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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
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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
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Let’s start with “Turmeric”
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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
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Describing the subject matter
Genetic resources (GRs) Expressions of folklore, or “Traditional cultural expressions” (TCEs) Traditional knowledge (TK)
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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
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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
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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
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Genetic Resources
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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
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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
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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)
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Traditional Knowledge and Traditional Cultrual Expressions
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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)
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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…
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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 )
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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
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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]
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What are some of the other key issues?
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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?
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What does WIPO do?
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WIPO’s Activities International norm-building
(Incl. active policy development) Capacity-building (Incl. strategic management of IP rights and interests)
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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)
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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
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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
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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
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Capacity-building activities
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Capacity-building Awareness-Raising Legal and Policy Development
Training Activities Practical Tools and Resources
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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
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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)
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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)
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An Example in Korean: Korean Traditional Knowledge Portal
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Newsletter and updates
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Thank you for your attention!
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