1. Latest Developments at WIPO
Intellectual Property and Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources :
Latest Developments at WIPO
Fei JIAO
Assistant Legal Officer
Traditional Knowledge Division
Geneva
February 12
2013

2. Outline Describing the subject matter
Clarifying the relationship with intellectual property
An overview of the issues
The work of WIPO
Normative development
Capacity building activities

3. Let’s start with “Turmeric”

5. 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 protection, safeguarding, preservation and promotion of TK, TCEs and GRs

6. Describing the subject matter
Genetic resources (GRs)
Expressions of folklore, or “Traditional cultural expressions” (TCEs)
Traditional knowledge
(TK)

7. Traditional knowledge
knowledge, know how, skills, innovations or practices;
that are passed between generations;
in a traditional context; and
that form part of the traditional lifestyle of indigenous and local communities who act as their guardian or custodian.
Not limited to a specific technical field and may include, for example, traditional agricultural, environmental, medicinal knowledge, and any traditional knowledge associated with cultural expressions and genetic resources

8. Traditional cultural expressions
Forms in which traditional knowledge and culture are expressed, communicated and manifested
May be tangible, intangible or mixed
Ex: songs, performances, crafts, names, art, designs and architecture

9. Genetic resources “Genetic material of actual or potential value”
“Genetic material”: “any material of plant, animal, microbial or other origin containing functional units of heredity”
See Convention on Biological Diversity, 1992

10. Genetic Resources

11. Genetic resources
GRs are subject to regulations on access and benefit-sharing
Convention on Biological Diversity (CBD)
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD (Nagoya Protocol)
International Treaty on Genetic Resources for Food and Agriculture (ITPGRFA) of the FAO

12. GRs as encountered in nature are not IP
They are not creations of the human mind and cannot be directly protected as IP
HOWEVER,
Inventions based on or derived from GRs may be patentable

13. IP issues associated with GRs  Solutions
‘defensive protection’ of GRs: prevention of erroneous patents
ensuring and tracking compliance with ABS systems
databases/information systems and information exchange + patent examination guidelines
mandatory disclosure requirement, and/or
contract (IP clauses in mutually-agreed terms)

14. Traditional Knowledge and Traditional Cultrual Expressions

16. Intellectual property
Creations of the mind, products of human creativity
Industrial property
Patents
Trademarks
Industrial design
Geographical indications
Copyright
Literary, dramatic, musical, artistic works
Cinematographic works
Neighboring rights (performers, sound recording producers and broadcasters)

17. Where do TK and TCEs fit?
TK and TCEs are innovations and creative expressions of indigenous and local communities
They are products of creative intellectual activity; so they are “intellectual property”
Ex: traditional art, music, medicine…

18. Positive protection (an intellectual right in TK/TCEs, to authorize or prevent use)
What do we mean by “protection” of TK/TCEs?
Defensive protection (avoidance of IP rights in TK/TCEs )

19. Protection on Traditional Knowledge
Positive Protection
- Existing IP Law
- Adopted or new (sui generis) IP Law
- Customary law
- Other non-IP law
Defensive Protection
- Amendment of existing WIPO administered patent systems
- Practical capacity-building tools

20. What models might be appropriate?
Prevention of access and use without prior and informed consent [exclusive rights model]
Acknowledgement of source + prevention against derogatory use [moral rights model], and/or
Benefit-sharing/compensation [access and benefit-sharing/compensatory liability/ “use now, pay later” models]

21. What are some of the other key issues?

22. Definitional issues
What is “traditional” knowledge? Should all TK receive protection?
Who should be the beneficiaries of new rights in TK?
Technical issues
How would special protection for TK interact with protection available under existing IP?
How should publicly available TK and transboundary (“shared”) TK 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?
Procedural issues
What belongs in an “international instrument” and what should be left to national legislation?

23. What does WIPO do?

24. WIPO’s Activities International norm-building
(Incl. active policy development)
Capacity-building
(Incl. strategic management of IP rights and interests)

25. International Norm-building Activities
WIPO Intergovernmental Committee (“the IGC”) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
Established in 2000
Inclusive approach: TCEs, TK and GRs
Membership include:
184 WIPO Member States
Several accredited observers, incl. indigenous representatives
Enhanced instruments for participation available – the accreditation process and WIPO Voluntary Fund (2005)

26. Mandate
Expedited text-based negotiations with the objective of reaching an agreement on the text(s) of an international legal instrument(s) which will ensure the effective protection of GRs, TK and TCEs
Clearly defined work program: 3 thematic meetings before 2012 GA
2012 General Assembly
Consider text(s)
Take stock of progress made
Decide on convening a Diplomatic Conference

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

28. IGC’s Work Program for 2013 as agreed in October 2012
. . . agree to continue negotiations and engagement in good faith, with appropriate representation . . .
. . . submit texts to the GA in GA to decide on convening a diplomatic conference . . .
Three thematic sessions . . .
IGC 23 (GRs): February 4 to 8, 2013
IGC 24 (TK): April 22 to 26, 2013
IGC 25 (TCEs plus 3 days): July 15 to 24, 2013

29. Capacity-building activities

30. Capacity-building Awareness-Raising Legal and Policy Development
Training Activities
Practical Tools and Resources

31. Capacity-building: selected examples Creative Heritage Project
Publication for cultural institutions on managing IP in TCE collections
Training Program on Cultural Documentation and IP Management – provides technical assistance on documenting cultural heritage and guidance on management of IP interests

32. Indigenous Fellowship Program
2013 – Mr. Antonio Q'apaj Conde Choque (Bolivia)
Mrs. Jennifer Tauli Corpuz (Philippines)
2011 – Ms. Gulnara Abbasova (Ukraine)
2010 – Ms. Patricia Adjei (Australia)
2009 – Mr. Eliamani Laltaika (Tanzania)

33. Capacity building: selected examples
Practical tools and resources
WIPO Traditional Knowledge Documentation Toolkit – Consultation Draft
Database (database of biodiversity-related Access and Benefit-Sharing Agreements)

34. An Example in Korean: Korean Traditional Knowledge Portal

35. Newsletter and updates

36. Thank you for your attention!