christophe dernoncourt mémoire
TRANSCRIPT
Does the WIPO’s Framework on Traditional Knowledge
Address the Concerns of Indigenous Peoples?
Par Christophe DERNONCOURT
Master 2 Propriété Industrielle
Université Paris II Panthéon-Assas
Sous la Direction du
Professeur Jean-Christophe GALLOUX
Année 2013/2014
2
Acknowledgement
First, I express my sincere gratitude to my supervisor Pr. Galloux for having accepted this
subject and provided guidance in the writing of this dissertation.
I would also thank my former teacher Howard Johnson whose passionate teachings
encouraged me to lead research in international intellectual property law and in particular in
the issue of developing countries and indigenous peoples.
My sincere thanks also go to University Paris II Panthéon-Assas and the teaching staff of my
Master degree, as well as all my fellow classmates who made this year unforgettable.
Finally, I would like to thank my family and all the people who have helped and supported
me in the writing of this paper, including Eric Le Bellour who has always been inclined to
assist me.
This dissertation is the result of the author’s own independent work and investigation. Law
school does not approve or disapprove the opinions expressed in this paper.
Tout d’abord, je souhaite exprimer ma sincère gratitude envers mon directeur de mémoire, le
Professeur Galloux, pour avoir accepté ce sujet et pour ses conseils dans l’écriture de ce
mémoire.
Je remercie également mon ancien professeur Howard Johnson dont les enseignements
passionnés ont éveillé mon intérêt pour le droit international de la propriété intellectuelle et
notamment la question des pays en développement et des peuples autochtones.
Mes remerciements s’adressent également à l’Université Paris II Panthéon-Assas et à
l’équipe enseignante du Master, ainsi qu’à tous mes camarades de promotion qui ont rendu
cette année inoubliable.
Enfin, je remercie mon entourage et toutes les personnes qui m’on aidé et soutenu dans
l’écriture de ce mémoire, notamment Eric Le Bellour qui a toujours accepté de me fournir les
moyens nécessaires à la réussite de ce travail.
La faculté n’entend donner aucune probation ni improbation aux opinions émises dans ce
mémoire, ces opinions doivent être considérées comme propres à leur auteur.
3
Abstract
This study is a review of the draft sui generis regime for the protection of TK proposed by the
WIPO Intergovernmental Committee (Annex 1) on 9 July 2014. It aims at assessing to which
extent the proposed provisions incorporate the requests of the main beneficiaries, i.e.
indigenous and local communities. Nevertheless, the dissertation also critically analyzes the
relevance of these requests in light of all parameters in question. In particular, in the context
of an intellectual property protection, certain demands of indigenous peoples, although often
legitimate, seem unrealistic or counterproductive for the elaboration of an efficient
international system of protection. This study is thus seeking to objectively examine what is
to become the next intellectual property right.
Ce mémoire est une étude du projet de régime sui generis pour la protection du Savoir
Traditionnel, proposé par le Comité Intergouvernemental de l’OMPI (Annexe 1) le 9 juillet
2014. Il vise à évaluer dans quelle mesure les dispositions proposées tiennent compte des
demandes des principaux intéressés, à savoir les communautés locales et autochtones.
Néanmoins, ce mémoire analyse également la pertinence de ces demandes, en tenant compte
de tous les paramètres en jeu. En particulier, dans le contexte d’une protection par le droit de
la propriété intellectuelle, certaines exigences des peuples autochtones, bien que souvent
légitimes, sont irréalisables ou contreproductives pour l’élaboration d’un système de
protection efficace au niveau international. Cette étude cherche donc autant que possible à
analyser de façon objective ce qui semble se dessiner comme le prochain droit de propriété
intellectuelle.
4
Table of Contents
Introduction .................................................................................................................................... 5
Part I: Traditional Knowledge and Indigenous People in the International
Context .............................................................................................................................................. 8
Chapter 1: The Current Global Protection of Traditional Knowledge .... 9
I. The stakes of a multilateral protection: the concerns of indigenous peoples beyond the North-
South divide .................................................................................................................................... 9
II. The existing instruments protecting traditional knowledge: toward a necessary sui generis
right? ............................................................................................................................................. 14
Chapter 2: The WIPO’s Solution, Appropriate for Misappropriation? ........ 22
I. The place of indigenous peoples in the Intergovernmental Committee forum .......................... 22
II. The Draft Articles, between the demands of indigenous peoples and the international reality 24
Part II: The Future Traditional Knowledge Right ...................................................... 31
Chapter 1: The acquisition of traditional knowledge right ............................ 32
I. The criteria for the protection .................................................................................................... 32
II. The beneficiaries of the protection ........................................................................................... 40
Chapter 2: The Exercise of the Traditional Knowledge Right ........................ 45
I. The scope of protection ............................................................................................................. 45
II. The enforcement of the right .................................................................................................... 52
Conclusion .................................................................................................................................... 56
Annex 1 ............................................................................................................................................. 58
Bibliography .................................................................................................................................. 73
5
Introduction
On 9 July 2014, the WIPO Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore (“the IGC”) adopted the Draft
Articles for the Protection of Traditional Knowledge.1 Although the framework developed by
the IGC is not perfectly complete and still need to be transmitted for discussion to the WIPO
General Assembly in September 2014, this decision constitutes a new important step forward
for the recognition and the establishment, at an international level, of an intellectual property
right protecting traditional knowledge of indigenous peoples.
The decision is all the more a satisfaction that the process has been long and difficult before
coming to such an achievement. From at least as far back as 1980s, concerns about the
misappropriation of traditional knowledge (“TK”) and genetic resources (“GRs”) of
indigenous and local communities have emerged. Many international texts and conventions
were then adopted to address the demands of developing countries and TK-holders. Among
them are the UN Declaration on the Rights of Indigenous Peoples2, the International Labour
Organization Convention No.1693, and the Convention on the Biological Diversity (the
“CBD”) along with its Nagoya Protocol.4
Nevertheless, these international texts, despite their importance in recognizing the rights of
indigenous communities, do not properly address the issue of traditional knowledge per se,
and are more focused on traditional knowledge associated to genetic resources or other
concerns of indigenous peoples such as self-determination, development and land rights.5
1 WIPO IGC, Decision of 28
th session of the Committee, 9 July 2014, WIPO/GRTKF/IC/28/REF/DECISIONS;
WIPO, The Protection of Traditional Knowledge : Draft Articles, 2014, WIPO/GRTKF/IC/28/5. The Draft
Articles are reproduced in Annex 1. 2 UN Declaration on the Rights of Indigenous Peoples adopted by the General Assembly of the UN, 13
September 2007. 3 International Labour Organization Convention No.169 concerning Indigenous and Tribal Peoples in
Independent Countries, 27 June 1989. 4 Convention on the Biological Diversity, 5 June 1992 ; Nagoya Protocol on Access to Genetic Resources and
the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological
Diversity, 29 October 2010. 5 For example CBD Art. 8(j) refers to “knowledge, innovations and practices of indigenous and local
communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological
diversity” (emphasis added); see also ILO Conv. No. 169, Art. 7.1 and the UN Declaration, Art. 31.
6
Besides, they are criticized as they lack effective enforcement mechanisms, necessary to
sufficiently ensure the respect of indigenous communities’ rights.6
In 2000, the IGC was mandated by the WIPO General Assembly to provide a platform for
discussions on the relationships existing between intellectual property and TK and to
“identify and explore the intellectual property needs and expectations of new beneficiaries,
including the holders of indigenous knowledge and innovations”.7 The IGC was thus
involved in the development of sui generis systems for the protection of three important
issues related to indigenous peoples, namely Genetic Resources, Folklore (also called
Traditional Cultural Expressions, “TCEs”) and TK.8
After nearly 15 years of negotiation at WIPO, the emergence of a new intellectual property
right protecting TK against misuses and misappropriations, with all the efficient and complex
system it implies, should hence meet the satisfaction of indigenous and local communities.
However, the question remains: to what extend does the framework developed by the IGC
really address their concerns? This question deserves to be raised since indigenous and local
communities have expressed their reluctance toward an intellectual property protection,
emphasizing that TK have more spiritual and cultural than commercial values.9 Furthermore,
most indigenous peoples are seeking a system which can safeguard and preserve their TK
and not a system which allow them to exploit it.10
But above all, the issue of TK is a very complex one, having important economic and social
implications at an international level; the weakness of indigenous and local communities in
the international debate then involves a real risk that their requests be not reflected in the final
text.
6 See for example Srinivas K., “Protecting traditional knowledge holders’ interests and preventing
misappropriation – traditional knowledge commons and biocultural protocols: necessary but not sufficient?”,
I.C.J.P. 2012, 19(3), 401- 422, 403 ; see also Nijar G., “Traditional knowledge systems, international law and
national challenges: marginalization or emancipation?”, E.J.I.L, 2013, 24(4), 1205-1221, 1210 and 1217-1218;
Dodson M. and Barr O., “Breaking the deadlock: developing an indigenous response to protecting indigenous
traditional knowledge”, 11 Austl. Indigenous L. Rev., 2007, 19, 22. 7 WIPO/IPTK/RT/99/2
8 Note that the IGC developed three different drafts regarding GRs, TCEs and TK. Nevertheless, although all
these issues are linked to each other and often raise similar difficulties, this study only focuses on the draft
provisions for the protection of TK. 9 CIEL, The Gap between Indigenous Peoples’ Demands and WIPO’s Framework on Traditional Knowledge,
Sept. 2007, 3, accessible at http://www.ciel.org/Publications/WIPO_Gap_Sept07.pdf (accessed, 03/08/2014). 10
OseiTutu J. J., “A sui generis regime for traditional knowledge: the cultural divide in intellectual property
law”, 15 Marq. Intell. Prop. L. rev. 147 2011, 188; see also Farley C., “Protecting folklore of indigenous
peoples: is intellectual property the answer?”, 30 Conn. L. rev. 1, 1997, 55.
7
This study is thus a review of the draft sui generis regime for the protection of TK proposed
by the IGC. It aims at assessing whether the proposed provisions embody the approach of the
first concerned beneficiaries, i.e. indigenous and local communities. Nevertheless, this does
not mean that all requests of indigenous peoples should be accepted and implemented in the
framework. Especially, in the context of an intellectual property protection, certain demands
of indigenous peoples, although often legitimate, seem unrealistic or counterproductive for
the elaboration of an efficient international system of protection.
Part I explores the TK issue in the international intellectual property context, whereas Part II
examines in more depth the WIPO draft framework, following the logical of every existing
IPRs.
8
Part I: Traditional Knowledge and Indigenous
People in the International Context
The debate regarding the creation of an international regime of protection for TK involves the
participation of an important number of actors, which go far beyond the strict sphere of users
and right-holders. Indeed, the question has been rapidly taken over by the international
community and more precisely by Member States of the different multilateral organizations
concerned with TK issues. In that respect, the long pace of work to come to the WIPO draft
provisions has clearly brought out the differences of approach and the divide between
industrialized and developing countries. Whereas the latter - main providers of TK - consider
the issue of an international protection as essential for their economic development and the
struggle against illegitimate misappropriation, the former - main users of TK - on the contrary
see TK as a freely accessible public good which should not be subject to any monopoly
right.11
Long regarded as a deadlock in multilateral intellectual property negotiations, the
issue of traditional knowledge right has then mainly developed at national and regional
levels. There are consequently reasons to believe that the draft international solution currently
developed by the WIPO constitutes a first important recognition of this grass-root movement.
However, given the international tense debate mainly steered by economic, political and
social considerations, it has often been very difficult for small indigenous and local
communities to occupy a leading position in the drafting of an appropriate regime of
protection for their TK.12
And yet, beyond the economic and development perspectives it
may offer to developing countries, such a protection is also considered as crucial for the
survival of most communities.13
Chapter 1 provides a clear overview of the current global situation with respect to the
protection of traditional knowledge. Chapter 2 examines the future traditional knowledge
right as proposed by the IGC and its implementation in the international intellectual property
system.
11
See OseiTutu, supra no. 10. 12
Antons C., “Geographies of knowledge: cultural diffusion and the regulation of heritage and traditional
knowledge/cultural expressions in Southeast Asia”, W.I.P.O.J., 2012, 4(1), 83-91, 85 ; see also for example,
WIPO/GRTKF/IC/7/Prov2, para 135. 13
See for example Arowolo A., “African traditional knowledge systems management: the struggle between
science and tradition”, IUP Journal of Knowledge Management, Vol. IX, 4, 2011, 8.
9
Chapter 1: The Current Global Protection of Traditional
Knowledge
Traditional knowledge is not a marginal resource in the world. Often seen as ancient or
primitive, TK nevertheless remains, whatever the form it may take, an important basis for the
present-day life of most people around the world.14
For example, in 2001, it was estimated
that 70 percent of the Indian rural population depended on the old Ayurveda system of
traditional medicine.15
Besides, the significant value of TK has also been highlighted by the
increasing misappropriation that multinational corporations and industrialized countries have
carried out in order to take economic advantages of it. The stakes of the establishment of an
appropriate international regime for the protection of TK are then real and should not be
undermined (I). Unfortunately, so far, very little have been made at the multilateral level to
grant such a protection, especially in respect of the global IP system which is criticized as
fostering the misappropriation process instead of providing the proper legal means to contend
with it (II).
I. The stakes of a multilateral protection: the concerns of indigenous peoples beyond the
North-South divide
The international debate has brought out three major trends concerning the protection of
TK.16
Developed countries like the USA, Japan, Canada and the EU are quite reluctant to a
special regime of protection, considering especially that TK is part of the public domain as
soon as it is freely accessible outside the sphere of the indigenous community. Developing
countries (DCs) and least-developed countries (LDCs) for their part see in the protection of
TK held by their peoples a potential to create economic growth opportunities.17
Finally,
indigenous and local communities, as TK-holders, are looking for a positive system that is
sufficiently able to ensure the safeguarding of their cultural heritage.18
In brief, the TK issue
involves various and different motivations at the negotiation table. Whether they are
economic, social or cultural, these concerns play an important role in the elaboration of a
framework for the protection of TK.
14
Biber-Klemm, “The protection of traditional knowledge on the international level - Reflections in connection
with world trade”, UNCTAD Meeting, 2000, 2. 15
WHO, Legal Status of Traditional Medicine and Complementary/Alternative Medicine : a Worldwide Review,
2001, 9. 16
See CIEL, supra no. 9, 1-2. 17
See for example WIPO/RT/LDC/1/14, para. 10. 18
CIEL, supra no. 9, 1.
10
A. The potential economic interests of TK in the North-South divide
In 2005 it was estimated that there existed over 300 million indigenous people in the world,
living in approximately 70 countries - a great majority of them being DCs or LDCs.19
These
indigenous and local communities hold and use in their daily life the knowledge they have
inherited from their ancestors for a multitude of generations. Such knowledge is kept and
maintained with care within the ethnic groups since it vitally contributes to their identity,
cohesion and survival. On the other hand, a certain amount of TK associated to these
communities has also significantly contributed to the development of new products in modern
industries and therefore constitutes a real economic opportunity, especially in the agricultural
and pharmaceutical sectors. It is difficult to precisely estimate the economic value of TK in
the global market, but certain figures give an insight. For instance, three-quarters of the plants
that provide active ingredients for prescription drugs came to the attention of researchers
because of their use in traditional medicine.20
This is not negligible when one knows that the
estimated market value of plant-based medicines sold in OECD countries in 1990 amounted
to $61 billion.21
Many other examples of well-known traditional knowledge that have been
widely observed and used in modern societies may be cited : this includes inter alia the
traditional medicinal uses of the Indian neem, the Tai healers’ use of the plao-noi plant to
treat ulcers, the traditional aflaj and qanat water system developed by local communities in
Oman, Yemen and Iran to maintain sustainable irrigation, the San use of the hoodia plant to
stave off hunger, the sacred use of the Ayahuasca vine in the western Amazon, the Inuit’s
knowledge of seasonal migration patterns of certain species in the Hudson Bay region, the
use of the hallucinogenic yagè plant by Colombian shamans in religious ceremonies…22
In this context, the control of the utilization of TK turns out to be an interesting deposit for
states rich in this kind of resources. By the elaboration of a TK right, DCs and LDCs then
hope to eventually benefit from the global IP system which has been so far a burden for their
19
United Nations Development Program, “UNDP and indigenous peoples: a policy of engagement”, 2005, at
11; see also Dodson M and Barr O., supra no. 6, 25 ; Carpenter A., Katyal S. and Riley A., “In defense of
property”, 118 Yale L. J. 2009, 1022, 1103. 20
Gray A., “Between the spice of life and the melting pot: biodiversity conservation and its impact on
Indigenous peoples, IWGIA, 1991, 70 ; see also Nijar, supra no. 6, 458-459. 21
Principe, Economics and Medicinal Plants , in Medicinal Plants : Their Role in Health and Biodiversity
(Tomlinson and Akerele eds.), 1998, 44-45 22
WIPO, Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural
Expression : an Overview, WIPO Publications, 2012 ; OseiTutu, supra no. 10, 165 ; Commission on Intellectual
Property Rights (UK), Integrating Intellectual Property Rights and Development Policy (2002) 67 ; see also,
Dutfield G., “TRIPS-related aspects of traditional knowledge”, Case W. Res. J. Int’l L., 2001, 233 – 275.
11
economic development. Since 1994 and the adoption of the WTO Agreement on Trade-
related Aspects of Intellectual Property Rights (“TRIPS”),23
DCs and LDCs have expressed
their concerns about the harmful effects the high international IP standards are having on
their development.24
Indeed, although IPRs have been praised for their incentive effects on
national innovation, technology transfer and economic growth stimulation,25
they have
actually failed to provide positive results concerning less industrialized countries, whose
innovation capacity is relatively limited.26
Quite the opposite, IPRs clearly seem to worsen
the situation in very poor countries due notably to the restricting impact of monopoly rights
on vital issues such as access to medicines, education and food security.27
The global IP
system is consequently criticized as having been elaborated only by and for Western
countries, main producers of IP subject matters. Indeed, as highlighted by Shubbah Gosh,
IPRs have a new strategic role in that they “can serve as an instrument by member states to
subsidize its constituencies and engage its resources more effectively in the international
marketplace”.28
Thus, information-exporting countries have tended to favour a globalized
protectionist model so as to maximize their economic gains.29
On the contrary, DCs and
LDCs are more importers than exporters of IP products and therefore suffer from this
unwanted system. This does not mean that DCs and LDCs are not important providers of the
global knowledge pool; it is simply that in the actual situation their creations and resources
hardly fit the Western IP categorization system, i.e. copyright, trademarks, patents, designs
and geographical indications.
23
The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization,
signed in Marrakesh, Morocco on 15 April 1994. 24
See Gervais D., “Traditional knowledge: a challenge to the international intellectual property system”, 7 Int’l
Intell. Prop. L. & Pol’y 76-1, 2002, 76-2. 25
Gould, D. M. and Gruben W. C., “The role of intellectual property rights in economic growth”, 48 Journal Of
Development Economics 1996, 323-350; Demiray A. D., “Intellectual Property and the External Power of the
European Community: The new Extension”, 16 Mich. J. Intern’l. L. 1994, 187, 200 Brangstetter L. G., “Do
stronger patents induce more local innovation ?” in Maskus K. and Reichman J. (eds), International Public
Goods and Transfer of Technology: Under a Globalized Intellectual Property Regime, CUP 2005, 309-320, 310
; also OseiTutu, supra no. 10, 152. 26
Blakeney M. and Mengistie G., “Intellectual property policy formulation in LDCs in Sub-Saharan Africa”,
African Journal of International and Comparative Law 19(1), 2011, 66-98, 73. 27
On the harmful impacts of IPRs on public health, education and food security in poor countries, see :
Bambauer D. E., “Why Intellectual Property Rights matter to Less-Developed Countries”, Information
Technologies and International Development, Vol.1(3), 2004, 63-71, 67 ; UNESCO, World Information Report
1997/1998, UNESCO, 1998, p.320 ; Haugen H.M., Muller M.R and Narasimhan S.M., “Food security and
intellectual property rights: finding the linkages” in Intellectual Property and Human Development, CUP, 2010,
Chapter 3, 103-138, p. 10 . 28
Ghosh S., “The traditional terms of the traditional knowledge debate”, Northwestern Journal of International
Law & Business, 2003, 589, 598. 29
Drahos P., A Philosophy of Intellectual Property, Dartmouth 1996, 190-191.
12
In such circumstances, TK represents an attractive option for less developed countries in
order to rebalance the current international IP system.30
The economic perspectives it induces
have therefore strongly reinforced the support of DCs and LDCs toward the concerns
expressed by indigenous and local communities in relation to the misuse of their TK.
Nevertheless, in the interests of indigenous peoples, it is important that the debate about the
protection of TK do not derive in the continuation of debates between North and South in
ownership and control of resources31
nor in the elaboration of a legal system only steered by
global economic considerations.
B. Preservation v. exploitation: the Great Dilemma of indigenous peoples
Indigenous people have expressed one major concern in relation to the elaboration of a
regime protecting their TK. Indeed, according to their requests, the international model must
primarily ensure the preservation of TK within the community and prevent any form of
misappropriation.32
Misappropriation refers to the extraction and utilization of TK (and their
associated resources) as well as the acquisition of IPRs derived from such knowledge and
resources without the prior consent of, and the provision for benefit-sharing with, the
individuals or community that provided the TK and the related resources.33
For instance,
lucrative and commercial medicines have been developed from TK held by the Kaani
community in relation to certain berries helping to overcome fatigue.34
Likewise, in 1986, a
US patent was granted to a US citizen, Loren Miller, with respect to a plant variety used by
Amazonian indigenous communities in religious ceremonies.35
Given the close and vital
dependence of indigenous peoples’ lifestyles on their traditional resources, such
embezzlements are recognized very detrimental thefts and real threats to the safeguarding of
TK.
More than the commercial value, indigenous representatives have insisted on the cultural,
spiritual - and often sacred – value of traditional practices and knowledge.36
Placed in a
30
Castle D. and Gold R., “Traditional knowledge and benefit sharing: from compensation to transaction, in
Philips P. and Onwueke C. (eds), Accessing and Sharing the Benefits of the Genomics Revolution (2007), 67. 31
Ghosh, supra no. 28, 592. 32
Liu Y., “Justification of subject-matter for legal protection of traditional knowledge”, EIPR 2007, 29(11),
456-460, 456 ; see also Milius, “Justifying intellectual property in traditional knowledge”, I.P.Q. 2009, 2, 185-
216, 187. 33
Dutfield G., The Public and Private Domains : Intellectual Property Rights in Traditional Knowledge, 21/3
Science Communication, 2000, 278. 34
Nijar G., “Incorporating traditional knowledge in an international regime on access to genetic resources and
benefit sharing : problems and prospects” , E.J.I.L. 2010, 21(2), 457-475, 462. 35
US. Plant no. Plant 5 751 issued on 17 June 1986 « Da vine ». 36
CIEL, supra no. 9, 3.
13
different context, the use of TK may be considered as disrespectful and also constitute a
threat of a different nature. It is for example the case when TK has been intended to be kept
secret or only accessible to a small amount of people but is largely disclosed and widespread
through commercialization and modern means of communication.
However, while indigenous peoples emphasize the need of a preservative system, some of
them are inclined to offer their knowledge for exploitation as soon as they can derive fair
benefits of the process.37
In that way, TK holders can benefit from their indigenous
knowledge and use that particular trade route on the road to economic prosperity.38
But in the
same time this is with reason a good alternative to preserve the knowledge. First, because the
diffusion of TK will necessarily lead to its conservation.39
Second, because it will help
resolving the serious problem of the rejection of traditions by indigenous youth who sees in
modern lifestyles the hope for a better life.40
Indeed, it must be noted that indigenous people
are among the poorest in the world; the risk of the extinction of certain communities involves
the risk that humanity loses their TK.41
By providing economic incentives for the
maintenance of traditional ways of life, the model may then greatly serve the longevity of
both communities and TK. In addition, as Carlos Correa noted:
“fencing off their knowledge does nothing to protect it from being ever more eroded,
undermined, or ignored at the risk of being lost”.42
On the other hand, the system may also turn out to be counter-productive. Indeed, an over-
exploitation of TK resources would be likely to dilute the traditional character and more
especially its linkage to a specific indigenous community. There is then a risk that the
knowledge loses its sacred value, becomes trivial and enters the so-called “public domain”.
Furthermore, one may legitimately point out the problematic - and a bit cynical - question of
the excessive accumulation of wealth generated by a sensible property management of
traditional resources. Indeed, if the system enables TK-holders to earn too much money, is
there not a risk that their traditional ways of life disappear?
37
Milius D., “Justifying intellectual property in traditional knowledge”, I.P.Q. 2009, 2, 185-216, 190. 38
Ibid., 187. 39
See Liu, supra no. 32, 456. 40
Wendland W., “Intellectual property, traditional knowledge and folklore: WIPO’s exploratory program”, IIC
2002, 33(4), 485-504, 498 41
Gervais D. « Traditional knowledge & intellectual property: a TRIPS-compatible approach”, 2005 Mich. St.
L. Rév. 137, 138. 42
Correa C., “Traditional knowledge and Intellectual Property- issues and options surrounding the protection of
traditional knowledge”, Quatar UN Office, 2001, 7.
14
The TK issue thus forms a great dilemma for indigenous peoples: their opinions differ
between keeping their TK secret within the community and sharing it in order to get a fair
benefit from it. In addition, the legal model must embody a certain moderation regarding its
implications so as not to unreasonably denature the original functions of TK in the daily life
of communities it is associated with. In that respect, the call for a tailored instrument, that is
adapted to each indigenous tribe, renders the elaboration of a comprehensive global system
even more complicated.
II. The existing instruments protecting traditional knowledge: toward a necessary sui
generis right?
To be the most efficient, it is important that the legal TK instrument covers the widest
possible territory and be supported by a well-organized system. While intellectual property
law meets these fundamental requirements, there is currently no multilateral IP treaty that
precisely addresses the question of TK. It may then be tempting to rely on traditional IPRs
that are already strongly implemented in the global legal landscape in order to apply them to
TK. Nevertheless, this has proven to be a very limited solution. In fact, it is currently only at
the national and regional levels that appropriate IP instruments specific to TK can be found.
A. At the international level
In the area of public international law, there already exists a various range of legal
instruments that address the issue of indigenous TK. These especially include the 1970
UNESCO Cultural Property Convention,43
the 1972 World Heritage Convention,44
the ILO
Convention 169,45
the CBD,46
and the 1994 UN Convention to Combat Desertification.47
Nevertheless, a standard criticism of these conventions is that they consider the protection of
TK as only a part of the greater concern for global ecological sustainability.48
Some other
declarations may also be cited such as the 1993 Mataatua Declaration49
, the 1992 Kari-Oca
43
UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November
1972. 44
UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property, 14 November 1970. 45
International Labour Organization Convention No.169 concerning Indigenous and Tribal Peoples in
Independent Countries, 27 June 1989. 46
Convention on the Biological Diversity, supra no.4. 47
UN Convention to Combat Desertification (UNCDD), 17 June 1994. 48
Milius, supra no. 37, 200. 49
Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, June 1993.
15
Earth Charter50
and the UN Declaration on the Rights of Indigenous Peoples.51
However,
besides their similar inabilities to properly address the treatment of TK per se, these
international declarations are not legally-binding and merely call for better conducts of
signatory states.
It is noteworthy that, despite the continuous adoption of mutually supportive texts, none of
the international IP treaties mentions the treatment of TK. In that respect, certain authors have
considered that, in some cases, the TK issue should not be dealt with IPRs, but should remain
a matter for environmental regulation or self-governance treaties.52
Yet, there is no
convincing reason why TK could not be dealt by intellectual property law. Indeed,
intellectual property law is a flexible and “broad concept that can include matter that does not
currently fall within existing categories”.53
Moreover, intellectual property law is one of the
most globally developed system, offering a solid framework for the protection of TK.
1. From local to global protection: a straight TRIPS
Among the international IP agreements, the TRIPS Agreement is the last great achievement
in date and undoubtedly the most “ambitious intellectual property convention ever
attempted”.54
Indeed, due to the inclusion of the TRIPS Agreement in the Marrakesh package
of agreements, any of the 160 WTO-members has to implement it in its internal order. The
TRIPS Agreement is also the only multilateral treaty to deal with all major existing IPRs.
Last but not least, all the provisions are strongly enforceable since the agreement benefits
from the elaborated WTO dispute settlement.55
Consequently non-compliant measures may
be challenged and punished by heavy trade sanctions from other Member States.56
The inclusion in this major agreement of provisions that would adequately address the
concerns of indigenous peoples is therefore the ultimate dream of TK right supporters.
50
Kari-Oca Declaration and Indigenous Peoples Earth Charter, May 1992. 51
UN Declaration, supra no. 2. 52
See Gervais D, supra no.41, 156 ; see also Harms L., “Indigenous traditional knowledge and intellectual
property law”, IIC 2010, 41(5), 503-505. 53
WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders : WIPO Report on
Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), 2001, 6. 54
Reichman J., “Compliance with the TRIPS Agreement: Introduction to a Scholarly Debate”, 29 Vand. J.
Transnat’l L. 1996, 363-390, 366. 55
See art. 64 of the TRIPS Agreement. 56
Annex 2 of the WTO Agreement, Understanding on rules and procedures governing the settlement of disputes
(1994).
16
However, the TRIPS Agreement does absolutely not treat or even mention the issue of TK.57
Such a deficiency contributes to the criticisms toward the TRIPS Agreement according to
which the treaty is intended to benefit only Western countries and not developing countries.58
Many propositions have fed the discussions about how the TRIPS provisions could be
adapted to cover TK. For instance, a solution has been intended to amend the Agreement and
require the disclosure of TK in patent application, so that it will be in line with the CBD.59
Likewise, the provisions on geographical indications have been proposed to be extended in a
such a way that they can embrace TK.60
But the discussion has mainly focused on Article
27(3) of the Agreement, which deals with some aspects of the patentability of certain
biotechnological inventions, and especially provides that patent can be excluded in relation to
plant varieties if Member states have opted for a sui generis right.61
At the Doha Round in 2001, WTO Member States directed the TRIPS Council to explore the
relationship between the TRIPS Agreement, the CBD and the protection of TK.62
Nevertheless, developed countries have agreed on a “consensus”63
to wait first for more
certitude concerning the elaboration of an international sui generis right at the WIPO64
:
“Once WIPO has completed work on model national legislation, attention could be
focused on how and to what extent the protection of traditional knowledge can be
included in the TRIPs Agreement.”65
However, one may wonder why such a process should be applied to TK whereas it was not
even applied to geographical indications. As OseiTutu rightfully pointed out, before their
recognition in the TRIPS Agreement, geographical indications had not been explicitly
57
See Drahos P. and Braithwaite J., Information Feudalism: Who Owns the Information Economy?, Earthscan,
2002, 10. 58
Arewa O., “TRIPS and traditional knowledge: Local communities, local knowledge, and global intellectual
property frameworks, 10 Marq. Intell. Prop. L. Rev., 2006, 155, 160-163 ; Adewopo A., “The global
intellectual property system and Sub-Saharan Africa: a prognostic reflection”, 33 U. Tol. L. Rev., 2002, 749,
749-750. 59
Milius, supra no. 37, 215. 60
See Gopalakrishnan, N., Nair P., Babu A., “Exploring the relationship between geographical indications and
traditional knowledge: an analysis of the legal tools for the protection of geographical indications in Asia”
ICTSD Working Paper, 2007. 61
Stoll P.-T. and von Hahn A., “Indigenous peoples, indigenous knowledge and indigenous resources in
international law”, Part II, in Von Lewinski (ed.), Indigenous Heritage and Intellectual Property: Genetic
Resources, Traditional Knowledge and Folklore, Kluwer Law International, 2008, 38. 62
Doha Ministerial Declaration, 14 November 2014, para. 19. 63
Cottier T., “The protection of genetic resources and traditional knowledge: towards more specific rights and
obligations on world trade law”, 1 Journal of International Economic Law, 1998, 555, 581-4 64
Maina C., “Power relations in the traditional knowledge debate: a critical analysis of forums”, ICJP, 2011,
18(2), 143-178, 156. 65
Opinions of the European Union, Japan and Singapore, in TRIPS Council, The Protection of Traditional
Knowledge and Folklore: Summary of Issues Raised and Points Made (2002), WTO/IP/C/W/370, at 27.
17
protected as IPRs in any widely accepted international agreement.66
By the way, geographical
indications and traditional knowledge are substantially very close. Indeed, geographical
indications seem to be the cunning found by industrialized European countries to protect
certain products of their heritage and hence, in a way, a certain form of their traditional
knowledge.67
Anyway, it seems that indigenous people have to wait before the issue of a sui generis TK
right comes onto the TRIPS agenda. Until then, there remains the question of the extent to
which they can rely on traditional IPRs already recognized at the international level to get an
emergency alternative.
2. Traditional IPRs - Traditional Knowledge: traditionally incompatible?
Dodson and Barr provided a good understanding of the current situation:
“Although the categories provided by intellectual property law fails to at times
suffice, for the most part intellectual property law fails to protect indigenous rights
and interests. It seems that the failure is because Western constructs of intellectual
property focus on individual knowledge and creativity, rather than communal trans-
generational knowledge”.68
The fact that TK is collectively held admittedly raises the issue of the complex right
management; nevertheless it does not exclude in itself the possibility of using existing IPRs
to protect TK. There indeed exist many examples of collective ownership of IPRs,69
the first
of them being geographical indications. Actually, the real difficulties lie more in how little
appropriate the regimes of “Western IPRs” are in respect of TK subject-matters.
For instance, some IPRs like distinctive signs, copyright and design right are by their very
nature inappropriate to TK insofar as they cannot cover knowledge as such. In light of these
intellectual property regimes, indigenous knowledge is an intangible good, like ideas and
genres, and only its tangible expressions can be protected.70
In that regard, current
international IP obligations are more likely to provide a solution for certain forms of
traditional cultural expressions and other TK-issued products. For instance, the sign Arte Seri
66
OseiTutu, supra no. 10, 170. 67
Actually, given the fact that they protect “products” and not directly the “know-how” that is embodied in,
geographical indications are even closer to TCEs. See Article 22 of the TRIPS Agreement which defines
geographical indications as “indications which identify a good as originating in the territory of a Member, or a
region or locality in that territory, where a given quality, reputation or other characteristic of the good is
essentially attributable to its geographical origin”. 68
Dodson and Barr, supra no. 6, 23. 69
OseiTutu, supra no. 10, 167 70
See on this Brown M., “Can culture be copyrighted ?”, 49 Current Anthropology, 1998, 193.
18
was registered as a trademark to identify authentic ironwood products that are made by
traditional methods from the Olneya tesota tree71
and the appellation of origin olinala has
been used to protect a lacquered wooden product whose characteristics are derived from the
indigenous resources of the locality. Nonetheless, IPRs appear to only apply to “goods” and
are therefore unable to cover several forms of TK, in particular medicinal and other scientific
knowledge.72
As to how patents could be used, the main problems relate to how hardly TK can meet the
protection criteria. Currently, relying on patent rights appears inadequate because TK is
commonly viewed as prior art, therefore not meeting the novelty requirement.73
In addition,
patent rights have been developed to protect “inventions”, and not skills, know-how or
knowledge. In that sense, patents are arguably more tailored for TK-based inventions than
TK itself:
“While discoveries and other forms of traditional medicinal knowledge based on
plants or animal parts or fluids generally cannot be patented, either because they are
obvious or because they are in the public domain, drugs derived from such plants and
animals are generally patentable. These patents will belong to the company that
developed and refined the molecule. However, the research and development efforts
concerning traditional medicinal knowledge and products is often inspired by holders
of traditional knowledge”.74
Seen that way, existing IPRs appear to contribute in the misappropriation process more than
they struggle against it. This is the reason why certain countries have developed mechanisms
to negatively protect certain of their TK from the scope of IPRs. For example Chinese
Intellectual Property Office got equipped with teams of patent examiners specialized in
traditional Chinese medicine and has established since 2002 a specific database to meet their
examination needs. Likewise, some countries such as New Zealand have provided
mechanisms designed to prevent the registration of trademarks in respect of indigenous
words.75
Besides all these substantive difficulties, the granting of IPR protection is mostly determined
by the fulfilling of administrative formalities and the payment of official fees. The costs of
71
WIPO, supra no. 22. 29. 72
Gervais, supra no. 24, 76-8 ; See also Bicskei M., Bizer K., Sidali K. and Spiller A., “Reform proposals on the
geographical indications of the European Union for the protection of traditional knowledge”, WIPOJ, 2012,
3(2), 222-236. 73
Li X., “Novelty and inventive step : obstacles to traditional knowledge protection under patent regimes : a
case study in China”, EIPR, 2007, 29(4), 134-139, 134-136. 74
Gervais, supra no. 41, 76-3. 75
New Zealand Trade Mark Act, 2005, s.17
19
registering, maintaining, monitoring and defending an IPR may rapidly amount to hundreds
of thousands of dollars. The excessive size of these amounts effectively prevents indigenous
and local communities from lodging applications or at least considerably limits the number of
IPR they can apply for…76
Finally, TRIPS obligations on confidential information probably provide the best solution for
indigenous peoples since TK is often intended to remain secret within the community.77
A
good illustration of the way in which provisions on undisclosed secrets can be used is the
Australian case Foster v Mountford.78
In this case, members of the Pitjantjatjara Council
successfully relied on breach of confidence rules to obtain an interlocutory injunction
restraining the publication of the Nomads of the Australian Desert book. They indeed proved
that certain information contained in the book had been supplied in confidence to the author
35 years earlier.
However, once again, limits have been highlighted, especially regarding the lack of complete
harmonization of the regime of undisclosed information that experiences serious differences
between civil law and common law countries,79
and that is above all strongly associated to
trade secrets rather than cultural secrets.
B. At regional and national levels
Considering the absence of a comprehensive international instrument, many countries have
adopted national or regional measures to explicitly protect their TK. Even though protections
granted to indigenous peoples via domestic legislation is limited in their territorial
effectiveness, they offer the advantage of being tailored to the specific needs and
characteristics of TK present in the country, including their community context, their
development dimension, the social identity of their holders as well as their method of
transmission.
Among the existing domestic mechanisms, the Australian legislations recognize the “special
knowledge held by Indigenous persons about biological resources”80
and, in certain states,
mechanisms of mutual support between Aboriginal health workers and conventional medical
76
Githaiga, "Intellectual property law and the protection of indigenous folklore and knowledge", E Law paras,
5(2), 1998, 88. 77
TRIPS Agreement, art. 39. 78
Foster and Others v Mountford and Rigby Ltd (1976) 14 ALR 71. See the comments of Antons C., “Foster v
Mountford: cultural confidentiality in a changing Australia”, University of Wollongong Papers, 2009. 79
Gervais, supra no. 24, 76-8. 80
Australia Environmental Protection and Biodiversity Conservation Amendment Regulations 2005 S.8A01(c).
20
practitioners have been successfully established81
; the constitution of Ecuador expressly
enshrines and protects the practice of indigenous knowledge82
; Brazilian local regulations
recognize the rights of indigenous and local communities to prevent unauthorized use and
exploitation of information and data that embody TK83
; in Bolivia, a national legal system
protects certain areas, such as the Chaco National Park, wherein indigenous knowledge is
used in management practice84
; in Thailand, national laws tend to safeguard and promote
Thai medicinal knowledge in the country85
; in South Africa, national laws recognize and
regulate the practice of traditional medicine86
; following the Pacific Community’s Regional
Framework, Samoa enacted a sui generis model for the protection of its TK in 201187
; in the
Philippines, traditional medicinal practices and certain other forms of TK are recognized in
different acts88
; Peru has provided since 2002 sui generis protection for the TK of its
indigenous peoples89
; in Ethiopia, TK is recognized and protected through the national
conservation of cultural heritage process90
; the Indian legislation has established mechanisms
of fair compensation for traditional agricultural knowledge holders…91
At regional level, the ARIPO’s Swakopmund Protocol92
is probably one of the most advanced
scheme and an important instrument since it covers a great amount of territories where TK is
commonly viewed as vital for populations. Likewise, in other part of the world, including
South Asian, Andean and Pacific regions, draft frameworks have also been elaborated in
order to provide member states with appropriate models to be implemented in national
legislations.93
81
See for instance Health Practitioners and Allied Professionals Registration Act, 1985 of the Northern
Territory of Australia. 82
Constitution of Ecuador, 1998, art. 44. 83
See Brazilian Provisional Act No. 2, 186-16, 2001. 84
Bolivia, Supreme Decree No. 24, 122, 1995. 85
Protection and Promotion of Traditional Thai Medecinal Intelligence Act, B.E. 2542, 1999. 86
South African Traditional Health Practitioners Act, 2004. 87
Samoan Intellectual Property Act 2011. 88
Philippian Traditional and Alternative Medicine Act, 1997 ; Indigenous Peoples Rights Act, 1997. 89
Peruvian Law 27811 indtroducing a Protection Regime for the Collective Knowledge of Indigenous Peoples
derived from Biological Resources, 2002. 90
Research and Conservation of Cultural Heritage Proclamation, 2000; Access to Genetic Resources and
Community Knowledge, and Community Rights Proclamation, 2006. 91
Indian Biological Diversity Act 2002. 92
ARIPO’s Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions, 2010. 93
Draft Legal Instrument for South Asian Association for Regional Cooperation Countries on Protection of
Traditional Knowledge, 2006 ; Pacific Regional Framework for the Protection of Traditional Knowledge and
Expressions of culture, 2002 ; Andean Community Decision 486, Common Intellectaul Property Regime, 2000.
21
All these national and regional provisions have so far significantly influenced the work
within the WIPO IGC.94
Indeed, considering the analysis of this Chapter, the elaboration of
international standards in relation to the protection of traditional and indigenous knowledge
appears to follow a three-step process: 1. The development and the testing of solutions at a
national and regional level, including experimenting with existing IPRs and the elaboration of
sui generis models, 2. The drafting of an international convention that provides an
harmonized framework for further domestic legislations, and 3. the inclusion in the
multilateral mandatory TRIPS Agreement of standards provisions based on existing rules.
Today, the situation is stagnating at step 2, but the solution currently developed by the WIPO
IGC seems to be the key to move to step 3. However, does it really bring the right and
appropriate solution for indigenous peoples?
94
See on this Taubman A. and Leistner M., “Analysis of different areas of indigenous resources” in Von
Lewinski (ed.), Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and
Folklore, Kluwer Law International, 2008, 156.
22
Chapter 2: The WIPO’s Solution, Appropriate for
Misappropriation?
The assessment of how appropriate the WIPO‘s framework on TK is in relation to the
concerns of indigenous peoples necessarily implies considering to which extent such peoples
are involved in the decision process. There is indeed a palpable will of the IGC to integrate
TK-holders’ opinions into the debate. On the other hand, there are also significant political
and economic considerations around the issue of indigenous knowledge. It results that,
although the IGC is intended to provide a discussion platform for all actors, the first people
concerned with a protection regime have experienced important difficulties to impose
themselves in the negotiations (I). Consequently, the way how the IGC deals with the TK
issue is partially rejected by indigenous communities who mainly disagree with the choice of
an IP-anchored right (II).
I. The place of indigenous peoples in the Intergovernmental Committee forum
In 1998, WIPO was requested by its member states to analyze the relationship between
intellectual property and traditional knowledge.95
After three years of fact-finding missions,
WIPO released a report relating the needs and expectations of indigenous peoples and other
holders of TK.96
Before that, in 2000, at the 26th
session of the WIPO General Assembly,
Member states had already decided to create a special body, the IGC, to deal with this
matter.97
The IGC was initially mandated to explore in more depth the IP options for the
protection of TK - as well as folklore and genetic resources – but rapidly it was instructed by
the WIPO General Assembly to work on the development of an appropriate international
instrument, including a possible sui generis regime.
However, many criticisms have been addressed to the IGC, especially concerning its slow
pace of work that contrasts with the “urgent need to expedite the establishment of
international legally binding instruments”.98
It is true that the IGC has had trouble taking
things further, but this is primarily due to the unwillingness of developed countries to discuss
95
WIPO, Main Programme 11, Programme and Budget 1998/1999, WO/BC/18/X and WO/PC/8/Y, 1998. 96
WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders : WIPO Report on
Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), WIPO Publications,
2001. 97
WIPO, Matters concerning Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore, WIPO/GA/26/6, 2000. 98
WIPO, Bandung Declaration on the protection of traditional cultural expressions, traditional knowledge, and
genetic resources, WIPO/GRTKF/IC/11/12, 2007, para. 8.
23
substantive provisions of the new framework.99
For instance, one of their strategy has been
“to reiterate their repeated calls for "further study", and this tactic has generally impeded a
full substantive discussion.”100
There is nevertheless a certain blessing in disguise in this slowness in the sense that it has
allowed a constructive discussion and the elaboration of a multitude of documentations.
Another major problem experienced at the IGC concerns the difficulties in the participation
of indigenous peoples. It is noteworthy that, contrary “to other processes at WIPO, the IGC
has made significant effort to enhance the participation of representatives of indigenous and
other local communities”.101
In comparison, only Member states and certain international
intergovernmental organizations can participate in the WTO meetings. Similarly, indigenous
communities “were not among the parties that negotiated the CBD”. 102
However, despite the efforts to integrate TK-holders, the IGC’s work has mainly been
conducted without their broad-based contribution. Indeed, although at times they see their
interests represented by their countries’ delegations, indigenous communities often have to be
satisfied with a mere “observer” status.103
This means that, according to Rule 24 of the
WIPO’s General Rules of Procedures, they can take part in the debates when invited but can
never submit proposals, amendments or motions… Furthermore, besides its complexity, the
accreditation is not ex officio but decided by the Organization on the basis of subjective
information; therefore the process can be used to exclude certain indigenous representatives
who would be seen as undesirable.104
Finally, the participation of TK-holders is also impeded by the costs to attend the IGC
meetings. In that respect, the creation of a Voluntary Fund, based on voluntary contributions
by governments, NGOs and other private or public entities, has been initiated by WIPO in
order to improve the involvement of poor indigenous representatives. But due to the weak
amount of donation, it has so far failed to financially support all the eligible representatives.
Indeed, at the beginning of the 28th
session on 7-9 July 2014 for instance, the amount
99
See for instance Roberts T., « Intellectual property : 9th meeting of the Intergovernmental Committe on
genetic resources, traditional knowledge and folklore, Geneva, April 24-28, 2006 », EIPR 2006, 28(8), N155;
CIEL, supra no. 9, 4. 100
Ibid. 101
Ibid., 2. 102
Srinivas, supra no. 6, 402-403. 103
See Antons C. , supra no. 12, 85. 104
Maina C., “Power relations in the traditional knowledge debate: a critical analysis of forums”, ICJP, 2011,
18(2), 143-178, 161.
24
available in the account of the Fund was only 823.10 Swiss Francs.105
Amendments were
therefore proposed by the delegations of Australia, Finland, New Zealand and Switzerland to
draw contributions from the regular WIPO budget, in the absence of sufficient voluntary
contributions.106
In this context, it has appeared difficult for indigenous communities to get heard at the IGC
sessions. These meetings are primarily member driven and the lobbying carried out by TK-
holders and NGOs is all the more difficult that countries delegations do not always have the
same ambitions and concerns regarding the TK issue. Maina related for instance that
“member states representatives and indigenous peoples do not share the same views and
national tensions are sometimes evident at international meetings”.107
There is therefore great
doubt that the framework elaborated by the IGC completely meets the satisfaction of
communities. And this doubt is emphasized by the fact that the draft had to be transmitted to
the WIPO General Assembly for approval, giving the final word to the decision power of
Member States.108
II. The Draft Articles, between the demands of indigenous peoples and the international
reality
In addition to the difficulties regarding their participation in the discussion forums,
indigenous people have expressed their concerns about the IP-anchored mandate of the IGC.
Indeed for a majority of TK-holders, the elaboration of an appropriate system goes beyond
the field of IP and can only be achieved if it addresses in the same time the issues of human
rights.109
On the contrary, the adoption of an instrument that is fundamentally entrenched in
“Western” intellectual property law is negatively perceived by certain indigenous
communities because they keep considering that IPRs are inappropriate and favor
misappropriation.
In that regard, certain authors have argued that intellectual property law should not be the key
for the protection of TK, including Harms who stated:
105
WIPO/GRTKF/IC/27/3 para.1 106
WIPO/GRTKF/IC/28/10 107
Maina, supra no. 104, 160. 108
WIPO IGC, Decision of 28th
session of the Committee, 9 July 2014, WIPO/GRTKF/
IC/28/REF/DECISIONS. 109
See OseiTutu, supra no. 10, 205-207 ; see also Munzer S. and Raustiala K., “The uneasy case for intellectual
property rights in traditional knowledge, 27 Cardozo Arts & Ent. L.J., 37, 48.
25
“Does one protect culture by means of barriers or does one protect it by removing barriers? I
believe in the latter. It will require some serious legal engineering and mental gymnastics to
change IP law in order to accommodate [TK] protection”.110
This view is nevertheless not entirely shared by indigenous and local communities.111
A. The choice of a new intellectual property right
As a special body created by and administered under the aegis of WIPO, the IGC could not
choose other track but intellectual property for the development of its framework. Even
though its work has always been driven by the need to find adequate responses to concerns
related to misappropriation of TK, the two options considered by the IGC were related to the
international IP architecture, i.e. whether enhance the current IPRs in a way to embrace TK or
elaborate a sui generis form of protection specific to TK.112
The former, due to the exploitative and individualistic nature of current IPRs that contrasts
with the trans-generational and communal nature of TK, has proven to be quite impossible,
unless taking the risk of endangering the very foundations of all the IP system.113
On the other hand, the emergence of a new kind of IPRs has in general been positively
welcomed by a majority of indigenous and local communities’ representatives, provided that
such IPR is adapted to the particular characteristics of TK. Indeed the point “is not that TK
holders do not recognize intellectual property concepts, but rather that the formal intellectual
property system is a type of intellectual property system which they are not familiar”.114
The use of monopolistic and exclusive methods to protect informal knowledge is actually not
uncommon within traditional societies, especially through hereditary secrets or customary
rituals.115
But in that respect, indigenous communities see their TK as a responsibility
towards other community members rather than property owned by an individual or group;
“[t]hus, for many traditional communities, their TK entails a bundle of relationships and
obligations rather than a bundle of economic rights as under the common law property
system. The notion that such elements of TK can be ‘owned,’ and with it the possibility that
110
Harms L., “Indigenous traditional knowledge and intellectual property law”, IIC 2010, 41(5), 503-505, 504. 111
See Wendland, supra no.40, 504. 112
See CIEL, supra no.9, 3-4. 113
Gervais, supra no. 41, 143 ; see also Wendland W., “Intellectual property, traditional knowledge and
folklore: WIPO’s exploratory program”, IIC 2002, 33(4), 485-504, 502. 114
WIPO, supra no. 96, 287. 115
Id., 62.
26
other responsibilities and relationships pertaining to that knowledge could be negated, is
incomprehensible”.116
Though, several aspects of the IGC’s framework reveal that the TK right is still much
anchored in the logical and spirit of intellectual property law as designed by developed
countries.
First, the future instrument was conferred the common structure of the current forms of IPRs,
i.e. an identifiable subject-matter, an identifiable beneficiary, and defined restricted acts in
relation to the said subject-matter without the prior authorization of the right-holders and in
the absence of statutory exceptions.117
Second, the framework pays as much attention to the commercial value as the spiritual
dimension of TK. Indeed, even though the Preamble tends to recognize the social, spiritual,
ecological and cultural value of TK, discussions are still ongoing on whether the “economic”
and “commercial” value should be taken into account as well.118
Similarly, while it is almost
clear that the future instrument is to:
“promote and support the [conservation of and] preservation [of] [and respect for] traditional
knowledge [by respecting, preserving, protecting and maintaining traditional knowledge
systems [and providing incentives to the custodians of those knowledge systems to maintain
and safeguard their knowledge systems]”119
,
there are still references in the Preamble to Western intellectual property notions, e.g. the
“safeguard of the public domain” and the “transfer and dissemination of knowledge”.120
In
that last regard, paragraph (vii) is directly inspired from the objectives article of the TRIPS
Agreement that provides:
“The protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of technology, to
the mutual advantage of producers and users of technological knowledge and in a manner
conducive to social and economic welfare, and to a balance of rights and obligations”.121
116
Curci J., The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual
Property, Cambridge University Press, 2010, 92. 117
See Gervais, supra no. 24, 76-7. 118
Draft Articles, Preamble (i). 119
Draft Articles, Preamble (iii). 120
Draft Articles, Preamble (v) : “recognize the value of a vibrant public domain and the body of knowledge
that is available for all to use, and which is essential for creativity and innovation, and the need to protect,
preserve and enhance the public domain” and (vii): “[the protection of traditional knowledge should]
contribute toward the promotion of innovation and to the transfer and dissemination of knowledge to the mutual
advantage of holders and users of traditional knowledge and in a manner conducive to social and economic
welfare and to a balance of rights and obligations”. Note that both these propositions are still under discussion. 121
The TRIPS Agreement, art. 7.
27
One may express reasonable doubts on whether the balance inherent to other IPRs should be
applied to TK right, because indigenous knowledge is not a non-rival good as other
intellectual property subject matters. Indeed, inventions and intangible works are non-
competing in the sense that “their use by an individual does not prevent others from using
them in the same amount. On the contrary, it is precisely their use, their movement that
implement and extent their value”.122
In contrast, the wide dissemination and the repeated use
of a traditional knowledge weakens the link that associates such knowledge to the original
indigenous community and, therefore, by becoming over time a common good of humanity
(or written in Western IPR language, a “public domain” item), it loses its “traditional” feature
and in the same time its protection under the TK right.
B. The ambitions of the future convention
The IGC’s instrument is intended to establish international standards in relation to the
protection of indigenous traditional knowledge. In doing so, it should not refer to common
principles of existing IPRs as if they were a prerequisite for the elaboration of a new sui
generis right. At the risk of repeating oneself, classical intellectual property rules have not for
purposes to protect cultural heritage but to promote creativity, efficiency and
commercialization.123
Thus it would be more sensible to rely on principles embodied in
indigenous customs whose objectives are more adapted and familiar to TK-holder.124
Indigenous and local communities have emphasized the need for a better “recognition that
customary laws can be used to regulate and control the manner in which such knowledge is
communicated, shared, used and applied.”125
In order to address their concerns, the IGC requested a study on the role of customary law
and its relationship with TK.126
Nevertheless, the recommendations of the study are not
reflected in the Draft Articles, which only contain the commitment of Member States to:
“not restrict the generation, customary use, transmission, exchange and development of
traditional knowledge by the beneficiaries, within and among communities in the traditional
and customary context, [in accordance with national law]”.127
122
Barbato, Intellectual Property and Human Rights, Università degli Studi di Roma La Sapienza, Thesis, 2010,
2. 123
OseiTutu, supra no. 10, 187-188. 124
See for instance WIPO/GRTKF/IC/7/15/Prov.2, para. 24 : “Customary law is the laws that most matters for
indigenous peoples and is inalienable from their identity and integrity” (Call of the Earth). 125
CIEL, supra no. 9, 3. 126
WIPO, Customary Law, Traditional Knowledge and Intellectual Property : an Outline of the Issues, 2007,
available at : http://www.wipo.int/export/sites/www/tk/en/resources/pdf/overview_customary_law.pdf (accessed
10/08/2014).
28
On the other hand, it is true that customs, by their very nature, are different and vary from a
country to another, from a region to another and even from a community to another.
Moreover, very few Member States fully recognize indigenous customs in their domestic
statutes. Consequently, by relying on local indigenous customary laws instead of common
international standards, the future convention might see its scope be significantly restricted
due to the failure to fully harmonize the international regime.
Currently, the question of how customary laws should be implemented in the IGC’s
framework is still under debate.
So is the question of the framework’s legal binding force. Indeed, Draft Articles are still
using an ambiguous vocabulary, e.g. “shall”/”should”, “Member states”/”Contracting
Parties”. The lack of consensus around these notions somehow reveals certain incertitude as
to which value is to be given to the framework within the international IP landscape. Should
it be an instrument that merely recognizes TK and provides Member states with a model for
their domestic legislation? Or should it be a legally binding document creating a union
between countries like the Berne and Paris conventions128
?
Some indigenous and local communities highlighted the necessity of a legally binding
document for their needs to be met.129
On the other hand, developed countries expressed their
reluctance towards binding international standards, considering primarily that the IGC was
only a forum for discussions.130
Nonetheless, it seems more and more likely that the WIPO’s framework is to become a new
international convention in the end. According to the Australian delegation’s view, the IGC
has been “on path to build a third pillar for the world IP community – a pillar which would
complement the pillars of the Berne and Paris Conventions.”131
However, even if it was the
case, the question would remain of whether all WIPO Member States would adopt it,
including developed countries. Likewise, a standard criticism to the WIPO system concerns
the difficulties to enforce the provisions of its conventions. Indeed, WIPO is only equipped
with a mechanism for the resolution of disputes between private parties132
but, contrary to the
127
Draft Articles, Preamble (ix). 128
Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, as amended on
September 28, 1979 ; Paris Convention for the Protection of Industrial Property, March 1883, as amended on
September 28, 1979. 129
See WIPO/GRTKF/IC/9/14/ Prov. 2, para. 50. 130
See for instance, the European Union and the USA in WO/GA/41/15, 5-7; also, CIEL, supra no. 9, 11. 131
WIPO, Report of the WIPO General Assembly, Thirtieth (16th
Ordinary) Session, 2003, WO/GA/30/8, 13. 132
WIPO Arbitration and Mediation Center.
29
WTO, it does not provide an effective system to sanction Member states that do not fulfill
their obligations. Therefore, like the Berne and Paris convention, recognition in the TRIPS
Agreement would be required before the convention on TK could be globally effectively
enforced.133
In that regard, TK-holders have also expressed concerns regarding the relationship of the
instrument with other international agreements and treaties. They indeed consider that the
future convention on the protection of TK should be “mutually supportive with other
international systems and processes discussed at the CBD and the Food and Agricultural
Organization of the United Nations (FAO)”.134
The idea is still to entrench the indigenous
knowledge protection in a system that is not solely limited to intellectual property but also
addresses human rights and self-determination issues.135
Despite considerable efforts, their
requests appear to be only partially satisfied; while the Preamble and Article 10 of the draft
framework consider the relationship with other international agreements, they are currently
excessively anchored in the intellectual property system. According to these provisions, the
instrument is to:
“take account of, and operate consistently with, other international and regional instruments
and processes, in particular regimes that relate to intellectual property and access to and
benefit sharing from genetic resources which are associated with that traditional
knowledge”136
and
“establish a mutually supportive relationship [between [intellectual property [patent] rights
[directly based on] [involving] [the utilization of] traditional knowledge and with relevant
[existing] international agreements and treaties.]137
Also, there is curiously no mention in the instrument on TK of the non-diminishment
principle whereas such principle is present in the draft article 10 of the instrument on
Traditional Cultural Expressions.138
Yet, this clause is viewed important by TK holders
because it ensures that the future convention does not nullify or diminish rights that have
133
See Harms, supra no. 52, 505 : «It took TRIPS to make the Berne and Paris Conventions after a century
somewhat effective ». 134
CIEL, supra no. 9, 6. 135
See WIPO/GRTKF/IC/11/5 (b), 17. 136
Draft Articles, Preamble (iv) 137
Draft Articles, Art. 10. 138
WIPO, The Protection of Traditional Cultural Expressions : Draft Articles, 2014, WIPO/GRTKF/IC/28/6.
Article 10 contains another paragraph that provides: “Nothing in this [instrument] may be construed as
diminishing or extinguishing the rights that indigenous [peoples] or local communities have now or may acquire
in the future.]”. Note that paragraph 13 of the Preamble also contains this statement.
30
been previously recognized and contained in treaties, agreements and other constructive
arrangements.139
The first part of this study revealed that the protection of indigenous knowledge involves a
number of considerations and stakes. Especially, it has brought to the fore and engages with
one of the major challenges facing the global intellectual property system, namely struck the
balance between developed and developing countries’ interests. While it appears that an
appropriate regime protecting traditional knowledge constitutes one of the key to this
problem, indigenous and local communities are still truly worried about the approach
followed by the international community. Indeed, according to a majority of indigenous
representatives, the IGC’s work remains too much entrenched in intellectual property notions
as conceived by Western countries.
Also, there has been serious risks that debates about the future instrument exclusively take
account of Member states’ issues, relegating indigenous people’ concerns to a position of
secondary importance. The efforts made by the Committee to improve the participation of TK
holders in the negotiations are still insufficient, since the latter are not invited to the decision
making process.
In such circumstances, formal outlines of the draft regime turn out not to fully satisfy the
expectations of indigenous and local communities. Especially, the absence of reference to
indigenous customary laws, the reserved integration of the instrument in a broader system
that includes human right issues, as well as the reluctance of certain Member states to provide
the future convention with a legally-binding force, all this is already suggesting an overall
disappointment. And that is even before getting into substantive aspects of the future TK
right.
139
WIPO, Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources: certain suggested
cross-cutting issues, 2014, WIPO/GRTKF/IC/27/INF/10, 13.
31
Part II: The Future Traditional Knowledge Right
As previously noted, the structure of the Draft Articles on the protection of TK, as approved
by the IGC on 9 July 2014, is based on the common structure of existing IPRs, namely: a
preamble defining the intentions of contracting parties along with a list of definitions
concerning the terms used (Preamble, Policy Objectives and Use of Terms), a defined
subject-matter with different criteria for eligibility (Article 1), a designed right-holder
(Article 2), a list of restricted acts outlining the scope of the protection (Article 3),
complementary obligations for Member states (Article 3bis), a list of sanctions and remedies
(Article 4) and additional measures (Article 4bis140
), certain obligations regarding the
administration of rights (Article 5), a list of exceptions and limitations to restricted acts
(Article 6), a precise duration of the right (Article 7), the establishment of the required
formalities for the protection (Article 8), and final provisions concerning the application of
the convention (Article 9: transitional measures ; Article 10: the relations with other
international agreements ; Article 11 : national treatment ; Article 12 : transboundary
cooperation).
Although this demonstrates, once again, the difficulty of the IGC to withdraw from the basic
intellectual property concepts, this common architecture nevertheless establishes a certain
consistency and prevents the future TK right from being completely marginalized or
disconnected from the whole system. In that sense, it guarantees legal certainty and improves
global harmonization insofar as contracting countries are familiar with such a system and are
more likely to align the regime of the new instrument to those of other existing IPRs.
Chapter 1 deals with the draft provisions on right acquisition (Articles 1, 2, 8 and 11) and
Chapter 2 analyses the draft provisions on the enforcement of right (Articles 3 - 7 and 12).
140
Note that this article actually concerns the issue of disclosure requirement in patent and plant variety
applications, a question which is still much under debate.
32
Chapter 1: The acquisition of traditional knowledge right
An important mission of the IGC has been to discuss and reach a consensus on the meanings
to be assigned to the concept of indigenous traditional knowledge (and, in the same time, of
folklore and genetic resources). According to Wendland:
“Clarity on terminology and subject-matter [is] important in order to be able to delimit the
scope of WIPO’s work. This [is] also deemed necessary in order to adjust possibly high
expectations concerning the relevance and role of intellectual property law”141
Reaching broad agreements on the notion of TK does not merely imply to provide a legal
definition of the term but also to clarify how such a definition is adapted to intellectual
property. In addition, it is noteworthy that the IGC’s work is divided in three fields, i.e. TK,
TCEs and GRs, and three distinct frameworks are currently under discussion, including the
Draft Articles on the protection of TK. Therefore, the search for a precise meaning of
traditional knowledge requires clarifying its relationship with the two other concepts in a
manner that all of the three instruments might be mutually supportive and fully cover
indigenous communities’ assets.
The IGC has then been trying to supply precise criteria for the protection (I) as well as a
clearer definition of who the beneficiaries are (II).
I. The criteria for the protection
According to Article 1, protection is granted to traditional knowledge that fulfills a number of
additional criteria. However, as noted by certain NGOs, “defining traditional knowledge has
been a challenge for the IGC, and this is largely due to the fact that such knowledge is
complex in nature”.142
Indeed, traditional knowledge may cover different concepts in
particular when it is related to genetic resources or folklore,143
and WIPO itself has had great
difficulties to properly define the notion over time.
A. Traditional knowledge as a subject-matter
In the same way as inventions, signs and works are respectively the subject-matters of
patents, trademarks and copyright, “traditional knowledge” is unsurprisingly the subject-
matter of the protection granted by the IGC’s draft framework.
141
Wendland, supra no. 113, 489. 142
CIEL, supra no. 9, 3. 143
See Curci J., The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual
Property, Cambridge University Press, 2010, Chapt 4 “Towards clearer legal definitions”.
33
Given the real hardship it is to define the notion and especially to distinguish it from other
knowledge, scholars suggested to state “simply that TK is the knowledge held by traditional
peoples and communities”.144
Another solution is to keep the notion undefined and vague so
that each country might adapt the notion to its proper needs. Such an approach is not unusual
in international intellectual property law. For instance, it may be noted that neither the TRIPS
Agreement nor the Paris Convention defines the notion of “invention”, leaving Member
states free to build their own thresholds for patent protection.145
Representative of indigenous and local communities have mainly endorsed such options,
stating that a loose definition is likely to broaden the protection granted and, in the same time,
that the perception of TK may differ from tribe to tribe and community to community.146
Despite those requests, the IGC opted for a middle position. According to the Draft Articles’
Use of Terms:
“Traditional knowledge [refers to]/[includes]/[means], for the purposes of this instrument,
know-how, skills, innovations, practices, teachings and learnings of [indigenous [peoples]
and [local communities]]/[or a state or states].
[Traditional knowledge may be associated, in particular, with fields such as agriculture, the
environment, healthcare and indigenous and traditional medical knowledge, biodiversity,
traditional lifestyles and natural resources and genetic resources, and know-how of traditional
architecture and construction technologies.]”
Several comments can be made regarding this definition.
1. Traditional but not indigenous
Firstly, it is interesting to see that the IGC has opted for the term “traditional knowledge”
instead of a multitude of available alternatives, e.g. “indigenous knowledge”, “community
knowledge”, “indigenous heritage”, “traditional medicine”, “local and traditional
knowledge”, “traditional and local technology, knowledge, know-how and practices”.147
“Traditional knowledge” is admittedly the most commonly used term, but the absence of
144
Dutfield, supra no. 22, 240. Dutfield argues that this is the approach adopted by the CBD, in Article 8(j),
which refers to: “knowledge, innovations, and practices of indigenous and local communities embodying
traditional lifestyles”. 145
See for instance the TRIPS Agreement, art. 27 : “Subject to the provisions of paragraphs 2 and 3, patents
shall be available for any inventions, whether products or processes, in all fields of technology, provided that
they are new, involve an inventive step and are capable of industrial application” (emphasis added). See also
WIPO/GRTKF/IC/3/8, 5. 146
Gowda P. and Khan U., “Sacred but vulnerable: a critical examination of the adequacy of the current legal
framework for protection of tribal sacred traditional knowledge”, 2008 NUJS L. Rev. 109, 112; see also Antons
C., supra no. 12, 86. 147
Wenland, supra no. 40, 490-491 ; Dodson and Barr, supra no. 6, 24.
34
reference to the “indigenous” feature also suggests that traditional knowledge may emerge
from sources that are not necessarily indigenous. It is actually what the WIPO’s fact-finding
missions reported:
“[i]ndigenous knowledge is therefore part of the traditional knowledge category, but
traditional knowledge is not necessarily indigenous. That is to say, indigenous knowledge is
traditional knowledge, but not all traditional knowledge is indigenous.”148
In any case, the definition provided by the draft framework reveals a persistent consensus
deficiency on this issue, as illustrated by the current debate over the wording option between
“of indigenous and local communities” and “of states”.
Regarding this last issue, if discussions are still ongoing within the IGC this is because
certain national governments are seeking to widen the definition of the subject-matter in a
manner to cover other forms of knowledge.149
In particular, they explain that an
encompassing definition of TK should also include traditional knowledge that has long
entered mainstream culture or become widely spread across the nation.150
These attempts by
Member states to take up the subject in their own interests are viewed with an extreme
distrust by organizations representing indigenous people. For the latter, it is indeed
fundamental that discussions remain focused on the local origins of TK, and especially its
link to indigenous communities.151
Nevertheless, it is true that the concept of “indigenous” induces a categorization of the
national population (i.e. indigenous/non-indigenous) which may be detrimental to certain
peoples. As rightly pointed out by the delegation of Trinidad and Tobago, in certain
countries, especially small islands states, there are no indigenous people or local
communities, but rather a whole community.152
An appropriate definition of traditional
knowledge must therefore reflect this kind of realities.
Notwithstanding, the reference to the indigenous link is still present in the draft framework,
and in particular it constitutes, with “traditional”, the determinants of the different criteria for
eligibility.
148
WIPO, supra no. 96, 23 ; also Wendland, supra no. 40, 492 – 493. 149
See for example the statements of China in WIPO/GRTKF/IC/21/7/PROV.2, 16: “With regard to countries
which had a long history, for example in relation to traditional medicine and other TK, this TK had sometimes
been codified, and its scope of transmission was quite large. This kind of TK was obviously known by people
outside the community, but whether it was open or still secret, it needed to be protected so as to prevent its
misappropriation. For these reasons, the Delegation of China suggested that appropriate criteria and measures to
protect TK were needed and that TK that was already in the public domain should not be excluded”. 150
Antons C., supra no. 12, 85. 151
Ibid. 152
WIPO/GRTKF/IC/21/7/PROV.2, 24.
35
2. An exhaustive list?
Secondly, the IGC’s draft framework provides a positive definition of what TK is by listing
its constituting elements, i.e. know-how, skills, innovations, practices, teachings and
learnings.
This definition significantly differs from that elaborated by the WIPO Secretariat in 2002, for
which TK was a wider category that included folklore as well. More precisely it referred to:
“tradition-based literary, artistic or scientific works; performances; inventions; scientific
discoveries; designs; marks, names and symbols; undisclosed information; and all other
tradition-based innovations and creations resulting from intellectual activity in the industrial,
scientific, literary or artistic fields”.153
In that respect, the current IGC’s definition seems closer to what was covered by the former
expression “tradition-based innovations”. The listed constituting elements are also more
consistent with other national or regional frameworks, such as the Swakopmund Protocol.154
However, there are still debates about whether such a list should be limited to the stated
categories or, on the contrary, should be non-exhaustive.155
TK is, by its very nature,
evolving and perceived differently depending on the communities. There is thus reason to
believe that the listed materials are not completely in line with how certain indigenous people
culturally perceive their TK.156
Furthermore, intellectual property law experience has proven
that a subject-matter categorization is likely to be incomplete and outdated over time.157
In
that sense, a loose or non-exhaustive listing may improve the adaptation of the IPR in
question to external changes.
On the other hand, the question arises as to whether TK should include traditional lifestyles,
languages, or even religions, customs, methods of governance and so on.158
Certain
sociologists indeed highlighted for instance the close relationship between TK and religions
153
WIPO IGC, Elements of a Sui Generis System for the Protection of Traditional Knowledge, December 2002,
WIPO/GRTKF/IC/4/8, 9-10. 154
ARIPO’s Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions, 2010.
According to the Protocol, the notion of TK includes “know-how, skills, innovations, practices and learning”. 155
The debate is illustrated by the undecided wording: “refers to”, “means” and “includes”. 156
See Gowda, supra no. 146, 113. 157
See for instance the Berne convention, art. 2 which establishes a list of examples for copyrightable subject-
matters. The list is written in old terms but is also non-exhaustive and has therefore permitted to include new
forms of copyrightable works such as software. See WIPO Copyright Treaty, 20 December 1996, Art.4.
Similarly, the TRIPS Agreement, art. 15.1 is sufficiently vague to include other kinds of sign than those listed,
such as three-dimentional signs, sounds or even odors. 158
See Liu, supra no. 32, 457-458.
36
in primitive societies.159
And one may remind the case of the yagè plant whose
hallucinogenic property has been traditionally known and used by Colombian shamans in
religious ceremonies. Nevertheless, protecting certain elements of traditional lifestyles may
be viewed as an unreasonable extension of the concept of traditional knowledge, as
understood in its intellectual property meaning. Indeed, even though exclusive rights were to
be granted for traditional lifestyles or elements thereof, they would be impractical to
enforce.160
The preservation of languages, beliefs, or divine worships requires a protective
regime that goes beyond the framework of monopoly rights or mandatory obligations.161
3. The irrelevance of the field associated with the knowledge
Finally, the second paragraph of the definition gives examples of fields with which TK is the
most often associated, i.e. medicine, natural and genetic resources, agriculture, constructions
and so on.
Nevertheless, the wording clearly suggests that this list is not exhaustive and that therefore
the activity area does not constitute a relevant condition for the existence of TK. As to
patents, the TRIPS Agreement provides a similar statement in article 27, according to which
patent is available to any inventions, whatever their fields of technology.162
B. Additional criteria for eligibility
In copyright law, a work is protected as long as it is original.163
Likewise, an invention is
patentable only if it is new, involves an inventive step and is capable of industrial
application.164
According to Article 1 of the IGC’s draft instrument, protection is granted to
TK that meets a number of additional criteria, namely:
“(a) that is created, and [maintained] in a collective context, by indigenous [peoples] and local
communities [or nations] [,whether it is widely spread or not];
(b) that is [directly] [linked]/[distinctively associated] with the cultural [and]/[or] social
identity and cultural heritage of indigenous [peoples] and local communities [or nations];
(c) that is transmitted from generation to generation, whether consecutively or not;
159
See Durkheim E., The elementary forms of religious life (1912), available at
http://www.gutenberg.org/files/41360/41360-h/41360-h.htm (accessed 11/08/2014) 160
See also Milius, supra no. 37,214. 161
Liu mentioned the example of traditional medicine practitioners in the Chinese Yunnan province who were
required not to change their lifestyles. He rightly argued that such obligations did not respect their right to
autonomy and equal treatment. See Liu, supra 32, 457-458. 162
The TRIPS Agreement, art. 27(1): “patents shall be available for any inventions, whether products or
processes, in all fields of technology”. 163
See the Berne convention, arts. 2(3), 8, 11, 14. 164
The TRIPS Agreement, art. 27(1).
37
(d) which may subsist in codified, oral or other forms; and [or]
(e) which may be dynamic and evolving.”
Member states still disagree on certain notions and on whether these criteria should be
cumulative or not. But above all, particular attention is paid to a last criterion which requires
that TK :
“has been used for a term as has been determined by each [Member State]/[Contracting Party]
[but not less than 50 years].”
Before analyzing the significance of each of these requirements, it is noteworthy that the
Draft Articles do not provide a precise definition of “traditional”. Actually, this is probably
because the “traditional” feature is reflected in all the enounced eligibility criteria of which it
is the determinant. In that sense, traditional is the key notion of TK.165
As reported by WIPO
at the very beginning of its study on TK, traditional means that knowledge has generally been
transmitted from generation to generation, is generally regarding as pertaining to a particular
people or its territory and is constantly evolving in response to a changing environment.166
Given the particular subjective link existing between TK and community, indigenous groups
have asserted that only TK-holders should reserve the right to decide what constitutes their
own knowledge and how it should be defined.167
In that regard, the Mataatua Declaration
states that “in the development of policies and practices, indigenous peoples should [...]
define for themselves their own intellectual and cultural property”.168
Notwithstanding, the IGC opted for an approach more consistent with the current intellectual
property system in that it defined the protectable subject-matter in accordance with objective
elements rather than subjective decision power. It is in fact the position adopted by other
frameworks, including the Swakopmund Protocol.169
It therefore implies that communities
who are invoking rights on their knowledge must first gather serious evidence that such
knowledge meets the requirements of the framework and especially that it is “traditional”.170
But this does not mean that proofs must be solely objective and an important place is still
accorded to how indigenous and local communities subjectively perceive their knowledge as
165
Lopez Romero T., “Sui generis systems for the protection of traditional knowledge” Int. Law: Rev. Colomb.
Derecho Int. Bogotá, no. 6, 2005, 301-339, accessible at http://www.javeriana.edu.co/juridicas/pub_rev
/international_law/ultimo_numero/9.pdf (accessed 14/08/2014), 307. 166
WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders : WIPO Report on
Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), 2001, 11. 167
Wendland, supra no. 40, 496. 168
Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, June 1993, 1.1. 169
Swakopmund Protocol, s.4. 170
See Simpson T., “The cultural and intellectual property rights of indigenous peoples”, IWGIA, 1997, 18-22,
21.
38
part of their own identity and culture. In that sense, communities can still decide what TK is,
or rather what it is not.
1. TK as part of the community
The criteria enounced in (a) and (b) of Draft Article 1 embody the intimate relationship that
links TK to the community.171
Indigenous people have insisted on the needs that the
protectable subject matter must be based on central characteristics, in particular that TK is
“the very foundation of their cultural heritage, cultural identity and social integrity”.172
In that
respect, TK constitutes means of identification for the group since its preservation and
integrity is linked to the preservation of the culture itself.173
Moreover, its close link to the
group is also due to the holistic nature of TK insofar as every community member and every
generation participates in the creation and maintenance of the knowledge. As pointed out by
Arowolo, TK is seen as holistic in reason of “centuries of association with the environment
and traditional religion, thereby creating an understanding of the interrelationships between
different elements of a landscape or habitat”.174
2. TK as an ancestors’ legacy
As reflected in Draft Article 1(c) and (d), TK is passed on within a community over
generations. The transmission may take different forms which often vary from one people to
another. This is primarily due to the fact that, as TK is an integral part of the group identity,
transmission systems are based on the specific customary rules of the said group. Admittedly,
most common means of knowledge transfer include oral transmissions and learnings through
observation and hands-on experience. Nevertheless, in practice it is not only limited to those
means.175
In addition, the holistic nature of TK and the transmission process permits the adaptation of
knowledge to environmental evolutions and other external changes. Thus TK is by nature
171
See WIPO, supra no. 22, 11. 172
CIEL, supra no. 9, 3. 173
Lopez Romero T, supra no. 165, 308-310. 174
Arowolo, supra no. 13, 13. 175
Niedzielska M., “The intellectual property aspects of folklore protection”, Cop. Mont. Rev. W.I.P.O., 1987,
16, 339-340 ; Wendland, supra no. 40, 496.
39
evolving as long as “every generation makes its own contribution to improvise and adapt the
knowledge system”.176
3. Not archaic, not ancient, but still old?
The use of the term “traditional” may be perceived as implying that protection is to be
granted solely to knowledge that has remained primitive and faithful to ancient cultures.177
However, as embodied in Draft Article 1(e), TK is dynamic and evolving in that its character
changes as the needs of the people change.178
Consequently, it cannot remain archaic:
“Contrary to a common perception, traditional knowledge is not necessarily ancient. It is
evolving all the time, a process of periodic, even daily creation as individuals and
communities take up the challenges presented by their social and physical environment. In
many ways therefore, traditional knowledge, is actually contemporary knowledge.”179
In this context, how could it be consistent to require that TK be used for a minimum period of
time if, in the same time, it is commonly accepted that TK may evolve into “contemporary
knowledge”?180
There are reasons to believe that the minimum of use requirement is not
appropriate to the notion of TK. And it is all the more inadequate that the proposed period of
50 years is absolutely not based on any serious reflective rationale.
4. Formalities: following the patent or the copyright scheme?
A last condition is also under debate at the IGC.181
It concerns whether the protection granted
by the draft instrument might be determined by the prior fulfillment of certain administrative
formalities. It is indeed common in industrial property law to require that applicants proceed
to the registration of their rights before fully enjoying them.182
That is primarily intended to
ensure legal certainty for third parties. In the context of TK, there is nevertheless doubt that
formalities are appropriate to both the nature of the protected subject-matter and the
specificity of their holders. For instance, TK is often kept secret within the community; a
176
See Gupta A., “Framework for rewarding indigenous knowledge in developing countries: Value chain for
grassroots innovations”, Paper presented at WTO Expert Committee, IIMA, 3 September 2001, 2. 177
See Wendland, supra no. 40, 491. 178
Mugabe J., "An exploration in international policy discourse", 1995, WIPO/GRTKF/IC/3/9, annex III, p.4 ;
see also, Arowolo, supra no. 13, 13. 179
WIPO, Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore, WIPO
Publication No. L450GTF/E, available at http://www.wipo.int/export/sites/www/freepublications/
en/intproperty/450/wipo_pub_l450gtf.pdf (accessed 14/08/2014), 2; see also Gupta A., supra no. 176, 2 : “the
traditional ways of knowing may produce contemporary innovations which may be of considerable importance
and in some cases may even advance the frontiers of knowledge”. 180
It must be noted that the alternative proposed in Draft Article 1 does not recognize the evolving and dynamic
characteristics as a criterion for eligibility. 181
Draft Articles, art. 8. 182
See for instance the TRIPS Agreement, arts. 15 (trademarks), 22 (geographical indications) and 29 (patents).
40
public recording of its description might then destroy this secrecy.183
Furthermore, as
previously seen, indigenous and local communities are not familiar with the current
intellectual property system. There is then an important risk that they do not proceed to the
registration of all of their TK, simply because they do not know how to proceed or because
they lack the economic resources to do so. In that respect, most of the existing national or
regional frameworks expressly reject administrative formalities as a condition for
protection.184
On the whole, the overall definition reflects the inherent characteristics of traditional
knowledge as viewed by their holders. Indeed, the Draft Articles consecrate the holistic
nature as the central element for the definition of protectable subject-matters. Nonetheless,
the IGC has still not succeeded in reaching broad agreements and discussions are still
ongoing. In that regard, if a minimum of use or formalities were to be required, this might
significantly reduce the adequacy of the whole framework with the needs of indigenous and
local communities.
II. The beneficiaries of the protection
Another main task of the IGC has been to provide a proper definition of the protection
beneficiaries. Indeed, contrary to other IPRs, the identification of right holders cannot solely
take account of the concept of “a creator”. This is because the existence of TK does not only
depend on a creation process but also on the maintenance and adaptation of “keepers”. In
addition, the holistic nature of TK requires to clearly outline the contours of the associated
community.
Article 2 of the draft framework differentiates between the case when TK is claimed by a
local community and the case when it is not possible to attribute TK to a specific community.
A. The principle: a collective ownership of TK associated to a specific community
At issue is not just the question of identifying who are entitled to the right but also knowing
who are actually not.185
Indeed, a precise definition of the beneficiaries permits, by exclusion,
to define those who have to respect legal obligations in relation to the use of TK.186
183
See WIPO, Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources : certain
suggested cross-cutting issues, 2014, WIPO/GRTKF/IC/27/INF/10, 12. 184
For instance, Swakopmund Protocol, s. 5.1 : “Protection of traditional knowledge shall not be subject to any
formalities”. 185
See OseiTutu, supra no. 10, 181.
41
According to Draft Article 2, the beneficiaries of protection are “indigenous [peoples] and
local communities” that are specifically concerned with the creation and the maintenance of
the protected TK. Unlike provisions on subject-matters, the central notion here is hence
“indigenous”. Though, the draft framework does not supply any definition of the term, what
might be viewed quite regrettable for an intended future international convention which aims
at harmonizing national regulations.
However, it must be noted that it is very difficult, and probably even impossible, to establish
a universal definition of “indigenous” people, because of the varied and changing contexts in
which they can be found.187
Even the UN Declaration on the Rights of Indigenous Peoples
chose to leave the notion unclear to avoid the risk of an inappropriate or too-limited
approach.188
As to indigenous people themselves – those who consider as such -, they
generally deny the need for a definition but rather insist on their right to self-definition. 189
Even though the draft instrument allows every Member state to adopt an approach more
suited to their peoples, some issues also arise as a consequence of the absence of precise
criteria. Especially, some have argued that the term “indigenous” may merely be viewed as
referring to societies living according to traditional lifestyles, as opposed to modern
lifestyles.190
In that context, could the instrument be inappropriately used to protect certain
know-how of local populations in developed countries whose lifestyles are based on old
cultural practices, whereas such populations would not commonly be seen as “indigenous”?
Put differently, would there not be a risk that it is used by certain states as a complementary
tool to geographical indications?191
In order to ensure a better legal certainty, several documents have tried to draw up a
definition based on the characteristics common to most indigenous people.192
These include
186
Stoll and von Hahn, supra no. 61, 11. 187
World Bank Operational Manual, Operational Directive : Indigenous Peoples, Sept. 1991, available at :
http://www.ifc.org/wps/wcm/connect/835cc50048855270ab94fb6a6515bb18/OD420_IndigenousPeoples.pdf?M
OD=AJPERES (accessed 15/08/2014). Also, Working Paper by the Chairperson-Rapporteur, Erica-Irene A.
Daes, on the concept of "indigenous people" (E/CN.4/Sub.2/AC.4/1996/2) 10 June 1996, para 9 : “The concept
of “indigenous” is not capable of a precise, inclusive definition that can be applied in the same manner to all
regions of the world”. 188
Wiessner S., “Indigenous sovereignty: a reassessment in light of the UN Declaration on the Rights of
Indigenous Peoples, 41 Vanderbilt Jrnl. Transnat’l L. 2008, 1141, 1163. 189
Stoll and von Hahn, supra no. 61, 11. 190
OseiTutu, supra no. 10, 197. 191
See OseiTutu, supra no. 10, 199. 192
See ILO Convention No. 169, art. 1; Working Paper by the Chairperson-Rapporteur, Erica-Irene A. Daes, on
the concept of "indigenous people" (E/CN.4/Sub.2/AC.4/1996/2) 10 June 1996, para 69; Hanning M., "An
examination of the possibility to secure intellectual property rights for plant genetic resources developed by
42
(without being limited to): their presence on particular geographical areas to which they are
historically attached, self-identification and identification by others as a distinct community,
close attachment to genetic resources and primarily subsistence-oriented production, past or
current experience of marginalization or discrimination, the voluntary perpetuation of cultural
distinctiveness and notably of languages, social organizations, religions and customary modes
of organization.
Another issue concerns the international implementation of the instrument. There is indeed
uncertainty as to how the future convention is to be fully respected if each Member states can
apply its own vision of the beneficiaries, and therefore reject the vision of others. Like many
multinational conventions, the draft framework contains an article entitled “National
Treatment”.193
Such a provision is intended to ensure that no discrimination is made between
nationals of a Member states and foreigners. Nevertheless, the IGC has so far failed to reach
broad agreements on the extent of this national treatment. Especially, it is still under debate
whether foreign beneficiaries are entitled to the same protection of nationals or only the
minimum protection provided by the international instrument. But above all, the national
treatment rule does not exclude the possibility for one Member state to reject legitimate
“indigenous” people as beneficiaries on the ground that they do not fulfill their national
criteria. In that sense, the lack of harmonized definition may significantly reduce the scope of
the draft framework.
B. The exception: the state authority as the guardian of certain TK
By exception, Draft Article 2.2 authorizes Member states to designate a national authority as
custodian of the protection benefits in certain restricted cases.
The first is the case where the TK is not claimed by a specific indigenous or local community
and/or cannot be attributed to a specific indigenous or local community, despite reasonable
efforts to identify them. The framework unfortunately does not define what is meant by
indigenous peoples of NAFTA states : domestic legislation under the international convention for protection of
new plant varieties”, 13 Arizona Journal of International and Comparative Law, 1996, 175-252, 178 ; Carpenter
A., Katyal S. and Riley A., “In defense of property”, 118 Yale L. J. 2009, 1022, 1034 – 1035. 193
Draft Articles, art. 11.
43
“reasonable efforts” but one may assume that it includes more or less the same efforts as for
the identification of “orphan” works’ authors in copyright law.194
Another case where the national authority may act as the beneficiary is when the TK material
is held by a community that does not claim right to it and is located in a territory that is
exclusively and entirely coterminous with the territory of the Member state. Nonetheless, one
may legitimately wonder why a state could be entitled of rights in relation to TK located
outside its territory. And above all, why could it decide that a protection right should be
attributed to TK whereas the holder community has decided to the contrary. If it is because
the said community is not aware of its right to claim ownership on TK, then the framework
should address such issue by providing information obligations on Member states. On the
contrary, it aggravates the situation by allowing state authorities to abuse the weakness of
indigenous community and take over their legitimate interests.
A final exception that is even more surprising concerns the case where the Member state’s
constitution does not recognize indigenous or local communities; then that Member state may
act as a direct beneficiary with regard to the traditional knowledge existing within its
territory. There appears to be a clash of definitions here. Indeed, this is the indigenous
communities and their relationship to TK which give the said TK its subject-matter value
under the instrument. If a Member state does not recognize indigenous communities as such,
how could it be protected TK? Despite this issue, that exceptional case seems to be more
suited to the concerns of certain small countries like Trinidad and Tobago, who argued that,
although TK exists within their territories and is held by their overall populations, they do not
have “indigenous” communities.195
The fact that national authorities can act as beneficiaries involves a last major concern: who
would benefit from the incomes? Would they be redistributed in a manner or another between
other indigenous communities or populations located in the state’s territory? Or would they
directly go to the state’s treasury?… These interrogations illustrate why indigenous and local
communities have been so much reluctant to the broad definition of “beneficiaries” advocated
by developing countries.196
194
See for instance, Canadian Copyright Act 1985, s. 77: “the Board is satisfied that the applicant has made
reasonable efforts to locate the owner of the copyright and that the owner cannot be located”; see also Berne
convention, art. 7.3. 195
See supra no. 149, in WIPO/GRTKF/IC/21/7/PROV.2, 24. 196
Antons C., supra no. 12, 86.
44
As seen, defining precise criteria for the acquisition of right is fundamental in the elaboration
of a legal framework for the protection of TK. Unfortunately, while the IGC undertook to
properly address the concerns of indigenous and local communities, several aspects are still
unsatisfactory. In particular, international debates surrounding requirements of a minimum
of use, formalities and the possibility for Member states to act on behalf of local communities
reveal how much the elaboration of the draft instrument is steered by considerations that go
far beyond mere indigenous peoples’ concerns. Yet, the IGC’s framework should arguably
remain a discussion platform in the interests of TK-holders and not become a battlefield
between developed and developing countries.
And the sad part about all this is that definitions of subject-matter and beneficiaries are the
most complete aspects of the draft regime, in comparison to the scope of protection and
control mechanisms.
45
Chapter 2: The Exercise of the Traditional Knowledge
Right
As much important as defining the subject-matters and beneficiaries of the protection
framework, outlining the scope of the protection also appears to be a fundamental aspect of
the IGC’s instrument. Indeed, the draft convention is intended to provide harmonized
obligations on Member states in respect of TK. The issue thus involves many political and
economic considerations, and a consensus has appeared to be most difficult. In addition, the
specific nature of TK, as inherently opposed to the traditional conception of intellectual
property, has required the WIPO Committee to introduce new approaches regarding the
determination of restricted acts (I) and the control by beneficiaries (II). However, it must be
noted that a majority of the IGC’s proposals concerning these matters is still muddled,
because Member states consider it premature to discuss them before having clarified the issue
of the acquisition of right.
I. The scope of protection
The social balance inherent to all IPRs is embodied in Articles 3 and 6 of the draft
instrument, which respectively relates to the scope of protection and its limitations. As
previously seen, this balance consists of a social justice in that it aims at contributing to
public policies to the mutual advantage of producers and users of subject-matters.197
As a
consequence, the protection of TK is then outlined by an exhaustive list of restricted acts in
favor of indigenous communities but also by certain exceptions to the benefit of users.
A. Prohibited acts
Even though the provisions on prohibited acts are still under discussions, several comments
can be made with respect to the general approaches adopted by the IGC. In particular, it may
be noted that the Draft Article 3 differentiates between three cases in which TK can be found:
first when TK is sacred, secret and otherwise closely held within the community, second
when TK is publicly available but is also still somehow used and developed by the
community, and third when TK is publicly available and/or widely known and/or in the
“public domain”. Considering this categorization, the draft instrument provides a de
crescendo protection that combines economic and moral rights.
197
OseiTutu, supra no. 10, 178- 179 ; Draft Articles, Preamble (vii).
46
1. A tiered approach in determining restricted uses
As to the first category of TK, the draft instrument does not supply any definition of what is
understood by “sacred” and “secret” TK. One may nevertheless assume that the former is
particularly subjective whereas the latter implies objective evidence. Indeed, “no object or
thing is sacred unless a person or group of persons attach certain sanctity with it and revere
and respect the same”.198
Due to its religious dimension, the term “sacred” seems more
adapted to qualify artifacts and cultural expressions than knowledge, for which the wording
“secret” is to be preferred.199
Provided that the framework is adopted as such, beneficiaries would be conferred the
exclusive right to maintain, use and control their TK, including the right to authorize or deny
access to it. They should then be able to derive an equitable share and benefit from it. In that
regard, the draft instrument supplies indigenous and local communities with decision power
rather than merely placing them in the position of tax collectors.
Also, considering the secret nature of this category of TK, any unauthorized disclosure is
intended to be punished as well under the draft framework.
But above all, beneficiaries of the protection are also conferred moral rights in respect of their
TK. These include the right to be attributed the subject-matter and the right that the said
subject-matter and its context are respected.200
These moral rights are directly inspired from
copyright, and notably the right to paternity and the right to integrity of the work.201
Indigenous and local communities have insisted on the need of this aspect of protection, as
many uses of TK are derogatory, offensive or fallacious.202
One may nevertheless regret that
the draft framework does not provide a droit de suite as in copyright law, that is to say a
resale royalty. Indeed, as Wendland highlighted:
198
Gowda P. and Khan U., “Sacred but vulnerable: a critical examination of the adequacy of the current legal
framework for protection of tribal sacred traditional knowledge”, 2008 NUJS L. Rev. 109, 112. 199
For instance, in the case Yumbulul v Reserve Book of Australia [1991], 21 IPR 481, the Yumbulul
community invoked the sacred nature of the Morning Star Pole, an artefact whose design was reproduced on a
banknote. On the contrary, in the case Foster and Others v Mountford and Rigby Ltd (1976) 14 ALR 71,
members of the Pitjantjatjara Council relied on breach of confidence rules to obtain an interlocutory injunction
restraining the publication of the Nomads of the Australian Desert book that disclosed certain knowledge in
respect of the location of religious sites. See also, Milpurrurru v Indofum (Pty) Ltd., [1990] 30 IPR 209. 200
Draft Articles, art. 3.1(b). 201
Berne convention, art. 6bis ; see also the propositions to amend the Australian Copyright Act in order to
develop indigenous communal rights (ICMR) http://ab-ed.boardofstudies.nsw.edu.au/go/aboriginal-
art/protecting-australian-indigenous-art/background-information/proposals-for-change/indigenous-communal-
moral-rights-icmr (accessed 17/08/2104). 202
Wendland, supra no. 40, 500-501.
47
“When the knowledge of a traditional community is passed on to an outsider who
subsequently publishes it, it becomes difficult for the community to control how the
knowledge is used and who else can acquire it”.203
In that sense, an adaptation of the copyright droit de suite might allow a better control of
indigenous and local communities on their TK.204
Concerning the second category, i.e. non-sacred TK publicly available but still used by the
community, the draft instrument defines the notion of “publicly available” as referring to TK
“that has lost its distinctive association with any indigenous community and that as such has
become generic or stock knowledge, notwithstanding that its historic origin may be known to
the public.”205
Taking account of the impaired link between TK and the associated
community, the IGC has opted for a reduced level of protection. Indeed, in this case,
beneficiaries would only be granted the moral rights to paternity and integrity, and the
economic right to obtain a fair and equitable share of the benefits. In that regard, they would
not enjoy the right to decide whether TK may or may not be used by third parties, but would
only be entitled to a part of the profits resulting from uses.
As in the case of sacred/secret TK, a disclosure mechanism in intellectual property
applications should also be respected by users.
Finally, as to the third and last category, debates continue to exist on whether a protection
should be granted. Indeed, certain Member states consider that TK does not deserve
protection as soon as it belongs to the public domain. On the other hand, others, including
indigenous and local communities, argue that moral rights must be respected and fees be paid
by any user.206
2. The public domain issue
The public domain concept being integral to the balance inherent in the existing intellectual
property system, the IGC decided to define the notion in the framework:
“Public domain refers, for the purposes of this instrument, to intangible materials that, by
their nature, are not or may not be protected by established intellectual property rights or
related forms of protection by the legislation in the country where the use of such material is
carried out. This could, for example, be the case where the subject matter in question does not
203
Wendland, supra no. 40, 499. 204
Wendland W., “Intellectual property, traditional knowledge and folklore: WIPO’s exploratory program: Part
1: Part ”, IIC 2002, 33(5), 606-621, 612, Gervais, supra no. 41, 150. 205
Draft Articles, Use of Terms. 206
See WIPO/GRTKF/IC/11/5, annex, 31; also WIPO, Note on the Meanings of the Term “Public Domain” in
the intellectual Property System with Special Reference to the Protection of Traditional Knowledge and
Traditional Cultural Expressions/Expressions of Folklore, WIPO/GRTKF/IC/17/INF/8; Draft Articles, art. 3.3.
48
fill the prerequisite for intellectual property protection at the national level or, as the case may
be, where the term of any previous protection has expired”.207
Nevertheless, this definition is too general and too much anchored in the logical of traditional
IPRs. Indeed, public domain has been a malleable instrument used to address certain
particular policies; for instance, the assumption that copyright shall not protect ideas208
stems
from the common conception that intellectual property must respect several social values,
including cultural enhancement and accessibility of information.209
However, there are
reasons to believe that similar social objectives may turn out misappropriate when TK is at
stake. One may even argue that the respect of indigenous people’s fundamental rights to the
preservation of their weak culture and identity constitutes valid social values with which
intellectual property should comply.
In that regard, indigenous and local communities have insisted on the fact that public domain
was a concept that they did not recognized.210
On the contrary, they have always perceived
public domain as a mean of misappropriation in that it enables anybody to use TK without the
prior informed consent of their holders.211
On the opposite side, certain “Eurocentric” views
have rejected intellectual property rights protection for TK on the basis that such rights would
shrink the public domain.212
Their main argument is that traditional knowledge is knowledge
and therefore, like ideas for copyright, should not be subject to monopoly rights.
The international debate surrounding the public domain concept is embedded in the draft
framework’s definitions of “misappropriation” about which discussions are still ongoing
concerning the alternative to adopt. Whereas the first proposed alternative meets TK-holders
requirements by disapproving any access or use of TK, the second option excludes from the
scope of misappropriation the acquisition of TK “through lawful means such as independent
discovery or creation, reading books, receiving from sources outside of intact traditional
communities, reverse engineering, and inadvertent disclosure resulting from the holders’
failure to take reasonable protection measures”.213
207
Draft Articles, Use of Terms. 208
TRIPS Agreement, art. 9.2. 209
See Melzer R. and Guibault L., “Workshop discussions” in Guibault L. and Hugentholtz P. (eds), The Future
of Public Domain: Identifying the Commons in Information Law, Kluwer Law. Int. 2006, 347, 358 citing
Sherman; also OseiTutu, supra no. 10, 178. 210
WIPO IGC, The Protection of Traditional Cultural Expressions/Expressions of Folklore : Revised Objectives
and Principles, WIPO/GRTKF/IC/9/4, 10. 211
CIEL, supra no. 9, 10. 212
Kuruk P., « Goading a reluctant dinosaur: mutual recognition agreements as a policy response to the
misappropriation of foreign traditional knowledge in the United States », 34 Pepp. L. Rev., 2007, 629, 648. 213
Draft Articles, Use of Terms.
49
In view of this, another issue arises regarding the existence of TK that have been disclosed,
used and diffused prior to the establishment of an international protection. Should such
knowledge be considered public domain? Or should the protection mechanism retroactively
apply?214
There is here a question of legal certainty for third parties who freely used TK at a
time it was not illegal to do so. On the other hand, TK would never have entered “public
domain” if it had been protected from the beginning; and if users were admittedly not guilty
of any infringement or criminal offense, they were somehow guilty of misconduct and moral
theft. In addition, intellectual property law is not opposed to this view insofar as subject-
matters may be protected from the date they got their essential qualities that make them
protectable under the relevant legal instrument.215
Currently, the draft framework does not solve this issue and its Article 9, entitled
“Transitional Measures”, is still very muddled.
3. Complementary measures
Provided it is adopted as such, Draft Article 3bis adds complementary measures to be
complied with by Member states. The provisions nonetheless appear more like a list of goal
commitments than precise compulsory obligations. Indeed, they overall aim at encouraging
the preservation of TK through varied means, while however guaranteeing respect of
customary rules and secrecy of certain TK. These additional measures include in particular
the development and use of voluntary codes of conduct as well as the provision of adequate
means to dispute validity of patents and other IPRs based on TK and genetic resources. For
that purposes, the draft framework recognizes the need for global elaboration of databases
and codification of oral information related to TK. 216
Indeed, despite all conceivable efforts,
patent examiners cannot possibly have access to the entire prior art, and notably to
undocumented knowledge.217
In addition, certain jurisdictions – like the United States - do
not take account of unrecorded foreign knowledge in the assessment of prior art.218
This is
214
WIPO, International Workshop on Methodologies Regarding Free, Prior and Informed Consent and
Indigenous Peoples, 2005, available at http://www.un.org/esa/socdev/unpfii/documents/workshop_FPIC_
WIPO_en.pdf (accessed 20/08/2014), para. 9. 215
For instance, in the French case Cour de Cassation, Ch. com., 18 Feb. 2004, 02-10.576 “Caron”, the Supreme
Court stated that “Champagne” was fully protected even before its complete registration as a geographical
indication, because it acquired for long its notoriety and essential qualities. 216
See Milius D., supra no. 37, 201. 217
Dutfield G., “A critical analysis of the debate on traditional knowledge, drug discovery and patent-based
biopiracy”, EIPR, 2011, 33(4), 238-244, 242. 218
Ibid.; note that it is not completely true anymore for the USA because the passing of the American Invents
Act in 2011 changed the assessment of prior art and now takes account of unrecorded information, at least only
for patents filed after 16 March 2013.
50
why the development of registers should significantly help for the defensive protection of
TK. On the other hand, Member states should also ensure that it is not done in a manner that
jeopardizes the positive protection of TK through secret and other indigenous customary
means.
Similarly, the IGC has been thinking about requiring patent applicants to disclose any TK-
related information on which their inventions are based.219
This proposal, although still
under debate, has been welcomed by indigenous and local communities who regard it as an
appropriate measure to curb the misappropriation of their TK.220
B. Exceptions and limitations
On the other hand, in its general intellectual property objectives to contribute toward the
promotion of innovation and dissemination of knowledge “in a manner conducive to social
and economic welfare and to a balance of rights and obligations”, the draft framework
provides certain limitations and exceptions to the rights granted to indigenous and local
communities.
Because prohibited acts are defined according to a tiered approach, some have argued that
exceptions should “also follow this approach, i.e. that various degrees of excepted acts would
mirror the various kinds of subject matter and the tiered rights applied to them”.221
The draft
framework does not clearly embody these requests222
; however its exceptions are intended to
remain optional for Member states, as proven by the wording “may”. This implies that
contracting parties retain their choice to implement the limitations of the instrument,
according to their proper needs and common legal doctrine. One may then wonder whether
they could adopt other legal exceptions, that is beyond the limitations provided by the draft
convention. There are reasons to think they should not. Indeed, besides the fact that the
instrument aims at approximating national regulations, exceptions are also detrimental to
right-holders. Permitting Member states to adopt extensive limitations would then
significantly threaten to upset the global system of protection. In that regard, the TRIPS
219
Draft Articles, art. 4bis. 220
CIEL, supra no. 9, 7. 221
WIPO, Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources : certain suggested
cross-cutting issues, 2014, WIPO/GRTKF/IC/27/INF/10, 11. 222
It must nevertheless be noted that arts. 6.2 and 6.3 establish a distinction between uses of sacred and secret
TK and uses of other TK.
51
Agreement is based on the principle that Member states can grant more rights to the benefit
of right-holder, but never less.223
Two kinds of exceptions are enshrined in the draft framework. Firstly, Member states may
adopt general appropriate exceptions, provided that such exceptions fulfill a list of
cumulative conditions: thus, any excepted use of TK shall be made with the involvement of
their holders, respect their moral rights to paternity and integrity, not conflict with the normal
utilization of their TK, be compatible with fair practice, and not prejudice the legitimate
interests of the beneficiaries taking account of the legitimate interests of third parties.224
Those requirements are overall inspired from existing exceptions in other traditional
intellectual property conventions.225
In this context, Member states might have the possibility
to apply mutatis mutandis to the draft instrument the definitions already elaborated under the
other agreements concerning certain complex notions, e.g. fair practice.226
In addition to the aforementioned requirements, the draft framework provides a
supplementary condition that exceptions cannot apply when there is reasonable apprehension
of irreparable harm related to the TK in question. It is not decided yet whether this
requirement would apply to all forms of TK, nevertheless the condition has its real
significance mainly in relation to secret and sacred TK. Indeed, in these cases, most uses are
likely to have the negative effects to irremediably disclose or disseminate knowledge.
Secondly, the draft instrument also draws a list of specific exceptions. These especially
include an adaption of the copyright fair dealing exception with regard to particular purposes,
such as education and non-commercial research. In that respect, the exclusion of profit-
making or commercial research should significantly restrain the application of the limitation,
223
The TRIPS Agreement, art. 1.1, indeed provides: “Members may, but shall not be obliged to, implement in
their law more extensive protection than is required by this Agreement”. This principle has especially allowed
developed countries to ratchet up the global intellectual property system, through bilateral “TRIPS-Plus”
agreements negotiated with developing countries. See on this Drahos P., “BITs and BIPs: Bilateralism in
Intellectual Property”, JWIP 2001, 6, 791-808. 224
Draft Articles, art. 6.1. 225
For instance, art. 10 of the Berne convention authorizes quotations of a copyrighted work, provided that the
said work has lawfully been available to the public, that the use is compatible with fair practice and does
not exceed the extent justified by the purpose and that sources and names are rightfully mentioned; see also, the
TRIPS Agreement, arts. 13, 17, 26 and 30. On the three-step test of the Berne conv., see Schonwetter T., “The
three-step test within the copyright system”, University of Cape Town, South Africa - Department of
Commercial Law, available at http://pcf4.dec.uwi.edu/viewpaper.php?id=58&print=1 (accessed 23/08/2014). 226
In Ashdown v Telegraph Group [2001] 1 Ch 685 ChD, 698-699, the English and Welsh Court relied on
Laddie’s assumption that the copyright “fair practice” should be assessed according to three factors: whether the
use is in commercial competition with the owner’s exploitation of the work, whether the work has already been
published or exposed to the public and the amount and importance of the work which has been taken. These
factors could constitute a reasonable basis for the definition of “fair practice” in relation to traditional
knowledge under the draft framework.
52
because, as Nijar noted, research for non-commercial purposes somehow “opens up
commercial opportunities and is harnessed for commercial ends”.227
Other authorized exceptions should concern inter alia the use and preservation of non-secret
TK in museums and cultural institutions, the use of TK in case of national emergency, or
even the patent-like exclusion from protection of diagnostic, therapeutic and surgical
methods228
.
II. The enforcement of the right
The difference of nature between TK and the subject-matters of traditional IPRs has also
obliged the IGC to modify its approach in relation to the enforcement of the future TK right.
Indeed, the fact that TK is mostly perpetual and collective renders inappropriate any attempt
to transpose the common rules of existing IPRs to the regime for TK. In that respect, the
provisions elaborated in the draft instrument seem interesting.
A. Duration of the TK right
In light of the traditional intellectual property conception, defining the duration of the TK
right is no easy task. Indeed, because of its very nature, TK may possibly exist forever. Some
have then requested that the right be perpetual.229
Yet, considering its objective to benefit
public interests in the end, intellectual property is particularly reluctant to accept a protection
ad vitam aeternam. Nevertheless this does not mean that a perpetual protection is absolutely
inconsistent with the intellectual property core principles, as illustrated by the examples of
geographical indications and trademarks for which the granted protection may last forever.230
On the other hand, TK may disappear, or at least it may lose its traditional feature and
become trivial knowledge. TK may also evolve and take new forms. Defining the right
duration on the strict basis of a number of years would clearly not take account of the
changing nature of TK.
In such circumstances, the IGC adopted a more appropriate solution than those commonly
used in other IPRs. In fact Article 7 of the draft framework does not refer to a minimum
number of years to define the period of protection but only states that TK must be protected
227
Nijar G., “Incorporating traditional knowledge in an international regime on access to genetic resources and
benefit sharing : problems and prospects” , E.J.I.L. 2010, 21(2), 457-475,464-465. 228
TRIPS Agreement, art. 27.3. 229
Gupta A., WIPO-UNEP Study on the Role of Intellectual Property Rights in the Sharing of Benefits Arising
from the Use of Biological Resources and Traditional Knowledge, 2004, 161 ; Kuruk, supra no. 212, 655. 230
OseiTutu, supra no. 10, 192- 193.
53
as long as it satisfies the criteria of eligibility for protection. This approach seems to have
overall met the satisfaction of indigenous and local communities.231
B. The enforcement of the TK right
According to the draft instrument, right-holders must give their prior informed consent to the
use of their TK, otherwise such use is considered as a misappropriation or misuse and
constitutes an infringement of their rights. Posey and Dutfield outlined the two elements of
the prior informed consent, i.e. the full disclosure of the reasons, procedures, risks and
implications of the activity and the right to stop this activity from proceeding at any
moment.232
In that way, consent is viewed as having a “power-equalizing” function in that it
aims at restoring a balance of powers in the unequal relationships between users and right-
holders.233
Nevertheless, in the context of TK, this function remains limited because of the
critical capacity of indigenous and local communities to make informed decision when facing
complex commercial, technological and legal matters.234
There is therefore a need to adapt
the procedure for prior informed consent to the particular situation of TK-holders, especially
by taking account their customary rules.235
Unfortunately, whereas it represents an important
pillar in the exercise of the TK right, the draft instrument elaborated by the IGC does not
clarify the issue of the elements of the prior informed consent. For instance, it does not
explain how consent should be expressed, whether it should be by contracts or in any other
forms.236
This is all the more regrettable that consent is also a prelude to exploitation negotiations and
therefore somehow corresponds to the equivalent of intellectual property licenses of other
IPRs. By retaining the right to authorize access and use of their TK, beneficiaries are indeed
entitled to grant users a license based on their terms. In that regard, the question arises as to
whether systematic refusal can amount to an abuse of right and whether prior informed
consent can be compulsory. Some countries, including South Africa and Pakistan, have
231
CIEL, supra no. 9, 9. 232
Posey D. and Dutfield G., Beyond Intellectual Property : Toward Traditional Resource Rights for Indigenous
Peoples and Traditional Communities, International Development Research Centre, 1996, 47. 233
Nijar G., supra no. 6, 1216, citing Michel Pimbert. 234
Anderson J., "Options for the future protection of GRTKTCEs : the traditional knowledge licenses and labels
initiative", WIPOJ 2012, 4(1), 73-82, 75. 235
See Nijar, supra no. 34, 472. Note also that the Nagoya Protocol, art.12 expressly requires that prior informed
consent be given in accordance with customary rules of the community. 236
See on the use of contracts as a remedy : Tsikun M. and Ni K.-J., “Using licensing contracts to protect
holders of traditional knowledge related to genetic resources – a reflection on ICBG projects”, IIC 2011, 42(3)
299-315, 314-315.
54
rejected the idea that state authority could override the decision of TK-holders, whereas some
others, including Brazil and Bhutan, have provided for the veto power.237
The issue finds
absolutely no answer in the IGC’s draft instrument. Nevertheless, the Swakopmund Protocol
explicitly recognizes the possibility of compulsory license:
“Where protected traditional knowledge is not being sufficiently exploited by the rights
holder, or where the holder of rights in traditional knowledge refuses to grant licences subject
to reasonable commercial terms and conditions, a Contracting State may, in the interests of
public security or public health, grant a compulsory licence in order to fulfill national
needs”238
The exercise of the TK right also implies the right to “fair and equitable compensation”,239
which must be regarded as the equivalent of the CBD’s “equitable sharing of the benefits”
arising from the use of TK.240
Nonetheless, the draft instrument does not provide any definite
clue concerning the proportion to be shared with the holders. In practice, in the agreement
between the Peruvian Aguaruna community and Monsanto, the royalties paid by the
industrial company were agreed to range from 1-2% of the net sales of the licensed
products.241
As previously argued, it is important for the preservation of the indigenous and
local communities’ lifestyles that the reward is not too much important, without being
however unreasonably low.
A last aspect of the exercise of the TK right concerns the enforcement procedure to follow in
case of infringement, i.e. when uses of TK fall within the list of restricted acts and do not
benefit from any exception. Article 4 of the draft instrument requires Member states to ensure
that beneficiaries can rely on an accessible, effective, fair, equitable, adequate, appropriate
and not burdensome procedure for the enforcement of their rights. In that respect, there is
reason to assert that a specific procedure would be more appropriate to address the needs of
indigenous and local communities than the complex and costly procedures already dedicated
to other IPRs.242
In particular, a predominant place should be attributed to customary rules
that are more familiar to indigenous peoples and adapted to the TK in question. The draft
framework partially incorporates this idea by providing that “where appropriate, sanctions
and remedies should reflect the sanctions and remedies that indigenous and local
237
Nijar, supra no. 34, 466. 238
Swakopmund Protocol, s. 12. 239
Draft Articles, art. 4.6. 240
CBD, art. 8(1)(j). 241
Tsikun and Ni, supra no. 236, 308. 242
See Wendland, supra no. 204, 610.
55
communities would use”.243
In addition, another solution would be to improve and promote
arbitration and mediation activities in the framework of WIPO.244
The WIPO Arbitration and
Mediation Center could indeed assist indigenous parties in the resolution of disputes. This
arbitration procedure has primarily been used to resolve domain name disputes, but has also
dedicated service for art and cultural heritage issues.245
Efforts should then increasingly be
made to enhance the WIPO assistance to the particular problems of indigenous and local
communities in the overall management of their TK.
C. One right but many right-holders
Besides the difficulties to precisely define the outlines of such community, the collective
nature of TK also raises the issue of the management of the TK right. Indeed, any collective
IPR that already exists, including geographical indications and certification trademarks, can
be properly exercised only through the formation of an entity that acts as a representative of
the right holders. This is because collective ownership is likely to excessively complicate, or
even saturate, the management process. In addition, the need of a representative is also
explained by the fact that TK is not held by every member of the community but by the
community as a whole, and the latter can only legally exist through a separate body. In
practice, indigenous and local communities have very often relied on representative
organizations and associations that have provided them with experience and assistance.246
The necessary recourse to a distinct entity should then arguably not suggest that the draft
framework failed to be in adequacy with the inherent collective nature of TK.
On the other, the draft framework also addresses the instances where the same protected TK
is to be found in the territory of several Member states or is to be shared by several
communities. Member states are then required to appropriately cooperate, with the
involvement of indigenous peoples.247
One may however regret that the provision is not
stricter and more precise on the cooperation mechanisms. Indeed, given the transboundary
dispersion of TK and/or communities, such instances are not uncommon.248
243
Draft Articles, art. 4.5. 244
Umuera S., “Recent developments in intellectual property and at WIPO”, 4 Int’l Intell. Prop. L. & Pol’y
2000, 1-1, 1-7. 245
WIPO, Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural
Expression : an Overview, WIPO Publications, 2012, 36. 246
For examples, see Tsikun and Ni, supra no. 236, 307, 314-315. See also Mutter K., “Traditional knowledge
related to genetic resources and its intellectual property protection in Columbia”, EIPR 2005, 27(9), 327, 332. 247
Draft Articles, art. 12. 248
For instance see the Hmong example explained by Antons, supra no. 12, 87. Also Nijar, supra no. 34, 468.
56
Conclusion
As previously demonstrated, the international intellectual property protection of indigenous
knowledge is involving a three-step process. It first begun with the proliferation of national
systems of protection which are as varied as tailored to the local communities’ needs. Then
came the feeling that a harmonized instrument recognizing and protecting TK at the
international level was necessary. Eventually, once the international consensus is reached, the
process should get complete with the total implementation of the said instrument in the
intellectual property landscape especially through the insertion of stringent provisions in the
TRIPS Agreement.
Currently, the IGC’s work is on the path to carry the second step out. Nevertheless,
uncertainty remains concerning the time it will still take before international IP standards for
the protection of TK are established. There are reasons to believe that the Draft Articles are to
travel back and forth between the General Assembly and the IGC for a long time yet, before a
final text is adopted. In that regard, in September 2014, the WIPO Assembly will probably
consider the need for additional IGC meetings instead of enacting the draft instrument.249
This should not be regarded as another failure in the TK protection consensus but as a chance
for the IGC to perfect its framework. Indeed, while the elaborated instrument overall
addresses the concerns of indigenous peoples, certain aspects are still very critical. In
particular, the participation of indigenous communities in the decision-making process
deserves to be greatly enhanced. The IGC should also consider adopting different approaches
than those usually existing in relation to traditional IPRs. For instance, the inherent balance of
rights and obligations should be reviewed by taking account of the predominant necessity to
preserve TK instead of emphasizing its wide dissemination. Indigenous customs and ethnic
rules should also occupy a larger place in the protection mechanisms, and in particular in the
enforcement mechanisms.
On the other hand, it is true that all requests of indigenous and local communitie cannot
realistically be incorporated in the future international convention. In that sense, the draft
249
See WIPO General Assembly, Decision of the Forty-Third Session, 23 Sept. – 2 Oct. 2013, Matters
Concerning the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore, Agenda Item, 35, accessible at
http://www.wipo.int/export/sites/www/tk/en/igc/pdf/igc_mandate_1415.pdf (accessed 24/08/2014).
57
instrument may sometimes be viewed by indigenous and local communities as inappropriate
or incomplete. Likewise, the long pace of work and the difficulties to reach multilateral
agreements on fundamental aspects are playing in the favor of misappropriation actors.
Thus, while the WIPO’s framework admittedly brings the sweet smell of hope, it also brings
a bitter taste of frustration.
58
Annex 1
Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore, WIPO/GRTKF/IC/28/5, 2014
The Protection of Traditional Knowledge: Draft Articles Rev. 2 (March 28, 2014, 8:00 pm)
PREAMBLE/INTRODUCTION
Recognize value
(i) recognize the [holistic] [distinctive] nature of traditional knowledge and its [intrinsic]
value, including its social, spiritual, [economic], intellectual, scientific, ecological,
technological, [commercial], educational and cultural value, and acknowledge that
traditional knowledge systems are frameworks of ongoing innovation and distinctive
intellectual and creative life that are [fundamentally] intrinsically important for
indigenous [peoples] and local communities and have equal scientific value as other
knowledge systems;
Promote awareness and respect
(ii) promote awareness and respect for traditional knowledge systems; for the dignity,
cultural [integrity] heritage and intellectual and spiritual values of the traditional
knowledge [holders]/[owners] who conserve, develop and maintain those systems; for the
contribution which traditional knowledge has made in sustaining the livelihoods and
identities of traditional knowledge [holders]/[owners]; and for the contribution which
traditional knowledge [holders]/[owners] have made to the [conservation of the
environment] conservation and sustainable use of biodiversity, to food security and
sustainable agriculture, healthcare, and to the progress of science and technology;
Alternative
(ii) promote respect for traditional knowledge systems, for the dignity, cultural integrity
and spiritual values of the traditional knowledge holders who conserve and maintain
those systems;
[End of alternative]
Promote [conservation and] preservation of traditional knowledge
(iii) promote and support the [conservation of and] preservation [of] [and respect for]
traditional knowledge [by respecting, preserving, protecting and maintaining traditional
knowledge systems [and providing incentives to the custodians of those knowledge
systems to maintain and safeguard their knowledge systems]];
Consistency with relevant international agreements and processes
(iv) take account of, and operate consistently with, other international and regional
instruments and processes, in particular regimes that relate to intellectual property and
access to and benefit sharing from genetic resources which are associated with that
traditional knowledge;
59
[Promote access to knowledge and safeguard the public domain
(v) recognize the value of a vibrant public domain and the body of knowledge
that is available for all to use, and which is essential for creativity and innovation, and
the need to protect, preserve and enhance the public domain;]
Document and conserve traditional knowledge
(vi) contribute to the documentation and conservation of traditional knowledge,
encouraging traditional knowledge to be disclosed, learned and used in accordance
with relevant customary practices, norms, laws, and/or understandings of traditional
knowledge holders, including those customary practices, norms, laws and/or
understandings that require prior informed consent or approval and involvement and
mutually agreed terms before the traditional knowledge can be disclosed, learned or
used by others;
Promote innovation
(vii) [the protection of traditional knowledge should] contribute toward the promotion
of innovation and to the transfer and dissemination of knowledge to the mutual
advantage of holders and users of traditional knowledge and in a manner conducive to
social and economic welfare and to a balance of rights and obligations;
Provide new rules and disciplines
(viii) [recognize the need for new rules and disciplines concerning the provision of
effective and appropriate means for the enforcement of rights relating to traditional
knowledge, taking into account differences in national legal systems;]
Relationship with customary use
(ix) not restrict the generation, customary use, transmission, exchange and
development of traditional knowledge by the beneficiaries, within and
among communities in the traditional and customary context, [in
accordance with national law].
POLICY OBJECTIVES
This instrument should aim to:
Provide Indigenous [Peoples] and [local communities] [and nations]/[beneficiaries] with the [legal
and practical/appropriate] means, [including effective and accessible enforcement measures/sanctions,
remedies and exercise of rights], to:
a. [prevent] the [misappropriation/misuse/unauthorized use/unfair and inequitable uses] of
their traditional knowledge;
b. [control ways in which their traditional knowledge is used beyond the traditional and
customary context;]
c. [promote [the equitable sharing of benefits arising from their use with prior informed
consent or approval and involvement or approval and involvement]/[fair and equitable
compensation], as necessary; and]
d. encourage [and protect] [tradition-based] creation and innovation.
60
[Prevent the grant of erroneous intellectual property/[patent rights] over [traditional knowledge and
[[traditional knowledge] associated [with] genetic resources].]]
USE OF TERMS
For the purposes of this instrument:
[Misappropriation means
Option 1
any access or use of the [subject matter]/[traditional knowledge] without prior informed consent or
approval and involvement and, where applicable, without mutual agreed terms, for whatever purpose
(commercial, research, academic and technology transfer).
Option 2
is the use of protected traditional knowledge of another where the [subject matter]/[traditional
knowledge] has been acquired by the user from the holder through improper means or a breach of
confidence and which results in a violation of national law in the provider country, recognizing that
acquisition of traditional knowledge through lawful means such as independent discovery or creation,
reading books, receiving from sources outside of intact traditional communities, reverse engineering,
and inadvertent disclosure resulting from the holders’ failure to take reasonable protection measures is
not [misappropriation/misuse/unauthorized use/unfair and inequitable uses.]
[Misuse may occur where the traditional knowledge which belongs to a beneficiary is used by the
user in a manner that results in a violation of national law or measures endorsed by the legislature in
the country where the use is carried out; the nature of the protection or safeguarding of traditional
knowledge at the national level may take different forms such new forms of intellectual property
protection, protection based on principles of unfair competition or a measures-based approach or a
combination thereof.]
[Public domain refers, for the purposes of this instrument, to intangible materials that, by their
nature, are not or may not be protected by established intellectual property rights or related forms of
protection by the legislation in the country where the use of such material is carried out. This could,
for example, be the case where the subject matter in question does not fill the prerequisite for
intellectual property protection at the national level or, as the case may be, where the term of any
previous protection has expired.]
[Publicly available means [subject matter]/[traditional knowledge] that has lost its distinctive
association with any indigenous community and that as such has become generic or stock knowledge,
notwithstanding that its historic origin may be known to the public.]
Traditional knowledge [refers to]/[includes]/[means], for the purposes of this instrument, know-how,
skills, innovations, practices, teachings and learnings of [indigenous [peoples] and [local
communities]]/[or a state or states].
[Traditional knowledge may be associated, in particular, with fields such as agriculture, the
environment, healthcare and indigenous and traditional medical knowledge, biodiversity, traditional
lifestyles and natural resources and genetic resources, and know-how of traditional architecture and
construction technologies.]
[Unauthorized use is use of protected traditional knowledge without the permission of the right
holder.]
61
[[“Use”]/[“utilization”] means
(a) where the traditional knowledge is included in a product [or] where a product has been
developed or obtained on the basis of traditional knowledge:
(i) the manufacturing, importing, offering for sale, selling, stocking or using the product
beyond the traditional context; or
(ii) being in possession of the product for the purposes of offering it for sale, selling it or
using it beyond the traditional context.
(b) where the traditional knowledge is included in a process [or] where a process has
been developed or obtained on the basis of traditional knowledge:
(i) making use of the process beyond the traditional context; or
(ii) carrying out the acts referred to under sub-clause (a) with respect to a product that is a
direct result of the use of the process;
(c) the use of traditional knowledge in non-commercial research and development; or
(d) the use of traditional knowledge in commercial research and development.]
ARTICLE 1
SUBJECT MATTER OF [PROTECTION]/[INSTRUMENT]
The subject matter of [protection]/[this instrument] is traditional knowledge:
(a) that is created, and [maintained] in a collective context, by indigenous [peoples] and local
communities [or nations] [,whether it is widely spread or not];
(b) that is [directly] [linked]/[distinctively associated] with the cultural [and]/[or] social
identity and cultural heritage of indigenous [peoples] and local communities [or nations];
(c) that is transmitted from generation to generation, whether consecutively or not;
(d) which may subsist in codified, oral or other forms; and [or]
(e) which may be dynamic and evolving.
[Criteria for Eligibility
Protected traditional knowledge is traditional knowledge that is [distinctively] associated with the
cultural heritage of beneficiaries as defined in Article 2, that is generated, [maintained], shared and
transmitted in a collective context, is intergenerational and has been used for a term as has been
determined by each [Member State]/[Contracting Party] [but not less than 50 years].]
ARTICLE 2
BENEFICIARIES OF PROTECTION
2.1 Beneficiaries [of protection] are indigenous [peoples] and local communities [and/or nations]
who create, [hold], maintain, use and/[or] develop the [subject matter]/[traditional knowledge]
[meeting the criteria for eligibility defined in Article [1]/[3].]
62
Alternative
2.1 [Beneficiaries of [protection] are indigenous [peoples] and local communities[250]
who create,
[hold], maintain, use and/[or] develop the [subject matter]/[traditional knowledge] defined in Article
1.]
[End of alternative]
2.2 [Where the [subject matter]/[traditional knowledge] [is not claimed by specific indigenous
[peoples] or local communities despite reasonable efforts to identify them,] [Member
States]/[Contracting Parties] may designate a national authority as custodian of the
[benefits]/[beneficiaries] [of protection under this instrument] where the [subject matter]/[traditional
knowledge] [traditional knowledge meeting the eligibility criteria in Article 1] as defined in Article 1:
(a) is held by a community [whose] in a territory [is] that is entirely and exclusively
coterminous with the territory of that [Member State]/[Contracting Party];
(b) [is not confined to a specific indigenous [people] or local community;
(c) is not attributable to a specific indigenous [people] or local community; or
(d) [is not claimed by a specific indigenous [people] or local community.]]
2.3 [The [identity] of any national authority established under Paragraph 2 [should]/[shall] be
communicated to the International Bureau of the World Intellectual Property Organization.]
ARTICLE 3
[[CRITERIA FOR AND] SCOPE OF PROTECTION
Scope of Protection
3.1 Where the [subject matter]/[traditional knowledge]/[protected traditional knowledge] is
[sacred], [secret] or [otherwise known] [closely held] within indigenous [peoples] or local
communities, [Member States]/[Contracting Parties] [should]/[shall]:
(a) [ensure that beneficiaries have the exclusive and collective right to]/[provide legal, policy
and administrative measures, as appropriate and in accordance with national law that
allow beneficiaries to]:
i. [create,] maintain, control and develop said [subject matter]/[traditional
knowledge]/[protected traditional knowledge];
ii. discourage the unauthorized disclosure, use or other uses of [secret] [protected]
traditional knowledge;
iii. [authorize or deny the access to and use/utilization of said [subject
matter]/[traditional knowledge]/[protected traditional knowledge] based on prior
and informed consent; and]
250
[Where a [Member State’s]/[Contracting Party’s] constitution [does not recognize] indigenous or local communities, then that [Member State]/[Contracting Party] may act as a beneficiary with regard to the traditional knowledge that exists within its territory.] [Note: This footnote is to be read as part of the alternative to Paragraph 1.]
63
iv. [be informed of access to their traditional knowledge through a disclosure
mechanism in intellectual property applications, which may [shall] require evidence
of compliance with prior informed consent or approval and involvement and
benefit sharing requirements, in accordance with national law and international
legal obligations],
(b) [ensure that]/[encourage] users [to]:
i. attribute said [subject matter]/[traditional knowledge]/[protected traditional
knowledge] to the beneficiaries;
ii. [provide beneficiaries with [a fair and equitable share of benefits]/[fair and
equitable compensation], arising from the use/utilization of said [subject
matter]/[traditional knowledge] based on mutually agreed terms;]
Alternative
ii. enter into an agreement with the beneficiaries to establish terms of use of the
[subject matter]/[traditional knowledge]/[protected traditional knowledge];
[End of alternative]
iii. use/utilize the knowledge in a manner that respects the cultural norms and practices
of the beneficiaries as well as the inalienable, indivisible and imprescriptible nature
of the moral rights associated with the [subject matter]/[traditional
knowledge]/[protected traditional knowledge].
3.2 [Where the [subject matter]/[traditional knowledge]/[protected traditional knowledge]is still
[held], [maintained], used [and]/[or] developed by indigenous [peoples] or local communities, and is
publicly available [but neither widely known, [sacred], nor [secret]], [Member States]/ [Contracting
Parties] [should]/[shall] [ensure that]/[encourage] that users]/[provide legal, policy and administrative
measures, as appropriate and in accordance with national law to [ensure] [encourage] users [to]]:
(a) attribute and acknowledge the beneficiaries as the source of the [subject
matter]/[traditional knowledge]/[protected traditional knowledge, unless the beneficiaries
decide otherwise, or the [subject matter]/[traditional knowledge] is not attributable to a
specific indigenous [people] or local community;
(b) [provide the beneficiaries with [a fair and equitable share of benefits]/[fair and equitable
compensation] arising from the use/utilization of said [subject matter]/[traditional
knowledge]/[protected traditional knowledge] based on mutually agreed terms;]
Alternative
(b) enter into an agreement with the beneficiaries to establish terms of use of the [subject
matter]/[traditional knowledge]/[protected traditional knowledge];
[End of alternative]
(c) [use/utilize the knowledge in a manner that respects the cultural norms and practices of
the beneficiaries as well as the inalienable, indivisible and imprescriptible nature of the
moral rights associated with the [subject matter]/[traditional knowledge]/ [protected
traditional knowledge][; and][.]]
64
(d) [be informed of access to their traditional knowledge through a disclosure mechanism in
intellectual property applications, which may [shall] require evidence of compliance with
prior informed consent or approval and involvement and benefit sharing requirements, in
accordance with national law and international legal obligations].]
3.3 [Where the [subject matter]/[traditional knowledge]/[protected traditional knowledge] is
[publicly available, widely known [and in the public domain]] [not covered under Paragraphs 2 or 3],
and protected under national law, [Member States]/[Contracting Parties] [should]/[shall] [ensure
that]/[encourage] users of said [subject matter]/[traditional knowledge] [to]:
(a) attribute said [subject matter]/[traditional knowledge]/[protected traditional knowledge]
to the beneficiaries;
(b) use/utilize the knowledge in a manner that respects the cultural norms and practices of the
beneficiary as well as the inalienable, indivisible and imprescriptible nature of the moral
rights associated with the [subject matter]/[traditional knowledge]/[protected traditional
knowledge][;] [and]
(c) where applicable, deposit any user fee into the fund constituted by such [Member State]/
[Contracting Party].]
Alternative
3.3 [Protection does not extend to traditional knowledge that is widely known or used outside the
community of the beneficiaries as defined in Article 2.1, [for a reasonable period of time], in the
public domain, protected by an intellectual property right or the application of principles, rules, skills,
know-how, practices, and learning normally and generally well-known.]]
[ARTICLE 3 BIS
COMPLEMENTARY MEASURES
3BIS.1 [Member States]/[Contracting Parties] should [endeavour to], subject to and consistent
with national and customary law:
(a) facilitate/encourage the development national traditional knowledge databases for the
defensive protection of traditional knowledge, [including through the prevention of the
erroneous grant of patents], and/or for transparency, certainty, conservation purposes
and/or transboundary cooperation;
(b) [facilitate/encourage, as appropriate, the creation, exchange and dissemination of, and
access to, databases of genetic resources and traditional knowledge associated with
genetic resources;]
(c) [provide opposition measures that will allow third parties to dispute the validity of a
patent [by submitting prior art];]
(d) encourage the development and use of voluntary codes of conduct;
(e) [discourage information lawfully within the beneficiaries’ control from being disclosed,
acquired by or used by others without the beneficiaries’ [consent], in a manner contrary to
fair commercial practices, so long as it is [secret], that reasonable steps have been taken
to prevent unauthorized disclosure, and has value;]
65
(f) [consider the establishment of databases of traditional knowledge that are accessible to
patent offices to avoid the erroneous grant of patents compile and maintain such
databases in accordance with national law;
i. there should be minimum standards to harmonize the structure and content of such
databases;
ii. the content of the databases should be:
a. languages that can be understood by patent examiners;
b. written and oral information regarding traditional knowledge;
c. relevant written and oral prior art related to traditional knowledge.]
(g) [develop appropriate and adequate guidelines for the purpose of conducting search and
examination of patent applications relating to traditional knowledge by patent offices;]
3BIS.2 [In order to document how and where traditional knowledge is practiced, and to preserve
and maintain such knowledge, efforts [should]/[shall] be made by national authorities to
codify the oral information related to traditional knowledge and to develop databases of
traditional knowledge.]]
3BIS.3 [Member States]/[Contracting Parties] [should]/[shall] consider cooperating in the
creation of such databases, especially where traditional knowledge is not uniquely held
within the boundaries of a [Member States]/[Contracting Parties]. If protected traditional
knowledge pursuant to article 1.2 is included in a database, the protected traditional
knowledge should only be made available to others with the prior informed consent or
approval and involvement of the traditional knowledge holder.
3BIS.4 Efforts[should]/[shall] also be made to facilitate access to such databases by intellectual
property offices, so that the appropriate decision can be made. To facilitate such access,
[Member States]/[Contracting Parties] [should]/[shall] consider efficiencies that can be
gained from international cooperation. The information made available to intellectual
property offices [should]/[shall] only include information that can be used to refuse a
grant of cooperation, and
thus [should]/[shall] not include protected traditional knowledge.
3BIS.5 Efforts [should]/[shall] be made by national authorities to codify the information related
to traditional knowledge for the purpose of enhancing the development of databases of
traditional knowledge, so as to preserve and maintain such knowledge.
3BIS.6 Efforts [should]/[shall] also be made to facilitate access to information including
information made available in databases relating to traditional knowledge by intellectual
property offices.
3BIS.7 Intellectual property offices [should]/[shall] ensure that such information is maintained in
confidence, except where the information is cited as prior art during the examination of a
patent application.]
66
ARTICLE 4
SANCTIONS, REMEDIES AND EXERCISE OF RIGHTS/APPLICATION
4.1 [Member States [should]/[shall] ensure that [accessible, appropriate and adequate] [criminal,
civil [and] or administrative] enforcement procedures[, dispute resolution mechanisms][, border
measures][, sanctions] [and remedies] are available under their laws against the [willful or negligent
[harm to the economic and/or moral interest]] [infringement of the protection provided to traditional
knowledge under this instrument] [[misappropriation/ misuse/unauthorized use/unfair and inequitable
uses] or misuse of traditional knowledge] sufficient to constitute a deterrent to further infringements.]
4.2 The procedures referred to in Paragraph 1 should be accessible, effective, fair, equitable,
adequate [appropriate] and not burdensome for [holders]/[owners] of protected traditional knowledge.
[These procedures should also provide safeguards for legitimate third party interests and the public
interest.]
4.3 [The beneficiaries [should]/[shall] have the right to initiate legal proceedings where their
rights under Paragraphs 1 and 2 are violated or not complied with.]
4.4 [Where appropriate, sanctions and remedies should reflect the sanctions and remedies that
indigenous people and local communities would use.]
4.5 [Where a dispute arises between beneficiaries or between beneficiaries and users of
traditional knowledge, each party [may]/[shall be entitled to] refer the issue to an [independent]
alternative dispute resolution mechanism recognized by international, regional or [, if both parties are
from the same country, by] national law [, and that is most suited to the holders of traditional
knowledge].]
4.6 [Where, under applicable domestic law, the [intentional] wide diffusion of [protected subject
matter]/[traditional knowledge] beyond a recognizable community of practice has been determined to
be the result of an act of [misappropriation/misuse/unauthorized use/unfair and inequitable uses] or
other violation of national law, the beneficiaries shall be entitled to fair and equitable
compensation/royalties.]
[ARTICLE 4 BIS
DISCLOSURE REQUIREMENT
4 BIS.1 [[Patent and plant variety] Intellectual property applications that concern [an invention] any
process or product that relates to or uses traditional knowledge shall include information on the
country from which the [inventor or the breeder] applicant collected or received the knowledge (the
providing country), and the country of origin if the providing country is not the same as the country of
origin of the traditional knowledge. The application shall also state whether prior informed consent or
approval and involvement to access and use has been obtained.]
4 BIS.2 [If the information set out in Paragraph 1 is not known to the applicant, the applicant shall
state the immediate source from which the [inventor or the breeder] applicant collected or received the
traditional knowledge.]
4 BIS.3 [If the applicant does not comply with the provisions in Paragraphs 1 and 2, the application
shall not be processed until the requirements are met. The [patent or plant variety] intellectual
property office may set a time limit for the applicant to comply with the provisions in paragraphs 1
67
and 2. If the applicant does not submit such information within the set time limit, the [patent or plant
variety] intellectual property office may reject the application.]
4 BIS.4 [Rights arising from a granted patent or a granted plant variety right shall not be affected by
[any later discovery of] a failure by the applicant to comply with the provisions in Paragraphs 1 and 2.
Other sanctions, outside of the patent system and the plant variety system, provided for in national
law, including criminal sanctions such as fines, may however be imposed.]
Alternative
4 BIS.4 [Rights arising from a grant shall be revoked and rendered unenforceable when the applicant
has failed to comply with the obligations of mandatory requirements as provided for in this article or
provided false or fraudulent information.]
[End of alternative]
Alternative
[NO DISCLOSURE REQUIREMENT
Patent disclosure requirements shall not include a mandatory disclosure requirement relating to
traditional knowledge unless such disclosure is material to the patentability criteria of novelty,
inventive step or enablement.]
[End of alternative]
ARTICLE 5
ADMINISTRATION [OF RIGHTS]/[OF INTERESTS]
5.1 [Member States]/[Contracting Parties] [may]/[shall] [establish]/[appoint] a competent
authority or authorities, [with the free, prior and informed consent of] [in consultation with]
[traditional knowledge [holders]/[owners]], in accordance with their national law [and without
prejudice to the right of traditional knowledge [holders]/[owners] to administer their rights/interests
according to their customary protocols, understandings, laws and practices].
Optional addition
[Where so requested by the beneficiaries, a competent authority may, to the extent authorized by the
beneficiaries and for their direct benefit, assist with the management of the beneficiaries’
rights/interests under this [instrument].]
[End of optional addition]
Alternative
5.1 [Member States]/[Contracting Parties] may establish a competent authority, in accordance
with national law, to administer the rights/interests provided for by this [instrument].
[End of alternative]
68
5.2 [The [identity] of any authority established under Paragraph 1 [should]/[shall] be
communicated to the International Bureau of the World Intellectual Property Organization.]
[ARTICLE 6
EXCEPTIONS AND LIMITATIONS
General Exceptions
6.1 [Member States]/[Contracting Parties] may adopt appropriate limitations and exceptions
under national law [with the prior informed consent or approval and involvement of the beneficiaries]
[in consultation with the beneficiaries] [with the involvement of beneficiaries][, provided that the use
of [protected] traditional knowledge:
(a) [acknowledges the beneficiaries, where possible;]
(b) [is not offensive or derogatory to the beneficiaries;]
(c) [is compatible with fair practice;]
(d) [does not conflict with the normal utilization of the traditional knowledge by the
beneficiaries; and]
(e) [does not unreasonably prejudice the legitimate interests of the beneficiaries taking
account of the legitimate interests of third parties.]]
6.2 [When there is reasonable apprehension of irreparable harm related to [sacred] and [secret]
traditional knowledge, [Member States]/[Contracting Parties] [may]/[shall]/[should] not establish
exceptions and limitations.]
Specific Exceptions
6.3 [[In addition to the limitations and exceptions provided for under Paragraph 1,] [Member
States]/[Contracting Parties] may adopt appropriate limitations or exceptions, in accordance with
national law, for the following purposes:
(a) teaching, learning, but not research resulting in profit-marking or commercial
purposes;
(b) for preservation, display, research and presentation in archives, libraries, museums or
cultural institutions, for non-commercial cultural heritage or other purposes in the public
interest; and
(c) in the case of a national emergency or other circumstances of extreme urgency [or in
cases of public non-commercial use];
(d) [the creation of an original work of authorship inspired by traditional knowledge.]
This provision, with the exception of Subparagraph (c), [should]/[shall] not apply to traditional
knowledge described in Article 3.1.]
6.3 Regardless of whether such acts are already permitted under Paragraph 1, the following
shall be permitted:
(a) the use of traditional knowledge in cultural institutions recognized under the
69
appropriate national law, archives, libraries, museums for non-commercial cultural
heritage or other purposes in the public interest, including for preservation, display,
research and presentation should be permitted; and
(b) the creation of an original work of authorship inspired by traditional knowledge.]
6.4 [[There shall be no right to [exclude others] from using knowledge that:]/[The provisions of
Article 3 shall not apply to any use of knowledge that:]
(a) has been independently created [outside the beneficiaries’ community];
(b) [legally] derived from sources other than the beneficiary; or
(c) is known [through lawful means] outside of the beneficiaries’ community.]
6.5 [Protected traditional knowledge shall not be deemed to have been misappropriated or
misused if the protected traditional knowledge was:
(a) obtained from a printed publication;
(b) obtained from one or more holders of the protected traditional knowledge with their prior
informed consent or approval and involvement; or
(c) mutually agreed terms for [access and benefit sharing]/[fair and equitable compensation]
apply to the protected traditional knowledge that was obtained, and were agreed upon by
the national contact point.]]
6.6 [[Member States]/[Contracting Parties] may exclude from protection diagnostic,
therapeutic and surgical methods for the treatment of humans or animals.]]
6.7 [National authorities shall exclude from protection traditional knowledge that is already
available without restriction to the general public.]
ARTICLE 7
TERM OF PROTECTION/RIGHTS
[Member States]/[Contracting Parties] may determine the appropriate term of protection/rights of
traditional knowledge in accordance with [Article 3/[[which may] [should]/[shall] last as long as the
traditional knowledge fulfills/satisfies the [criteria of eligibility for protection] according to Article
[1]/[3].]]
ARTICLE 8
FORMALITIES
Option 1
8.1 [Member States]/[Contracting Parties] [should]/[shall] not subject the protection of traditional
knowledge to any formality.
70
Option 2
8.1 [[Member States]/[Contracting Parties] [may] require formalities for the protection of
traditional knowledge.]
Alternative
[The protection of traditional knowledge under Article 3.1 [should]/[shall] not be subject to any
formality. However, in the interest of transparency, certainty and the conservation of traditional
knowledge, the relevant national authority (or authorities) or intergovernmental regional authority (or
authorities) may maintain registers or other records of traditional knowledge to facilitate protection
under Articles 3.2 and 3.3.]
[End of alternative]
ARTICLE 9
TRANSITIONAL MEASURES
9.1 These provisions [should]/[shall] apply to all traditional knowledge which, at the moment of the
provisions coming into force, fulfills the criteria set out in Article [1]/[3].
Optional addition
9.2 [[Member States]/[Contracting Parties] [should]/[shall] ensure [the necessary measures to
secure] the rights [acknowledged by national law] already acquired by third parties are not affected, in
accordance with its national law and its international legal obligations.]
Alternative
9.2 [[Member States]/[Contracting Parties] [should]/[shall] provide that continuing acts in respect
of traditional knowledge that had commenced prior to the coming into force of this [instrument] and
which would not be permitted or which would be otherwise regulated by this [instrument], [should be
brought into conformity with these provisions within a reasonable period of time after its entry into
force[, subject to respect for rights previously acquired by third parties in good faith]/should be
allowed to continue].
Alternative
9.2 [Notwithstanding Paragraph 1, [Member States]/[Contracting Parties] [should]/[shall] provide
that:
(a) anyone who, before the date of entry into force of this instrument, has commenced
utilization of traditional knowledge which was legally accessed, may continue such utilization
of the traditional knowledge[, subject to a right of compensation];
(b) such right of utilization shall also, on similar conditions, be enjoyed by anyone who
has made substantial preparations to utilize the traditional knowledge.
(c) the foregoing gives no right to utilize traditional knowledge in a way that contravenes
the terms the beneficiary may have set out as a condition for access.]
71
[ARTICLE 10
RELATIONSHIP WITH OTHER INTERNATIONAL AGREEMENTS
This instrument [should]/[shall] establish a mutually supportive relationship [between [intellectual
property [patent] rights [directly based on] [involving] [the utilization of] traditional knowledge and
with relevant [existing] international agreements and treaties.]
[ARTICLE 11
NATIONAL TREATMENT
[The rights and benefits arising from the protection of traditional knowledge under national/domestic
measures or laws that give effect to these international provisions [should]/[shall] be available to all
eligible beneficiaries who are nationals or residents of a [Member State]/[Contracting Party]
[prescribed country] as defined by international obligations or undertakings. Eligible foreign
beneficiaries [should]/[shall] enjoy the same rights and benefits as enjoyed by beneficiaries who are
nationals of the country of protection, as well as the rights and benefits specifically granted by these
international provisions.]
Alternative
[Nationals of a [Member State]/[Contracting Party] may only expect protection equivalent to that
contemplated in this instrument in the territory of another [Member State]/[Contracting Party] even
where that other [Member State]/[Contracting Party] provides for more extensive protection for their
nationals.]
[End of alternative]
Alternative
[Each [Member State]/[Contracting Party] [should]/[shall] in respect of traditional knowledge that
fulfills the criteria set out in Article 1, accord within its territory to beneficiaries of protection as
defined in Article 2, whose members primarily are nationals of or are domiciled in the territory of, any
of the other [Member States]/[Contracting Parties], the same treatment that it accords to its national
beneficiaries.]
[End of alternative] ]
ARTICLE 12
TRANSBOUNDARY COOPERATION
12.1 In instances where the same [protected] traditional knowledge [under Article 3] is found within
the territory of more than one [Member State]/[Contracting Party], those [Member
States]/[Contracting Parties] [should]/[shall] endeavour to cooperate, as appropriate, with the
involvement of indigenous and local communities concerned, where applicable, with a view to
implementing this [instrument].
72
12.2 Where the same [protected] traditional knowledge [under Article 3] is shared by one or more
indigenous and local communities in several [Member States]/[Contracting Parties], those [Member
States]/ [Contracting Parties] [should]/[shall] endeavour to cooperate, as appropriate, with the
involvement of the indigenous and local communities concerned, with a view to implementing the
objectives of this [instrument].
[End of Annex and of Document]
73
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- WIPO/RT/LDC/1/14
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"indigenous people" (E/CN.4/Sub.2/AC.4/1996/2) 10 June 1996
- World Bank Operational Manual, Operational Directive : Indigenous Peoples, Sept. 1991,
available at : http://www.ifc.org/wps/wcm/connect/835cc50048855270ab94fb6a6515bb18/-
OD420_IndigenousPeoples.pdf?MOD=AJPERES (accessed 15/08/2014)
82
Case-laws
- Ashdown v Telegraph Group [2001] 1 Ch 685 ChD
- Cour de Cassation, Ch. com., 18 Feb. 2004, 02-10.576 “Caron”
- Foster and Others v Mountford and Rigby Ltd (1976) 14 ALR 71
- Milpurrurru v Indofum (Pty) Ltd., [1990] 30 IPR 209
- Yumbulul v Reserve Book of Australia [1991], 21 IPR 48
Websites
- http://ab-ed.boardofstudies.nsw.edu.au/go/aboriginal-art/protecting-australian-indigenous-
art/background-information/proposals-for-change/indigenous-communal-moral-rights-icmr
(accessed 17/08/2104).
- http://www.wipo.int/
- www.wto.org
- www.cbd.int/