TACD workshop on the politics & ideology of IP Brussels, March 2006

1. the politics of access to knowledge: some perspectives on IP and traditional knowledge & cultural expressions TACD workshop on the politics & ideology of IP Brussels, March 2006

2. Kierkegaard • do something or don’t do it; you will regret it either way. • How unreasonable people are! They never use the freedoms that they have but demand those they do not have. • (S. Kierkegaard, Diapsalmata, Either/Or, Princeton (1987), at 19.

3. 1. A Metaphor 2. Reflections 3. WIPO work on traditional knowledge & cultural expressions

4. 1. A Metaphor 2. Reflections 3. WIPO work on traditional knowledge & cultural expressions

5. Politics and ideology of IP • The function of a bridge . . .

6.  BridgeClimb Sydney

7. courtesy of camerashoptacoma.com

10. 1. A Metaphor 2. Reflections 3. WIPO work on traditional knowledge & cultural expressions

11. The patent system has always had to take its place within a broader framework of lawmaking and regulation. Policy tensions were shaping and developing patent law and administration long before the first international treaties on intellectual property. • The first codification of the core doctrines of patent law in the common law legal tradition, the English Statute of Monopolies of 1624, was actually passed to promote competition and to abolish monopolies that hindered legitimate trade. • It took aim at monopolies that had been granted ‘upon misinformations and untrue pretences of public good.’

12. The patent of invention was recognized obliquely, as an exception under this law, confirming that some exclusive rights are necessary to promote innovation, even within a legal mechanism aimed at promoting competition. • clear articulation of the principles of patent law is in itself a way of managing the tension between maintaining trading freedoms in a competitive environment and the need to introduce new industries, thus using private, inherently exclusive rights to achieve general economic well‑being. • Much of the subsequent development of patent law and administration represents the search for practical and legally sound mechanisms to give effect to this basic principle. • Disclosure through a patent specification and substantive examination for validity helped ensure that, when they were granted, private patent rights would better serve the public interest.

13. The first step in dealing with managing policy tensions is to ensure these basic principles are optimally applied in practice. The criteria for patentability have been formulated precisely so the system is focused onto those inventions for which a patent right is most likely to serve the public interest: novelty safeguards the public interest against re monopolizing public domain material; non obviousness should ensure that patents are only granted in respect of truly inventive achievements; utility or industrial applicability underlines the need for patented technology to be of practical value. • many of the policy issues currently raised about the patent system do, directly or indirectly, invoke these core principles. For example, there are arguments that some gene related patents are either ‘mere discoveries’ or are not truly inventive; and that some patents misappropriate traditional knowledge, and thus either lack novelty or are obvious.

14. Accordingly, the most direct way of managing policy tensions is to hold the patent system to these core principles, and to increase the likelihood that each granted patent conforms with the public interest as defined in the patentability criteria ... • ... this entails stronger, clearer and better harmonized patent examination, drawing from a broader and better documented prior art base (such as in the case of traditional knowledge) so administrative efficiency becomes a concrete contribution to resolving policy tensions.

16. 1. A Metaphor 2. Reflections 3. WIPO work on traditional knowledge & cultural expressions

17. traditional values and IP at odds? • What does WIPO have to do with traditional knowledge? Disquiet on the part of proponents and opponents of the received IP system; concerns raised about: • imposing an IP straitjacket on traditional cultures, overriding collective values of indigenous and other traditional communities • IP concerns ‘mainstream’ technology; commercialises & commodifies knowledge & culture; facilitates misappropriation of TK and cultural expressions • IP rights are atomistic, private, individual - at odds with values of traditional communities • IP is concerned with innovation, not tradition

18. Where did the IGC come from, where is it going? • From 1998-99, WIPO visited some 60 locations for dialogue with around 3,000 representatives of TK holder communities • idea was to base the new program on direct learning of the needs & expectations of TK holders themselves • these insights still central to WIPO’s work • follow-up case studies look more thoroughly into needs and expectations, practical and legal problems • This dialogue continues - such as on the customary law of indigenous & local communities • WIPO’s Member States elect to raise this issue to the political level with the formation of the Intergovernmental Committee on IP and Genetic Resources, TK and folklore (2001)

19. Where did the IGC come from, where is it going? • IGC established in 2001 • building on practical experience worldwide • clarifies that this is an existing area of IP law and practice; many laws and practical cases worldwide, within and beyond the conventional IP system • but what is the international dimension? • Inclusion a major concern: • participation of NGOs has accelerated (over 120 new accreditations, most from Indigenous and local communities) • working documents draw extensively on these insights, direct input from TK/TCE holders • specific initiatives for Indigenous & local communities – IGC now commences with indigenous representative in the chair, and panel presentations. Fund for their participation

20. Towards resolution: back to basics • The IP system criticized for misappropriating TK/TCEs, neglecting the interests of Indigenous & local communities. • But these very concerns often expressed in terms that echo core principles of the IP system: • promoting equity and balance, • reconciling private and collective interests, • recognizing distinctive origins and the legitimate source of innovation and creativity, • suppressing free-riding and unjust enrichment, • defending distinctive reputations from illegitimate exploitation, • providing for rights of attribution and integrity • Could this observation be the essence of an emerging consensus?

21. What kind of challenge to the IP system? • Indigenous and local communities continue to innovate and create within their traditions • but do not necessarily see innovation in isolation or in individual terms • seek recognition for their past & continuing contribution to humanity’s cultural & intellectual heritage • seek appropriate respect for their customary laws and values as the basis for a partnership of trust

22. What kind of challenge to the IP system? • IGC a process of reviewing the core principles of IP law, assessing how to apply those principles for equitable protection of TK and TCEs • analysing validity, equity, effectiveness of IP system from the distinct vantage point of indigenous and local communities • responding to critical concerns about the relevance and legitimacy of IP system, the IGC has seen deep reflection on the nature of IP, its objectives, its assumptions, its limitations and its boundaries • recalling that ‘intellectual property’ shades off into surrounding forms of civil liability (Cornish) • laws on civil liability, unfair competition, unjust enrichment, biodiversity access, Indigenous affairs, cultural policy, etc.

23. A critique also of the value assumptions in various conceptions of the public domain: • indigenous peoples have rarely placed anything in the so called ‘public domain’, a term without meaning to us… the public domain is a construct of the IP system and does not take into account domains established by customary indigenous laws. • Saami Council, WIPO/GRTKF/IC/5/3

24. Some key substantive issues: • misappropriation - what is it to misappropriate TK/TCEs, what is the cause of action and the nature of the damage? • retroactivity - is the existing public domain legitimate & inviolable? • localisation - how to recognize and defer to a community’s customary law? • collectivity - what legal status or legal personality for traditional communities? • ownership - what is the nature of custodianship? Who benefits? • subject matter - what makes knowledge and cultural expressions ‘traditional’ ?

25. Some key process issues: • coordination - already an active area of national and regional legislation - what is the international layer? • interface with IP law - what is the sui generis element? • interface with other law - access regimes for genetic resources, cultural policy, etc.; what is the (adapted, expanded or sui generis) IP element? • depolarization - growing tacit consensus, underlying shared interests • choice of forum /interagency comity - what home for genetic resources, what legal &practical linkages; substance vs. legal status

26. IGC mandate for 2006-2007 • continue work on questions included in previous mandate • new work to focus on consideration of international dimension, without prejudice to work in other fora, • no outcome is excluded, including possible development of an international instrument(s) • the ICG urged to accelerate its work and to present a progress report • International Bureau to continue to assist by providing necessary expertise and documentation.

27. traditional knowledge (TK) IGC decides in March 2004: • focus and accelerate substantive work on TK, including the preparation of draft: • overview of policy objectives and core principles for protection of TK (WIPO/GRTKF/IC/9/5); • a shared international perspective on protection, drawing on the experience of numerous countries and communities • outline of the policy options and legal mechanisms (WIPO/GRTKF/IC/9/INF/5) • a menu of options for national and regional action, based on choices already taken

28. folklore/traditional cultural expressions (TCEs) IGC decides in March 2004: • focus and accelerate substantive work on TCEs, including the preparation of draft: • overview of policy objectives and core principles for protection of TCEs (WIPO/GRTKF/IC/9/4); • a shared international perspective on protection, drawing on the experience of numerous countries and communities • outline of the policy options and legal mechanisms (WIPO/GRTKF/IC/9/INF/4) • a menu of options for national and regional action, based on choices already taken

29. Recognise value Promote respect Meet the actual needs of holders of traditional knowledge Empower holders of TK Support traditional knowledge systems Contribute to safeguarding traditional knowledge Repress unfair and inequitable uses Concord with relevant international agreements and processes Promote innovation and creativity Promote intellectual and technological exchange Promote equitable benefit sharing Promote community development and legitimate trading activities Preclude the grant of invalid IP rights Enhance transparency and mutual confidence Complement protection of traditional cultural expressions What objectives?

30. A central theme... • Protect against the misappropriation of TK

31. A central theme... • Protect against the misappropriation of TK • How? • By legal measures? • National, regional, international? • By practical measures? • What capacity building is needed? • How is it best delivered? • How to empower TK holders? • And what do you mean by protection?

32. A central theme... • Protect against the misappropriation of TK • What is fair use and what is misappropriation? • Is the public domain legitimate? • Is it theft, breach of contract, obtaining by deception, fraud? • Or is it some form of unfair competition, free riding, unjust enrichment? • What legal doctrines already exist?

33. A central theme... • Protect against the misappropriation of TK • But what is traditional knowledge? • What makes it ‘traditional’? • What are the implications of this ‘traditional’ character? • Who is the owner/custodian/beneficiary? • When is TK the property of a community? • Does the customary custodian have legal identity?

34. What substantive principles? • Example: ‘misappropriation’ in WIPO/GRTKF/IC/9/5 • And its roots in the Paris Convention

35. Example: ‘misappropriation’ in WIPO/GRTKF/IC/9/5 And its roots in the Paris Convention What substantive principles?

37. policy objectives & core principles drawing on existing principles, regional and national positions, previous IGC statements, IGC working documents options for recognizing TK/TCE protection in foreign jurisdictionsscope for national treatment, mutual recognition, etc. (document. 6/6, 8/6) An emerging framework elements of TK protection at the national level sources may include docs 5/8 & 6/4 elements of folklore/ TCE protection at the national level sourcesmay include documents 5/3 & 6/3 measures on IP & genetic resources . role of IP in access and equitable benefit sharing . Disclosure requirements relating to genetic resources and TK

38. Work in progress