Biopiracy and Traditional IP
Protecting Traditional Knowledge:
An Overview of a Developing Area of Intellectual Property Law
“Knowledge is power.”
Francis Bacon (1561-1626)
“A man can only attain knowledge with the
help of those who possess it… One must
learn from him who knows.”
George Gurdjieff (1866-1949)
1
Senior Partner at O’Connor and Company European Lawyers, Brussels, see on http://www.oconnor.be. I
would like to thank my colleague Irina Kireeva for research and comments on this article. I also would like
to thank Jean-Charles Van Eeckhaute of the EC Commission for comments on an earlier draft of the article.
Any opinions or mistakes are those of the author.
I. Introduction
The aim of this article is give an overview of the complex and controversial nature of the
issue of legal protection of traditional knowledge.2 The article examines, what traditional
knowledge is and the arguments for recognizing and protecting it. Next the article
examines the international protection provided by the Convention on Biological Diversity
and the issue of “biopiracy”. This issue is illustrated by several cases, among them Neem,
Turmeric, Ayahuasca, Hoodia Cactus and Basmati Rice cases. Next the application of
existing intellectual property rights to traditional knowledge on the international and
national level is examined, particularly explaining the problems and benefits of protecting
the names of traditional products through assimilation to geographical indication law.
The article also looks at some of the new “sui generis systems” for the protection of
traditional knowledge and addresses the issue of traditional knowledge in the WTO,
examining the issue under the TRIPs Agreement and present positions of the WTO
Members in connection to the revision of Article 27.3(b) of TRIPs.
II. What is traditional knowledge?
2
G. Dutfield, “Intellectual Property Rights, Trade and Biodiversity”, 2002, Earthscan Publications Ltd; B.
Dasgupta, “Patent Lies and Latent Danger: A Study of the Political Economy of Patents in India”,
Economic and Political Weekly, April 17-24, 1999; M. Ruiz, “The International Debate on Traditional
Knowledge as Prior Art in The Patent System: Issues and Options for Developing Countries”, CIEL,
http://www.ciel.org/Publications.
Local communities have always generated specific knowledge which has been used for
shorter and longer periods and informally passed from generation to generation or from
group to group. This traditional knowledge can be defined as the knowledge, innovations
and practices of indigenous peoples and local communities.
Traditional knowledge can be considered to include knowledge of:
• plants and animals and their properties;
• minerals and soils and their properties;
• combinations of organic and inorganic matters;
• processes and technologies;
• means of enhancing individual health and welfare;
• means of enhancing collective health and welfare;
• artistic expressions.
Traditional knowledge is usually collective knowledge. Sometimes, due to the parallel
development or due to the exchange of knowledge, communities with similar ecosystems,
cultures or problems can have the same or similar traditional knowledge which in turn is
or is not expressed in a similar fashion. For those indigenous or local communities that
did not have a written tradition, traditional knowledge takes the form of stories, songs,
3
See generally G. Dutfield, “Intellectual Property Rights, Trade and Biodiversity”, 2002, Earthscan
Publications Ltd; M. Khor, “Intellectual Property, Biodiversity and Sustainable Development”, Third
World Network, 2002; N.S. Gopalakrishnan, “Protection of Traditional Knowledge - The Need for a Sui
Generis Law in India”, The Journal of World Intellectual Property, Vol. 5, September 2002, N° 5, p. 725;
UNCTAD, “The TRIPs Agreement and developing countries”, New York and Geneva, 1996; Commission
on Intellectual Property Rights, “Integrating Intellectual Property Rights and Development Policy”, 2002;
G. Tansey, “Trade, intellectual property, food and biodiversity”, London, 1999; Ed. M. Blakeney, P.
Drahos, IP in Biodiversity and Agriculture: Regulating the Biosphere, London, Sweet & Maxwell, 2001;
Costa e Silva, “The protection of intellectual property for local and indigenous communities”, 1995
European Intellectual Property Review, 17, p. 546.
folklore, proverbs, cultural values, beliefs, rituals, community laws, local language,
culinary recipes and agricultural practices, including the development of plant species
and animal breeds. It is therefore extremely difficult to determine with accuracy which
communities are the rightful owners of a certain knowledge or the relationship between
traditional knowledge and different communities.
III. Recognition of importance of traditional knowledge
Traditional knowledge, developed from experience gained over time and adapted to a
local culture and environment, has always played, and still plays, an important role in the
daily lives of the majority of people globally and is considered to be an essential part of
cultural identities.4 It is vital to the food security and health of millions of people in the
developing and even developed world.5 In many developing and least developed
countries, traditional medicines provide the only affordable treatment available to poor
people.6
Knowledge of the healing properties of certain plants has been the source of many
modern medicines. In addition, the use and continuous development by local farmers of
4
The literature as yet does not examine whether Enlightenment values or Constitutional law based culture
can also be considered traditional knowledge.
5
“Old wives tales” are still in common use.
6
According to the WHO Fact Sheet N° 271, June 2002, in developing countries, up to 80% of the
population depend on traditional medicines to help meet their healthcare needs. See more on
http://www.who.int/medicines/organization/factsheet271.doc.
plant varieties and the knowledge associated with them play an important role in
agricultural systems in developing countries.
Traditional knowledge has been translated into commercial benefits by providing leads
for development of useful products and processes. The valuable leads provided by
traditional knowledge save time, money and investment of modern biotech industry into
any research and product development. The question that now needs to be addressed is
whether a share of benefits should accrue to “creators” and “holders” of traditional
knowledge and if so how.
The means of preservation, development, protection, and equitable use of traditional
knowledge are under increasing attention in a range of policy discussions, on matters as
diverse as food and agriculture, the environment (notably the conservation of biological
diversity), health, including traditional medicines, human rights and indigenous issues,
cultural policy, and aspects of trade and economic development. The role of intellectual
property systems in relation to traditional knowledge has been a particular focus of
discussion in a number of these policy contexts in various international fora.
Protection and recognition of the traditional knowledge is a recent phenomenon in the
international community. In 1981 WIPO and UNESCO adopted a Model Law on
Folklore.7
The concept of Farmers’ Rights was introduced in 1989 by the FAO into its
7
See also http://www.unesco.org, “Culture”, “Copyright”, “Folklore”. It should be noted that certain
authors make a distinction between folklore and traditional knowledge (see for example, J.C. Weiner,
“Protection of folklore: a political and legal challenge”, IIC International Review of Industrial property and
copyright law, 1987, 18/01, pp. 56-92; Ch. Haight Farley, “Protecting Folklore of Indigenous Peoples: Is
International Undertaking on Plant Genetic Resources8 and in 1992 the Convention on
Biological Diversity highlighted the need to promote and preserve traditional
knowledge.9
To date however there are no comprehensive rules on the protection of
traditional knowledge similar to other classes of intellectual property.
IV. Convention on Biological Diversity and Traditional Knowledge
Biological diversity encompasses all species of plants, animals and micro-organisms and
variations between them, and the eco-systems of which they form a part. Traditional
knowledge associated with biological resources is an intangible component of the
resource itself.
The Convention on Biological Diversity (CBD) is the only binding international
agreement that contains explicit reference to traditional knowledge. The CBD seeks to
promote the conservation of biodiversity and the equitable sharing of benefits arising out
of the utilization of generic resources.10 It asserts the sovereign rights of nations over
their national resources, and their right to determine access according to national
Intellectual Property the Answer?”, 30 Connecticut Law Review 1, 1997) and others tend to include
folklore into TRADITIONAL KNOWLEDGE (see G. Dutfield, “Intellectual Property Rights, Trade and
Biodiversity”, 2002, Earthscan Publications Ltd).
8
Resolution 8/83, adopted at the 22 Session of the FAO Conference, Rome 1983, see on
http://www.fao.org/ag/cgrfa/IU.htm.
9
The Convention on Biodiversity came into force on 29 December 1993. See more information on
http://www.biodiv.org/.
10
See more, G. Dutfield, “Intellectual Property Rights, Trade and Biodiversity”, 2002, Earthscan
Publications Ltd; M. Khor, “Intellectual Property, Biodiversity and Sustainable Development”, Third
World Network.
legislation with the aim of facilitating the sustainable use of these resources, promoting
access and their common use.
As stated in the Preamble to the Convention, the member countries recognize the
desirability of sharing equitably the benefits arising from the use of traditional
knowledge. Article 8(j) of the Convention on Biological Diversity provides:
“Subject to its national legislation, respect, preserve and maintain
knowledge, innovations and practices of indigenous and local
communities embodying traditional lifestyles relevant for the conservation
and sustainable use of biological diversity and promote their wider
application with the approval and involvement of the holders of such
knowledge, innovations and practices and encourage the equitable
sharing of the benefits arising from the utilization of such knowledge,
innovations and practices”.
Like most provisions of the CBD, Article 8(j) provides for a general framework and
policy objectives within which states can act to fulfil their obligations.
V. Cases of “biopiracy” of traditional knowledge
At the same time, a number of cases relating to traditional knowledge have attracted
international attention. These cases involve what is often referred to as “biopiracy”.
In
the well-known cases of neem, turmeric and ayahuaca, the issue arose from the granting
patent protection to inventions relating to traditional knowledge which was already in the
public domain. In these cases, patents were issued because the patent examiners were not
aware of the relevant traditional knowledge.12
A. The Neem case
The Neem case was a landmark case as it was the first time that a patent based on the
traditional knowledge of a developing country had been successfully challenged. There
are several issues raised in this case, the most important of which was the concern that if
a multinational corporation could usurp traditional knowledge through patents this would
lead to the erosion of the diversity of neem tree; neem seeds would become costly and
thus not be available to poor farmers; therefore, developing countries and, in particular,
India would be robbed of their rights to use neem tree as they saw fit.
Neem (Azadirachta indica) is a tree from India and other parts of South and Southeast
Asia. It is now planted across the tropics because of its properties as a natural medicine,
11
There is no accepted definition of “biopiracy”. The Action Group on Erosion, Technology and
Concentration (http://www.etcgroup.org) defines it as “the appropriation of the knowledge and genetic
resources of farming and indigenous communities by individuals or institutions seeking exclusive
monopoly control (usually patents or plant breeders' rights) over these resources and knowledge.”
12
See also Campaign against Biopiracy, Research Foundation for Science, Technology and Ecology, New
Delhi, India, November 1999.
pesticide and fertilizer.13 Neem extracts can be used against hundreds of pests and fungal
diseases that attack food crops; the oil extracted from its seeds is used to treat colds and
flu; and mixed in soap, it is believed to offer low cost relief from malaria, skin diseases
and even meningitis.
In 1994 the European Patent Office granted European Patent to the US Corporation W.R.
Grace and United States Department of Agriculture for a “method for controlling fungi
on plants by the aid of a hydrophobic extracted neem oil”.14
In June of 1995 a legal opposition against the grant of this patent was filed by Magda
Aelvoet, MEP, on behalf of the Green Group in the European Parliament, Brussels,15
Dr. Vandana Shiva, on behalf of the Research Foundation for Science, Technology, and
Natural Resource Policy, New Delhi, and the International Federation of Organic
Agriculture Movements, based in Germany.16
The evidence was submitted that the fungicidal effect of hydrophobic extracts of neem
seeds was known and used for centuries on a broad scale in India, both in Ayurvedic17
medicine to cure dermatological diseases and in traditional Indian agricultural practice to
protect crops from being destroyed by fungal infections. Since this traditional Indian
13
See more in Neem, A Tree for Solving Global Problems, National Academy Press, Washington DC,
1992; Intellectual Piracy and the Neem Patents, Research Foundation for Science, Technology and Natural
Resource Policy, Dehradun, India, 1993.
14
European Patent N° 436257 was granted by the European Patent Office on 14 September 1994.
15
See more on http://www.greens-efa.org/.
16
See more information on http://www.ifoam.org/.
17
Ayurveda is a system of healing that originated in India thousands of years ago. The word “Ayurveda” is
made up of two Sanskrit words: “Ayu” which means life and “Veda” which means the knowledge. Find
more on http://www.ayurveda.com/.
knowledge was in the public domain for centuries, it was argued that the patent
application for neem lacked two basic statutory requirements for the grant of a European
patent, namely novelty and inventive step.
In addition, the opponents of the patent charged that the fungicidal method claimed in the
patent was based on one single plant variety (Azadirachta indica) and hence resulted in at
least partially monopolising this single plant variety. It was pointed out that since the
European Patent Convention (EPC) explicitly prohibits the patenting of plant varieties,
the patent should be revoked.
On 15 June 1999, the Opposition Board of European Patent Office held that due to the
fact that "all features of the present claim (of the patent) have been disclosed to the
public prior to the patent application during field trials in the two Indian districts Pune
and Sangli" of Maharashtra, Western India, in summer 1985 and 1986, it appeared to be
"mere routine work for a skilled person to add an emulsifier in an appropriate amount"
and that therefore, "the present subject-matter was considered not to involve an inventive
step." The patent, therefore, was revoked by the European Patent Office in May 2000.
B. The Turmeric case
In spite of the fact that the decision on the Turmeric case appeared later than the
revocation of the Neem patent, this case attracted even more attention from the public.
Turmeric (Curcuma longa) is a plant of the ginger family yielding saffron-coloured
rhizomes. It has been used as a dye, medicine, and flavoring since 600 BC. In 1280,
Marco Polo described Turmeric as "a vegetable with the properties of saffron, yet it is not
really saffron". Turmeric has been used medicinally throughout Asia to treat stomach and
liver ailments. It also was used externally to heal sores and as a cosmetic.
In 1995, two Indian nationals at the University of Mississippi Medical Centre were
granted US patent on "use of turmeric in wound healing".18 The Indian Council of Scientific
and Industrial Research (CSIR)19 requested the US Patent and Trademark Office to re-examine
the patent.20CSIR argued that turmeric has been used for thousands of years for healing wounds
and rashes and therefore its medicinal use was not novel. Their claim was supported by
documentary evidence of traditional knowledge, including an ancient Sanskrit text and a
paper published in 1953 in the Journal of the Indian Medical Association. The US Patent
and Trademark Office upheld the CSIR’s objections and revoked the patent in August
2002.
C. The Ayahuasca case
18
US patent N° 5401504 was granted for the use of turmeric powder as a wound healing agent on 28
March, 1995.
19
Indian Council of Scientific and Industrial Research (CSIR), see more information on the official web
site http://www.csir.res.in.
20
The US Patent and Trademark Office (USPTO), see more information on the on the official web site
The Ayahuasca case concerns both substance and procedures. For generations, shamans
of indigenous tribes throughout the Amazon Basin have processed the bark of
Banisteriopsis caapi to produce a ceremonial drink known as "ayahuasca". The shamans
use ayahuasca (which means "vine of the soul") in religious and healing ceremonies to
diagnose and treat illnesses, meet with spirits, and divine the future.
An American, Loren Miller, obtained US Plant Patent N° 5751 in June 1986, granting
rights over an alleged variety of Banisteriopsis caapi which had been called "Da Vine".
The patent description stated that the “plant was discovered growing in a domestic garden
in the Amazon rain-forest of South America.” The patentee claimed that Da Vine
represented a new and distinct variety of Banisteriopsis caapi, primarily because of the
flower colour.
The Coordinating Body of Indigenous Organizations of the Amazon Basin21 learned of
the patent in 1994.
On their behalf the Center for International Environmental Law (CIEL)22 filed a re-
examination request on the patent. CIEL protested that a review of the prior art led that
Da Vine was neither new nor distinct. They argued also that the granting of the patent
would be contrary to the public and morality aspects of the Patent Act because of the
sacred nature of Banisteriopsis caapi throughout the Amazon region. In November 1999,
21
Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA), an umbrella
organisation representing over 400 indigenous groups, see more on http://www.coica.org/.
22
Center for International Environmental Law (CIEL), see more on http://www.ciel.org/.
the US Patent and Trademark Office rejected the patent claim agreeing that Da Vine was
not distinguishable from the prior art presented by CIEL and therefore the patent should
never have been issued.
However, the US Patent and Trademark Office reversed its rejection in January 2001 and
issued a certificate in April allowing the patent to stand for the remaining two years of its
term. The main reason for this was the date of filing of the patent, as it was not covered
by the new rules in the US on inter partes re-examination.23 CIEL was therefore unable
to comment on the arguments made by the patentee that led to the patent being upheld.
The indigenous peoples continue protesting against this patent.24
D. The Hoodia Cactus case
In the Hoodia Cactus case, the issue was not whether the patent should or should not
have been granted, but rather whether the local people known as the San, who had
nurtured the traditional knowledge underpinning the invention, were entitled to receive a
fair share of any benefits arising from commercialization.
The San people, who live around the Kalahari Desert in southern Africa, have
traditionally eaten the Hoodia Cactus to stave off hunger and thirst on long hunting trips.
In 1937, a Dutch anthropologist studying the San noted this use of Hoodia. Scientists at
23
The patent was granted in June 1986 and Section 102 of the Patent Act, 35 U.S.C. § 102 was amended in
1999 and established a “statutory bar” against the grant of a patent in certain specified conditions.
24
See more information on http://www.amazonlink.org/biopiracy/ayahuasca.htm.
the South African Council for Scientific and Industrial Research (CSIR)25
recently refound his report and began studying the plant.
In 1995 CSIR patented Hoodia’s appetite-suppressing element (P57). In 1997 they
licensed this element to the UK biotech company, Phytopharm. In 1998, the US
pharmaceutical company Pfizer26 acquired the rights from Phytopharm to develop and
market P57 as a potential slimming drug and cure for obesity.27
On hearing of possible exploitation of their traditional knowledge, the San people
threatened legal action against the South African Council for Scientific and Industrial
Research on grounds of “biopiracy.” They claimed that their traditional knowledge had
been stolen, and CSIR had failed to comply with the rules of the Convention on
Biodiversity, which requires the prior informed consent of all stakeholders, including the
original discoverers and users.
Phytopharm argued that it had conducted extensive enquiries but were unable to find any
of the “knowledge holders”. The remaining San were apparently at the time living in a
tented camp 1500 miles from their tribal lands. The Council for Scientific and Industrial
Research claimed they had planned to inform the San of the research and share the
benefits, but first wanted to make sure the drug proved successful.
25
The South African Council for Scientific and Industrial Research (CSIR), see more information on
http://www.csir.co.za.
26
See more information on http://www.pfizer.com/main.html.
27
A market worth more than £6 billion.
In March 2002, an understanding was reached between the CSIR and the San whereby
the San, recognised as the custodians of traditional knowledge associated with the
Hoodia plant, will receive a share of any future royalties. Although the San will only
receive a very small percentage of eventual sales,28 the potential size of the market means
that the sum involved could still be substantial. The drug is unlikely to reach the market
before 2006, and may as yet fail.29
E. The Basmati case
The Basmati Rice case concerned the protection of traditional knowledge and
geographical indications.30 Basmati is a variety of rice from the Punjab provinces of India
and Pakistan.31 The rice is a slender, aromatic long grain variety that originated in this region
and is a major export crop for both countries.
The problem arose when the US patent office has issued in 1997 patents for three new
strains of rice. These strains could be sold under the name “Basmati”, referring to a
28
The CSIR agreed to pay the San 8% of payments made by its licensee, Phytopharm, during the drug's
clinical development over the first three years. Later, when the drug is marketed (sometime between 2006-
2008 the San will receive 6% of all royalties.
29
See more on http://www.scienceinafrica.co.za/2003/may/san.htm.
30
S. Lall, India and Pakistan: Geographical Indications – The Basmati Issue, paper delivered at the
International Trademark Association Annual Meeting, Seattle, May 1999; “Geographical Indications: the
Basmati Case”, in Integrating Intellectual Property Rights and Development Policy, London, September
2002. See also N.S. Gopalakrishnan, “Protection of Traditional Knowledge - The Need for a Sui Generis
Law in India”, The Journal of World Intellectual Property, Vol. 5, September 2002, N° 5, p. 725.
31
Trade Mark Ordinance of 2001, find on http://www.ficpi.org, “Pakistan”, “Trade Mark Ordinance”.
particular form of rice - long-grained, aromatic, and associated with the plains of Punjab.
In 1998 the US Rice Federation submitted that the term “Basmati” was generic and
referred to a specific type of aromatic rice. In response, US and Indian civil society
organizations collectively filed a petition seeking to prevent US-grown rice from being
advertised with the word “Basmati”. The US Department of Agriculture and the US
Federal Trade Commission rejected the petition in May 2001. Neither considered that the
labelling of rice as “American-grown Basmati” was misleading, and deemed “Basmati”
to be a generic term. After the protest of India and Pakistan against the use the name
“Basmati”, the US patent office disallowed the patent-holder from using the name
“Basmati”, as that name was not considered to be a generic name but denoted a specific
qualities of famous Basmati Rice from the Punjab provinces of India and Pakistan.
The rice can now be sold only as “Texmati” or any other name that clearly informs the
consumer that the rice is not from the Punjab region.
VI. The application of existing intellectual property rights to traditional knowledge
A. Traditional knowledge and intellectual property rights in international law
With indigenous groups and peoples’ organizations stressing the need for more focused
attention on traditional knowledge, a “Madrid Workshop”, organized under the auspices
of Convention on Biodiversity, the need for a working group on Article 8(j) was
endorsed.32
Under the Convention on Biodiversity, the working group known as the
Access to Genetic Resources and Benefit Sharing group has developed the Bonn
Guidelines on Access and Benefit Sharing. These Bonn rules were adopted at the Six
Conference of Parties in 2002.33
The Bonn guidelines on Access and Benefit Sharing provide for a set of voluntary rules
that will facilitate the drafting and further development of national biodiversity
legislation or administrative regulation. The main objectives of the guidelines is to
contribute to the sustainable use of genetic resources and to provide a transparent
framework to facilitate access and ensure benefit sharing at national or regional level. For
biodiversity rich countries, the importance of these guidelines is that they advance the
harmonization of the steps for adequate access and benefit sharing. The guidelines also
clarify and complement many of the existing obligations under the CBD.
The protection of traditional knowledge has also being discussed by a large number of
international bodies including the World Intellectual Property Organization,34 the World
Health Organization,35 the United Nations Conference on Trade and Development,36
32
Report on the Workshop on Traditional Knowledge and Biodiversity, Madrid, 24-28 November 1997,
UNEP/CBD/TKBD/1/3 dated 15 December 1997.
33
Adopted at the Sixth Conference of Parties 7-19 April 2002 The Hague, http://www.biodiv.org,
“Documents”, “Meetings”.
34
See more on the official web site http://www.wipo.org.
35
See the official web site http://www.who.int.
36
See more on http://www.unctad.org.
Food and Agriculture Organization of the United Nations37 and United Nations
Educational, Scientific and Cultural Organization.38
The FAO International Treaty on Plant Genetic Resources for Food and Agriculture and
the Bonn Guidelines on Access to Genetic Resources and Benefit-sharing are important
new developments of the protection of traditional knowledge. In addition, the Doha WTO
Ministerial Declaration highlighted the need for further work in the TRIPs Council on
protecting traditional knowledge.39
B. Protection of traditional knowledge under existing modes of intellectual property rights
Practically all types of intellectual property could, to some extent, be used for protection
of traditional knowledge.40 However, the absence of developed intellectual property
regulatory systems and the courts (both for applicants and for governments) in
developing countries should not be underestimated. Also existing intellectual property
systems are to a large extent based on individual intellectual achievements.
37
See more on http://www.fao.org.
38
See the official web site http://www.unesco.org.
39
Paragraph 19 of Doha WTO Ministerial Declaration, WT/MIN(01)/DEC/1, adopted on 14 November
2001, called for the TRIPS Council to examine the issue of protection of traditional knowledge and
folklore.
40
See for information, G. Dutfield, “Intellectual Property Rights, Trade and Biodiversity”, 2002, Earthscan
Publications Ltd; Protection of Traditional Knowledge under Intellectual Property Law, 2000, European
Intellectual Property Review, pp. 251-261.
Copyright can be used to protect the artistic manifestations of traditional knowledge
holders, especially artists who belong to indigenous and native communities, against
unauthorized reproduction and exploitation. It could include works such as: literary
works: tales, legends and myths, traditions, poems; theatrical works; pictorial works;
textile works: fabrics, garments, textile compositions, tapestries, carpets; musical works;
and, three-dimensional works: pottery and ceramics, sculptures, wood and stone carvings,
artifacts of various kinds. Related rights to copyright, such as performing rights, could be
used for the protection of the performances of singers and dancers and presentations of
stage plays, puppet shows and other comparable performances.
New plant products, cultivars and varieties of all species of plants may be protected under
plant breeders’ rights. To be protected, a variety has to be different from known varieties
and uniform and stable in its essential characteristics, even after a number of reproduction
cycles. Varieties developed by the possessors of traditional knowledge could also be
legally protected in this way. Improvements to varieties representing the natural state of
plant diversity could also constitute new varieties eligible for protection.
The design and shape of utilitarian craft products such as furniture, receptacles, garments
and articles of ceramics, leather, wood and other materials may qualify for protection as
industrial designs.
All goods manufactured and services offered by manufacturers, craftsmen, professionals
and traders in native and indigenous communities, or by the bodies that represent them or
in which they are grouped, may be differentiated from each other with trademarks and
service marks.
The protection of undisclosed information is achieved by the repression of unfair
competition. The provisions against unfair competition may also be used to protect
undisclosed traditional knowledge, for instance traditional secrets kept by native and
indigenous communities that may be of technological and economic value.
Acknowledging that secret knowledge may be protected by means of unfair competition
law will make it possible for access to that knowledge, its exploitation and its
communication to third parties to be monitored. Control over the knowledge, and
regulation of the manner in which it may he acquired, used and passed on, will in turn
make possible to arrange contracts for the licensing of secret traditional knowledge and
derive profits from its commercial exploitation.
C. Examples of protection of traditional knowledge in national laws
The WIPO Reviews of Existing Intellectual Protection of Traditional Knowledge studied
how countries use intellectual property tools for promoting and protecting traditional
knowledge and folklore.41
Australia, Canada, Colombia, Kazakhstan, New Zealand, the
Russian Federation, Venezuela and Vietnam provided actual examples of how existing
41
Third Session of Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore, WIPO Review of Existing Intellectual Protection of Traditional
Knowledge, WIPO/GRTKF/IC/3/7, Geneva, 13 June 2002.
intellectual property mechanisms have already been used in order to protect traditional
knowledge.42
Australia identified several cases which demonstrated the ability of the Australian
intellectual property regime to protect traditional knowledge.43
For example, Foster v Mountford, a case44 which involved the importation of carpets, manufactured
in Vietnam,which reproduced (without permission) either all or parts of well-known works,
created by Aboriginal artists. The Australian artists successfully claimed infringement of
copyright as well as unfair trade practices, for the labels attached to the carpets claimed
that the carpets had been designed by Aboriginal artists and that royalties were paid to the
artists on every carpet sold. In awarding damages to the plaintiffs, the judgement
recognized the concepts of “cultural harm” and “aggregated damages”. Similar cases
Milpurrurru v Indofurn Pty Ltd,45 Bulun Bulun & Milpurrurru v R & T Textiles Pty Ltd46
and Bulun Bulun v Flash Screenprinters47 concerned the importation and sale in Australia
of printed clothing fabric which infringed the copyright of the Aboriginal artist, Mr. John
Bulun Bulun. These cases lead to a creation of national certification trademark for
Aboriginal and Torres Strait Islander artists in Australia.48 Like any other trademark, this
certification mark or Label of Authenticity is intended to help promote the marketing of
42
See also UNCTAD, “Systems and national experience for protecting traditional knowledge, innovations
and practices”, TD/B/COM.1/EM.13/2, October 2000.
43
See generally, M. Blakeney, Intellectual property, biological diversity and agricultural research in
Australia, 53 Australian Journal of Agricultural Research, 2002, pp. 127-148.
44
Foster v Mountford, 1976, 29 FLR 233.
45
Milpurrurru v Indofurn Pty Ltd (1995) 30 IPR 209.
46
Bulun Bulun & Milpurrurru v R & T Textiles Pty Ltd (1998) 41 IPR 513.
47
Bulun Bulun v Flash Screenprinters, see also discussion in (1989) EIPR Vol 2, pp. 346-355.
48
See a paper prepared by the Aboriginal and Torres Straight Islander Commission in May 1999 “GATT
TRIPs Review – Aboriginal and Torres Straight Islander People’s Issues” on http://www.atsic.gov.au,
“Issues”, “Indigenous rights”, “Intellectual property”, “GATT TRIPS Review”.
their art and cultural products and deter the sale of products falsely claiming to be of
Aboriginal origin.49
In Canada, copyright protection under the Copyright Act50 has been widely used by
Indigenous artists, composers and writers of tradition-based creations such as wood
carvings of Pacific coast artists, including masks and totem poles, the silver jewelry of
Haida artists, songs and sound recordings of Aboriginal artists and Inuit sculptures.
Trademarks, including certification marks, are used by Indigenous people to identify a
wide specter of goods and services, ranging from traditional art and artwork to food
products, clothing, tourist services and enterprises run by First Nations.51 Many
Indigenous businesses and organizations have registered trademarks relating to traditional
symbols and names. In contrast, industrial designs protection under the Industrial Design
Act has not been widely used by Indigenous persons or communities.52
In Colombia, a specific provision of law,53 prohibits registration of the signs consisting of
names of indigenous and Afro-American communities, which constitute an expression of
their culture, without the explicit authorization of the communities in question or the
request by the communities themselves. For example, the registration of the trademark
49
See more about Australian trademarks regime on http://www.ipaustralia.gov.au, “Trademarks”.
50
The Copyright Act of Canada came into force in 1924. A major revision to the Act was passed in 1988
and in 1997. Find the text of the Copyright Act on http://laws.justice.gc.ca, “Copyright Act”.
51
Trademarks Act of 1985, Chapter T-13, see on http://lois.justice.gc.ca, “Department of Justice Canada”,
“Consolidated Statutes and Regulations”. As a consequence of the WTO Agreement on Trade related
Aspects of Intellectual Property Rights, Canada has enacted amendments to its Trademarks Act, which
entered into force on 1 January, 1996. See also Ph. B. Kerr, “Trademark Law in Canada: an overview” and
Trademark Act of 1996 on http://www.trademark-law-canada.com/.
52
The Industrial Design Act of Canada of 1985, amended in 1996. § 10 of the WIPO Review of Existing
Intellectual Protection of Traditional Knowledge, WIPO/GRTKF/IC/3/7, Geneva, 13 June 2002.
53
Decision 486 of the Andean Community, Article 136(g).
“Tairona” has been rejected in Colombia on the grounds that “Tairona” is the name of an
indigenous community that inhabited pre-Hispanic Colombia.
In New Zealand the Trade Marks Act contains provisions that prevent the registration of
trademarks where their use or registration would be likely to offend a significant section
of the community, including the Maori.54
Both Kazakhstan and the Russian Federation have identified examples of protection of
technical traditional knowledge through the grant of patents. In Kazakhstan, the external
appearance of national outer clothes, head dresses (saykele), carpets (tuskiiz), decorations
of saddles, national dwellings (yurta) and their structural elements, as well as women’s
apparel accessories, like bracelets (blezik), national children’s cots-crib-cradles and table
wares (piala, torcyk) are protected as industrial designs. The designations containing
elements of Kazakh ornament are registered and protected as trademarks.55
Vietnam has mentioned a patent for a traditional preparation of medicinal plants used in
assistance in stopping drug-addiction, and a trademark registered for a traditional balm
made of medicinal plants (“Truong Son”).56
54
New Zealand has noted that “Maori” is used to refer to the indigenous people of New Zealand. New
Zealand Trade Marks Act 1953, as amended by the Trade Marks Amendment Act of 1994 and 2002. The
2002 Act required the Commissioner to establish an Advisory Committee to provide advice on the
registrability of trade marks which contain Maori signs, such as text or imagery. This took into account the
new offensiveness test at Section 17(1)(b): an absolute ground for refusing registration of a trade mark that
would be likely to offend a significant section of the community including Maori. See more T. Jackson,
B.S. Waters, “Intellectual Property in New Zealand”, Auckland, 2002.
55
§ 12 of the WIPO Review of Existing Intellectual Protection of Traditional Knowledge,
WIPO/GRTKF/IC/3/7, Geneva, 13 June 2002.
56
Response of Vietnam on the WIPO Questionnaire, WIPO/GRTKF/IC/3/7.
VII. Traditional knowledge and geographical indications
At first sight, the use of geographical indications for the protection of traditional
knowledge seems particularly suitable. Geographical indications are not intended to
reward innovation, but rather to reward the good will and reputation created or built up
by a group of producers over many years or even centuries. Geographical indications can
create economic rewards for producers who use traditional methods in the region where
the product has been traditionally produced.
Geographical indications may be used to enhance the commercial value of natural,
traditional and craft products of all kinds if their particular characteristics may be
attributed to their geographical origin. A number of products that come from various
regions are the result of traditional processes and knowledge implemented by one or
more communities in a given region. The special characteristics of those products are
appreciated by the public, and may be symbolized by the indication of source used to
identify the products. Better exploitation and promotion of geographical indications
would make it possible to afford better protection for the economic interests of the
communities with traditional knowledge.
For example, Venezuela and Vietnam protect traditional knowledge through geographical
indications. “Cocuy the Pecaya”, a liquor made from the agave, in Venezuela, and “Phu
Quoc”, fish soya sauce, and “Shan Tuyet Moc Chau”, a variety of tea, in Vietnam are
protected as geographical indications.57
However, the protection of geographical indications is aimed at protecting the names of
goods and not knowledge as such. Geographical indications could play a complementary
role in protecting traditional knowledge, but it seems to be not possible to protect all
forms of traditional knowledge just by using this one form of intellectual property alone.
VIII. Sui Generis protection of traditional knowledge
A. The reasons for specific protections of traditional knowledge
The nature of traditional knowledge is such that it is transmitted orally rather than written
down. It also comprises several components: specific names, recepies, processes and
technologies, plant varieties, medicines, artistic designs. Due to this specificity and
complex nature, and in spite of all efforts during the last two decades, final and
universally acceptable solutions for the protection and promotion of traditional
knowledge have not yet been developed.
Some intellectual property rights, such as copyright and patent, are legal rights created as
mechanisms to encourage innovation - the creation and disclosure of new knowledge or
57
§ 13 of the WIPO Review of Existing Intellectual Protection of Traditional Knowledge, based on the
responses of the countries on the WIPO Questionnaire WIPO/GRTKF/IC/3/7, Geneva, 13 June 2002.
new expressions often used for the protection of traditional knowledge. However, these
rights are granted to a defined individual or group of individuals identified as the inventor
or creator, although they can be transferred to another by sale or gift. Traditional
knowledge and practices, in contrast, are often handed down from generation to
generation, and have no clearly identifiable individual or original inventor. Moreover, it
has been widely stated that these intellectual property rights are not suitable for
traditional knowledge because they protect new knowledge that is created by individuals
and do not recognize collective knowledge built up over time.
The other intellectual property rights, such as trademarks and geographical indications,
concern only the names, in other words, imitation is allowed as long as the product has
different name, therefore, does not offer a perfect solution for protecting traditional
knowledge either.
B. Examples of protection of traditional knowledge under a sui generis system
Several countries58 have already decided that the existing intellectual property system is
not, on its own, adequate for the protection of traditional knowledge. These countries
58
Brazil, Costa Rica, Guatemala, Panama, the Philippines, Samoa and Venezuela have sui generis systems
of protection of traditional knowledge, Ecuador, New Zealand, Papua New Guinea, Peru, the Philippines,
Solomon Islands, Tanzania, Tonga, Trinidad and Tobago and Vietnam are in the process of enacting sui
generis system.. See WIPO Review of Existing Intellectual Protection of Traditional Knowledge, based on
the responses of the countries on the WIPO Questionnaire WIPO/GRTKF/IC/3/7, Geneva, 13 June 2002.
have enacted or are in the process of enacting sui generis systems of protection to
accommodate the special characteristics of traditional knowledge or folklore.59
Brazil was among the first countries to establish sui generis system for protection of
traditional knowledge associated to biodiversity by a special law known as Provisional
Measure of 2001.60
Protection is mainly obtained by a bilateral approach, that is, through
contracts of access, the purpose of which is to ensure the sharing of benefits arising from
the use of genetic resources and associated traditional knowledge. Article 9 of the
Provisional Measure, however, seems to establish a proprietary regime of traditional
knowledge rights, because it recognizes indigenous and local communities’ right to
prevent unauthorized third parties from using, exploiting, experimenting, disclosing,
transmitting and re-transmitting data and information that integrate or constitute
associated traditional knowledge.
The Brazilian law has also provisions on benefit sharing, including compensation, access
to and transfer of technology, licensing and capacity building. There is no predetermined
term of protection. The grant of industrial property rights in processes or products
obtained from national genetic resources depends upon compliance with the provisions of
the Provisional Measure. That means that industrial property registration applicants must
provide information on the origins of genetic resources and of associated traditional
knowledge, whenever applicable. The Brazilian law provides for sanctions, including
59
Sui generis systems of protection are already provided in areas such as the protection of plant varieties
(UPOV system) and protection of databases (EC Directive 96/9/EC, 11 March 1996). See also G.S. Nijar,
“Sui gereris law for plant varieties: preserving the knowledge and creativity of traditional breeders”, 1999.
60
The Provisional Measure 2.186-16, of August 23, 2001.
fines, the seizure of illegal material and products embodying unlawful material,
prohibition of distribution, invalidation of patents or registrations, loss of governmental
incentives, etc.
The Law on Biodiversity of Costa Rica does not establish a specific sui generis system of
protection but establishes certain general criteria concerning community rights in
traditional knowledge and calls for local and indigenous communities, through a
participatory process, to establish the mechanism for the protection and registration of
biodiversity-associated traditional knowledge.61
To date, it is perhaps the most ambitious and elaborate national law implementing the
Convention on Biodiversity. The Law’s overall objective is to conserve biodiversity,
sustainably utilize resources and distribute fairly the derived benefits and costs.
The Cultural Heritage Protection National Law of Guatemala62 provides for protection of
traditional knowledge from a national cultural heritage approach. This means that
expressions of national culture, which comprise all intangible expressions of cultural
heritage, including traditions, medicinal knowledge, music, performances, culinary,
included in the “Culture Goods registry” are under the protection of the State and thus
cannot be disposed of by means of contractual arrangements: they cannot be sold and
there is no right for remuneration. The system, which is managed by the Ministry of
Cultural Affairs, seems to follow a public good approach, in the sense that traditional
61
The Ley de Biodiversidad, or Biodiversity Law was adopted by the Legislative Assembly of Costa Rica
in April 1998.
62
The Cultural Heritage Protection National Law N° 26-97, as amended in 1998.
knowledge is to be identified, recorded and preserved by the State for the benefit of the
entire society.
The sui generis system of Panama constitutes, probably, the first comprehensive system
of protection of traditional knowledge adopted. Panama’s sui generis regime established
by special law in 200063 covers the creations of indigenous peoples, such as inventions,
designs and innovations, cultural historical elements, music, art and traditional artistic
expressions. Two additional criteria are designated to identify the subject matter of
protection: traditional knowledge is protected to the extent it provides for the cultural
identification of indigenous peoples and is susceptible to commercial use. Collective
exclusive rights are accorded to registered elements of traditional knowledge. The
authority to attribute rights is vested upon the Congress or the Traditional Indigenous
Authority. Some elements of knowledge may be co-owned by various communities, in
which case benefits will be jointly shared. The Law also provides for exceptions to rights
conferred as well as measures of enforcement. Collective indigenous rights may also be a
basis for opposing against unauthorized third party claims of intellectual property rights,
such as copyright, trademarks, geographical indications and others. The Executive
Decree N° 12 of 2001 made clear that the regime also covers biodiversity-associated
traditional knowledge, thus giving a practical expression, as far as the territory of Panama
is concerned, to the provisions of Article 8(j) of the Convention on Biological
Diversity.64
63
Law N° 20 “Special intellectual property regime on collective rights of indigenous peoples for the
protection and defense of their cultural identity as their traditional knowledge”, of June 26, 2000 and
Executive Decree N° 12, of March 20, 2001.
64
Ibid.
The Philippines has enacted the Indigenous Peoples’ Rights Act, of 199765 and its
regulation, which protects indigenous communities’ rights in general, including their
rights in traditional knowledge and the rights to limit the access of researchers into their
ancestral domains/lands or territories, to be designated as sources of information in
whatever writings and publications resulting from research, and to receive royalties from
the income derived from any of the researches conducted and resulting publications. The
enforcement of those rights follows procedures established by customary laws of
indigenous peoples.
Samoa has the Village Fono Act 1990 which provides for an institutional structure within
the village communities “Village Fono” (Village Council) and which, although indirectly,
effectively protects Samoa’s traditional form of governance.66
Peru adopted new legislation on the Protection Regime for the Collective Knowledge of
Indigenous Peoples in 2002 which recognized that the traditional knowledge of the
indigenous peoples helps to conserve and make sustainable use of the components of
biodiversity.67
65
The Indigenous Peoples Rights Act of 1997, Republican Act No. 8371.
66
§ 21 of the WIPO Review of Existing Intellectual Protection of Traditional Knowledge, based on the
responses of the countries on the WIPO Questionnaire WIPO/GRTKF/IC/3/7, Geneva, 13 June 2002.
67
The Congress of Peru approved the Law 27811 on 10 August 2002. See also Peru’s submission to the
WTO Committee of the Trade and Environment “Peru’s experience of the protection of traditional
knowledge and access to generic resources”, WT/CTE/W/176 of 27 October 2000.
The new law established a sui generis system to give adequate protection to those
possessing traditional knowledge. The Regime recognized the indigenous people’s
ownership and associated rights over their traditional knowledge, as well as their right to
decide on how it should be used. A voluntary register is set up within the National
Institute for the Defense of Competition and the Protection of Intellectual Property.68
The law also stated that indigenous peoples may enter into “knowledge licensing contracts”
which specify the terms for the use of their knowledge. One requirement for access to
knowledge that is not within the public domain is prior informed consent by the people
possessing the knowledge.
An innovative and extremely important feature of the Regime is the creation of a Fund
for the Development of Indigenous Peoples, which will receive 0.5% of the sales
resulting from the marketing of products developed on the basis of traditional knowledge.
Article 7 of the law states that: “pursuant to this Decision and supplementary domestic
legislation, the member countries recognise and uphold the rights and decision-making
authority of indigenous, Afro-American and local communities, over their knowledge,
innovations and traditional practices associated with generic resources and their
derivatives.”
Thailand has developed a comprehensive sui generis regime for traditional medicine. The
“Thai Traditional Thai Medicinal Intelligence Act distinguishes three different categories
of “Traditional Formulas”: National Formula, Private Formula and General Formula.
68
The National Institute for the Defense of Competition and the Protection of Intellectual Property
(INDECOPI), see more information on http://www.indecopi.gob.pe.
Under the National Formulae the Ministry of Public Health has authority to announce a
certain formula of traditional Thai medicine as a national formula, the rights of such
formula belong to the State. Private Formula can be freely used by the owner and the
third parties must obtain permission from the owner to use the formula. General Formula
applies to well known traditional formulas, which would remain free for use by any
citizen.
There is no common themes or terms in the emerging of the sui generis system for the
protection of traditional knowledge. The establishment of a sui generis regime poses
many complex conceptual and practical issues:
• definition of the subject matter of protection;
• requirements for protection;
• extent of rights to be conferred;
• title-holders;
• modes of acquisition, including registration;
• duration of protection;
• enforcement measures.
It is also not clear whether the search for a regime of protection of traditional knowledge
should aim at a single regime covering all types of traditional knowledge, or for a set of
different, specific regimes adapted to the nature of the subject matter to be protected. As
it seems rather difficult to define common rules, the second approach appears more
appropriate at present. However, what are the subject matters for the specific regimes and
what complex issues might arise is still not clear.
Any sui generis regime should define the nature of the rights conferred. In most cases,
intellectual property regimes grant exclusive rights, which enables to prevent third parties
from exploiting the protected subject matter. Some types of IPRs, however, do not entail
exclusivity. For instance, the TRIPs Agreement does not require the granting of exclusive
rights over undisclosed information.69
It should be noted that the granting of exclusive rights may limit rather than promote the
use of traditional knowledge. It may also be in contradiction to the practices and values of
traditional and indigenous communities. An alternative could be suggested which would
provide for a right to remuneration, not associated to the exercise of an exclusive right.
However, this alternative may also contradict, in many cases, the practices and values of
traditional and indigenous communities.
VIII. Traditional knowledge and WTO
The protection of traditional knowledge is currently being discussed in the WTO TRIPs
Council and was explicitly listed for examination by the WTO TRIPs Council in the
69
Article 39 of the TRIPs Agreement.
Paragraph 19 of the Doha Declaration instructs the
TRIPS Council to continue the review of Article 27.3(b) of the TRIPS Agreement, and to
examine the relationship between the TRIPS Agreement and the Convention on
Biological Diversity and the protection of traditional knowledge and folklore as well as
other relevant new developments.
At present the TRIPs Agreement is silent on the issue of traditional knowledge, as TRIPs
mainly regulates the trade aspects of existing IP rights under established procedures.
Article 27.3(b) of the TRIPs Agreement allows Member States to exclude from
patentability plants and animals, but not micro-organisms. This provision has given rise
to considerable confusion, as Member States have some flexibility in interpretation and in
establishing their relevant laws.72
70
See more on http://www.wto.org, “Doha Ministerial”.
71
Doha Ministerial Declaration adopted on 14 November 2001, paragraph 19: “We instruct the Council
for TRIPS, in pursuing its work programme including under the review of Article 27.3(b), the review of the
implementation of the TRIPS Agreement under Article 71.1 and the work foreseen pursuant to
paragraph 12 of this declaration, to examine, inter alia, the relationship between the TRIPS Agreement and
the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other
relevant new developments raised by members pursuant to Article 71.1. In undertaking this work, the
TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS
Agreement and shall take fully into account the development dimension”.
72
This leads to two questions:
a) is the exclusion for plants and animals applies only to naturally occurring plants and animals, or
whether Members can exercise the option of exclusion to cover plants and animals that have been
genetically modified or that contain parts (including micro-organisms) that have been genetically
modified;
b) is the mandatory requirement to patent micro-organisms applies only to genetically-modified
micro-organisms or it applies to naturally occurring micro-organisms.
Many developing countries, such as India,73 Brazil74 and the African Group,75 would like
the TRIPs Agreement and in particular Article 27.3(b), which concerns patentability of
life forms, broadened to include issues such as disclosure requirements, benefit-sharing
arrangements and prior informed consent. Most developed countries, however, oppose
such a broadening of scope, arguing that these issues should not be discussed at the WTO
but in other relevant fora such as WIPO.
The relationship between the TRIPS Agreement and the Convention on Biodiversity
including the protection of traditional knowledge has been addressed by the Secretariat of
the WTO and examined by the Committee on Trade and Environment (CTE) at the
WTO.76
The CTE considered the provisions of the TRIPS Agreement relevant to its work
on the environment. However, the Convention on Biodiversity Secretariat has not yet
been given permanent observer status to the Council of TRIPS. The number of admitted
observers is very limited and NGOs are not allowed to participate.
Some developing countries have argued that the TRIPS Agreement must be reviewed in
light of the obligations on States under Article 8(j) of the CBD.77
73
See India’s Submission to the WTO Committee on Trade and Environment “Protection of Biodiversity
and Traditional Knowledge – the Indian Experience”, WT/CTE/W/156, IP/C/W/198, 14 July 2000.
74
Communication from Brazil to the WTO Council for Trade-Related Aspects of Intellectual Property
Rights “Review of Article 27.3(b)”, IP/C/W/228, 24 November 2000.
75
Communication from Mauritius on behalf of the African Group to the WTO Council for Trade-Related
Aspects of Intellectual Property Rights “Review of the Provisions of Article 27.3(b)”, IP/C/W/206, 20
September 2000.
76
See Environment and TRIPS (WT/CTE/W/8 and W/8/Corr.1), The CBD and TRIPS (WT/CTE/W/50),
The Relationship Between the CBD and TRIPS with a Focus on Article 27.3(b) (WT/CTE/W/125). The
CTE was formally established in 1995 by the WTO General Council to examine the relationship between
the provisions of the multilateral trading system and trade measures for environmental purposes, including
those pursuant to Multilateral Environmental Agreements.
77
See “Protection of biodiversity and traditional knowledge – the Indian experience”, Submission by India
to the WTO, WT/CTE/W/156, IP/CW/198, 14 July 2000.
The African Group has been particularly active in relation to the review of article 27.3(b).
It wants that provision to be harmonised with the CBD, the objective of which is “to protect
the rights of indigenous people and local farming communities and to protect and promote
biological diversity”.78
The proposal of the African Group demanded that such harmonisation also
be made with the FAO International Undertaking on Plant Genetic Resources, which
“seeks to protect and promote Farmers’ Rights and to conserve plant genetic resources”.79
India noted in its submission that while the TRIPS Agreement obliges Members to
provide product patents for micro-organisms and for non-biological and microbiological
processes, and to provide for the protection of plant varieties, the Convention on
Biodiversity reaffirms that nation states have sovereign rights over their own biological
resources, recognizes the desirability of sharing equitably the benefits arising from the
use of these resources as well as traditional knowledge and acknowledges that special
provisions are required to meet the needs of developing countries.80
In order to reconcile any contradictions, India argues that the innovators share with
holders of traditional knowledge the benefits arising from exploitation through transfer
of information agreements.81
Brazil noted in its submission to the Committee on Environment and Trade the
conceptual and operational difficulties in bringing traditional knowledge under the TRIPS
78
The Convention on Biodiversity, Preamble, see the text of the Convention on http://www.biodiv.org/.
79
IP/C/W/206, 20 September 2000.
80
The Convention on Biodiversity, Preamble, see the text of the Convention on http://www.biodiv.org/.
81
WT/CTE/W/156, IP/CW/198, 14 July 2000.
Agreement.82
Venezuela disagreed and stated that binding international rules on the
protection of traditional knowledge should be developed in the framework of TRIPs.83
Developed countries have not contested the possibility, and the right, of countries to
protect traditional knowledge. Thus, the USA has argued that there is no inconsistency
between the Convention on Biodiversity and the TRIPs Agreement and has encouraged
the development of data bases on traditional knowledge.84 In a second Communication
from the US is was pointed out that national or local legislation or regulation could be
adopted to establish the basis for contractual arrangements between suppliers and
recipients of traditional knowledge.85
However, the USA does not favour any specific provisions on of the protection of traditional
knowledge, at least in the framework of the TRIPs Agreement.
The EC and its Member States support the development of an international model for the
legal protection of traditional knowledge. Initially, the EC expressed the view that the
issue should be first taken up by the WIPO Committee in cooperation with the
Convention on Biodiversity and only when a model of protection is defined and is in
place should attention be focused on how and to what extent the protection of traditional
knowledge can be included in the TRIPs Agreement.86
In its latest Communication to the TRIPs Council87 the EC stated that while recognizing that traditional knowledge can be
82
IP/C/W/228, Communication from Brazil, Review of Article 27.3, 24 November 2000.
83
WT/GC/W282, Communication from Venezuela, 6 August 1999.
84
IP/C/W/209, Communication from the United States, 3 October 2000.
85
IP/C/W/257, Communication from the United States, 13 June 2001.
86
IP/C/W/254, Communication from the EC, 13 June 2001.
87
Communication from the European Communities and their Member States to the Council for Trade-
Related Aspects of Intellectual Property Rights, IP/C/W/383 of 17 October 2002.
protected at national level, the EC supports the development of an international model of
protection. The EC explained that although it might be possible to some extent to protect
traditional knowledge or at least related to traditional knowledge innovations and goods
through existing forms of intellectual property rights, it might be necessary to develop an
international sui generis model for the protections of traditional knowledge. The EC
suggested in its Communication that a broader scope of protection of traditional
knowledge would improve confidence in the international IP system and would allow
more people, particularly from developing countries, to benefit from the global IP
system.88
Developing countries’ positions aim at some recognition and protection of traditional
knowledge, but considerable hesitation seems to exist about how to deal with the subject,
the nature and scope of protection, and the extent to which the issue should be brought
under the TRIPs Agreement. Some countries seem to be more concerned with avoiding
the misappropriation of traditional knowledge and with the implementation of the sharing
of benefits principle, than with the development of an IPRs regime for traditional
knowledge. Others seem to aim at preserving the room existing at the national level to
legislate on the matter, while at least one country has so far proposed developing
mandatory provisions in the context of the TRIPs Agreement. It is clear that significant
preparatory work is still needed.
88
See also J.-Ch. Van Eeckhaute, “Legal issues on traditional knowledge protection on the international
agenda: the EU approach”, Molengrafica 2002, Intellectual Property Law: Articles on Cultural Expressions
and Indigenous Knowledge, pp. 139-148.
IX. Conclusion
The protection of traditional knowledge raises a whole series of questions which can be
considered common to the protection of established forms of intellectual property and
some which are not so common and will need separate consideration. However, some
broad themes for the ongoing debate on the establishment of a functioning system for the
protection of traditional knowledge can be sketched out.
The traditional justification for the protection of traditional forms of intellectual property
is to stimulate innovation and reward the intellectual property holder for a limited period
of time before the benefits of the innovation are to be made available to society in
general. Traditional knowledge, by definition, is not something new or innovative but the
distillation of practices or knowledge which has measurable effects and is in the social
domain (albeit often in a limited part of the world). In these circumstances should
traditional knowledge be protected at all? If intellectual property protection was limited
to patent law there would be strong arguments for limiting the extension of intellectual
property protection and excluding the protection of traditional knowledge. But
intellectual property is not limited to patents. There is strong enforcement of rules for the
protection of trademarks and geographical indications. Both of these branches of
intellectual property have elements which are similar to traditional knowledge:
geographical indications are collective rights; trade marks are not innovative in the same
way as patents and give lasting benefits to their promoters.
The establishment of a common system for the protection of traditional knowledge and
the creation of rights which give benefits to its holders may stimulate innovation and the
spread of knowledge from limited communities to the global community. It may well
serve the traditional justification of the protection of intellectual property. If this is
accepted then it appears appropriate to limit the benefits of the protection in time just as
patents are limited in time. The time limitation may be different from other time limits in
intellectual property but the idea of a time limit on protection appears reasonable once
dissemination of the knowledge has taken place. This type of time limit would serve the
setting of a balance between the need to reward and the need to promote the general benefit.
What forms of registration of traditional knowledge can be devised and how should the
protection be maintained across borders? The EC approach in the current WTO
discussions would appear to have merit. Common standards should be set at the
international level with broad implementation powers set at the state level. Any
definitions of traditional knowledge should be flexible so as to allow for local variations
to encompass what is considered traditional knowledge in the local community. The
definition of the beneficiaries of any protection of traditional knowledge should be set at
the local level as much as possible.
The key debate remains stuck on the issue of whether to extend the family of intellectual
property to include traditional knowledge or not. In practice however the issue has been
resolved. States have decided in ad hoc ways to protect traditional knowledge and are
now seeking ways to make that protection effective in a global market. In these
circumstances it is hard to argue that international protection should only be afforded to
traditional intellectual property and not to traditional knowledge. A balance will have to
be found between the promoters of the international protection of patents and trademarks
and the promoters of the protection of traditional knowledge.
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