1. 1 Traditional Knowledge and Genetic Resources in Economic Partnership Agreements: Elements of a Positive Agenda for ECOWAS Countries ECOWAS Regional Dialogue on IP, EPAs and Sustainable Development May 2007 Dalindyebo Shabalala dshabalala@ciel.org

2. 2  A positive Agenda on TK and GR?  What would such an agenda look like?  The EU offer on IP to West Africa  A counter-example: the ESA proposal to the EU  Other sources for alternatives Examining an Assumption

3. 3 Differentiating Between Traditional Knowledge and Genetic Resources Between issues that can be addressed through internal policymaking and those that have to be negotiated. It is those that need to be negotiated that give us a list of the minimum necessary requirements for a useful positive agenda

4. 4 Traditional Knowledge Heritage  Static body of knowledge Innovation  Ensuring development of TK Creates problems that are national policy problems and others that are international policy problems

5. 5 Genetic Resources Static, finite and depletable There are some of the same problems as ‘”Heritage” Problems of National Policy versus Problems at International Level

6. 6 What is required at a minimum for TK? Recognition by other countries of ECOWAS national and/or regional systems of ownership of heritage (be they individual, community-based or state-based) Recognition and enforcement of ECOWAS national and/or regional systems of Prior Informed Consent for heritage A commitment from other countries to ensure the prevention of the patenting or other intellectual property privatization of heritage in other countries, including through databases and disclosure of origin/source requirements Recognition and enforcement by other countries of ECOWAS national or regional rules on Access and Benefit Sharing for innovations using/based on/derived from heritage The obligation by other countries to prevent the patenting or other IP privatization of innovations using/based on/derived from heritage, if they do not show compliance with the applicable ECOWAS national/regional rules for PIC and ABS for heritage.

7. 7 What is required at a minimum for GR? Enforcement by other countries of ECOWAS state or regional Prior Informed Consent/permission/licensing rules, Materials Transfer Agreements and Access and benefit Sharing systems. Prevention of patenting or other IP privatization of ECOWAS genetic resources The obligation by other countries to prevent the patenting or other IP privatization of innovations using/based on/derived from heritage, if they do not show compliance with state ECOWAS national/regional rules for PIC and ABS and/or a material transfer Agreement with the ECOWAS state of origin/source.

8. 8 Some implications  There is no benefit in negotiating if there are no national systems of recognition of ownership traditional knowledge or genetic resources.  There is no benefit to be gained in negotiating if there are no national or regional prior informed consent systems for traditional knowledge and genetic resources.  There is no benefit to be gained in negotiating if there are no national or regional access and benefit sharing rules for traditional knowledge and genetic resources.

9. 9 EU Offer to ECOWAS Empty of any substantive obligation Dangerous in its push for ratification of UPOV 1991

10. 10 An Alternative Approach: ESA Proposal  TK  Article 66.1.d “effective protection of ESA countries genetic resources, folklore and traditional knowledge and bio piracy;”  GR  Article 66.1.e “in granting patents utilising genetic resources from ESA countries, the EC and its Member States will require the disclosure of origin and proof of prior informed consent of the indigenous community concerned and equitable sharing of benefits; where a genetic resource is derived from a genetic material of an individual and the rights conferred by this paragraph are conferred on that individual”  Article 66.1.f “Exploitation of genetic resources from ESA countries by EU shall take due regard to the principle of prior- informed consent to ensure indigenous communities holding such genetic resources benefit from such exploitation.”

11. 11 Other source for alternatives  TK  CBD Article 8j  OAU Model Law  Proposed Article 29bus at TRIPS Council  WIPO IGC Draft Provisions for the Protection of Traditional Knowledge; Article 1  GR  CBD, Bonn Guidelines  Article 66.1.f “Exploitation of genetic resources from ESA countries by EU shall take due regard to the principle of prior- informed consent to ensure indigenous communities holding such genetic resources benefit from such exploitation.”  Proposed Article 20bis at TRIPS Council  FAO International Treaty on Plant Genetic Resources for Agriculture

12. 12 An Added Complication  Are TK and GR covered by the TRIPS Agreement? Genetic resources may be more covered in comparison to Traditional Knowledge  If yes, then there is no comparative advantage in the EU for ECOWAS countries because of the MFN and national treatment requirements  If No, there is still the National Treatment issue in the ECOWAS and the EU region to distinguish between EU actors and other country actors