based on western tenets „Individual rights“.
This is in contrast with Indigenous/ customary law „collective rights“
Eg copyright law and folk music: identifiable author? fixation? Duration?,

9. Challenge 2 Missapropriation and biopiracy
Copyright: “A“ goes to Village “Z“ records a song goes back to country “B“ and makes an album “A“ is the copyright holder
Patent: “C“ goes to Village “D“ learns of the use of plant “E“ for treating ailment “F“ takes such genetic resources and develop drug “G“ and obtain a patent
Trademark/branding Use indigenous symbols and even photos

10. Challenge 3: Stronger IPRs for whose development?
1995, WTO‘s Agreement on trade related aspects of intellectual property (TRIPS): championed by USA, EU & Japan
Developing countries do not see the benefit of stronger IPRs
Access to medicine for the poor became even difficult

11. Towards rectification? 1 Establishment of WIPO‘s IGC
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)
Established in 2000 after a study on needs and expectations of traditional knowledge holders
Has already met TWENTY THREE TIMES in 10 years
Has reached “text-based“ negotiations stage
There is HOPE for international legal instrument(s) to protect TK/TCEs

12. Rectification 2: WIPO development agenda
2004, A proposal by Argentina and Brazil to the WIPO General assembly to “take immediate actions in providing for the incorporation of a ‘Development Agenda‘ in the organizations work
One size fits all?: It is now possible to investigate actual impact of IP and accomodate interests of developing countries.

13. Complementarities and synergies?
“[C]ommon law and other Eurocentric legal concepts have proved to be more flexible and responsive to the legitimate concerns of indigenous people than conventional wisdom might suggest….”
Justice Ronald Sackville High Court of Australia
Collective trademark, Geographical Indications, and even design, copyright and patent COULD be of help

14. Open A.I.R
“Polarized views on how IP facilitates or restricts innovation and creativity persists because there is little emprical research on this topic. Open A.I.R. Will address this gap by objectively exploring ways in which the African intellectual property systems that govern knowledge can work better as tools for open innovation and collaborative creativity and then train key public and private sector actors to use these newinsights effectively“

15. THANK YOU FOR YOUR ATTENTION