1. WIPO/AEPPI INTERNATIONAL SYMPOSIUM ON INTELLECTUAL PROPERTY: CHALLENGES FOR DEVELOPING COUNTRIES IN A GLOBAL ECONOMY Cairo, Egypt, December 2 and 3, 2007 Economic Impact of Protecting Traditional Knowledge WIPO Secretariat

2. 2 IP and TK 1. What are we talking about? A working concept of TK and of its integrating elements

3. 3 IP and TK TK may be defined as “ideas and expressions thereof developed by traditional communities and Indigenous peoples, in a traditional and informal way, as a response to the needs imposed by their physical and cultural environments and that serve as means for their cultural identification” (WIPO/GRTKF/IC/5/8)

4. 4 IP and TK a) TK is “ideas”, that is, TK is knowledge. This corresponds to the industrial property aspect of TK (or TK in a strict sense): products, processes, plant and animal extracts, knowledge about their utility, etc). b) TK is also “expressions of those ideas”, that is, TK is also folklore or traditional cultural expressions (TCEs). This corresponds to the copyright and related rights aspect of TK. c) TK is also an intertwined, symbiotic combination of ideas and expressions: handicrafts. Handicrafts are useful objects (at least, so were they originally) which conform to popular esthetic values.

5. 5 IP and TK zTK is tradition-based and is an instrument of cultural identification; TK cannot be separated from the community that has developed it zTK is traditional but it may be new (that is, TK is not necessarily old) zTK is holistic, that is, its many components are conceptually unitary and only by resorting to an exercise of abstraction can they be separated and isolated.

6. 6 IP and TK An illustration of the intrinsically holistic nature of TK: Let us imagine that a member of an Amazon tribe does not feel well and requests the shaman’s medical services. The shaman, after examining the patient, will go to his garden and collect some leaves, seeds and fruits from different plants. Mixing those materials according to a method only he knows, he prepares a potion according to a recipe of which he is the sole holder. While preparing the potion and, afterwards, while administering it to the patient (according to a dosage he will likewise prescribe), the shaman prays to the gods of the forest and performs a religious dance. He may also inhale the smoke of the leaves of a magical plant...

7. 7 IP and TK... (the “vine of the soul”). He may blow the smoke onto his patient’s body. The potion will be served and saved in a vase with symbolic designs and the shaman will wear his ceremonial garments (and/or body paintings) for the healing. © National Geographic Society

8. 8 IP and TK The TK of the Amazon shaman is a combination of all those elements. If taken separately, existing intellectual property mechanisms could protect most of, if not all, those elements. For example: zthe different plants used in the potion: plant variety protection zthe potion (or the formula thereof): patent and/or trade secret zthe use and the dosage of the potion: patent (in some countries) the prayer, once fixed: copyright zthe performance, once fixed: related rights zthe vase containing the potion: patent or utility model certificate if it has new and inventive functional features; if not, it can be protected under an industrial design system zthe designs on the vase and on the garments, as well as the body paintings: copyright or industrial design systems zthe several tangible elements above, if commercialized, can be designated by a trade mark (individual or collective), a certification mark, and/or a geographical indication zthe shaman and/or his tribe can be designated by a trade name

9. 9 IP and TK However, to the shaman, it is not possible to separate the several components of his knowledge. All components are equally important. The whole of TK is more than the sum of its parts. The healing results from the combined use of all components, and not from isolated elements. All elements induce equally the intervention of the spirits of the forest. TK is holistic.

10. 10 IP and TK 2. The economic impact

11. 11 IP and TK The rationale of TK protection in a global economy: lack of IP protection of TK constitutes a non-tariff barrier to trade that blocks the access of poor communities’ knowledge to international markets

12. 12 IP and TK The lack of adequate IP protection as a non-tariff barrier to trade, particularly in the pharmaceutical sector, was the argument that convinced GATT Contracting Parties to include IP in the Uruguay Round Likewise, lack of IP protection deprives traditional communities from the possibility of exporting their TK which they have developed, tested and accumulated through generations, for it can be (and has been indeed) imitated by free riders in other countries – thus, lack of IP protection for TK also amounts to a non-tariff barrier to trade

13. 13 IP and TK The costs of TK protection 1. Setting up a system of registration and enforcement Principles: holism, low level of formality and formal examination, gratuity (social sharing of the costs) (Panama, Peru, Portugal)

14. 14 IP and TK The costs of TK protection 2. Excluding third parties and enforceability a) The impact of TK exclusive protection may be strongly reduced if applied with the acknowledgement of exceptions (there is no claw back of TK already in widespread commercial use; small farmers and artisans who are already using or preparing to use shall not be affected; exceptions such as compulsory licenses are a possibility) b) Enforcement will not be different from other IP rights except that the goverment may be called to assist traditional communities

15. 15 IP and TK The benefits of TK protection 1. Increase of legal security and predictability to the benefit of TK holders as well as of society as a whole, including firms and research institutions which are potential users of TK (reduction of transaction costs) This is the positive side of the static dimension of property rights: restricting access clarifies legal relations involving assets; just think of the transaction costs generated by the uncertainty that today presides over activities of bioprospection. Besides, the idea of predictability would promote the continued creation of TK (dynamic dimension)

16. 16 IP and TK The benefits of TK protection 2. Transformation of knowledge into assets, and of assets into capital.* Many traditional communities that live today in deep economic poverty are actually rich in knowledge; IP protection would permit the formalization and the recording of that knowledge, which could then be transformed into capital. Capital can be used in commercial ventures within the communities or as collaterals for obtaining credit with financing institutions. * See Hernando de Soto, The Mystery of Capital.

17. 17 IP and TK The benefits of TK protection 3. Preservation of TK holders’ identity against any use (commercial or distorsive or otherwise) that they do not wish their TK to be given. This benefit occurs regardless of the use (commercial or not) that is made of TK; both cultural and business assets are protected by IP in the same manner; both economic and moral rights give the right to say “no”; protection against distortion, mutilation or any other derogatory action requires injunctions and damages, exactly as protection against counterfeit, piracy or other forms of commercial infringement. IP protection does not necessarily “commodify” assets (a cultural or religious asset does not become commercial in nature simply because it is protected by IP; churches, mosques and temples are protected by the same property rights that protect a shopping mall)

18. 18 IP and TK 3. But, most importantly, TK is not only a matter of economics. Nor is it a matter that is alien to our lives. No. Traditional knowledge is part of our lives. Referring to handicrafts (the symbiotic component of TK), Mexican poet Octavio Paz said:

19. 19 IP and TK “Handicrafts do not seek to last millenia, nor are they possessed by the haste of dying soon. They go by with the days: they flow with us. They wear out slowly; they do not seek death, nor do they deny it: they accept it. Handicrafts are the heartbeats of the human time. “They are useful objects but they are also beautiful – objects that last; and yet they are objects that also wear out and resignate to wear out, objects that are not unique as an artwork and which can be replaced by similar objects — similar, but never identical. Handicrafts teach us how to die and thus they teach us how to live.” (Octavio Paz, “Los Privilégios de la Vista”)

20. 20 IP and TK Thank you. If you have any questions do not hesitate to send them to nuno.carvalho@wipo.int