HANDBOOK ON MECHANISMS TO PROTECT THE TRADITIONAL KNOWLEDGE OF THE ANDEAN REGION INDIGENOUS COMMUNITIES

Prepared for the UNCTAD BIOTRADE Initiative

By: David Vivas Eugui1 Manuel Ruiz Muller2

Geneva, November 2001

1 David Vivas Eugui, co-author of this document, is a lawyer (JD) graduated from the Universidad Catlica "Andrs Bello" of Venezuela, 1992. L.L.M. in International Trade Law, Georgetown University, Washington D.C., U.S.A. 1994. Specialization in Transnational Buesiness in the la Universidad Externado de Bogot, Colombia. 1995. The opinions given herein belong solely to the co-author and do not involve any of the organizations mentioned in this work. For more information, please: davidvivaseugui@hotmail.com. 2 Manuel Ruiz Muller, co-author of this documents is a lawyer graduated from the Pontificia Universidad Catlica del Per (PUCP) in 1993 and is now completing his Law Master study courses on Competition and Intellectual Property (PUCP). The opinions given herein belong solely to the co-author and do not involve any of the organizations mentioned in this work. NOTE: This document was originally prepared in Spanish. This is an English translation to the original text.

UNCTAD

Note from the Authors We would like to mention that the UNCTAD BIOTRADE Initiative was launched in 1996 as an effort to promote investments and trade in biological resources, taking into consideration the specific needs of the developing countrieswith biological richnessand in accordance with the principal objectives of the Convention on Biological Diversity. In such respect, the Initiative has played an important role by linking the commercial possibilities of the biological diversity with the specific interests and needs of these countries and their local and indigenous communities. The Initiative has likewise developed a number of activities (studies, meetings) specifically related to the protection of indigenous knowledge, innovations and practices. This handbook was prepared under the sponsorship of the UNCTAD BIOTRADE Initiative and the Venezuelan Mission in Geneva. The authors would like to express their gratitude for the comments made by Rafael Snchez, Rik Kutsch -Lojenga and Lorena Jaramillo.

INDEX

Introduction ....................................................................................................................................................................................1 Chapter I. Basic aspects of the intellectual property and indigenous knowledge protection issue. .............................................................2

I.1. Conceptual definitions and scopes ...............................................................................................................................2

I.2 Intellectual property and indigenous knowledge .........................................................................................................3

Chapter II. Legal intellectual rights instruments that may be used for traditional knowledge protection. ................................5 II.1. Invention patents ..........................................................................................................................................................6

II.2. Utility models...............................................................................................................................................................11 II.3. Industrial designs.........................................................................................................................................................11

II.4. Distinctive signs: trademarks, collective trademarks, certification trademarks, and appelations of origin .......11

II.5 Trade secrets .................................................................................................................................................................15

II.6 Rights over plant varieties ...........................................................................................................................................16 II.7 Copyrights .....................................................................................................................................................................18

II.8 Internet domain names................................................................................................................................................22

II.9 Full right (as a matter of law) or paid public licenses ...............................................................................................22

II.10 Unjust intellectual property enrichment ..................................................................................................................22

Chapter III. Legal instruments and alternative mechanisms to protect traditional knowledge..............................................................23 III.1 Contracts .....................................................................................................................................................................23

III.2 Trust funds................................................................................................................................................................24 III.3 Registers .......................................................................................................................................................................25

III.4 Standards on access to genetic resources .................................................................................................................26

III.5 Special conservation areas .........................................................................................................................................27

III.6 Specific projects ..........................................................................................................................................................27 III.7 Local protocols and agro-biodiversity management guidelines ............................................................................28

III.8 Incentive and promotion policies for TK use.........................................................................................................28

IV. Final comments......................................................................................................................................................................28 V. Recommendations.....................................................................................................................................................................29

Glossary of terms...........................................................................................................................................................................31 Recommended bibliography.............................................................................................................................................................32

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Introduction

One of the issues that has acquired increasing importance in different forums during the last few years is how to protect the knowledge, innovations and practices of the indigenous and local communities, particularly with respect to the relation thereof to biological diversity. It is fully recognized that the indigenous efforts to protect and enhance biological diversity throughout time, has allowed the further development (industrialization and commercialization) of new crops, dyes and colorants, new perfumes, new cosmetic products and other products that have been extensively used by humankind as a whole, and disseminated among different cultures. The pharmaceutical, agricultural-industrial and bio-technological industries have been specifically recognized in recent years as the originators of many developments within such fields. In summary, these industries have started to generate a large range and variety of products, which, in turn, translate into important economic benefits resulting directly and indirectly from the use of biological and genetic resources and, most certainly, from the use of the knowledge, innovations and practices associated thereto3. Ten Kate and Laird, for example, estimate that the volume generated by the genetic resources and byproducts thereof with respect to seeds, biotechnology, pharmaceutical products, nutrients, and other commodities, range from US$ 500 billion to US$ 800 billion4. Of course, within this context there is an external factor (indigenous intellectual contribution) that has been perceived, and certainly exists, but has not been properly incorporated to the estimates. In other words, an added value has been incorporated to many products, which can be recognized, for instance, in the price of such products. The indigenous contribution has not been properly valorized from an economic point of view. The existing evidences indicate that throughout the years the indigenous communities have received very little recognition (or perhaps none), in actual terms, for these contributions and their intellectual efforts in this respect. Said fact represents one of the reasons why it is now deemed necessary to protect the indigenous knowledge, innovations and practices. Nonetheless, extra-economic factors such as culture, religion, spirituality and communal identity have also contributed to reaffirm this need. The arguments that somewhat generate any debate on how to protect the indigenous intellectual effort, started at the end of the sixties and beginning of the seventies with some initiatives from the United Nations Education, Science and Culture Organization (UNESCO). These initiatives consider the protection of folklore as a manifestation of the intellectual efforts of certain groups and personsusually indigenous communities. However, not until the eighties was this concern for the indigenous intellectual contribution consolidated and definitively included in the international and national agendas, with the support of the United Nations Food and Agriculture Organization (FAO), and thanks to the enactment of the Convention on Biological Diversity (CBD)5. Great progress has been made in recent years with ideas and proposals, most of which indicate that the traditional Intellectual Property (PI), as well as the invention patents, trademarks, breeders rights, and copyrights, are inappropriate to protect the indigenous interests in relation to their biological diversity knowledge, innovations and practices. In summary, quite often this debate mixes compensation and equality objectives with protection object ives and eventual control per se. The latter contributes considerably to entrap and many times unnecessarily complicate the discussions.

3 It is also worth mentioning that the contribution of the indigenous communities to the arts and folklore has been very important, and the direct and indirect utilization of these elements by third parties generally translates into explicit benefits for the communities from which these arts and folklore generate. This document will not concentrate on the folkloric issue; however, it is important to mention it since it reflects another area that only recently is starting to be exploited in a serious and systematic manner. For more information regarding this subject, see: UNESCO, WIPO. World Forum on the Protection of Folklore. Phuket, Thailand, April, 1997. 4 Ten Kate, Kerry and Laird, Sarah.The Commercial Use of Biodiversity. Access to Genetic Resources and Benefit Sharing. Earthscan Publications Ltd. UK., 1999. 5 At present, this issued is also being discussed in the World Organization of Intellectual Property (WIPO), international indigenous forums, commercial negotiating rounds (e.g. Agreement on Free Trade for the Americas), agreements on sub-regional integration such as the Andean Community of Nations and the United African Organization, and many other national, regional and international forums. Paragraph 19 of the Ministerial Declaration issued at the IV WTO Conference of Ministers, recently held in Doha (November 2001) specifically refers to the traditional knowledge and folklore issue.

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The objective of this document is precisely to clarify this debate to some extent, and present some alternatives that could be considered for the purpose of protecting the indigenous knowledge, innovations and practices associated to biological biodiversity. Contrary to the general trends influencing this issue, and recognizing the limitations imposed thereon, the authors of this work believe that among the different intellectual property instruments, it is certainly possible to find some alternatives to protect the indigenous interests. Alternatives which should not be discarded straight forwardly as eventual options to be taken into consideration. In fact, the intent of this document, which is presented as an explanatory handbook, is to offer to the policy decision-makers, representatives of indigenous communities, public and private sector institutions and general public, an objective, clear and easy to manage perspective with respect to the possibility and manner on how to utilize a variety of instruments and mechanisms to protect the indigenous knowledge, innovations and practices, including some related to traditional intellectual property. This work has been basically structured in four parts. One part covers some conceptual matters associated to the issue of the indigenous knowledge that must be obligatorily dealt with. In this respect, some reflections are made regarding concepts such as collective knowledge, collective rights, previous well-founded consent, and others. The second part refers to some legal instruments that may be used to protect the indigenous knowledge, innovations and practices. An evaluation is made of the instrument or mechanism per se, indicating some examples for the utilization thereof, as well as its potential and weaknesses. The third part of the handbook deals with some instruments that are not strictly legal, such as registers and protected areas, following the same analysis pattern as that of the previous part. Lastly, some general ideas are presented on how to better face the issue and utilize the different analyzed instruments and mechanisms to the maximum extent possible. Finally, the idea that somewhat underlies this work is that upon understanding these instruments and mechanisms under an overall protection system, and adding the benefits that each one may offer to protect the indigenous interests, it is possible to conceive a not too far future, in which the knowledge, innovations and practices of the indigenous communities may be effectively and efficiently protected.

Chapter I. Basic aspects of the intellectual property and indigenous knowledge protection issue.

This chapter is aimed at identifying the fundamental and basic aspects of the nature, utility and characteristics of intellectual property (IP) and indigenous knowledge. The objective of this initiative is to be able to determine in further sections the applicability of the existing protection through IP, by using specific tools, or in an overall manner, by using different mechanism and instruments in a joint manner.

I.1. Conceptual definitions and scopes

For purposes of giving to this document technical and academic consistency and rigorousness, it is important to establish a clear base line with respect to definitions, and in relation to some conceptual aspects of the debate on how to protect the indigenous knowledge. In the first place, it is deemed worthy to indicate that the notion of indigenous knowledge will be regularly used throughout this document to refer to the different manifestations of the indigenous intellectuality. In fact, and making use of the CBD terminology, the indigenous knowledge includes, in general, indigenous knowledge, innovations and practices per se. Since it might be argued that each one of these three concepts could in turn have a specific meaning, and each one could require, at a given moment, different protection forms, the corresponding specific concepts will be used, if there is the need to be more specific6. In any case, the traditional knowledge (TK) concept will be the one generally used throughout this work. It is also deemed necessary to indicate that the TK may be likewise equivalent to the following notions: traditional practices and knowledge 7, intangible component, indigenous knowledge, or other denominations.

6 Ruiz, for example, proposes this differentiation among each one of the concepts, for which he suggests the following: a) knowledge should be understood as the ideas and abstract recognition of how this knowledge works and why certain phenomena are actually generated, b) innovations should be understood as the inventions and materialized procedures that reflect the applied knowledge, and c) practices should mean the techniques or methods to which these innovations may be efficiently applied. See: Ruiz, Manuel. Protecting Indigenous Peoples Knowledge: A Policy and Legislative Perspective from Peru. Policy and Environmental Law Series. Peruvian Society for Environmental Law (SPDA). No. 3, May, 1999, Lima, Peru. 7 Although the traditional knowledge concept is commonly used among many indigenous groups, it has been claimed that this is an erroneous way to refer to indigenous knowledge since it has an antiquity connotation, e.g. knowledge that has remained static throughout time, has not experienced any progress, and has limited adjustment dynamics, which is not accurate. And in no

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In the second place, and for purposes of this document, the indigenous communities notion is used synonymously with peasant communities, native communities and indigenous peoples, whose scope includes local communities and Afro-American communities. Although we recognize that it is not strictly accurate to compare these notions, particularly with respect to the relation thereof to the indigenous peoples per se, this notion was chosen because it has been recognized in the CBD and, in any case, because it refers to human groups whose social, cultural and economic conditions differentiate them from other sectors of society, since they are governed by their own customs, consuetudinary traditions, or special standards. These communities are likewise usually characterized for being rural groups living under marginal and poverty conditions (with respect to economic revenues), and using their natural environment to meet their survival needs8. In the third place, it is important to make a brief analysis of the scope of the following notion: sui generis regulations for the protection of indigenous knowledge, which, in spite of being frequently used to refer to a certain type or modality of protection, it is neither shared by everybody, nor is its meaning actually understood. For purposes of this work, it has been assumed that any specific regulation for the protection of the TK, or any modification or addition made to the already existing legal instruments or mechanisms for the purpose of protecting the TK9, or the inclusion thereof in a protection system10, are cases or situations to which sui generis, ad hoc or special systems are in fact being applied to protect the TK.

I.2 Intellectual property and indigenous knowledge

The intellectual property (IP) belongs to an intangible property category that may be claimed by individuals, companies or any other entities. One of the characteristics of the intellectual property is the fact that it is applied to information pieces and parts that may be incorporated to tangible or material objects. The protection granted by the IP applies to ideas, techniques, practical solutions, creations and certain types of information that are stated in a legal, acceptable and typified manner, and under clear and unequivocal terms in the legislation of the corresponding country or region (request/application, description, expression and material support incorporation, as applicable), and in some cases, subject to registration procedures 11. The IP existence has been mainly justified by economic reasons, among others reasons, that give to the individuals or companies the possibility of recovering their investments and intellectual and creative efforts. This system has been refined as the humankind products, processes and works become more sophisticated. In fact, since the Industrial Revolution, the IP has been extended toward new areas and fields, thanks to the technological development. The IP rights represent one of the strongest and most effective economic rights of the competitive relations both at national and international level. The IP rights are characterized by the granting of exclusive use, production, commercialization and distribution rights, as the case and IP instrument may be. These exclusive rights allowalmost literallyto remove from the competition all those producers, traders or competitors using innovations or creations that have not been authorized by the titleholder, which represents a clear economic advantage position. Within the economic field, the granting of exclusive rights is transferred as a temporary (legal) monopoly. All the intellectual property rights are subject to specific terms. Some examples of this are the patents, which usually have a twenty-year term, the copyrights, which have a fifty-year term, etc. Perhaps the only exception to this rule is the appelations of origin, in which the existence of the right lasts for as long as the initial and trademark conditions prevail, and which may be periodically renewed by paying the applicable fees to the intellectual property office.

An aspect that should be clarified in order to better understand IP is the difference between public domain and private domain. The intellectual property allows the removal of certain protection objects from the public domain. In other words, it grants the right-holder the possibility of excluding any use by third parties. The IP establishes what is known as numerus clausus, which means that only a limited number of objects may be protected. Those

case is neither accurate the reference to knowledge that changes and improves with time. In any case, it should be clarified that traditional does not necessarily mean antique, static, or of less value and importance. 8 This definition is a variable and an adaptation of the definition given to indigenous peoples in Article 1 of the International Labour Organization Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries. 9 This would be, for example, the Peruvian proposal for the protection of the TK. INDECOPI. Propuesta de Regimen de Proteccin de los Conocimientos Colectivos de los Pueblos Indgenas. Work Document No. 010-2000. Diario Oficial El Peruano, August 31, 2000. See this proposal at:: http://www.indecopi.gob.pe. 10 For additional information, see: Ruiz, Manuel, Argumedo Alejandro. Consideraciones para el Desarrollo de una Poltica y Normativa sobre Proteccin de Cultivos Nativos en el Per. Environmental Policy and Law Series. Peruvian Society for Environmental Law. No. 7, October 2002, Lima, Per. 11 See: Training material: The TRIPS Agreement. Universidad de Buenos Aires. Carlos Correa. UNCTAD, 2001.

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objects not included in the list cannot be protected by the IP and are, therefore, subject to the public domain regulations12. All inventions, signs, creations or expressions under public domain may be copied, used and commercialized without any problem. Nonetheless, those inventions, signs, creations and expressions that have IP protection at any given moment are under private domain and, therefore, cannot be used or commercialized without the authorization of the right-holder. On the other hand, the innovations, practices and knowledge, or TK, of the indigenous communities represent a phenomenon that has allowed the solution of many of the practical problems experienced by humankind throughout its entire evolution (see Introduction). Although this was previously indicated, it is worth remembering that these terms, in spite of their different connotations, are included in a general manner under the term Traditional Knowledge (TK). Only recently the TK has started to be valued and recognized due to its importance, utility and efficiency. Some examples of this situation are:

knowledge on classification of plants and animals, agricultural procedures and seed selection, natural medicine and curative techniques, management and use of lands, hydrographic resources and natural ecosystems, production of food, dyes, fiber, latex, textile creation and design, artisan works, expressions of folklore such as music, painting, dances and rituals, knowledge on building materials.

The technological knowledge used by humans, including traditional techniques, lack universal characteristics, unique creation methods, or uniform acquisition processes. TK has its own special characteristics that turn it into a unique analysis object. In such respect and in order to determine if the intellectual property is an appropriate system to protect TK, it will be necessary to identify the principal characteristics thereof. The following aspects are found among the principal characteristics identifying TK13: i. Continuous evolution. TK is used to resolve the daily human life problems. These problems are static and constantly require new solution forms or methods. Innovation results from the continuous improvement of observation mechanisms, tests and errors, and accumulative information and transmission processes. TK is not old, in the occidental point of view, it is simply generated through a dynamic and generational process. ii. Orientation toward practical solutions and survival. As previously mentioned, TK is used to solve the practical and daily problems of the communities. This characteristic enhances its importance and value. Many of the technologies currently developed by private companies are oriented toward the solution of the problems encountered by society, for which such technologies are developed. TK is oriented toward the solution of more basic, direct and immediate problems, such as food, health and clothing. iii. Relationship with the habitat . TK is based on the use of the natural resources found within the communities developing it. The climate, environmental and geographic conditions have a decisive influence on the type of knowledge developed and the type of problem requiring solution. An example of this are the methods developed by the African Sahara nomad communities to search for underground water. This type of knowledge does not exist in Papua-New Guinea since abundant water resources are found in this region. iv. Collective and individual active persons. The persons holding the TK may be collective or individual. Many times the TK is held and managed by the community as a whole. However, there are some situations where the shamans or other individuals may hold such knowledge exclusively and with no control from the community. Regardless of whether or not TK is held by individual or collective persons (the community, communities, representative organizations, etc.), for purposes of obtaining protection from the legal systems existing in the formal or occidental law, the obtainment of legal status or the existence of community property will be always necessary. At present, many developing countries are recognizing an automatic legal status to the communities with no registration

12 See: The GRULAC document presented to the Inter-governmental Committee on Genetic Resources, Traditional Knowledge and Folklore of WIPO/GRTKF/IC/1/5 March 16, 2001. Document prepared by David Vivas Eugui. 13 See: Aimee Gonzalez, David Vivas. Concept Proposal on Access and Benefit Sharing in Plant Genetic Resources and Traditional Knowledge in Practice. World Wild Fund (WWF) and Center for International Environmental Law (CIEL), July 2001.

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formalities, thereby leaving the decision-making process in the hands of such communities, in accordance with their consuetudinary right14. v. Lack of material incorporation and oral transmission as a preservation rule. One of the principal characteristics required by the intellectual property systems and other legal systems to grant protection, is the incorporation of the materials related to the creation, or a detailed description of the invention. This is required because intangible elements are involved, and without precise specifications, it is not possible to know which is the exact object requiring protection. TK is obviously an intangible element that in many cases materializes into a mixture, object or structure. Nonetheless, the related production processes are very seldom transcribed, and in most cases are transmitted orally and from generation to generation. vi. Generation of informal products. Traditional knowledge generates products that not always meet the trade conditions required in the western markets. Many of these products may serve as raw material or intermediate products, or require appropriate packaging, handling, special transportation, etc. At times, this entails the need to have added value processes in order to obtain market acceptance. There are cases to which this is not applicable, such as the direct sale of artisan works or food. vii. Not subject to scientific methods. TK is oriented toward the search for results. In many cases, the need to establish a cause-effect relation and the reason for the phenomena occurrence do not seem to be relevant. In fact, the utilization is often based on religious and moral aspects with no practical or commercial purposes. viii. Combination of religious, political and commercial values surrounding TK. Quite often, TK is related to religious or cultural aspects. An example of this is that the taking of a potion made from medicinal plants may be accompanied with prayers and rituals, or the fact that the hunting activities are preceded by opening ceremonies and dances. ix. TK is a private right. TK does not belong to the state. Sovereign rights on genetic resources, or eventually on natural resources, should not be mistaken for TK rights (associated intangible component) applicable thereto. The holders of TK property rights are the TK generators and guardians. The property is not based on formal ownership but rather on possession and traditional use.

Chapter II. Legal intellectual rights instruments that may be used for traditional knowledge protection.

Although the intellectual property system was not designed to protect TK, if correctly utilized, it may serve as a very useful legal tool. In many countries, the IP is the principal legal instrument to protect innovations and creations. The legal IP regulations are not a uniform system. There are different protection figures and mechanisms, in accordance with the type of information or object for which protection is sought. As a consequence of this, the legislation has designed a set of figures with variable objectives, purposes, acquisition methods, contents, regulations and duration of rights. The principal intellectual property figures available for purposes of this document, are shown in the following chart.

Chart 1

Classification of the principal intellectual property (IP) figures

Industrial property. The registration required to obtain protection is the basic characteristic of the industrial property. This legal provision regulates the following legal figures: Patents: regulation to protect those inventions meeting the innovation, eminent inventive and industrial

application requirements. Distinctive signs: regulation to protect the signs used to distinguish products and services in the trading arena, as

well as from competition. They include trademarks, collective trademarks, certification trademarks, commercial logos, geographic indications and appelations of origin.

Industrial designs: regulation to protect the aesthetic aspects inherent to the objects. Utility models: regulation to protect the utility aspects inherent to the objects. Trade Secrets: regulation to protect confidential information with commercial value.

14 Right generated from uses and costumes.

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Rights over plant varieties: As in the case of the industrial property, registration is required to grant protection. These rights are applicable to: Breeders rights certificates: Regulation to protect the obtainment of those plant varieties (including plants and seeds)

meeting the novelity, homogeny, and distinctness requirements. Copyrights and related rights: protects the authors of artistic expressions (original works). It does not need to meet any registration formalities to obtain protection. The following are the principal copyrights: Works: The main types of works are literary, musical, artistic, textile, technical plans and drawings, photography,

movies, computer programs and databases. Neighboring rights: These include the protection of artists, singers, performers, phonogram producers, radio

broadcasting organizations, etc. Source: information compiled by the authors.

At present, many communities reject the IP system due to its complexity, cost and inflexibility. However, many of the problems mentioned are not only due to the excessive western orientation (dominating since the Industrial Revolution) of the legal protection mechanisms, but also to the lack of knowledge regarding the appropriate use and advantages of the existing legal instruments. This Chapter is aimed at identifying and explaining the principal IP instruments existing within the Andean Community of Nations (and, in general, within the international arena) and available to the communities, as well as their limitations and advantages. Finally, it gives some recommendations on how to obtain the greatest benefit for the protection generated thereby.

II.1. Invention patents

The patents are certificates granted by the State to legally protect inventions. Inventions are defined as the technical solution to a specific problem in the technological and technical field15. The knowledge for which protection is being sought should involve solutions to problems that no one has been able to previously solve, or which have been solved in a different manner. The inventions include not only physical objects such as devices and machinery (e.g. light bulbs), but also procedures and processes (e.g. pure mercury isolation) that serve to solve practical problems. This section contains an analysis of the main aspects and requirements to obtain a patent and the possibilities to protect the TK therewith, as well as the offensive and defensive effects that the patents may cause to their holders, or to the technology users and consumers. As previously mentioned, patents protect inventions. What is, or is not, considered an invention is a fundamental element to determine the object to be protected. The definition of invention16 does not usually include discoveries, mathematical procedures and creatures living in a natural state17, or creations and expressions. Discoveries should not be mistaken for inventions. In common language, discovery is understood as the act of finding or discovering a new and previously unknown thing, through talent or meditat ion, or through mere coincidence 18. This definition does not entail the act of finding solutions to a pre-established problem. The discoveries only entail the act of finding things or phenomena already existing in nature or in the universe, which are unknown to human beings. A discovery can undoubtedly lead to an invention. For example, the determination that hot air is lighter than cold air is a discovery; whereas, the use of a cloth sack in which hot air is introduced to elevate an object that is tied to such sack is an invention we all know as a balloon. Many things and phenomena could be eventually discovered and, therefore, are not considered to be eligible for patenting. In the specific case of certain national laws, as the Patent Law of the United States 19, in practice, patents are granted to useful discoveries, including biotechnological discoveries 20. This has caused a technological boom of new products and processes resulting from or based on biological life or biological material. It has also allowed companies or individuals of certain countries the possibility to obtain patents on living organisms, their parts or based on biological material already existing in nature that are comining from biodiversity rich countries. This latter

15 The techniques state tends to entail known solutions for a previous problem. See: Intellectual Property Reading Material . World Intellectual Property Organization, 1995. 16 See: Article 15 of Decision 486 from the Andean Community of National regarding Common Regulations for Industrial Property, 2001. 17 This may or may not include parts of living creatures, depending on the national legislation. 18 See: Diccionario de la Real Academia Espaola (Royal Spanish Academy Dictionary). Definition of descubrimiento (discovery). 19 See: United States Code, title 35. Last revision dated February 2001. 20 See: United States Code, title 35, section 101.

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type of activity tend to be considered to be a bio-piracy act, when it uses genetic material that do not meet the objectives and principles of the 1992 Convention on Biological Diversity with respect to the obtainment of a prior well-founded (informed) consent or fair benefit-sharing. As previously indicated, the intent with respect to TK is to protect innovations, practices and knowledge. The content of these three concepts is much broader than that of an invention. In addition, no invention may be patented. For an invention to be granted a patent by the corresponding national office (industrial property office), it must meet the three substantive criteria (novelty, inventive step and industrial application) and one basic procedural criterion (sufficient disclosure). The contents of the patent eligibility criteria vary in accordance with the national definition, since such criteria are not fully defined in the international agreements. Furthermore, the criteria have varied with time, and quite often are based on eminently subjective, rather than objective, concepts. II.1.1 Patent eligibility criteria. The following are the basic criteria and requirements for patent eligibility: II.1.1.1 Novelty. This means that the invention must be novel (original idea, previously unknown); that is, it must not be already included in the technical state. The technical state consists of any information that has been available to the general public, through written or oral descriptions or through the trade of a product, prior to the date of the patent application21. Many authors are inclined to affirm that TK cannot be patented since it is not innovate (it is already known). In response to this affirmation, it should be clarified that TK is evolutive and contains many elements that may resolve problems not yet resolved by the technical state. Furthermore, if TK were fully known, there would be no interest (which, indeed, does exist) on the part of certain researches and companies to access it or indirectly take hold of it. There are different types of TK. On the one hand, there is the general TK used by all the members of the community in their everyday activities; and on the other hand, there is the more secret knowledge that is only available to certain people, including, without limitation, the shaman or medical healer, the elderly, and the tribes chiefs. Both in the first and the second case, if no one has had access to this knowledge, and no documents, records or open information exists in relation thereto, such TK may meet the novelty requirement. In such respect, the more secret the knowledge is, the greater the need to protect it by means of patents (obviously, to the extent that is knowledge reflects a material object). The worldwide recognition of novelty is one of the issues considered essential by some authors to avoid any undue appropriation of TK by third parties. This means that any knowledge previously known in any other area of the world should not be patented. Some national laws22 only recognize relative novelty, which means that is sufficient to meet the novelty criterion if the invention is not known within the territory of the State requesting the patent or, if it is not known through written documentation in any other State. This situation indirectly promotes the undue appropriation of the knowledge that is under public domain in third countries, and only known through oral means. The Andean legislation, in turn, recognizes the absolute novelty principle23, and considers in the determination of technical state everything that has been made available to the public through written or oral description, utilization, commercialization or any other means.24. This type of oral access given to the public includes public conferences, or radio or television broadcasting. Absolute novelty prevents patenting by third parties of the TK already in the hands of the public within the region. II.1.1.2 Inventive step. An invention reaches the inventive level if a professional person, knowledgeable on the corresponding technical maters, believes that the invention is not obvious and does not evidently derive from the technical state25. The inclusion of this criterion is based on the premise that the patents should not be granted to already known inventions, nor to inventions not surpassing the technical state26. Several technical steps must be taken to evaluate the inventive step. Such steps must be taken, in order to determine if they can be fulfilled with respect to TK.

21 Same as above. 22 See: United States Code, title 30 section 102. 23 Same as note 16, Article 16 24 Same as note 16, Article 16. 25 Same as note 16, Article 18. 26 Same as note 16.

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Chart No. 2 Technical inventive step to be fulfilled by TK

Existence of a problem that must be solved Many times TK identifies everyday problems, such as sanitary, food, agricultural, cosmetic, construction and other needs.

Submittal of a solution to the problem TK serves to solve practical problems and some times problems existing around it, which makes it precise and identifiable. The results of the communitys talent translate into medicines, food, plant selection, cosmetics, fibers, extracts, colorants, devices, artisan manufacturing procedures, etc.

Guaranteed application to the solution In many cases, TK itself demonstrates the solution guarantee, particularly with respect to food, cosmetics and materials technology. In the medicine field, no scientific analysis in western terms (scientific method) exists within the communities, but only test and error mechanisms that are applied together with practical results. Any community wishing to patent products or processes related to medicine and biotechnology will need appropriate technical cooperation and available laboratories to demonstrate the efficiency of its technical solutions.

This requirement may be met if the solution to the problem is obvious, in the case of an original solution (other than a solution included in patents or previous technical knowledge).

This point relates to re-engineering and to the possibility of finding alternate solutions to the same problem with a procedure other than the one already existing. This situation is perfectly feasible in the case of TK.

Source: information compiled by the authors

II.1.1.3 Industrial application. An invention is deemed to be useful for industrial application purposes, when the object may be produced by or utilized in any type of industry, it being understood that industry refers to any productive activity, including services 27. According to this criterion, only some types of TK may be patented. Only the knowledge that can be reproduced at a large scale will meet these requirements. Under said premise, the knowledge related to medicine, food, cosmetics, and plant, animal and material management would have a high probability of being patented. This requirement is absolutely adaptable to the western production and commercialization schemes. Nonetheless, during the last few years, this criterion has become more flexible in some national legislations in order to accept the utility criterion, whose only purpose is for the invention to be implemented and produce tangible results. In many cases, some objects are produced for artisan rather than industrial purposes. However, when these objects are produced for reasons other than solving technical problems, such as aesthetic or useful purposes, they may be protected under other figures such as industrial design or utility models. II.1.1.4 Disclosure. Full disclosure of the invention is the main requirement of the patent procedure. An invention must be described so as to allow any knowledgeable person in the subject to reproduce the invention without any problems. Disclosure is a requirement that serves to guarantee the States compensation for the granting of temporary protection to the holder of a patent. This means that upon completion of the protection period, the invention must be made known to the public and used by any person, thereby giving to society the possibility of enjoying the benefits resulting from such technology. In relation to the local, indigenous and Afro-American communities, this disclosure may create problems at the time of obtaining a patent, due to two basic reasons: first, not all the communities wish to disclose their knowledge; second, it is not always possible to make a description from a scientific point of view without the help of experts. These limitations result from the mixing of TK values with a patent system designed in accordance with western criteria and scientific methods. For the first case, ways should be found to omit the patenting of TK that entails religious aspects (this issue will be analyzed hereinafter when the exceptions to patent eligibility are discussed). In the second case, the need to make the description more flexible and easy is an important element for the protection of the TK through patents. The acceptance of the determination and description of the steps that must be taken to reproduce the invention based on audio, video or alternate mechanisms attached to the patent applications, could allow the increase of applications and facilitate the search for the experts required to describe the communities inventions. This is not considered orthodox by several IP specialists, but may be helpful to prove the positive practical effects of the invention and to benefit the communities applying for patents. The disclosure requirement has been currently complemented and broadened in several national legislations, in order to avoid bio-pirating acts and misappropriation by third parties. Therefore, requirements have been established for 27 Same as note 16, Article 19.

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the disclosure of the genetic resources or TKs origin, in order to ensure the obtainment of a previous well-founded consent and fair benefit sharing. As part of the patent application, the Andean legislation requires a copy of the contract to access the genetic resources, and the license or authorization to use the traditional knowledge28, for the purpose of ensuring and controlling the access legality, as applicable and required. The failure to comply with these requirements may lead to the presumption that the application has been abandoned29, or to a decision to further cancel the patent30, if it is proven that the obtainment or use of the genetic resources or traditional knowledge by any of the member countries was done illegally and without complying with the respective procedures. II.1.2 Patent eligibility exceptions. In principle, patent protection is applicable to all those inventions meeting the requirements mentioned above, and generated within any technological field31. Nonetheless, there are few exceptions to this principle. Some of the exceptions may represent defensive weapons to avoid the appropriation of TK by third parties. The patent eligibility exceptions are regulated at an international level by the Trade-Related Intellectual Property Rights Agreement (TRIPS)32. This Agreement allows WTO member countries a limited number of exceptions. The main exception to patent eligibility that, in accordance with TRIPS, allows the Andean legislation33 are the following: Chart No. 3 Patent eligibility exceptions stipulated in Andean Decision 486

Not eligible for patenting:

i) inventions whose commercial exploitation in the respective member country must be prevented to protect public order or moral issues. For such purpose, the commercial exploitation of an invention will not be considered to be against public order or moral issues only due to the existence of a legal or administrative provision banning or regulating said exploitation;

ii) inventions, when the prevention of the commercial exploitation within the respective Member Country of the commercial exploitation is necessary to protect human or animal l ife or health or to avoid serious prejudice to plant life and the environment, provided that such exclusion is not made merely because the exploitation is prohibited or regulated by a legal or administrative provision

iii) plants, animals, and essentially biological procedures related to the production of plants or animals not constituting non-biological or microbiological procedures;

iv) therapeutic or surgical methods for human or animal treatments, as well as diagnosis methods applied to human or animals;

The application of the patent eligibility exceptions is determined on a case-by-case basis by the national patent offices, based on previous decisions that allow the formulation of an administrative doctrine or criteria, which are often subjective (example, moral issues vary from country to country).

II.1.3 Patent holders. As seen, the coverage scope of the invention patents is quite limited and, thus, cannot protect all the cases related to traditional knowledge. A patent can be obtained only for the knowledge comprising inventions and meeting the criteria mentioned above. The obtainment of a patent must go through the administrative procedures of the national industrial or intellectual property offices, as applicable. Said procedures include the submittal of an application by the right-holder, which could obviously be either individual or collective.

In the case of local, indigenous and Afro-American communities, the applications submitted by collective bodies acquire a great importance. The collective bodies may be organized under the typical systems used by juridical persons, such as civil or business corporations (corporations, limited liability companies), or as indivisible communities. The juridical persons have the advantage of acting through representatives, and having bylaws to define their internal organization and mechanisms. These advantages translate into more efficient legal and administrative management. On the other hand, patents may also be applied for by indivisible communities; that is, those communities in which all the members hold indivisible property rights on a certain object (such is the case of

28 Same as note 16, Article 16. 29 Same as note 16, Article 39. 30 Same as note 16, Article 75. 31 See Article 27.1 of the Trade-Related Intellectual Property Rights Agreement (TRIPS) (Derechos de Propiedad Intelectual Relacionados con el Comercio). Agreement signed under the provisions of World Trade Organization (WTO), 1994. 32 Same as above. 33 Same as note 16, Article 20.

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TK meeting the patent eligibility criteria or requirements), and act as a whole. An example of a complex community property system would be a tribe with 25 members. If a tribal community wishes to apply for a patent, said community would have to act, sign and submit the application as a whole, which would entail the participation of the 25 members. In particular this case, all members of the community will be considered co-inventors. Nevertheless, when the number of members is quite large, acting under said scheme can become very complicated at the time of designating representatives34. II.1.4 Rights granted by the patents. At present, many communities and persons possessing TK are questioning the rights the patents might grant them. The purpose of the patents is to protect inventions. The rights arising from the patents have great significance with respect to commercial relations and competition. The principal right of a patent holder is called exclusion right, which allows such person to prevent any third parties from performing the following acts, without the consent of the patent holder35:

if the patent relates to a product, to fabricate, offer for sale, use or import said product, if the patent relates to a procedure, to make use or perform any of the acts mentioned above, with respect to

any product directly obtained through a procedure.

Although the exclusion right was designed for commercial relations purposes, it fully allows the right-holders to dispose of their knowledge and grant a license thereon to whomever they wish. II.1.5 Term protection of patent rights. The rights arising from a patent have a twenty-year term. Upon expiration of said term, the protected invention becomes public to compensate society for the protection granted throughout the term of the patent. This situation does not meet the approval of many communities, who believe that their knowledge should always belong to them. This unresolved argument represents one of the main criticisms made by many communities to the use of patents as a protection system. II.1.6 Patent advantages and limitations. The following are the principal advantages and limitations of the patent system to protect TK: Chart No. 4 Advantages and limitations of the patent system to protect traditional knowledge (TK).

Advantages Limitations Allows the protection of inventions meeting the patent eligibility criteria (novelty, eminent inventive and industrial application).

The definition of invention does not include many of the innovations, practices and knowledge of the communities. The patent eligibility criteria are difficult to meet in many cases, and are not universal.

Patent protection allows the creation of temporary economic monopolies with respect to competitive relations. This, in turn, would allow the communities the possibility of commercializing their products and processes themselves, or the granting of licenses for this technology to third parties, and thus the collection of royalties.

The patents do not include protection for religious, moral and non-commercial issues. Patents are useless when the knowledge requires protection for non-commercial purposes. Upon expiration of the protection term, the control on the invention is transferred to the public.

The procedure to obtain patents is already contemplated in regional and national legislations, which allows immediate use, without the need of making any amendments to the legislation.

The procedures to obtain protection are complicated (costly) and require cooperation and technical assistance to be properly used by the communities.

Patents are recognized as an invention protection system in almost all the countries of the world. The fact of having a patent turns the protected knowledge into part of the technical state, even if it is not registered in another country. This avoids appropriation by third parties.

Different high-cost national registrations are required to obtain international protection. This limitation is only applicable when the rights of the original patent are intended to be kept in all the potential markets.

Source: information compiled by the authors.

34 With respect to this point, it is important to mention the fact that in many cases - and perhaps in all cases - TK is often shared by different communities that cannot or do not have any relation with one another. Reaching agreement and certain level of consensus with respect to what can or cannot be done with TK poses considerable difficulties, if the eventual application for a patent resulted from an agreement reached by and among such comumities. This is a very important issue due to the implications it may have on the intra-comuncal relations, not only at national level but also among the communities of different countries sharing a similar or equal TK. How and under what conditions will these communities be able to reach an agreement? An example of this situation is Ayahuasca, which is a plant jointly used by all the Amazonian communities.

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II.2. Utility models

The utility models are some sort of small patents designed to protect improvements made on already existing devices or objects. They are defined in the Andean regulations as any new form, configuration or disposition of elements related to any device, tool, instrument, mechanism or any other object, or a part thereof, to allow the better or different operation, utilization or fabrication of the object incorporating it, or provide any previously non-existent utility, advantage or technical effect36. Here, the protection criteria are similar to those of the patents, although less stricter, with the eminent inventive criterion being replaced with the utility criterion. The utility criterion is simpler, since it only requires for the object to have a practical objective or purpose. In addition, the utility model does not entail any invention, it simply refers to innovative and previously unknown changes to the structure, form, disposition and configuration. The utility models have a protection term of ten years 37. The application and procedure mechanisms, as well as the rights arising therefrom, are similar to those of the patents. Many of the objects created by indigenous groups meet the utility criterion since they are designed to resolve their problems. Even though the utility models were designed for industrial improvements, there are many methods and improvements made by the communities on already known objects, and even on original objects. Cases of possible utility models are the different dispositions and forms of the yucca graters and pailas (frying pans) used to prepare casabe(cassava bread) in the Amazonian region, or the different models of surfing tables (which are, in fact, an ancestral indigenous invention) used by the Polynesian indigenous people.

II.3. Industrial designs

Industrial designs are legal instrument designed to protect the aesthetic aspects of a product. They are also defined in the Andean regulations as the specific appearance of a product resulting from any meeting of lines or combination of colors, or any bi-dimensional or tri-dimensional external form, contour, texture or material configuration, without changing the destination or purpose of the product38. As we can see, the objective of this figure is to protect the beauty and physical aspect of a product. The basic requirement is novelty in the sense of originality, since colors and details of already existing appearances may be obviously used, provided the final state thereof is unknown. The term product, as it refers to industrial d esign protection, is more restrictive than the term object39. A product entails the preparation of an object for consumption in the formal markets. Simple registration procedures and the same previously mentioned originality criteria are used for industrial design protection purposes. Industrial design protection includes the right to prevent third parties from performing the following acts40:

manufacture products in which such design is used or applied to, import products with such design, sell or offer for sale the above-mentioned products. The industrial designs may be an IP figure of great value to protect artisan works, textile designs, forms, and colors found in the objects utilized and commercialized by the communities. Classical examples of industrial designs that could be protected are the rug designs made by the Iranian tribes, the animal (zoomorphic) or human (anthro-morphic) designs found on the vases made by the Andean Plateau communities, or the textile Molas designs of the indigenous communities of Panama.

II.4. Distinctive signs: trademarks, collective trademarks, certification trademarks, and appelations of origin

II.4.1 Trademarks. The general objective of the trademarks (and this principle applies to all types of trademarks and appelations of origin) is to differentiate the products or services offered in the market 41, as well as the competitive relations. In general, the trademarks consist of:

35 Same as note 16, Article 52. 36 Same as note 16, Article 81. 37 Same as note 16, Article 84. 38 Same as note 16, Article 113. 39 An object is any physical thing with or without a practical purpose. The objects are not ready to be offered in the market. Iron is a mineral object, which in order to turn into a product and thus be offered in the market, must be isolated from other materials or substances and prepared in the form of bars. This principle applies to all the material objects. 40 Same as above. 41 See note 16, Article 134.

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words or combination of words; images, figures, symbols, graphs, logos, monograms, pictures, labels, emblems and insignias; sounds and odors; letters and numbers; a color bound by a form, or a combination of colors; the form of the products, and of their packages or wrappings; any combination of the signs or symbols indicated in the preceding points. In order for a trademark to be protected, it must comply with the distinctiveness requirement; that is, it must be differentiated from other trademarks so as not to confuse the consumers. The trademarks grant an exclusive trademark use right on those products and services for which the protection is intended. In addition, the trademarks are protected against disloyal competition actions, or actions planned to deceive the consumer regarding the characteristics or qualifications of the producer, product or service being identified. In order to receive protection, the trademarks must meet the registration formalities of the industrial property office, which are designed to guarantee the form distinctiveness and criteria of the trademark submitted for registration. The term of the trademark protection is 10 years; however, the trademarks may be renewed. The trademarks may be a protection tool to differentiate the products or services of the communities in the trade market. These trademarks could co ntain drawings, griffins or names used by the communities, and include a brief description of the product. There are some cases of commercially used names, slogans or logos that are linked to the trademarks, such as the one used in Venezuela to identify the casabe (yucca bread), which is being exported under the trademark casabe, the rainforest bread, or the one used in Peru to refer to the ua de gato or cats claw 42 (Ashaninka). In the latter case, the Ashaninka43 community has complained on several occasions for the use of their community name to identify the cats claw plant. The Andean regulations establish what can or cannot be registered as a trademark. A special exception was included in the Andean regulations to protect the communities against the use, registration and undue appropriation of their signs. This exception bans the registration of trademarks that contain the name of the local, indigenous and Afro-American communities, or the work, letter, character or sign denominations used to distinguish their products and services, or the procedures thereof, or those constituting an expression of their culture or practices, unless the application is submitted by the community itself44. Cases related to the undue appropriation of signs belonging to the indigenous communities have occurred in Australia, where certain beach flannel producers used in their products the drawings and petroglyphs of the countrys indigenous people. II.4.2 Collective trademarks. A collective trademark is defined as any sign serving to distinguish the origin or any other common characteristic of products or services belonging to different companies, who use such sign under the control of a titleholder.45. Although the term companies has been used in the basic definition, this term must be defined in a broader manner to include producer associations, manufacturers, service suppliers, organizations or groups of persons46 (such as indigenous communities, and associations or representatives of such communities, whether national or foreign), provided they are legally established. This type of trademark could facilitate to a large extent the trade and appropriate identification of the products and services produced by the communities. II.4.3 Certification trademarks. The certification trademarks are closely related to the collective trademarks as well as to the geographical indications and appellations of origin. The certification trademarks are signs designed to be applied to products or services whose qualities or other characteristics have been certified by the trademark holder47. This type of trademark places emphasis on the quality or other special characteristics of the products and services. The differentiation of characteristics is becoming very common in the modern markets, where the consumers want to learn more regarding the specifications of the product they are buying. The certification trademarks are granted by the trademark holders (could perfectly be the indigenous communities), who are responsible for guaranteeing that the stated characteristics actually exist and that no fraud against the consumer will occur. In addition, only those persons meeting the requirements of the certification trademark holders can use such trademark. The following are some of the main characteristics that the certification trademarks could highlight in relation to the TK:

42 Amazonian plant with curative qualities. 43 Amazonian community of northern Peru. 44 See note 16, Article 136. 45 See note 16, Article 180. 46 Same as note 16, Article 181. 47 Same as note 16, Article 185.

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Biodiversity-friendly products and services: A certification trademark could guarantee the compliance with the requirements of the Convention on Biological Diversity (CBD) for access to genetic resources and TK. This could obviously include the existence of a previous well-founded consent and benefit-sharing guarantee. There is a case that in spite of not constituting a certification trademark, does give an idea of the need to use such trademarks. Said case relates to the publicity campaign of the English chain of cosmetic products THE BODY SHOP. This chain uses for the production of its cosmetics many raw materials from all the tropical rain forests around the world. THE BODY SHOP indicates, through pamphlets and messages, that their stores transfer the benefits to the indigenous communities with which they work, including schools and hospitals. However, since said communities are not identified, it is difficult to verify whether or not this is a deceiving publicity campaign. If there were a recognized international seal to certify biodiversity-friendly products and services, it would be a lot easier to verify the consumption of products and services of this type.

Products generated from raw materials: Certification indicating that the products being marketed do not contain any

chemical or industrial additives. It may also be used to indicate if the products contain or have been prepared with genetically modified organisms.

Products or services produced or generated with traditional procedures: Certification indicating that the products or services

have been produced under traditional production or service-rendering schemes. Some examples of these are: handmade products, natural fermentation procedures, use of natural pesticides or bio-pesticides, appropriate management of lands and ecosystems, ecotourism activities, etc.

Origin certification: Certification indicating that the products generated actually come from a specific community

or place. This type of certification allows the consumer to differentiate the products generated by different tribes or communities, or groups thereof.

As seen, the uses of the certification trademarks are varied, and the granting criteria for such certification are established by the trademark holder; that is, the state, or private standardization companies or organizations. II.4.4 Appelations of Origin. Appelation of Origin (AO)48 is defined as a geographic indication constituted by the denomination of a country, region or specific place, or constituted by a denomination which, without referring to a country, region or specific place denomination, refers to a specific geographic area, used to designate a product orig inated thereon, whose quality, reputation and other characteristics are exclusively and essentially due to the geographic environment in which it is produced, including natural and human factors49. The AO is an indication method that must comply, in principle, with the following relatively simple formula:

AO = [GI +PO (QRC) + GE (NHF)]

Appelations of Origin: AO

Geographic indication: GI

Products origin: PO

Quality, reputation, characteristics: QRC

Geographic Environment: GE

Natural and human factors: NHF

Basically, the objective of the AO is to identify the origin for the benefit of the consumers. The AOs purpose is to identify and guarantee that the origin and natural environment generate a product whose qualities and characteristics make it unique. International examples of AOs are the Champagne (French sparkling wine from the Region of Champagne), Tequila (Mexican drink), Reggiano Parmesan cheese (aged Italian cheese from the Parma region), Alicantes nougat (milk, honey and almond sweet from the Spanish Mediterranean coast). The AOs have the following characteristics, among others:

i. They facilitate quality perception to certain international markets. ii. They allow to highlight to the domestic or international market the specific product characteristics.

48 Although the objective of the appelations of origin and certification trademarks may be the same, the protection modalities thereof are different. For example, the AO exist for as long as its originating conditions prevail. The certification trademarks, on the other hand, only last for a specific number of years. For additional information, please see: Vivas Eugui, David. Las Negociaciones y revisiones de indicaciones geogrf icas en el ADPIC y perspectivas para Venezuela (Negotiation and revision of geographical indications in the TRIPS and Venezuelan perspectives). UNCTAD, 2000. 49 See note 16, Article 201.

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iii. They allow the producers to get organized in order to establish joint standards and quality controls for their products.

iv. They link the fabrication of a specific product to the territory where its initial production originated.. v. They facilitate the products publicity, and the management of collective marketing by producers and

communities50. In order to declare a denomination, it is necessary to comply with a special administrative procedure in the national industrial property office. The AO may be declared as a matter of law or at the request of persons demonstrating to have a legitimate interest, including natural or juridical persons directly carrying out the extraction, production or preparation of the product or products to be covered by the appelations of origin, as well as producer associations51 (which may perfectly include the communities). The state, department, provincial or municipal authorities are likewise considered to be legitimate interested parties for declaration application purposes 52.

The AO is not a private right. The AO is granted by the State53, which authorizes indiscriminatorily its exclusive use to any person having a legitimate interest, and meeting the criteria contained in the AO definition and the technical standards established to guarantee the quality of the production. In addition, the AO allows the use of the term appelations of origin in the labeling of protected products. The term of the AO lasts for as long of the conditions generating the declaration prevail, without the need of any renewal or new administrative procedures. The appelations of origin may be a great instrument to allow the identification of the actual origin and characteristics 54 of the products manufactured by the local, indigenous and Afro-American communities. As indicated in the following chart, there are three examples of protected AOs clearly linked to TK within the Andean Community countries: Chart No. 5 Cases of declared Appelations of Origin (AO) linked to TK in the Andean Community of Nations 55

Pisco AO: Pisco is a spirited drink (liquor) made from grapes and produced in the Peruvian locality of Pisco. This drink has been produced from generation to generation by the community of Pisco, and has currently attained large domestic and international consumption. Since Pisco is now produced in very large quantities, the production has reached industrial levels. At present, there is a controversy that has even reached the WTO, due to the fact that the Chileans claim that Pisco originated in their country.

Chuao Cacao AO: The Chuao Cacao comes from the native cacao varieties found in the Chuao locality of the Venezuelan coastal region. This cacao is produced under particular climate conditions and using the traditional drying and fermentation procedures of the Afro-American communities living within this area. The Chuao Cacao is highly aromatic and has an excellent lasting favor. The Chuao AO resulted from the joint efforts made by the Chuao community; national, regional and local institutions; and research and development centers. This cacao is currently exported to the high-quality chocolate producers of Switzerland, Belgium, France and the United Kingdom. Cocuy Pecayero AO: Cocuy Pecayero is a spirited drink from the State of Lara (Venezuela). This drink is similar to the Mexican tequila, with the only difference being that the tequila is made with blue agaves, whereas the cocuy is produced with green agaves. The Cocuy, which is basically a domestic consumption product, is currently produced by the regions local communities, based on traditional procedures inherited from the indigenous communities. Source: information compiled by the authors.

50 See: Vivas Eugui, David. Las Negociaciones y revisiones de indicaciones geogrficas en el ADPIC y perspectivas para Venezuela (Negotiation and revision of geographical indications in the TRIPS and Venezuelan perspectives). UNCTAD, 2000. 51 See note 16, Article 203. 52 Same as above. 53 In practice, a situation could exist in which the same product is produced in several countries with similar characteristics, thereby generating conflicts. However, since the appelations of origin protection is still incipient, the TRIPS Agreement as well as the Lisboa Agreement on Origin Appeals (WIPO) do not contemplate these potentical conflicts, which are yet to be discussed by international disagreement solving mechanisms. 54 An example of this could be the sustainability criteria. 55 See: David Vivas Eugui. Negotiations on geographical indications in the TRIPS Council and their effect on the WTO agricultural negotiations: Implications for developing countries and the case of Venezuela. The Journal of World Intellectual Property, Geneva, September 2001.

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II.5 Trade secrets

Trade secrets are considered to be one of the most useful IP tools to preserve TK. Trade secrets are understood as any undisclosed information legally held by a natural or juridical person, which may be used in any productive, industrial or commercial activity, and is capable of being transmitted to third parties, provided that said information:

is secret, which means that the information as a whole, or with respect to the configuration and gathering of its components, is not generally known or easily accessible by the persons found in the circles normally managing the respective information;

has a commercial value arising from the secrecy factor thereof; and

has been subject to reasonable measures taken by its legitimate holder in order to keep it secret.56.

The trade secret is protected against any disclosure, acquisition or use of said secret by third parties in a manner contrary to the loyal trade practices57. In general, the following acts represent disloyal competition:

exploitation without authorization from the legal owner;

communication or disclosure without authorization from the legal owner;

acquisition of a trade secret through means that are illegal or contrary to honest trade practices58.

Although not designed to protect TK, in many cases, the trade secrets may be used to obtain TK protection. TK may perfectly comply with the requirements stipulated to obtain the protection granted by the trade secrets. First, and as previously mentioned, the communities have already been recognized in many national constitutions, and may perfectly apply for legal status. Second, in many cases, TK may have commercial, economic and practical value. Third, many types of TK maintain several restriction levels, depending on the nature of the knowledge. Certain types of knowledge are only accessible to and used by the shaman or tribes chief; others are only known by a limited group of people in the tribe (e.g. elderly and women); some are managed by the entire tribe rather than by third parties, and there are some cases in which TK is known by several tribes and secretly commercialized among themselves, or even transferred under strict rituals.

A peculiar case with respect to trade secrets was the creation of the BIOZULUA database of the Venezuelan Fundacin para el Desarrollo de las Ciencias Fsicas, Matemticas y Naturales (Foundation for the Development of Physical, Mathematical and Natural Sciences) (FUDECI).

Chart No. 6

BIOZULUA database case

The BIOZULUA Database was prepared under a genetic resource access contract containing one annex and specific clauses created to ensure the existence of previous well-founded consent and fair benefit sharing for the communities of the Venezuelan Amazonian Region59. The objective of BIOZULUA, which means house of life, is to store the information held by the different ethnic groups regarding plants and animals deemed useful from a food and medicinal point of view, as well as the knowledge on the technologies used to prepare food or produce tools, utensils and building elements60. The database is a computer program61 that uses multimedia technology (photographs, texts, video and sound)62. The biological samples are deposited in several herbariums and museums of Venezuela63.

56 See note 16, Article 260. 57 See note 16, Article 262. 58 See note 16, general text of Article 262. 59 FUDECI has a contract to access genetic resources and the intangible elements related thereto with the Ministry of the Environment and Natural Resources of Venezuela. 60 See: Ramiro Royero, Iingo Nabaiza, Arziel Narbaiza, Jos Contreras. Bases de datos para la informacin agroalimentaria, de tecnologa ancestral y medicina nativa para el desarrollo sustentable en diversas etnias del amazonas (Databases containing information for the sus tainable development of agricultural-food, ancestral technology and native medicine within the different Amazonian ethnic groups). Reports from Experimental Biology Institute (Venezuela), volumen 85-88, 1999. 61 The BIOZULUA database and the information contained therein have been registered and protected as original copyright works. Nonetheless, the knowledge included in the database has not been disclosed to the public, in order to avoid losing the innovation requirement in the event that IP or future sui generis rights may arise from the research results. 62 Same as note 60. 63 Same as above.

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The basic activity carried out to establish the database was the compilation of the largest number of useful species possible. For such purpose, surveys were conducted among experts on indigenous communities, plant samples were collected for chemical analysis, and photographs, videos and tapes were recorded on the species, technologies, manufacturing processes 64, etc. More than 3000 samples of plants, foods, medicines, cosmetic elements, tools, utensils and building materials were collected and classified. In addition, there are 20,000 unclassified elements that will be included in the database in the near future. The mere existence of BIOZULUA has caused a significant impact on the Venezuelan public sector, particularly the Ministry of Science and Technology, Ministry of Production and Trade (MPT), and Intellectual Property Office (IPSA), with respect to awareness on the sustainable utilization of traditional knowledge. As a consequence, three specific actions were recently initiated by the Venezuelan state. The first one relates to the de facto reserved status (banned access) of the database contents in order to avoid undue appropriation and use, handling it as a trade secret. The second one includes the preparation and implementation of internal cooperation agreements among the above-mentioned authorities and the Ministry of the Environment and Natural Resources, for the purpose of promoting the use and registration of the intellectual property rights arising from biodiversity elements. In such respect, the database and software are protected under copyrights. The third action relates to the initiation of negotiations with the UNCTAD65 regarding the execution of technical implementation programmes66 aimed at ensuring intellectual property rights, establishing economic valorization, designing sustainable production processes, and starting-up sustainable trade and and bio-business development activities. Source: information compiled by the authors.

II.6 Rights over plant varieties

An innovation not only materializes into inventions, but it may also stimulate the generation of new plant varieties. Since the beginning of civilization, man has manipulated his surroundings, and more specifically in relation to plants, he has kept selecting those useful and productive plants in order to meet his needs. In principle, the plant varieties are cultivated botanic individuals (vegetables), whose basic characteristics are essentially different from those of other plants since they can be reproduced, multiplied or disseminated67. The generation of new plant varieties is related, among other things, to the need to obtain varieties that are more productive, more resistant to climatic or biological factors, with shorter harvest periods, and with edible fruits whose taste is closer to the products consumed by humans and animals. In order to promote the execution of plant research and manipulation and continue with plant enhancement activities, the States have established regulations, at national as international level, to protect those natural or juridical persons developing new varieties (breeders). The only objective of the regulations related to the breederss rights, as well as to most of the intellectual property rights, is to attain commercial protection. Thus, non-commercial aspects, such as religious, sacred or moral aspects, are not protected. To be able to implement said commercial protection, the legislation has created the so-called obtainer certificates. The obtainer certificates are titles granted by the State to those persons that have created new, homogeneous, distintive and stable plant variet ies68. The regulations applicable to plant varieties are neutral with respect to the methods used for the creation or generation of new varieties; this means that no traditional seed selection mechanisms, botanical methods, or genetic manipulation methods can be used. The following are the principal criteria required to grant an obtainer certificate: II.6.1 Novelty . In the case of plant varieties, novelty entails the fact that no entrance into the formal market has occurred, which means that the plant varieties have not been sold or legally delivered to third parties by the obtainer for commercial exploitation purposes69. On the other hand, novelty also entails the fact that no commercial exploitation existed during those temporary periods previous to the submittal of the certificate application by the

64 Same as above. 65 United Nations Conference on Trade and Development. 66 Negotiations are currently underway under the UNCTAD BIOTRADE Initiative. 67 See: Rgimen Comn de Proteccin a los Derechos de los Obtentores de Variedades Vegetales (Common Regulations to Protect the Rights of those Obtaining Plant Varieties. Decision 345 of the Andean Community of Nations, 1993. Article. 3: The technical definition of variety is: Conjunto de individuos botnicos cultivados que se distinguen por determinados caracteres morfolgicos, fisiolgicos, citolgicos y qumicos, que se pueden perpetuar por reproduccin, multiplicacin o propagacin (Set of botanical individuals differentiated by specific morphological, physiological, cytological and chemical characteristics that allow them to be perpetuated through reproduction, multiplication or propagation). The varieties likewise entail reproducton material, either in the form of seed or other plant parts. 68 Same as above, Article 4. 69 Same as above, Article 9.

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obtainer. The term of these periods ranges from one to six years, in accordance with each specific case. In the event that the indigenous communities decide at a given time to seek commercial protection for their varieties, the novelty requirement may be deemed fulfilled if the trade carried out by such communities is based on traditional or informal systems, including exchange among communities, or if the variety has only been used for food or textile purposes. II.6.2 Homogeny. A variety is considered homogeneous if its essential characteristics are sufficiently uniform, taking into account its reproduction process70. In other words, the plants belonging to a certain variety must be identifiable by their common characteristics 71. This is one of the aspects posing the most limitations to obtain protection for the plant varieties produced by the indigenous peoples. This is due to the fact that the traditional agricultural and seed selection methods generate plants with very variable characteristics: size, form and quantity of fruits. II.6.3 Distinctness. This means that the plant should be clearly different from any other plant whose existence is commonly known72. II.6.4 Stability. This means that the essential characteristics of the variety remain unchangeable from generation to generation73. This basically entails that the plants or their descendant