WIPO NATIONAL SEMINAR ON OMANI TRADITIONAL VALUES IN A GLOBALIZED WORLD Muscat, February 13 and 14, 2005 Traditional Knowledge (TK) and Intellectual Property

WIPO NATIONAL SEMINAR ON OMANI TRADITIONAL VALUES IN A GLOBALIZED

WORLDMuscat, February 13 and 14, 2005

Traditional Knowledge (TK) and Intellectual Property

Agreements

WIPO Secretariat

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TK and IP Agreements

1. Concept of TK- elements of TK: a) TK in a strict sense; b) expressions of TK; c) handicrafts- the holistic nature of TK

2. International Agreements and TK- Agreements that generally cover TK (that is, as manifestations of human creativity and/or as differentiating intangible assets)- Agreements that specially aim at protecting TK

3. The work of WIPO as regards the establishment of an international framework for the protection of TK

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1. Concept of TK

TK has been defined as “ideas and expressions thereof developed by traditional communities and Indigenous peoples, in a traditional and informal way, as a response to the needs imposed by their physical and cultural environments and that serve as means for their cultural identification” (WIPO/GRTKF/IC/5/8)

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1. Concept of TK (cont.)

a) TK is “ideas”, that is, TK is knowledge. This corresponds to the industrial

property aspect of TK (or TK in a strict sense).

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b) TK is “expressions of those ideas”, that is, TK is also folklore. This corresponds to the copyright and related rights aspect of TK.

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c) TK is also an intertwined, symbiotic combination of ideas and of expressions: handicrafts. Handicrafts are useful objects (at least, so were they originally) which conform to popular esthetic values.

Basket weaving with leaves of date palm trees. They preserve the flavor of dates and permit the flowing of their juice.

The khanjar. Originally a weapon, currently a ceremonial accessory and an Omani national symbol.

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a) TK is tradition-based and is a means of cultural identification; TK cannot be separated from the community that has developed it

b) TK is traditional but it is not necessarily old

c) TK is holistic, that is, its many components are conceptually unitary and only by resorting to an exercise of abstraction can they be separated and isolated

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1. Concept of TK (cont.)An illustration of TK:

Let us imagine that a member of an Amazon tribe does not feel well and requests the shaman’s medical services. The shaman, after examining the patient, will go to his garden and collect some leaves, seeds and fruits from different plants. Mixing those materials according to a method only he knows, he prepares a potion according to a recipe of which he is the sole holder. While preparing the potion and, afterwards, while administering it to the patient (according to a dosage he will likewise prescribe), the shaman prays to the gods of the forest and performs a religious dance. He may also inhale the smoke of the leaves of a magical plant ...

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... (the “vine of the soul”). He may blowthe smoke onto his patient’s body.The potion will be served and savedin a vase with symbolic designs andthe shaman will wear his ceremonialgarments (and/or body paintings)for the healing.

© National Geographic Society

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The TK of the Amazon shaman is a combination of all those elements. If taken separately, existing intellectual property mechanisms could protect most of, if not all, those elements. For example:- the different plants used in the potion: plant variety protection- the potion (or the formula thereof): patent and/or trade secret- the use and the dosage of the potion: patent (in some countries)- the prayer, once fixed: copyright

- the performance, once fixed: related rights - the vase containing the potion: patent or utility model certificate

if it has new and inventive functional features; if not, it can be protected under an industrial design system

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- the designs on the vase and on the garments, as well as the body paintings: copyright or industrial design systems- the several tangible elements above, if commercialized, can be designated by a trade mark (individual or collective), a certification mark, and/or a geographical indication- the shaman and/or his tribe can be designated by a trade name

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However, to the shaman, it is not possible to separate the several components of his knowledge. All components are equally important. The cure results from the combination of all components, and not from one or another isolated element. All elements induce equally the intervention of the spirits of the forest. TK is holistic.

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Another example of holistic TK: VALHRONA

Harvest 1999 Rare Chocolate With the People of Chuao

Origin: venezuela

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Another example:

Valrhona - (French registered) trademarkChuao - (Venezuelan registered) geographical indication

designating a rare cocoa variety (Reg. Nr. 00-14373, of August 10, 2000, belonging to Empresa Campesina de Chuao y MPC Aragua)

Design of handicrafts - industrial design, copyrightColors of the Venezuelan flag - protected as a State emblemContract of commercial distribution of Chuao cocoa - it contains

a clause of benefit sharing and technology transfer from the French importer to the Venezuelan indigineous producers

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However, to the indigenous peoples of Chuao, the cocoa nuts that they have planted, bred and selected for more than 300 years cannot be separated from their land, their culture, their language. Chuao is a geographical name, or a brand of cocoa, an agricultural commodity, but to the peoples of Chuao it is much more than that: it is their life, it is their identity, it is their dignity. Simple certificates of registration do not express or address this holistic concept.

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2. TK and international agreements

Agreements that generally cover TK (as any other element of intellectual property):

in fact, in almost all the agreements concerning substantive aspects of IP tools can be found for protecting several (or all) of the components of TK; however, even though many of TK components could be protected separately

- not all TK elements meet the conditions for protection under “traditional” IP law;

- a good number of IP mechanisms impose complex and costly formalities, which do not correspond to the intrinsicly dinamic nature of TK;

- the separation of TK components is incompatible with its holistic nature.

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Agreements that specially aim at protecting TK (in a broad sense):

a) Berne Convention, Article 15.4 (folklore)

(a) In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.

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b) WIPO Performances and Phonograms Treaty (WPPT), Article 2 (folklore)

For the purposes of this Treaty:

(a) “performers” are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;

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c) Convention on Biological Diversity (CBD), Article 8(j) (TK in a strict sense)

Each Contracting Party shall, as far as possible and as appropriate:

“(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practice 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.”

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c) The United Nations Convention to Combat Desertification (UNCCD), Art. 16.2 (TK in a strict sense):

“2. The parties shall, according to their respective capabilities, and subject to their respective national legislation and/or policies, protect, promote and use in particular relevant traditional and local technology, knowledge, know-how and practices and, to that end, they undertake to:

“(a) make inventories of such knowledge, know-how and practices and their potential uses with the participation of local populations, and disseminate such information, where appropriate, in cooperation with relevant intergovernmental and non-governmental organizations;

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c) The United Nations Convention to Combat Desertification (UNCCD), Art. 16.2 (cont.):

“...(b) ensure 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;

“(c) encourage and actively support the improvement and dissemination of such technology, knowledge, know-how and practices or of the development of new technology based on them; and

“(d) facilitate, as appropriate, the adaptation of such technology, knowledge, know-how and practices to wide use and integrate them with modern technology, as appropriate.”

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3. The work of WIPO as regards the establishment of an international framework for the protection of TK

First initiative: The WIPO/UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Actions, of 1982

Second initiative: the new WIPO approach after 1997 – to bring the benefits of IP to segments of society so far unable to use it (indigenous peoples, SMEs); international discussions (CBD, FAO, WTO)

1st phase – from 1998-2000 – exploratory phase (9 FFMs; 4 regional consultations on folklore; TK integrates WIPO’s cooperation for development program)

2nd phase - 2001-current – the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklorefirst mandate 2001-2003 (discussions, studies, surveys)second mandate 2003-2005 (continuation of the debates taking into account the international dimension of TK)

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Thank you!

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Documents

WIPO NATIONAL SEMINAR ON OMANI TRADITIONAL VALUES IN A GLOBALIZED WORLD Muscat, February 13 and 14, 2005 Traditional Knowledge (TK) and Intellectual Property