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Intellectual Property and Traditional Knowledge

Intellectual Property and Traditional Knowledge. Wend Wendland Director Traditional Knowledge Division WIPO, Geneva. Jargon buster. WIPO : World Intellectual Property Organization TK: Traditional knowledge GRs: Genetic resources TCEs: Traditional cultural expressions

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Intellectual Property and Traditional Knowledge

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  1. Intellectual Property and Traditional Knowledge Wend Wendland Director Traditional Knowledge Division WIPO, Geneva

  2. Jargon buster . . . WIPO : World Intellectual Property Organization TK: Traditional knowledge GRs: Genetic resources TCEs: Traditional cultural expressions IP: Intellectual property IGC: WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

  3. Key messages WIPO’s IGC is negotiating an international legal instrument(s) Significant progress in the last two years: but much work remains IGC is engaged in a profound ‘contest of ideas’ States will make critical decisions on the future of the negotiations in October 2012 WIPO’s Member States have explicitly welcomed and encouraged the effective participation of Indigenous Peoples For an intergovernmental process, Indigenous Peoples have remarkable opportunities to participate directly: but there can be improvements

  4. Outline • The negotiations at WIPO: background, current mandate and program • Intellectual property and traditional knowledge: what are some of the issues? • Draft text on the protection of traditional knowledge: main provisions and key options • IP and genetic resources: what are the issues? • Closing remarks

  5. Intellectual property and traditional knowledge: what are some of the issues?

  6. Traditional knowledge is valuable and important • TK is under threat, however • Therefore, Indigenous Peoples, local communities and many States call for the greater protection, safeguarding, preservation and promotion of TK

  7. However, “protection” can have different meanings . . . what does an “intellectual property approach” to protection mean . . .?

  8. TK would be recognized as a form of “intellectual property” – i.e., as comprising creations and innovations of the human mind • The protection of TK would provided by a special system or mechanisms based on the kinds ofmeasures, principles and values that comprise the system established for the protection of intangibles (the intellectual property system) • this does NOT, however, mean forcing a square peg (TK) into a round hole (the conventional IP system)!

  9. Protection of “intangible property” is different to the protection of “tangible property” (eg., land) • Features of this intellectual property system include: • Property rights (e.g. exclusive rights) and non-propertyrights (e.g. moral rights, unfair competition, right to equitable compensation) • Balance and proportionality: IP rights do not provide absolute and perfect control: limitations and exceptions/limited term/the role of the ‘public domain’ • In some respects, existing intellectual property rights can be used to protect TK and TCEs and, especially, their contemporary adaptations and derivations

  10. Is an “intellectual property approach” the only suitable approach?

  11. NO! The work of WIPO is only of interest/use to you if you: regard TK as deserving the same kind of protection as is granted to “non-traditional” innovations and creations, and want a say over if and how your traditional creativity and innovations are accessed and used by third parties (like other intangible properties)

  12. TK: what are the specific IP issues?

  13. Innovations based on TK are generally patentable • But, save for secret TK, the ‘underlying’ TK is generally ‘public domain’ (unprotected) • So, the basic question is: should underlying TK – which generally ‘belongs’ to Indigenous and local communities - be ‘protected’ in the IP sense?

  14. 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 – e.g., Indian TKDL; USA’s Native American Insignia Database)

  15. What models might be appropriate?

  16. 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]

  17. What are some of the other key issues?

  18. 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?

  19. WIPO’s activities on traditional knowledge: what does WIPO do?

  20. Norm-setting: the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) Technical assistance and capacity-building:for States, communities, research institutions and museums, archives

  21. The negotiations at WIPO: background, current mandate and program

  22. WIPO Intergovernmental Committee Established in 2000; met for the first time in April 2001 IGC was preceded by several years of fact-finding, consultation, research; including two roundtables on intellectual property and indigenous peoples (1998 and 1999) and fact-finding missions to 30 countries (1998 and 1999) IGC participants: Member States, indigenous and local communities, business, civil society and other NGOs

  23. Genetic resources (GRs) Traditional knowledge (TK) Traditional cultural expressions (expressions of folklore) (TCEs)

  24. The IGC is conducting text-based negotiations with objective of reaching agreement on an international legal instrument(s) The WIPO General Assembly in October 2012 will take stock of progress and decide on convening a Diplomatic Conference

  25. Challenges . . . Diverse stakeholders, diverse objectives International coherence: fragmentation of international norm-setting Top-down or bottom up: minimal successful national experience Legislative approach: interface with practical mechanisms Participation: challenges to inclusivity

  26. Opportunities. . . Historical opportunity: first developing country-led international normative process in IP Cutting edge: fresh uses for age-old IP values and principles Narrowing the trust-gap: growing confidence in the process and multilateralism International comity: IP and mutual supportiveness

  27. Draft text on the protection of traditional knowledge: main provisions and key options

  28. The Protection of TK: Draft Articles • Policy Objectives • General Guiding Principles • Article 1 – Subject Matter of Protection • Article 2 – Beneficiaries of Protection • Article 3 – Scope of Protection • Article 4 – Sanctions, Remedies and Exercise of Rights • Article 5 – Administration of Rights • Article 6 – Exceptions and Limitations • Article 7 – Term of Protection • Article 8 – Formalities • Article 9 – Transitional Measures • Article 10 – Consistency with the General Legal Framework • Article 11 – National Treatment and other Means of Recognizing Foreign Rights and Interests • Article 12 – Trans-Boundary Cooperation

  29. IP and genetic resources: what are some of the issues?

  30. IP and genetic resources: what are the issues? Genetic resources are not “intellectual property” – access and benefit-sharing in GRs are dealt with in other conventions and treaties (CBD (+ Nagoya), FAO)

  31. Inventions based on or derived from GRs may be patentable. This raises questions concerning the relationship between patent law and the CBD: • ‘defensive protection’ of GRs: prevention of erroneous patents: databases proposal • “quality of patent examination” issue • tracking compliance with the CBD: mandatory disclosure proposal • “support of IP system for CBD” issue

  32. Closing remarks

  33. IGC has made significant progress in the last two years: but much work remains • Negotiations are a vibrant contest of ideas • IGC’s negotiations represent an historic opportunity for IP policymakers • IP experts are encouraged to participate

  34. Information Tools and Resources

  35. Sign up for the TK e-Newsletter and Updates grtkf@wipo.int wend.wendland@wipo.int END

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