CHAPTER II

TRADITIONAL KNOWLEDGE: AN OVERVIEW

I. Introduction

In recent years, especially since the days of the Biodiversity Convention (1992), the

cultural wealth and ecological contribution of indigenous and other traditional

communities has grown in salience. The knowledge of indigenous people and other

ethnic and minority groups, 'embodying traditional lifestyles,' is today widely considered

to be a promising source of technologies for sustainable development. However, easy

access to TK, allegedly in the "public domain," together with its lack of clear and precise

"ownership" has facilitated its widespread misappropriation-most often, with impunity.

Demand for the international protection of TK can be especially traced to the decade of

the 1990s. This decade is marked with developing nations and TK holders expressing

alarm at the instances of biopiracy and wanting a global solution for the same. The Indian

experience concerning the patents granted on TK like neem and turmeric "as it is" in the

US and European Patent Offices1 or for that matter the Australian Aboriginal copyright

claims2 against the misappropriation of Aboriginal symbols have helped foreground the

1 The experiences in fighting against biopiracy made the developing countries aware of some of the shortcomings in the patent system regarding prior art in TK and in the way different patent offices treat issues of prior art, novelty and inventive step. For instance, the patent application based on the chemical properties of azadirachta indica (i.e., a method for controlling fimgi on plants with the aid of the extracted hydrophobic neem oil) was rejected by the Board of Appeal of EPO for lack of inventiveness (Thermo Trilogy Corp. vs. Aelvoet Magda, Case No. T-0416/01, Bd. of Appeal, Eur. Patent Office, 2005). 2 In response to unauthorized reproduction of paintings made by Australian Indigenous persons by non­indigenous persons indigenous, copyright claims were filed in Australian courts with mixed results. See M*, Payunka Marika & Ors. vs. Jndofurn, (1994) 30 IPR 209; Bulun Bulun vs. R & T Textiles Pty Ltd, (1998)157 ALR 193. Though the court acknowledged the possibility of "communal harm" through unauthorized access to sacred aboriginal works, copyright claims were not upheld. The Australian case of Yumbulul vs. Reserve Bank of Australia, (1991) 21 I.P.R. 481 however points to the possibility of copyright claims even in aboriginal art. This case arose after the Reserve Bank of Australia was licensed by an agent acting for a Mr. Terry Yumbulul to reproduce his design "Morning Star Pole" on a commemorative ten dollar bank note. It is the traditional understanding that the Morning Star Pole is imbued with the power to take the spirits of the dead to the Morning Star, which will return to their ancestral home. Yumbulul came under considerable criticism for allowing the bank to reproduce the design. The case was interesting in so far as the court recognized that the Pole was an original artistic work in which copyright subsisted,

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needs and expectations of developing countries and related indigenous and local

communities in this area. The narratives of "appropriation" and "biopiracy" have focused

on what is perceived as unjust use of genetic resources and traditional knowledge in

sectors like food, medicine and the harm done to the interests of developing nations and

communities. Since the problem is not confined to one country and as TRIPS envisages a

global harmonization of IPRs, developing nations want a solution that is global in nature

(Cottier and Pannizon 2005: 581). While much of the earlier efforts by developing

countries were to prove the "prior art" of TK and hence preserve it from

misappropriation. Today, it is increasingly being acknowledged that the framing of the

legal question pertaining to TK, with its spiritual and non-commercial nuances, is far

more complex (Srinivas 2008).

II. Protecting TK: the Rationale

There are several reasons why TK should be protected. Some of these can be summarized

as follows:

A Valuable Global Resource

It has been argued that traditional knowledge is a valuable global resource and

hence international efforts to secure its protection should be actively supported.3 More

specifically, it has the potential of being translated into commercial benefits by providing

leads for the development of useful products and processes, in particular in the

pharmaceutical and agricultural sectors, saving time and cost for the biotechnology

industry.4 Therefore it is in the common interest of mankind to provide conditions that

although Yumbulul had obtained his authority to create this design only through initiation and revelatory ceremonies in his clan, the Galpu. 3 Bolivia, "Minutes of the Council for TRIPS Meeting," IP/C/M/37/Add.l (8 November 2002), para 241; Kenya, IP/C/M/37/Add.l, para. 254; Peru, Article 27.3(b), "Relationship between the TRIPS Agreement and the CBD and Protection of Traditional Knowledge and Folklore," IP/C/W/447 (8 June 2005). 4 Brazil, "Review of Article 27.3 (b)- Communication from Brazil," IP/C/W/228 (24 November 2000), JP/C/M/28, para. 136; India, ""Protection of Biodiversity and Traditional Knowledge - The Indian Experience," IP/C/W/198 (14 July 2000).

18

would be favourable to the preservation of traditional knowledge and the continuing

vitality ofthe peoples and communities which generate and develop it.

Equitable Protection

Another argument m favour of protection of TK is based on the principle of

equity. The TRIPS Agreement requires countries with traditional and indigenous

communities to provide intellectual property protection for a broad range of subject­

matters including new ones such as plant varieties, biological materials, lay-out designs

and computer software and therefore it is only equitable that traditional knowledge

should be given legal recognition.5 It has been said that, given the important economic

value of traditional knowledge, the holders of traditional knowledge should share in the

economic benefits derived from that knowledge.6 Indeed, it is the responsibility of the

international community to create an egalitarian system for the availability, acquisition,

maintenance and enforcement of intellectual property rights, which does not a priori

exclude any section of the society.

Farmers' Rights and Food Security

Local farming communities have over the years developed knowledge systems for

the conservation and sustainable use of biological diversity, including through the

selection and breeding of plant varieties. The well-established practices of saving,

sharing and replanting seeds sustain these communities and ensure their food security.

5 A review of the history of negotiations in the realm of intellectual property rights reveals that a majority of Asian-African States have remained at the periphery of the global intellectual property rights regime. The Afro-Asian countries, as new and independent entrants in the international community post World War II (Anand 1972) were not consulted as equal partners in the creation of the IPR regime (Hegde 2007: 124). Although previously the IPR model developed under the Paris and Berne Union gave the Member States sufficient flexibility to implement the required standards of protection within domestic jurisdiction (Hegde 2007: 128-9), this changed with the negotiations at the Uruguay Round in the 1980s. The resultant Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) born out of the Uruguay negotiations contains threshold principles and standards that Member States of the WTO (TRIPS, article I) must conform to, irrespective of their diverse economic backgrounds. 6 Bolivia, Colombia, Ecuador, Nicaragua and Peru, Andean Group, "Review of the Provisions of Article 27.3(b) - Proposal on Protection of the Intellectual Property Rights Relating to the Traditional Knowledge of Local and Indigenous Communities- Communication from Bolivia, Colombia, Ecuador, Nicaragua and Peru," IP/C/W 1165 (3 Nov. 1999).

19

However, many traditional sustainable land-use practices and their associated local

knowledge systems are under pressure.7 Unless their evolutionary, adaptive capacities are

strengthened or the threats are mitigated through policy intervention, an invaluable

resource in terms of knowledge may be lost for good, as may outstanding landscapes and

ecosystems that provide for food security and livelihood. International recognition and

protection of traditional knowledge should help maintain and promote such systems.

In November 2001, the Food and Agriculture Organization (F AO) adopted the

International Treaty on Plant Genetic Resources for Food and Agriculture that seeks to

recognise both the sovereign rights and the inter-dependence of countries over their plant

genetic resources. It establishes a multilateral system that aims to facilitate access and

benefit sharing (ABS). ABS is to be regulated principally by means of a standard material

transfer agreement (MTA), which will apply also to transfers to third parties and to all

subsequent transfers.8

The view has also been expressed that the TRIPS Agreement does not exclude the

possibility of protecting farmers' varieties under a system separate from that providing

effective protection for commercially bred plant varieties9, and that farmers' rights and

breeders' rights would have to be balanced. 10 Sui generis systems for protecting plant

varieties can be designed so as to recognize traditional knowledge and farmers' rights, for

7 Some of these changes are driven by processes of globalization. The focus over recent decades on agricultural productivity, specialization and global markets, and the associated disregard for externalities and adaptive management strategies, has led to a relative and general neglect of research and development support for diversified, ingenious systems. Pressures are constraining farmer innovation and are leading to

_the adoption of unsustainable practices, overexploitation of resources and declining productivity, as well as agricultural specialization and the adoption of exotic domesticated species. The result can be biodiversity loss, ecosystem degradation, poverty and loss of people's livelihoods (Boenna and Koohatkan 2004). 8 See Article 9, which deals with the concept of Farmers' Rights. The Treaty refers to three measures that governments should take to protect and promote Farmers' Rights. These are: (a) protection of traditional knowledge relevant to plant genetic resources for food and agriculture; (b) the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and (c) the right to participate in making decisions. at the national level, on maners related to the conservation and sustainable use of plant genetic resources for food and agriculture. The final paragraph of Article 9 points out that "[n]othing in this Article shall be interpreted to limit any rights that fanners have to save, use, exchange and sell farm-saved seed/propagating material, su~ject to national law and as appropriate." 9 WTO Doc. IP/C/W/284, 2001. 10 WTO Doc. IP/C/M/29, 2001, para. 206.

20

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example those that take the fonn of selecting, breeding, usmg and sustaining plant

varieties. 11

Cultural Manifestations

Another reason given for the international protection of TK is the role that culture

and its manifestations play in the day-to-day lives of traditional communities.12 The

countries of Asia and the Pacific region are very rich in their cultural heritage, including,

but not limited to, folk-literature, folk arts and crafts, music, visual arts, ceremonies, folk­

beliefs, folk-architecture associated with particular sites, as well as forms of traditional

knowledge related to folk-medicines and folk-medical practices, agriculture, and

conservation and sustainable use of biological diversity. However, there is widespread

unfair exploitation of the cultural heritage of these nations for commercial and business

interests. 13 Thus some developing countries have drawn attention to the important

elements of traditional knowledge and folklore being lost and the possibility of further

loss in the absence of proper legal protection mechanisms at both national and

international levels. 14

Environmental Sustenance

The traditional knowledge of indigenous peoples and local communities is central

to their ability to operate in an environmentally sustainable way and to conserve genetic

and other natural resources. Protection of traditional knowledge is therefore closely

linked to the protection of the environment.15 For instance, it has been argued at several

11 The example of the OAU Model Law has been cited as protecting the rights of local communities, farmers and breeders (IP/C/W /206, 2000). 12 See WTO Doc. IP/C/M/28, para. 125. Furthermore, the cultural identity of communities is closely linked to physical objects and intangible expressions of culture that help connect to the social and intellectual histories of societies. Various factors relating to limits in funding and resources, effects of the forces of globalization, increasing awareness of IPRs and emergence of digital technology have impacted the preservation of cultural heritage (National Mission for Manuscripts, 2008: 2). 13 See WIPO/UNESCO/FOLK/ASIA/99/1. at 2. 14 The African Group, IP/C/W/404: Bolivia, IP/C/M/38, para. 246, IP/C/M/37/Add.l, para. 241; India, IP/C/M/28, para. 127, IP/C/M/25, para. 70; Peru, IP/C/W/447, IP/C/M/48, para. 18. 15 Ecuador, IP/C/M/30, para. 184.

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Conferences of the Parties to the United Nations Convention to Combat Desertification

(UNCCD, 1995) that 'traditional knowledge' has various advantages and benefits with

regard to combating desertification: it is often considered a relatively inexpensive

technology (compared with modem technology and computer-driven irrigation schemes,

for example, or with drought-resistant genetically modified organisms), and therefore

represents an affordable corpus of technology for developing countries and their

populations. 16

Traditional Medicine

The use of traditional medicine (TM) and complementary and alternative

medicine (CAM) already accounts for a major part of the health care provided

worldwide. In low and middle-income countries, up to 80% of the population relies on

TM for primary health care needs (WHO, 2008: 31 ). One of the main reasons for the

increasing use of traditional medicine is a growing trend for patients to take a more

proactive approach to their own health and to seek out different forms of self-care,

especially where access to '"'modern" health care services and medicine is limited by

economic and cultural factors. 17 In a context of persisting poverty and marginalization

(UNDP, 2001; Khor, 2000) and, in particular, in view of the high prices generally

charged for patented medicines, the relevance of TM in developing countries may, in the

future, increase.

TM also plays an important role in developed countries. Many pharmaceutical

products produced and used there are based on, or consist of, biological materials sourced

16 Article 18(2) of the UNCCD refers specifically to "'traditional knowledge" and enjoins Parties to protect, promote and use relevant traditional and local technology, knowledge, know-how and practices by making inventories, with the participation of local populations and sharing such information where appropriate with intergovernmental and non-governmental organizations. The UNCCD also recognizes the importance of ensuring that such technology, knowledge, know-how and practices are adequately protected and that local populations benefit directly, on an equitable basis and as mutually agreed, from any commercial utilization of them or from any technological development derived therefrom [Article 18(2) (b)]. 17 For instance, the per capita consumption of TM products in Malaysia is more than double the consumption of modern pharmaceuticals. TM is even significant in relatively advanced developing countries such as South Korea, where the per capita consumption of TM products is about 36% more than modem dmgs (Balasubramanian 1997).

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through reference to traditional medicine. These include compounds extracted from

plants and algae, as well as from microbial sources and animals. Plants, in particular, are

an indispensable source of phannaceuticals (Ten Kate and Laird 1999). The demand for

"herbal medicines"18 has grown dramatically in recent years. However, western

intellectual property systems have regarded TM, as well as other components of TK, as

information in the "public domain", freely available for use by anybody. Furthermore,

diverse components of TM have been appropriated under intellectual property rights

(IPRs) by researchers and commercial enterprises, without any compensation to the

knowledge's creators or holders. Due to such cases of appropriation, growing attention

has been paid in the last ten years to the issue of"protection" ofTK, including TM.

Development Dimension

In this century, development undoubtedly remains one of the greatest challenges

facing the international community. These development concerns have been widely

acknowledged in various international fora. 19 The role of intellectual property rights and

its impact on the development of States has also been widely debated in the last few

years. Intellectual property has been recognized as a policy instrument that needs to be

wielded in a way commensurate with the developmental needs of each country. Thus, an

18 "Herbal medicines" are defined by WHO as "finished, labeled medicinal products that contain as active ingredients aerial or underground parts of plants or other plant material, or combinations thereof, whether in the crude state or as plant preparations. Plant material includes juices, gums, fatty oils, essential oils, and any other substances of this nature. Herbal medicines may contain excipients in addition to the active ingredients. Medicines containing plant material combined with chemically defined active substances, including chemically defined, isolated constitutes of plants, are not considered to be herbal medicines. Exceptionally, in some countries herbal medicines may also contain, by tradition, natural organic or inorganic active ingredients which are not of plant origin." See WHO (1996), Guidelines for the Assessment of Herbal Medicines, WHO Technical Report Series, No. 863, Geneva 19 For instance, the United Nations adopted the Millennium Development Goals (2000), which established a firm commitment by the international community to address the significant problems that affect developing countries and LDCs. The Programme of Action for the Least Developed Countries for the Decade 2001-2010, the Monterey Consensus on Financing for Development (2002), the Johannesburg Declaration on Sustainable Development (2002) agreed at the World Summit on Sustainable Development, the Declaration of Principles and the Plan of Action of the first phase of the World Summit on the Information Society, and most recently the Sao Paulo Consensus adopted at UNCTAD XI (2004), have all placed development at the heart of their concerns and actions. This has also been the case in the context of the current Doha round of multilateral trade negotiations of the World Trade Organization (the ·'Doha Development Agenda"), which was launched at the WTO's 4th Ministerial Conference, in November 2001.

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important milestone was reached with the adoption of the Doha Declaration on TRIPS

and Public Health at the fourth Ministerial Meeting of the WTO (2001). A similar need to

integrate the protection of IPRs with technological innovation and transfer of technology,

mutual advantage to producers and users of knowledge and other public policy concerns

are part of the WIPO Development Agenda. Spearheaded by developing countries in

2004,20 the WIPO Development Agenda has undertaken a series of norm-setting

exercises, of which work on genetic resources, traditional knowledge and folklore is an

important component.

Transboundary Misappropriation

Misappropriation of TK often involves the acquisition of such knowledge in one

country and the seeking of patents in other countries. Such actions may be illegal under

the law of the country of origin, but nothing could be done under that law once the

knowledge is being used and patented outside that jurisdiction?1 Countries have argued

that transparency and predictability in the regime of protection of TK can be established

only through international action, which could regulate the relationships between entities,

persons and activities taking place in different countries?2 In response to the demands for

the international protection of TK, developed countries have stated that establishing

national regimes of protection of traditional knowledge is essential before engaging in

discussion of international action.23 The following reasons have been put forward in

support of this view:

20 See Proposal by Argentina and Brazil for the Establishment of a Development Agenda for WIPO, WO/GA/31/11 (27 August 2004). 21 The African Group, "Taking Forward the Review of Article 27.3(b) of the TRIPS Agreement," IP/C/W/404(26 June 2003); Brazil, "Minutes of the Council for TRIPS Meeting," IP/C/M/46 (II January 2005), paras. 79-81; India. "Minutes of the Council for TRIPS Meeting," IP/C/M/48(15 September 2005), para. 49; Kenya, "Minutes of the Council for TRIPS Meeting," IP/C/M/42 ( 4 February 2004), para. 114; Peru," Minutes of the Council for TRIPS Meeting," JP/C/M/46 ( 11 January 2005), para. 50, IP/C/M/40. 22 Brazil and India, "The Relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD) and the Protection of Traditional Knowledge: Technical Observations on Issues raised in a Communication by the United States," IP/C/W /443 (18 March 2005). 23 Australia, "Communication from Australia: Review of Article 27.3 (b)," IP/C/W /3 I 0 (2 October 2001 ), "Minutes of the Council for TRIPS Meeting;· IP/C/M/46 (I I January 2005), para. 62; United States,

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1. Using laws currently in force and those already well understood will enable

holders of traditional knowledge to protect such knowledge immediately;24

11. There is very little concrete evidence at this stage that national regimes for

regulating access to traditional knowledge and benefit sharing are per se

insufficient to deal with misappropriation of traditional knowledge;25

111. It is prudent for Members to share their national experiences, determine areas

of inadequacy, and conduct cost-benefit analyses before further considering

. . 1 . 26 mternat10na actiOn;

1v. A national system can be international in its outlook and may contain, inter

alia, choice of forum, choice of law or international arbitration prov1s1ons

relevant to cross-boundary dispute or enforcement issues?7

v. International regimes need to be supported by the widespread implementation

of national regimes.Z8

Nonetheless, developing countries have advocated that considering the

transboundary nature of the issue of the protection of traditional knowledge, national

regimes can only be supplementary to an international mechanism29 and will not be

effective unless an international mechanism is established?0 These global efforts to

"Article 27.3(b), Relationship between the TRIPS Agreement and the CBD, and the Protection of Traditional Knowledge and Folklore," IP/C/W/449 (10 June 2005), "Minutes of the Council for TRIPS Meeting," IP/C/M/48 (15 September 2005), para. 30. 24 United States, "Minutes of the Council for TRIPS Meeting," IP/C/M/37/Add.l (8 November 2002), para. 250. 25 Australia, "Minutes of the Council for TRIPS Meeting," IP/C/M/46 (II January 2005), para. 65; Canada," Minutes of the Council for TRIPS Meeting," IP/C/M/47 (3 June 2005), para 66; United States, "Article 27.3 (b), Relationship between the TRIPS Agreement and the CBD, and the Protection of Traditional Knowledge and Folklore", IP/C/W/434 (26 November 2004). 26 Australia, "Minutes of the Council for TRIPS Meeting," IP/C/M/42 ( 4 February 2004), para 118. 27 United States, IP/C/W/449, supra n. 23. 28 New Zealand,"Minutes of the Council for TRIPS Meeting," IP/C/M/49 (31 January 2006), paras. 118-119. 29 The African Group, ''Taking Forward the Review of Article 27.3(b) of the TRIPS Agreement:' IP/C/W/404(26 June 2003). 30 The African Group, ibid; Brazil, "Minutes of the Council for TRIPS Meeting," IP/C/M/48 ( 15 September 2005), para. 40; Brazil and India,'· The Relationship between the TRIPS Agreement and the Convention on

25

protect TK have found support at numerous quarters and a number of international

organizations have registered the problem of TK under the influence of public protest and

have initiated legal regulations, within the ambit of their competencies or as some

scholars have observed: "their own tunnelvision" (Teubner and Lescano 2008: 3).

Therefore, in order to examine the intricacies of the debate on the protection of TK, and

its associated intersection between policy priorities and regime competencies, this

Chapter seeks to highlight briefly some of the key developments in international

organizations like the CBD, WIPO and the WTO. However, to embark upon such an

endeavour would also require an examination of what is considered "traditional

knowledge" in international law.

III. Defining Traditional Knowledge: National and International Dimensions

The discourse concerning the protection of traditional, local or indigenous knowledge has

been characterized by some scholars as a means of resistance of the world's

disempowered in the hierarchies of power and culture (Oguamanam 2004). The rank of

contested terms includes inter alia indigenous, traditional, folk, local, indigenous

peoples, aboriginal peoples, local communities and cultural heritage. The debate over the

protection of TK has not only travelled to many different fora but also has been described

in many ways. There is no internationally accepted definition ofTK as such. The terms in

general use in the international debate on the protection ofTK include:31

"traditional knowledge, innovations and practices,"32 m the context of

conservation and equitable use of biological resources;

"heritage of indigenous peoples"33;

Biological Diversity (CBD) and the Protection of Traditional Knowledge: Technical Observations on Issues Raised in a Communication by the United States;' IP/C/W/434 (18 March 2005); Pakistan, "Minutes of the Council for TRIPS Meeting;' IP/C/M/36/Add.l (10 September 2002), para. 211; Peru, "Article 27.3(b), Relationship between the TRIPS Agreement and the CBD and Protection of Traditional Knowledge and Folklore," IP/C/W/447 (8 June 2005). 31 See WIPO, Traditional Knowledge: Operational Terms and Definitions, at 8, Geneva, June 13 to 21, 2002, WIPO/GRTKF/IC/3/9. 32 Article 8(j) of the Convention on Biological Diversity, 1992.

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''traditional medicinal knowledge" 34 in the context of health policy;

"expressions of folklore"35 in the context ofiP protection;

"folklore" or "traditional and popular culture" in the context of safeguarding

traditional culture;36

"intangible cultural heritage";

"traditional ecological knowledge"; and

"traditional and local technology, knowledge, know-how and practices."

Anthropologists, legal scholars and other analysts have found it imperative to

clarity, justifY and use various prefixes to the "knowledge" they seek to speak for

(Arewa, 2006) depending upon their position and approach to the protection of TK and

TCEs. For instance, Arewa notes that "[l]ocal knowledge is more strongly associated

with countries in the Third World as well as indigenous peoples in the Third World and

33 "The heritage of indigenous peoples includes all moveable cultural property as defined by the relevant conventions of UNESCO; all kinds of literary and artistic creation such as music, dance, song, ceremonies symbols and designs, narratives and poetry and all forms of documentation of and by indigenous peoples; all kinds of scientific, agricultural, technical, medicinal, biodiversity related and ecological knowledge, including innovations based upon that knowledge, cultigens, remedies, medicines and the use of flora and fauna; human remains; immovable cultural property such as sacred sites of cultural, natural and historical significance and burials." Daes, Irene-Erica, Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples, paragraph 13, United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.211995/26, as revised in E/CN.4/Sub.2/2000./26. Some of the other related definitions of TK included in international instruments include traditional knowledge relevant to plant genetic resources for food and agriculture [ITPGRA, article 9.2(a)] and, cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts (UN, Declaration on the Rights oflndigenous Peoples, 2007, article 31). 34 "[T]he sum total of the knowledge, skills and practices based on the theories, beliefs and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health, as well as in the prevention diagnosis, improvement or treatment of physical and mental illnesses.'· Doc. WHO/EDM/TRM/2000.1 at 1. 35 See the WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, ( 1982), Annex II, Section 2.11 36 "Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance. games, mythology, rituals, customs, handicrafts, architecture and other arts." UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore, I 989.

27

the West" (Arewa, 2006: 7). Elsewhere, Oguamanam (2006: 24) endorses the use of the

tenn "traditional knowledge" owing to "its non-limiting nature and its deflection of

controversy over indigenity". Oguamanam (ibid.) further argues that use of the tenn

"traditional" knowledge rather than other preferred prefixes facilitates a less divisive

reference to the world's disempowered peoples who share a near common experience and

for whom the knowledge question provides a rallying point of survival. In the next

section we shall examine some of these components ofTK.

III.l. Biological Diversity

A look at the institutional and initial nonnative response to the international

protection of TK reveals that TK subject-matter is mostly defined in the light of the

policy objectives of protection and the general understanding ofthe relevant stakeholders.

Definitions for TK proffered internationally may be mainly categorized into a

combination of descriptive, enumerative, general, non-exhaustive, inclusive or exclusive.

In some cases like in the CBD37 a way out of the predicament of under or over­

inclusiveness in the definition of TK seems to have been preferred by avoiding a single

definition all together. Keeping with the spirit of the principle of permanent sovereignty

over natural resources (PSNR) embodied in UN G.A. Res. 1803 (1962), the CBD was an

attempt by developing countries to break away from the notion of common heritage of

mankind that had come to be linked with the use of their plant gennplasm held with no

single owner or exclusive rights to the same (Srinivas 2008: 81 ). The Convention

recognizes the sovereign rights of States over their natural resources, with the authority to

determine access to genetic resources resting with the national governments and is

37 Traditional knowledge was certainly one of the critical issues for the developing countries during the negotiation of the Convention on Biological Diversity (CBD) and has been so since the adoption of the Convention. In signing the 1992 CBD, the governments of the world committed themselves to enacting policy and legislation to simultaneously regulate and facilitate access to genetic resources (AGR) in order to achieve three interrelated goals: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. The latter objective is of particular importance to developing countries, as they hold most of the world's biological diversity but feel that in general, they do not obtain a fair share of the benefits derived from the use of their resources for the development of products such as high-yielding varieties, pharmaceuticals and cosmetics.

28

subject to national legislation [CBD, article 15(1)]_38 This resulted in many countries

passing laws or putting in place mechanisms to regulate access and benefit sharing

(Gopalakrishnan 2002; Correa 2003; Robinson 2007).

The CBD avoids a definition all together and instead adopts in Article 8(j) the

phrase: "knowledge, innovations and practices of indigenous and local communities

embodying traditional lifestyles." A closer scrutiny of Article 8(j) in the CBD is also

important to understand the rationale and objective behind such open-ended phraseology.

Article 8 (j) of the CBD enjoins a Contracting Party to:

"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."

Here it can be noted that in the CBD text, reference to TK is made in terms of not

only intellectual and intangible knowledge assets but also tangible manifestations in

innovations and practices. A point to note in the CBD reference to TK in broad terms is

that "innovations" are only a small part of the protectable subject-matter. Thus the level

of innovation required within CBD terms may be considered lower when compared to an

IP policy focus. The reference to the protectable subject-matter in the CBD is linked to an

38 The CBD stipulates that each Contracting Party is to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties, where access "shall be on mutually agreed terms and subject to the provisions of the article" [CBD, Article 15 (4)] as also is be subject to prior informed consent of the Contracting Party providing such resources" [CBD, Article 15 (5)]. Under the Convention, each Contracting Party is required to take legislative, administrative or policy measures, as appropriate [CBD, Article 15 (7)] and in accordance with Articles 16, which relates to transfer of technology. Article 19( I) of the CBD requires Contracting Parties to take appropriate measures, whether administrative, legal or policy related, to provide for effective participation in biotechnological research activities by Contracting Parties and especially developing countries that provide the genetic resources for such research. With regard to the handling of technology, Contracting Parties are also required to "take all practicable measures to promote and advance priority access on a fair and equitable basis" to the results and benefits arising from biotechnologies based upon the genetic resources provided by Contracting Parties, particularly the developing countries. Such access shall be on mutually agreed terms [CBD, Article 19(2)]. Furthermore, the disclosure of geographic origin and prior informed consent are considered unquestionable principles in the entire process for use of genetic resources within the CBD (Ad Hoc Working Group, ABS Report, UNEP/CBD/COP/6/6, 200 I).

29

inclusive group of both "indigenous and local communities," neither of which terms have

been defined in the CBD. Furthermore, reference to "knowledge, innovations and

practices," and their protection thereof is closely tied to the policy objective of

"conservation and sustainable use of biological diversity," promotion of "wider

application" with the consent and approval of knowledge holders and the encouragement

of "equitable sharing of benefits" arising from utilization of such knowledge. A reading

of Article 8(j) of the CBD reveals the acknowledgment of the value of biodiversity­

related knowledge in its ability to embody "traditional lifestyles," its ecological

contribution towards enhancing conservation and sustainability of biological diversity39

and potential to offer economic benefits to its holders. Furthermore, according to the

CBD Secretariat:40

"Traditional knowledge encompasses three dimensions: a cultural aspect (it reflects the culture and values of a community), a temporal aspect (it is passed on through the generations, and slowly adapts to respond to changing realities) and a spatial aspect (it relates to the territory or the relationship which a community has with its lands and waters traditionally occupied or used)."

However the emphasis on "tradition" in the CBD definition is said not to be

entirely accurate, since TK can persist and be revived in urbanised and western societies

(Outfield 2003: 22). Such societies may also adopt elements of TK systems from other

societies. According to Barsh (1999), "[w]hat is 'traditional' about traditional knowledge

is not its antiquity, but the way it is acquired and used. In other words, the social process

of learning and sharing knowledge, which is unique to each indigenous culture, lies at the

very heart of its 'traditionality.' Much of this knowledge is actually quite new, but it has a

social meaning, and legal character, entirely unlike the knowledge indigenous peoples

acquire from settlers and industrialized societies." Instead, Drahos (2004: 31) suggests a

more "simple, open-ended and pragmatic approach" would be to look for "some sort of

inclusive cluster approach comprised of a general phrase like 'traditional and group

39 The CBD defines "'biological diversity" as the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes biodiversity within species, between species and of ecosystems." 40 UNEP Doc. UNEP/CBD/WG&J/5/6. 20 September 2007, para. 16.

30

knowledge and practice' that is then followed by a list of examples or sub-classes. The

list would be a non-exclusive list and would, where possible, draw on definitions that had

gained wide international acceptance."

JII.2. Intellectual Property and Terminological Issues

One of the fundamental hurdles in determining the protection of traditional

knowledge is the search for an "appropriate" terminology. This was particularly evident

during the WIPO fact-finding missions in 1998 and 1999 (WIPO, Report, 2001: 210-13).

In efforts to build a protective legal framework for TK, it is widely accepted that defining

TK involves serious consideration of the different nature and forms of expression of the

information embraced by TK. Such a task has been acknowledged as difficult and

probably even incapable of precise definition. Developing country representatives have

however stressed the importance of protecting TK, even if defined inadequately.41

The IP policy focus on TK covers a broad range of subject matter and policy

fields - such as medicinal remedies and practices, biodiversity-related knowledge,

agricultural knowledge related to plant genetic resources for food and agriculture and

cultural expressions. The conflicts and concerns that may arise while identifying

protectable subject-matter in TK are especially visible in the ongoing debate in the

WIPO. The concern regarding the misappropriation of the genetic resources and heritage

of developing countries and commercialization of related products without proof of

consent and origin42 were behind the formation of the WIPO Intergovernmental

41 Pakistan Submission, WIPO Doc. WIPO/GRTKF/1/13 Prov., 2001, para. 48. 42 The WIPO GRTKF may best be described as a compromise to the Colombian proposal on "Protection of Biological and Genetic Resources" (SCP/311 0, 1999) presented in September 1999, at the third session of WIPO's Standing Committee on the Law of Patents (SCP). Through this proposal the Colombian . delegation proposed that the draft PL T being discussed at the SCP include an article based on the two proposals that the document comprised. The first was that all industrial property protection shall guarantee the protection of the country's biological and genetic heritage. Consequently, the grant of patents or registrations that relate to elements of that heritage shall be subject to their having been acquired legally. The second part of the Colombian proposal concerning the protection of biological and genetic resources was that every document shall specifY the registration number of the contract affording access to genetic resources and a copy thereof where the goods or services for which protection is sought have been manufactured or developed from genetic resources, or products thereof, of which one of the Member Countries is the country of origin. This idea of linking patent filing with access and benefit sharing

31

Committee on Genetic Resources, Traditional Knowledge and Folklore in 2001.

Although the Colombian proposal at the Standing Committee on the Law of Patents

(SCP) in 1999 proved to be too controversial in its demand for protection of biological

and genetic heritage within the realm of patent law at the SCP some international reaction

d . h 43 was extracte m t e process.

According to the WIPO, a relatively general approach to definition may be

especially called for in relation to TK as the subject matter of protection, in contrast to

other areas of intellectual property presently recognized in law. TK subject matter is

particularly dynamic and variable, and more likely to be shaped by local, cultural factors

than other forms of IP. Moreover, the relevance of customary law as an element in the

definition and protection of TK has been recognized by the WIPO GRTKF

(WIPO/GRTKF /IC/2/16, at paras 90, 94, 100, 108, 152). Thus, if there is to be reflection

of customary law in the characterization of TK, this would necessarily involve a more

general form of definition at the international level, given the diverse and distinct quality

of customary laws; equally, if weight is to be given to local cultural factors, this could

regulations gained the support of other developing countries like Bolivia, Paraguay, China Namibia, Cameroon, Mexico, South Africa, Chile, Cuba, India, Kenya, Costa Rica and Barbados. Predictably it did not go down well with some of the other delegations, including the United States, the European Union, Japan and South Korea, all of which argued that the proposed article related to substantive patent law and therefore had no place in the Patent Law Treaty. As things turned out, Colombia's proposal did not fail completely in that the concerns behind it were given other opportunities for expression within WIPO. 43 As a compromise. the SCP invited WIPO's International Bureau to do two things. The first was to include the issue of protection of biological and genetic resources on the agenda of that November's meeting of the Working Group on Biotechnological Inventions. The second was to arrange another meeting specifically on that issue. This Meeting on Intellectual Property and Genetic Resources took place in April 2000 and reached a consensus that ~wiPO should facilitate the continuation of consultations among Member States in coordination with the other concerned international organizations, through the conduct of appropriate legal and technical studies, and through the setting up of an appropriate forum within WIPO for future work (WO/GA/26/6, 2000). Two months later the Diplomatic Conference for the Adoption of the Patent Law Treaty took place. While the main purpose was of course to agree upon and formally adopt the PLT, there were also consultations on genetic resources. For the twenty-fifth session of WIPO's General Assembly, also in 2000, the Secretariat prepared a document which invited Member States to consider the establishment of an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The WIPO Secretariat suggested that the IGC constitute a forum for members to discuss three themes that it had identified during the consultations. These were "intellectual property issues that arise in the context of (i) access to genetic resources and benefit sharing; (ii) protection of traditional knowledge, whether or not associated with those resources; and (iii) the protection of expressions of folklore" (Ibid.). This suggestion was enthusiastically supported by a large number of developing countries and was approved without f01mal opposition from any Member.

32

also entail a general umbrella definition at an international level. This general approach

was foreshadowed in document WIPO/GRTKF/IC/1/3, echoing comments in the 'WIPO

Report on Intellectual Property Needs and Expectations of Traditional Knowledge

Holders':

"Given this highly diverse and dynamic nature of traditional knowledge it may not be possible to develop a singular and exclusive definition of the term. However, such a singular definition may not be necessary in order to delimit the scope of subject matter for which protection is sought. This approach has been taken in a number of international instruments in the field of intellectual property" (WIPO/GRTKF/IC/1/3, paragraph 65).

Thus, it can be seen that WIPO approach to TK is open to a more general

definition that can be read within a particular national context. This is in keeping with

international IP standards which typically defer to the national level for determining the

precise scope of protected subject matter (Correa, 2001: 4). The international level can

range between a description in general terms of eligible subject matter, a set of criteria for

eligible subject matter, or no definition at all. For example, the Paris Convention and the

TRIPS Agreement do not define "invention". The Paris Convention defines 'industrial

property' in broad and expansive terms.44 The general scope of the subject-matter in the

protection of TK is identified in the WIPO Protection of Traditional Knowledge: Draft

Objectives and Principles45 (WIPO/GRTKF/IC/10/5, 2006).

44 For instance, patent law only defines the requirements for protection (novelty, inventive step, industrial applicability), while patents may refer to inventions in mechanical, chemical, electronics, biological and many other fields. Similarly, trade secrets involve any secret and commercially valuable information, and no further definition about their content is required for their legal protection. 45 The Draft Objectives and Principles (WIPO/GRTKFI1C/l 0/5, 2006) that comprise: (i) policy objectives, which could set common general directions for protection and provide a consistent policy framework; (ii) general guiding principles, which could ensure consistency, balance and efTectiveness of substantive principles; and (iii) specific substantive principles, which could defme the legal essence of protection. These draft objectives and principles under consideration by the Committee were distilled, inter alia, according to the WIPO (WIPO/GRTKF/IC/10/5, 2006: para. 32, page II) from many national, regional and international legal instruments. WIPO has however pointed out that these Draft Objectives and Principles, as in the past, "are presented without prejudging its status or legal implications. It does, however, present in coherent and focused form the kind of specific questions that may need to be weighed by policymakers at nationaL regional and international level, when considering the appropriate form and means of protection of TK .. (WIPO/GRTKF/IC/10/5, 2006: 4, para.l3). In fact, several iniemational, regional processes, and many national consultation processes have made use of the draft objectives and principles as a resource. For instance, at the international level, a draft proposal tor an international regime on access and benefit-

33

The WJPO Draft Objectives and Principles take a comparable approach which

recognizes the diverse definitions and scope of TK that already apply in existing national

laws on TK46, and do not seek to apply one singular and exhaustive definition. Guided by

existing national laws, however, the draft provision clarifies the scope of TK in a

descriptive way. Its wording draws on a standard description that has been developed and

consistently used by the Committee, which was based in tum on the Committee's

analysis of existing national laws on the protection ofTK:

In essence, if intangible subject matter is to constitute traditional knowledge for the purposes of these provisions, it should be "traditional", in the sense of being related to traditions passed on from generation to generation, as well as being "knowledge" or a product of intellectual activity. In other words, to be eligible for protection, rather than being described in general terms as being 'traditional knowledge', it may be necessary for knowledge to be intergenerational in character, have an objective link with the community of origin, and to have a subjective association within that community, so that it forms part of the community's own self-identity (WIPO Draft TK Gap Analysis, 2008:7).47

Furthermore, for the purpose of these draft principles only, the term "traditional

knowledge" refers to the content or substance of knowledge resulting from intellectual

activity in a traditional context, and includes the know-how, skills, innovations, practices

and learning that form part of traditional knowledge systems, and knowledge embodying

traditional lifestyles of indigenous and local communities, or contained in codified

sharing under consideration by the Convention on Biological Diversity includes text referring to taking "'into account the work of the WIPO/IGC on the intellectual property aspects of sui generis systems for the protection of traditional knowledge and folklore against misappropriation and misuse." 46 At the national level a number of countries are in the process of developing their national TK protection measures by adapting and applying the draft WIPO provisions to their national circumstances. In the process they are using the principle of flexibility and comprehensiveness to adapt the draft WIPO provisions to their national circumstances and legal systems. For example, draft law of Mongolia applies Policy O~jectives (viii), (xi) and (xii) of the draft WIPO Policy Objectives; General Guiding Principle (e); and Articles I to II, as attached in the Annex. Several regional organizations are also developing regional TK protection frameworks which draw extensively on the text of the draft o~jectives and principles. These include the African Regional Intellectual Property Organization (ARIPO) and the Organisation Africaine de Ia Propriele Intellectuelle (OAPI) in their work on a Draft Framework for an African Instrument on the Protection of Traditional Knowledge; and the South Asian Association for Regional Cooperation (SAARC) in its development of a Draft Legal Instrument for SAARC Countries on Protection of Traditional Knowledge, which was approved by the SAARC Summit in 2006 as a basis for further work. 47 Emphasis supplied.

34

knowledge systems passed between generations. It is not limited to any specific technical

field, and may include agricultural, environmental and medicinal knowledge, and

knowledge associated with genetic resources [WIPO/GRTKF/IC/1 0/5, 2006: Annex: 19,

Article 3(2)].

Thus, it can be seen that the provision identifying subject-matter of protection in

the WIPO Draft Objectives and Principles for TK, therefore has two elements: it clarifies

the general nature of traditional knowledge for the purposes of these provisions, and it

sets appropriate boundaries to the scope of protectable subject matter. It therefore gives

effect to concerns that international provisions on TK should reflect the distinctive

qualities of TK, but also responds to concerns that provisions against misappropriation of

TK should not intrude on the traditional context and should not place external constraints

or impose external interpretations on how TK holders view, manage or define their

knowledge in the customary or traditional context.48

III.3. Relationship between TCEs and TK

WIP049 has listed some common elements that appear in definitions of TCEs or

Expressions of Folklore (EoF) in national laws of Member States. TCEs:

1. are handed down from one generation to another, either orally or by imitation,

48 Comments by Committee participants suggested that the evolving and dynamic nature of indigenous knowledge over time should be further emphasized and reflected in this provision. A sentence to this effect has been added. Other comments suggested to develop and qualifY certain prerequisites and terms used in the provision, such as "resulting from intellectual activity", and thus the description of traditional knowledge has been further specified, drawing on well-known language in existing international IP and other instruments. For example, the terms "resulting from intellectual activity" has a long established, clear usage in Article 2 (5) of the WIPO Berne Convention, and the term "embodying traditional lifestyles" has a similar long-established and clear usage in the context of Article 8G) CBD. 49 The WIPO Intergovernmental Committee on GRTKF recognizes that the protection of expressions of folklore touches upon a number of policy areas such as safeguarding and preservation of cultural heritage; freedom of expression and religious freedom; respect for the rights, interests and claims of indigenous peoples and other traditional communities; recognition of customary law, protocols and practices; access to knowledge and the scope of the "public domain"; addressing the challenges of multiculturalism; and promoting cultural diversity, including linguistic diversity, and access to a diversity of cultural expressions. However. from an IP point of view, which is the main focus of the Committee's work, much of the focus in the protection of expressions of folklore has been related to policies concerning the promotion and protection of creativity and innovation, community development and the stimulation and promotion of the creative industries as part of sustainable economic development (WIPO/GRTKF/IC/11/4 (c), para. 14).

35

11. reflect a community's cultural and social identity,

111. consist of characteristic elements of a community's heritage, and

IV. are made by 'authors unknown' and/or by communities and/or by individuals

communally recognized as having the right, responsibility or permission to do

so.

The TK draft on Objectives and Principles for Protection also throws light on the

WIPO approach to the protection of TCEs vis-a-vis TK. The second paragraph to Article

3 of the TK Draft Objectives and Principles clarifies that these provisions cover

traditional knowledge as such. This means that they would not apply to TCEs/EoF, which

are treated in complementary and parallel provisions (document WIPO/GRTKF/IC/8/4),

despite numerous protests from developing countries and indigenous groups. In its

general structure, but not its content, the paragraph is modeled on Article 2(1) of the

Berne Convention which delineates the scope of subject matter covered by that

Convention by first providing a general description and then an illustrative list of

elements that would fall within its scope. In following a similar approach, this paragraph

does not seek to define the term absolutely. It must be pointed out that WIPO initially

began with the understanding that TCEs are a subset of TK. Accordingly, previously

WIPO documents refer to TK in terms of tradition-based literary, artistic or scientific

works; performances, inventions, scientific discoveries, designs, marks, names and

symbols, undisclosed information and all other tradition-based innovations and creations

resulting from intellectual activity in the industrial, scientific, literary or artistic fields

(WIPO FFM, 2001: 25). Today in its attempts to evolve an international sui generis

model/1egislation for the protection of TK, WIPO is clearly looking towards treatment of

TCEs in a distinct and separate manner from TK. This delineation of TK and TCEs has

not been favoured by some countries with a high indigenous population like New

Zealand. 5° New Zealand insists that attempts to define TK and TCEs should be subject to

protection guided by certain commonly understood facts like: indigenous knowledge is a

subset ofTK; TCEs are the manifestation ofTK; TK and TCEs are embedded in cultural

50 See Table II of the Study, Chapter VI. at 237.

36

systems of intergenerational transmission and preservation, which each community has

developed and maintained in its local cultural and physical environment and that TCEs

cannot be dissociated from the TK itself or from the cultural and physical environment

from which they emerged (WJPO/GRTKF/IC/12/4(a), Annex: 28-9).

Developing countries have also emphasized the overlapping subject-matter of

protection concerning TK and TCEs. While countries like Brazil and South Africa have

affirmed some of the definitions that have been crafted for TK and TCEs at the WJPO,

they have also found it fit to clarify their position on certain matters. For example, with

respect to the definition proposed in Article 1 of the Annex to document

WIPO/GRTKF/JC/1 0/4, section a(ii) concerning musical expressions, Brazil clarifies that

"(w]ith respect to musical expressions, musical styles in particular, the protection sought

after is aimed at the particular rather than the general, i.e., there is little sense in ascribing

entitlement to a musical style as a tradition that, by the very cultural dynamics of

mankind, IS transmitted and shared among many groups and societies"

(WIPO/GRTKF/JC/11(4)(a), Annex: 9).

Developed countries like Japan have however openly questioned consensus on the

"common elements" identified by WIPO and shown the problems associated with easy

references to terms such as "traditiona1."51 The concern over conceptual terms and issues

related to TCEs as pointed out by Japan have been shared by other developed countries

like Canada and the United States (Factual Extraction on TCEs,

WIPO/GRTKF/JC/12/4(b), 2008, Annex: 39-40). Both US and Japan

(WIPO/GRTKF/JC/ll/4(a), 2007) have chosen to focus and indeed engage other

Members and participating actors to carefully consider conceptual and practical issues

such as what would "protection"52 entail; whether the subject matter of TCEs/EoF is

51 See Table 11, Chapter VI of the Study, at 237. 52 The US in its general comments on the List of Issues has stated that in its understanding the use of the term ·'protection" would include a broad range of measures (including legal and non-legal measures) to address specific issues and concerns related to TCEs!Eof and TK. Legal measures possibly including the definition ofTCEs/EoF under customary law, whether codified or not; and non-legal measures, such as the use of tribal registries and electronic databases. See ··The Protection of Traditional Cultural

37

limited to community-oriented artistic and literary productions (Ibid.); the criteria to

determine when and how TCEs/EoF would fall into public domain, especially when

related to their "links with a certain community", the extent of geographical

connectedness and the span of time that has passed by to assume inclusion into the public

domain (WIPO/GRTKF/IC/ll/4(a), Annex: 11).

Developing countries like Brazil,53 Colombia, India,54 Indonesia and Philippines

(Kutty 2002) have demanded a more comprehensive understanding of TCEs while

considering its definitional aspects. Developing country participants in the WIPO

GRTKF have emphasized various aspects of the unique nature ofTCEs like its dynamism

and repetitiveness55 and the ability to reflect "social experience"56, the creativity of

persons, groups and societies, which possess cultural content. 57 Certain other countries

have chosen to be conservative in obtaining an exclusive definition for TCEs.58

III.4. Disclosure of Origin

Traditional knowledge has become an especially important element of the debate

on the review of the TRIPS Agreement at the WTO. On 6 August, 1999, the African

Group of countries59 proposed to the WTO General Council that in the sentence on plant

variety protection in Article 27 .3(b ):

Expression/Expressions of Folklore: Collation of Written Comments on the List oflssues", lith sess., July 3-12, 2007, WIPO/GRTKF/IC/1114(a) (April30, 2007), Annex, page 8. 53 Brazil has stated "[t]he subject matter should be all that consists in the elements belonging to the traditional cultural heritage, developed and maintained by a community or a people within a country or by individuals, and that reflect the traditional cultural expressions of said community or people" (WIPO/GRTKF/IC!ll/4(a), Annex: 9). 54 See Table II, Chapter VI of the Study, at 237.

55 Brazil, WIPO/GRTKF/IC/Il/4(a), Annex: 9. 56 Qatar, WIPO/GRTKF/IC!ll/4(a), Annex: 12. 57 Guatemala: WIPOIII/4(a): 14. 58 See WIPO/GRTKF/IC/12/4(b), Annex, at 20-21. See also Colombia comment in WJPO/GRTKF/IC/11/4 (a), Annex, at 13. 59 World Trade Organization -General Council (1999), "Preparations for the 1999 Ministerial Conference. The TRIPS Agreement. Communication from Kenya on behalf of the African Group·· [WT/GC/W/302].

38

"a footnote should be inserted stating that any sui generis law for plant variety protection can provide for [inter alia]: the protection of the innovations of indigenous farming communities in developing countries, consistent with the Convention on Biological Diversity and the International Undertaking on Plant Genetic Resources."

At the fourth meeting of the WTO Ministerial Conference which took place in

Doha in November 2001, a Ministerial Declaration was adopted according to which the

WTO member states instructed:

"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."

As a contribution to this examination, Brazil, China, Cuba, Dominican Republic,

Ecuador, India, Pakistan, Thailand, Venezuela, Zambia and Zimbabwe jointly submitted

a paper to the Council for TRIPS in June 2002.60 The paper, noting the relevant

provisions of the Bonn Guidelines, proposed that TRIPS be amended to provide that

WTO Member States must require that an applicant for a patent relating to biological

materials or to traditional knowledge shall provide, as a condition to acquiring patent

rights:

(i) disclosure of the source and country of origin of the biological resource and

of the traditional knowledge used in the invention;

(ii) evidence of prior informed consent through approval of authorities under the

relevant national regimes; and

(iii) evidence of fair and equitable benefit sharing under the national regime of

the country of origin.

60 World Trade Organization - TRIPS Council (2002), "The relationship between the TRIPS Agreement and the Convention on Biological Diversity and the protection of traditional knowledge". Communication from Brazil on behalf of the delegations of Brazil, China, Cuba, Dominican Republic, Ecuador, India, Pakistan, Thailand, Venezuela, Zambia and Zimbabwe [IP/C/W /356].

39

The TRIPS makes no reference to the CBD. But this has not prevented developing

countries from referring to the TRIPS-CBD relationship. In October 1999, twelve

developing countries from Asia, Africa and Latin America submitted two joint papers to

the General Council detailing the implementation issues they were seeking solutions to.61

The two papers put forward several TRIPS-related proposals. One of these argued that

TRIPS is incompatible with the CBD and sought a clear understanding that patents

inconsistent with Article 15 of the CBD, which vests the authority to determine access to

genetic resources in national governments, should not be granted. Several other proposals

have been directed to Article 27 J(b) on the patenting of life forms, and the review of its

substantive provisions. The country positions on the review of Article 27 J(b) reveal the

divergence in the interests of different countries, regionally and amongst themselves. For

e.g., the African Group62 has stressed that the review should clarifY that plants, animals,

microorganisms, their parts and natural processes cannot be patented; patents on life

forms are unethical and TRIPS should prohibit them. This group has also required that

TRIPS should contain provisions to promote, not undermine, the conservation and

sustainable use of genetic material and seek to prevent biopiracy.

Provisions on disclosure in the TRIPS are another cause for concern for

developing countries. Article 29 of the TRIPS Agreement contains disclosure conditions.

Disclosure of the invention must be in a manner sufficiently clear and complete for the

invention to be carried out by a person skilled in the art. An optional condition WTO

Members are free to adopt is the disclosure of the best mode for carrying out the

invention. Another optional condition is the requirement that an applicant for a patent

provide information concerning the applicant's corresponding foreign applications and

61 See World Trade Organization - General Council (1999), "Preparations for the 1999 Ministerial Co-nference. Implementation issues to be addressed before/at Seattle. Communication from Cuba, Dominican Republic, Egypt, El Salvador, Honduras, India, Indonesia, Malaysia, Nigeria, Pakistan, Sri Lanka and Uganda" [WT/GC/W/354]; World Trade Organization- General Council (1999), "Preparations for the 1999 Ministerial Conference. Implementation issues to be addressed in the first year of negotiations. Communication trom Cuba, Dominican Republic, Egypt, El Salvador, Honduras, India, Indonesia, Malaysia, Nigeria, Pakistan, Sri Lanka and Uganda" [WT/GC/W/355]. 62 WTO, 1999: Preparations tor the 1999 ministerial conference - The TRIPS Agreement, Communication from Kenya on behalf ofthe Africa Group, WT/GC/W /302, 6 August 1999

40

grants (as well as rejections). This last condition is aimed at assisting the examination of

patent applications in developing countries where insufficient human and technical

resources jeopardize the adequate assessment of the substantive conditions of

patentability. However, it may not impair the principle of independence of patents, as

established by the Paris Convention63 and incorporated by the TRIPS Agreement (TRIPS

Agreement, article 2).

Disclosure of origin is one of the proposals put forth by developing nations in the

WTO (Correa 2003). TRIPS is 'silent' about TK whereas CBD recognizes it. Under

CBD, the nations have right to exercise their sovereignty over genetic resources and use

them for development. When the resources and knowledge are misappropriated through

patents, developing nations argued that changes in the patent system were necessary to

prevent biopiracy. Adding a disclosure norm in TRIPS is the simplest solution to ensure

that countries that are Party to TRIPS honor such an obligation (Srinivas 2008: 91 ).

Compared to TRIPS, the enforcement mechanism in CBD is weak. Moreover some

countries have joined CBD but did not ratifY it, USA being an important example. Hence

developing nations seek a global solution to this.

In the WTO, India mentioned the disclosure requirement for the first time within

the Committee on Trade and Environment (CTE).64 In a communication on item 8 of the

CTE, India noted that "the fair and equitable sharing of benefits arising out of the

patenting and commercial exploitation of genetic resources is not dealt with at all in the

TRIPS Agreement.',65 According to India, the CBD and the TRIPS are two Agreements

that represent:

"two significantly separate multilateral approaches to the utilization of living resources. While TRIPS seeks to promote and foster technological innovation by

63 Paris Convention for the Protection oflndustrial Property, article 4bis( I) ( 1967): Patents applied for in the various countries of the Union by nationals of countries of the Union shall be independent of patents obtained for the same invention in other countries, whether Members of the Union or not. 64 The CTE was established by the WTO General Council following a decision taken by the Ministers in Marrakech,onApr. 15,1994. 65 Item 8 of the CTE's agenda is The Relationship between the TRIPS Agreement and the Convention on Biodiversity.

41

ensuring the certainty of intellectual property protection and of world markets for at least some biotechnological inventions, its provisions are silent on how this protection can achieve the objective of sustainable development, especially in developing countries."66

On the aspect of disclosure requirement in Article 29 of TRIPS, the African

Group has asked for a modification that would entail (a) disclosure of country and area of

origin of any biological resource and traditional knowledge used or involved in an

invention and (b) proof of compliance with all access regulations of the country of origin.

One proposal was that the subparagraph should be amended in light of the provisions of

the CBD taking fully into account the conservation and sustainable use of biological

diversity, and the protection of the rights and knowledge of indigenous and local

communities.

In contrast, India's position appears more flexible. lndia67 has required that

TRIPS be harmonized with CBD either by requiring information on providers of genetic

resources and countries of origin of biological material under Article 29 of TRIPS, or by

incorporating a provision that patents inconsistent with Article 15 of the CBD must not

be granted. India has proposed the exclusion of patents on all life forms. But where this is

not possible, India has insisted on at least an exclusion of patents based on

traditional/indigenous knowledge and products and processes essentially derived from

such knowledge. India has also clarified that it should be left to national policy to decide

what are patentable microorganisms, in light of Art. 27.2 (morality and ordre public).

India is also averse to any further strengthening of the protection presently provided to

life forms. The need to prevent piracy of traditional knowledge built around biodiversity

and to seek the harmonisation of TRIPS with CBD to ensure appropriate returns to

traditional communities has also been reiterated by the South Asian Association for

Regional Cooperation (SAARC) (WT/L/326, 22 October 1999).

66 See The Relationship Between the TRIPS Agreement and the Convention on Biodiversity, WTO Doc. WT/CTE/W/65 ~~ 7, 12-14 and 16 (Sept. 29, 1997) (communication from Indian delegation). 67 WTO (1999), Review of the Provisions of Article 27.3(b)-Communication from India, IP/C/W/161, 3 November I 999, Geneva.

42

India, like Brazil, also insists that the disclosure requirement be made mandatory

for fulfilling patentability. Accordingly, India believes that such a disclosure requirement

must include the disclosure of the country of origin of the biological resource and

associated knowledge and proof of the provider's consent, so as to ensure equitable

sharing of benefits. Developing countries like Brazil, India, Pakistan, Peru, Thailand and

Venezuela (IP/C/W/429 of 21 September 2004) believe that an obligation to disclose

source and country of origin of biological resource and/or TK used in an invention would

improve the availability of prior art to examiners, facilitate determination of patentability,

reduce costly disputes and play a critical role in ensuring patent quality. Disclosure is

expected by these countries to be part of both substantive and formal aspects of patent

law and triggered by any use of a biological material or knowledge associated with it.68

These developing countries are vying for insufficient, wrongful or no disclosure of source

and country of origin of biological resource and/or traditional knowledge as justification

for the non-processing of the patent application. Where the same is discovered after grant

of patent, these countries are demanding that the patent should be revoked or the claims

narrowed or the rights transferred. In pursuance of the demand for a disclosure obligation

some of these developing countries have mooted the introduction of an amendment­

Article 29 bis in the TRIPS text.

A brief look at the positions adopted by the developed countries reveals the

complexities involved in the TK debate. According to the EU (WT/GC/W/193, 1999),

TRIPS and CBD do no conflict. The EU does not favour incorporating complex

requirements on disclosure of origin or proof Qf prior informed consent (PIC). The EU is

open to other solutions on sharing information about origins of patented biological

material. The EU proposes a self-standing disclosure requirement limited to the

geographic origin of genetic resources or TK wjthout it being a criterion for patentability

and the non-respect of which would lie outside the field of patent law. Furthermore, the

68 Latin American countries on their part at the WTO have required that TRJPS should be amended to provide effective moral and economic intellectual property rights to traditional knowledge, medicinal practices and expressions of folklore of indigenous and local communities, taking into account the social and collective nature of these rights (JP/C/W/166 of 5 November 1999).

43

EU sees no reason to amend TRIPS Art. 27.3(b) as it currently stands and also believes

that the TRIPS Council is not the place to discuss an international instrument to protect

TK.

Japan on its part has argued that TRIPS and CBD are mutual non-exclusive and

can be implemented in a non-conflicting way (IP/C/W/236 of 11 December 2000).

According to Japan, a requirement to disclose country of origin of genetic resources or

traditional knowledge would upset the current balance of TRIPS. Japan has also

supported the use of contracts instead of the TRIPS for purposes of benefit sharing and

has also shown a preference for non-exclusion of any subject matter from patentability.

The US (IP/C/W/209 of20 September 2000); (IP/C/W/257 of 13 June 2001) position on

disclosure and benefit sharing regarding the use of TK is similar to that of Japan. It also

believes that the allegation that TRIPS and CBD are inconsistent should be laid to rest.

According to the US, requiring patent applicants to disclose the source of genetic

resources or traditional knowledge would be extremely ineffective. Reservations to

amendment in the TRIPS to facilitate implementation ofCBD (disclosure of origin, proof

of benefit sharing, etc) have likewise been expressed by Australia (IP/C/W/310 of 2

October 2001) and some developed countries like Switzerland (IP/C/W/423 of 14 June

2004) have suggested WIPO as the right forum for such discussion.

Thus while generally developing nations have been pressing for disclosure of

ongm in TRIPS, for reasons pertaining to transparency and equity, key developed

countries are opposing it. The EU takes a middle of the path approach, by agreeing with

the need for disclosure but differing with developing nations in implementing it,

particularly in making it a mandatory condition and provision for revocation if the

disclosure is wrong or false. The proposals by developing nations go beyond what is

required under Bonn Guidelines. It must be noted at this point that the consequences of

non-disclosure are as important as making disclosure as a voluntary option would render

the proposals put forth by developing nations ineffective. Many nations, both developed

and developing nations have enacted laws incorporating the disclosure of origin and want

44

this to be extended to TRIPS (Hoare and Tarasofsky 2006). However not all countries

have incorporated the same principles and requirements on disclosure of origin.69

Some scholars have indeed suggested that the enforcement of the disclosure

requirement and its concomitant tying up with the TRIPS patentability criteria may prove

to be "too cumbersome for patent applicants to meet the norms and would burden the

patent offices with tasks that they are not equipped to handle" (Srinivas 2008: 94).

Scholars are divided over whether the additional requirements for disclosure of origin in

the case of use of genetic resources and TK will be TRIPS incompatible. Correa (2005)

asserts that imposing disclosure as a norm per se would not be inconsistent with TRIPS,

even though Article 29 is silent about the question of requesting further disclosures.

However, Srinivas points out that for the disclosure requirement to be effective

the ability to establish prior art for TK assumes relevance (Srinivas 2008: 97). In this

regard, India is developing a comprehensive TK digital library. China has already built

one for Traditional Chinese Medicine and is using it in its patent offices. In case of the

Indian TKDL it is yet to be made available to patent offices abroad and tested there. But

many developing countries lack the human and technical resources to build such TKDLs

(Srinivas, 2007: 98). Furthermore, Carvalho (2000: 373) stresses that the relevance of the

disclosure requirement may be somewhat limited, depending on the adopted legal

criteria. He also points out that the requirement would apply exclusively to the

biotechnology field and only when natural genetic resources, conserved in situ, are

employed. Carvalho states: "When the active components are isolated from those

resources or even when they are synthesized, the link between the invention and the

resources may become too weak to be of any significance. The same is true for ex situ

69 For e.g. Belgium and Denmark are two EU Member States to have taken Recital 27 of the EC Biotechnology Directive (98/44/EC, 1998) seriously. Both Belgium and Denmark recently implemented the origin requirement in their patent act. The current Danish Patent Act stipulates that where an invention involves or uses a biological material of vegetable or animal origin, the patent application shall contain information about the geographical origin of the material, if the applicant for the patent has knowledge about this. If the applicant for the patent has no knowledge about the geographical origin of the material, this shall be indicated in the application. A lack of information about the geographical origin of the material or the applicant's lack of knowledge about this does not affect the manner in which the patent application is treated or the validity of the rights that follow from the patent issued (Overwalle, 2007: 364).

45

./

conserved resources" (Ibid.). Doubts have also been raised whether the disclosure

requirement would apply to certificates of plant varieties or plant patents obtained by

breeding plant genetic resources (Carvalho, 2000: 373). This limitation is believed to be a

result of an extensive application of article 15( 1 )(iii) of the 1991 Act of the Union for

Protection of New Varieties of Plants (UPOV) Convention, which establishes that the

breeder's right shall not extend to acts done for the purpose of breeding other varieties.

So far, the Requirement has been incorporated into couple of national statutes:

Andean Decision No. 391 of August 16, 1996, which establishes a Common Regime on

Access to Genetic Resources; and the Biodiversity Law (No. 7788) of Costa Rica enacted

May 27, 1998: Brazil 2001. Under both these statutes patent applicants are obliged to

provide patent offices with information concerning the origin of the genetic resource in

question and some proof of prior informed consent from government authorities as well

as traditional knowledge holders, whenever the resource will be obtained through their

technical knowledge. However, the impact of disclosure requirements on these countries

has been limited owing to reasons such as their being referred to only in cases of national

patent applications. Consequently, a small number of applications are affected by the

disclosure requirement. For instance, as of2007, in Colombia there was only one patent

application subject to the disclosure requirement. While Brazil and Peru have enacted

legislation for the purpose of ensuring disclosure requirements, the regulations to enable

enforcement are in yet to be developed, thus leading to insufficient certainty about their

use (Hoare and Tarasofsky 2007: 157). In Europe, only the Norwegian patent office had

da_!a on the number of applications in which c:l~closures were made, having received ten

such applications. In Denmark, no applications in which disclosures had been made could

be recalled (Hoare and Tarasofsky 2007: 156). Nonetheless in the midst of the

weaknesses in the implementation of the disclosure requirement, a positive outcome has

been an increase in the awareness concerning CBD issues such as ABS in certain sectors.

This was noted in a research and national consultations with countries in the Europe on

the implementation of the EC Directive and the issues relating to disclosure requirement

(Hoare and Tarasofsky 2007: 158).

The debate on the inclusion of a disclosure requirement to fend off

misappropriation of genetic resources and associated TK, especially abundant in the

46

developing world, is ongoing in three different for a, namely, the CBD, WIPO and the

WTO. While the moral content of this debate has been acknowledged, the general

reluctance to allow its reading into patent system, which has been promoted as a vehicle

of "innovation" has been hard to overcome. The shared history of colonialism in the

developing world, the emotive issue of indigenous rights and the demand of equity within

the patent regime are crucial components to the disclosure requirement put forward by

developing countries. However, questions raised over the feasibility and effectiveness of

disclosure requirement have failed to evoke clear and precise answers. It must be noted

that internationalization of the disclosure requirement is necessary to address concerns

over misappropriation of TK and for this a possible recourse to legal principles within

patent law has been found feasible (WIPO 2003, Technical Study on Disclosure

Requirement, UNEP/CBD/COP7/INF I 17).

For instance, the 2002 Commission on Intellectual Property Rights report links

equitable considerations with compliance with legislation concerning access to source

material (CIPR 2002: 87): "(t) he principle of equity dictates that a person should not be

able to benefit from an IP right based on genetic resources or associated knowledge

acquired in contravention of any legislation governing access to that material."

Alternatively, equitable considerations may apply in the case where the applicant is

placed under an obligation to disclose information concerning the origin of TK/GR used

in the invention. Hence the suggestion has been made that the "fraudulent procurement"

doctrine could apply in the event of failure to comply with requirements reasonably to

indicate "the source of genetic resources directly or indirectly used in obtaining the

invention" or failure to obtain requisite prior informed consent (Carvalho 2000). This, it

is argued, may create a situation of "unclean hands" in equity, which would have the

effect of rendering an otherwise valid patent right unenforceable at least until the

inequitable conduct had been corrected. This approach has been discussed by a number

of commentators (Outfield 2002; McManis 2003) but has apparently not formed part of

either a formal policy proposal nor any reported judicial decision (WIPO Draft Technical

Study on Disclosure Requirements, WIPO/GRTKF/IC/5/1 0, 2003, Annex: 48). Other

writers have proposed fonns of protection of TK/genetic resources based on unfair

competition, misappropriation, compensatory liability regime (Reichman and Lewis

47

2005) or misappropriation rationales. If they are developed and applied, these legal

concepts may in tum create a legal framework for the linkage between an invention, and

the use of genetic resources or traditional knowledge.

An additional legal basis for disclosure of certain information by a patent

applicant is as a specific requirement established by the terms of a contract. This may be

applicable for a research agreement but also may appear in a material transfer agreement

concerning the provision of biological materials. A requirement to disclose a benefit­

sharing agreement or contract in a patent application, or to indicate the source of

biological materials or knowledge may be based on an obligation in the contract itself

(WIPO/GRTKF/IC/511 0, Annex: 48, para 129). Developed countries such as the US

(lP/C/W/209 of 20 September 2000) and Japan (WT/GC/W/242 of 6 July 1999 and

IP/C/W/236 of 11 December 2000) have especially favoured the use of contracts rather

than TRIPS for the purpose of benefit-sharing. However, it has been urged that

developing countries should not concede that contracts are better solutions than a full

fledged ABS (Srinivas 2007: 110).

IV. Comparative Perspectives: Exclusivity, Indigenity and TK

Upon studying the definitional challenges encountered with respect to TK, following

tentative conclusions can be made. Cutting across fora responses to the protection of TK,

it is noted that both at the CBD and the WIPO, TK is recognized in its "innovative"

content. CBD does have an emphasis on bio-diversity related TK while WIPO seems to

be adopting a more open-ended understanding of TK without focusing on a specific field

of knowledge. That being said, WIPO is clearly moving in the direction of separating the

discussions between TK and TCEs owing primarily to the difference in policy focus.

Another point that arises from examining the definition of TK emerging at WIPO

and embodied in the CBD text is the extent to which indigenous peoples are considered

to be holders of TK and therefore the beneficiaries of protection. The CBD approach to

TK accords recognition of local and indigenous communities and even considers their

approval as necessary for access to TK. WIPO on the other hand only recognizes

indigenous knowledge as a subset of TK and continues to be a site for contestation and

48

representation by indigenous organizations and Member countries with large indigenous

population. Demands for an exclusivist definition for TK at the WIPO stress the intimate

link between TK, TCEs, territory and life ways, in accordance with the world view of the

"indigenous." Another point to be noted while studying the definition of TK is that

international organizations like the WIPO and CBD have been required to consider the

general characteristics of TK and policy imperatives such as those relating to bio­

diversity conservation, sustainable development and promotion and protection of

creativity and innovation. These policy concerns are but a few of the others that have

emerged in the TK debate and any definition for TK will necessarily depend on the

objectives of protection, the very meaning of "protection" and the beneficiaries thereof.

The divide between the developed and developing countries is apparent in both

discussions relating to definitional contours relevant for protection of TK and the scope

of substantive provisions regarding the same. Certain concerns have been expressed at

the WJPO Intergovernmental Committee on GRTKF. Developing countries in raising

concerns over the understanding of TK have attempted to emphasise its value to

traditional communities, its intimate link with people, their land and lifeways and how

"misappropriation" of TK undermines cultural and religious sensitivities and fails to

acknowledge the contribution of communities that hold TK. The WJPO Draft Objectives

and Principles for the Protection of TK have undergone a series of comments and few

minor revisions since the last few sessions?0

Developing country positions71 can be gleaned from the comments put forth by

70 The WIPO Draft Objectives and Principles are currently open for comments. A review of some of the country positions and views of other "stakeholders" such as indigenous groups and publication groups help highlight the policy concerns that impinge on efforts to etch out the definitional contours ofTK and TCEs. 71 Brazil has clarified that the definition to be adopted for TK "should be anthropological, meaning that, inter alia, all knowledge dynamically produced, reproduced, maintained and transmitted by traditional methods, in a collective and inter-generational environment and related to the identity and the socio­cultural integrity of a given community should be protected (including beliefs, spirituality, values and knowledge employed for the conservation of biodiversity)". Colombia has pointed out that the categories of traditional knowledge include: agricultural, scientific, technical, ecological and medicinal (related to medicines and remedies) knowledge as well as that related to biodiversity etc. and is characterized by a holistic nature; a fundamental part of the entity of indigenous and local communities; collective in nature and in some cases related to territory; in a permanent state of change and development and generally transmitted orally (Ibid, at 8). See Table II, Chapter VI ofthe Study, at pages 237-24 I.

49

Ghana and Latin American countries like Colombia and Guatemala. For instance, Ghana

has laid emphasis on the "tradition-based" knowledge that refers to knowledge systems,

creations, innovations and cultural expressions which have generally been transmitted

from generation to generation and are generally regarded as pertaining to a particular

people or its territory and are constantly evolving in response to a changing environment.

The attempt is to show inter-generational transfer, ties with "people" and territ01y and the

ability of this knowledge to respond to change. Ghana has also stated that it is

"imperative that the community at large should be recognized as the sole beneficiary of

such protection and also be accorded the rights to protectable TK (Collation of

Comments, WIPO/GRTKFIIC/11/S(a), 2007 Annex: 10). China, on its part has laid an

emphasis on the incorporation of traditional medicine within the meaning of TK and has

suggested a further expansion of the list of beneficiaries to include "ethnic groups"

(Collation ofComments, WIPO/GRTKFIIC/11/S(a), 2007, Annex: 7).

The position of developed countries in relation to the definition and protection of

TK can also be obtained by a reading the comments on the WIPO Draft Objectives and

Principles for the Protection of TK. For instance, the European Community (EC) and its

Member States have shown that there is no internationally adopted definition of

traditional knowledge (TK). According to the EC, in order to achieve the necessary legal

certainty, TK should be defined so that it can be clearly identified and described. While

the EC Members acknowledge that several defmitions of TK have been already advanced

(WIPO, CBD, UNESCO), they concede that the definition contained in the WIPO

Secretariat draft substantive provisions (Article 3, document WIPO/GRTKF/IC/1 0/5) "is

a good working definition and starting point for discussion" (WIPO/GRTKFIICII 1/S(a),

2007, Annex: 8).

The EC Members despite noting that "a single exhaustive definition might not be

appropriate in light of the diverse and dynamic nature of TK, and the differences in

existing national laws on TK, it would be in the interests of right holders as weil as

national legislators to set out as clearly as possible the general concept," have continued

to insist on "efforts ... at developing, defining and qualifying further the present working

definition" (WIPO/GRTKF/JC/11/S(a), Annex, 2007: 9) . Japan before defining the

expression "traditional knowledge", has called into question a host of terms inter alia,

50

"traditional," "knowledge," "state of management", "value" of knowledge, "level of

ownership and traditional knowledge "that should be protected" (WIPO/

GRTKF/IC/1 I/5(a), Annex, 2007:12).72

A look at the US comments on the WlPO 2006 Draft Objectives and Principles,

highlights another dimension to the opposition mounted by developed countries to the

protection of TK. The US has stated that the issue of defining TK also includes the

difficult question of identifying TK, or elements thereof, which "should be protected" and

in this regard has insisted that "the use of the term "protection" ... include a broad range

of measures (including legal and non-legal measures) to address specific issues and

concerns related to TCEs/EoF and TK. It would be productive for the IGC to examine in

greater detail what TK, or related elements, are capable of protection under existing legal

and non-legal mechanisms." Furthermore, the US has also raised concern over "the

diffusion of what may have once constituted "traditional knowledge" that now may be

considered to be in the public domain of different jurisdictions. Existing systems of

intellectual property promote innovation and sharing of knowledge and thereby are

directed toward providing protection for limited time to inventions or creations. After the

term of protection, the invention or creation is no longer subject to exclusive rights. The

nature of the word "traditional" indicates a link to the past. It appears that much

knowledge that could be, by some measure, considered '<traditional" may already be

diffused widely throughout the world as common knowledge or widely used knowledge

at least in those economic and social sectors where that knowledge is relevant. In that

light, it may well be that much of this knowledge has fallen into the public domain and is

thereby available for use by the public at large without restriction in many jurisdictions.

Attempts to take existing public information and to reassert private ownership

retrospectively would appear to give rise to several 1ssues and have significant

consequences not only on intellectual property law, but more broadly"

(WlPO/GRTKF/IC/11/5(a), Annex, 2007: 17).

72 Finally, Japan has concluded that "to clarify the expression "[traditional knowledge] that should be protected," the discussion about public interest, identification of existing problems, and practical needs tor protection is indispensabh:'· (Ibid, at 13).

51

The US concern over the retrospective "private ownership" of TK that has "fallen

into the public domain" is shared the International Publishers' Association (IPA)

(WIPO/GRTKF/IC/11/5(a), Annex, 2007: 1 1 ), which has instead of protection of TK in

the "public domain" suggested a resort to the principles of "trade secret" where

applicable. WIPO has also taken note ofiPA's concern over the "severe impact" that an

ambiguous protected subject-matter in TK will have on publications and "the narrowest

possible definition, protection (sic) only very important ritual or religious matters"

(WIPO/GRTKF/IC/ll/5(a), Annex, 2007:11). The International Chamber of Commerce

(ICC) has also raised the issue of certainty concerning the protection of subject-matter in

TK; need for "a clear nexus between the knowledge and the claimant of rights in it; a

proper justification for the rights claimed, which must be proportionate; a fair and

effective system for enforcing the rights and adjudicating disputes." The ICC has also

sought clarification on the exceptions to the free use ofTK (Ibid.).

V. Summary

After many years of debate across various fora in international law, the need for the

international protection of TK is increasingly being found acceptable. Global efforts to

protect TK have found support at numerous quarters and a number of international

organizations have registered the problem of TK under the influence of public protest and

have initiated legal regulations, within the ambit of their competencies or as some

scholars have observed: "their own tunnelvision." Despite the availability of definitions

for TK, attempts to formulate an international framework or instrument for the protection

of TK has been fraught with conceptual challenges and contestations by various actors

involved in the debate. Nowhere is this more obvious than at the ongoing negotiations in

the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge

and Folklore (WIPO IGC). Negotiations over conceptual terms have been hard to

disregard at the WIPO IGC, few of which have related to: the meaning of "traditional";

"beneficiaries of protection"; "community;" "acts of misappropriation" etc.

The WIPO Draft Objectives and Principles on the Protection of Traditional

Knowledge (WIPO/GRTKFIIC/1 0/5, 2006) distill out provisions that may relate to some

important facets to the ongoing debate. Though these provisions do not have legal weight

52

presently they have been referred to by some national and regional actors. The WIPO

Draft Provisions on TK recognizes the diverse definitions and scope of TK that already

apply in existing national Jaws on TK and does not seek to apply one singular and

exhaustive definition. Guided by existing national Jaws, it clarifies the scope of TK in a

descriptive way rather than in a precise listed-format.

Another conclusion that can be drawn in the ongoing debate on the protection of

TK in international law is on the way in which expressions of folklore are perceived

within the context of general protection of TK. WIPO's recent Draft Objectives and

Principles for the Protection of TK (WIPO/GRTKF/IC/1 0/5, 2006) indicates preference

for a separate, complementary and parallel process of protection for TCEs. Even though

developing countries and indigenous groups have indicated the fundamental

inseparability of TK and TCEs, it seems that for reasons of practicability and different

legal regimes, WIPO has chosen to keep the protection of TK separate from that for

TCEs. This separation is unfortunate and may have serious implications on some of the

larger issues of cultural and indigenous rights which have been duly acknowledged in

other fora such as the CBD and the UNESCO.

Most developing countries agree that an internationally binding agreement to

protect TK is the way forward. However the nature, content and status of such an

international instrument continues to remain elusive. Significant progress has been made

by developing countries in addressing concerns over bio-piracy at the CBD and it has

been urged that parallel negotiations in the WTO and WIPO must complement these

efforts. While protection of TK and expressions of folklore continues to be affected by

different interpretations regarding their terminology, the work with regard to genetic

resources has moved with more positive results. Mandatory disclosure requirements to

enable access to genetic resources, prior informed consent and fair and equitable benefit

sharing of returns from the use of genetic resources and associated traditional knowledge

has been mooted by certain developing countries such as the African Group of countries,

Brazil and India. Much of the progress attained at the CBD is however subject to how its

emphasis on access and benefit-sharing, prior informed consent and disclosure of origin

are considered TRIPS-compliant. These vital negotiations are ongoing and the divide

between developing and developed countries appears fairly intransigent.

53

The willingness of both developed and developing countries to compromise and

negotiate terms of protection at the WIPO are therefore significant. A perusal of country

positions on the recent developments in the protection of TK at the WIPO IGC shows

developed countries emphasizing the need for evidence-based protection for TK. Major

concerns on the part of developed countries is with regard to access to resources and legal

certainty in access and benefit sharing arrangements pertaining to the transfer and use of

TK and related resources. On their part, the developing countries, have continued the

stress on potential for economic development through an accountable system of access

and use of their TK. Developing countries also argue that since TRIPS requires countries

with traditional and indigenous communities to provide intellectual property protection

for a broad range of subject-matters including new ones such as plant varieties, biological

materials, lay-out designs and computer software, it is only equitable that traditional

knowledge should be given legal recognition. Other concerns relating to food security,

sustainable environmental development and the right of indigenous and cultural

communities to "their way of life" have also been expressed by developing countries.

Since we have looked at the broader developments in international Jaw pertaining

to the protection of TK, it is therefore imperative that we move beyond the debate on the

protection of "scientific" and "biodiversity" -related knowledge and consider another

dimension to the TK debate, namely concerning the protection of expressions of folklore.

The next chapter will seek to examine the protection of TCEs within existing

international law and also study the work done by the WIPO IGC in this regard.

54