protecting traditional knowledge : an overview of a developing area of intellectual property law

Protecting Traditional Knowledge

A n Overview of a Developing Area .f Intellectual Property Law

Bernard OCONNOR*

Knowledge is power.

Francis Bacon (1561-1626)

A man can only attain knowledge with the help o j those who possess it . . , One must learnfrom him who knows.

George Gurdjieff (1 866-1 949)

I. INTRODUCTION

The aim of this article is to give an overview of the complex and controversial nature of the legal protection of traditional knowledge. The article examines what traditional knowledge is and the arguments for recognizing and protecting it. Next the article examines the international protection provided by the Convention on Biological Diversity (CBD) and the issue of biopiracy. This issue is illustrated by several cases, namely, Neem, Turmeric, Ayahuasca, Hoodia Cactus and Basmati Rice. Then the application of existing intellectual property rights to traditional knowledge on the international and national level is examined, in particular explaining the problems and benefits of protecting the names of traditional products through assimilation to geographical indication law. The article also looks at some ofthe new suigeneris systems for the protection of traditional knowledge and addresses the issue of traditional knowledge in the World Trade Organization (WT~) , examining the issue under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the present positions of WTO Members in connection to the revision of Article 27.3(b) of TRIPS.

* Senior Partner at OConnor and Company, European Lawyers, Brussels, Belgium (see on cchttp://www.oconnor.ben) .

The author would like to thank his colleague Irina Kireeva for research and comments on this article, and also Jean-Charles Van Eeckhaute ofthe EC Commission for comments on an earlier draft. Any opinions or mistakes are those of the author. He may be contacted at: [email protected]

1 G. Dutfield, Intellectual Property Rights, Trade and Biodiversity, Earthscan Publications Ltd., London, 2002; B. Dasgupta, Patent Lies and Latent Danger: A Study ofthe Political Economy ofPaten& in India, Economic and Political Weekly, 17-24 April 1999; M. Ruiz, The International Debate on Traditional Knowledge as %or Art in the Patent System: Issues and Options for Developing Countries, Center for International Environmental Law (CIEL), available at: cchttp://www.ciel.org/puhlicationsn.

678 THE JOURNAL OF WORLD INTELLECTUAL PROPERTY

11. WHAT IS TRADITIONAL KNOWLEDGE?

Local communities have always generated specific knowledge which has been used for shorter and longer periods and informally passed from generation to generation or from group to group. This traditional knowledge can be defined as the knowledge, innovations and practices of indigenous peoples and local communities.2 Traditional knowledge can be considered to include knowledge oE

-

-

-

- processes and technologies; - -

- artistic expressions.

Traditional knowledge is usually collective knowledge. Sometimes, due to parallel development or due to the exchange of knowledge, communities with similar eco- systems, cultures or problems can have the same or similar traditional knowledge which, in turn, is or is not, expressed in a similar fashion. For those indigenous or local communities that did not have a written tradition, traditional knowledge takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, local language, culinary recipes and agricultural practices, including the development of plant species and animal breeds. It is therefore extremely difficult to determine with accuracy which communities are the rightful owners of a certain knowledge, or the relationship between traditional knowledge and different communities.

plants and animals and their properties; minerals and soils and their properties; combinations of organic and inorganic matters;

means of enhancing individual health and welfare; means of enhancing collective health and welfare;

111. RECOGNITION OF THE IMPORTANCE OF TRADITIONAL KNOWLEDGE

Traditional knowledge, developed from experience gained over time and adapted to a local culture and environment, has always played-and still plays- important role in the daily lives of the majority of people globally and is considered to be an essential part of cultural identities.3 It is vital to the food security and health of millions of people in the developing, and even developed, world. In many developing and

See generally, Dutfield, id.; M. Khor, Intellectual Property, Biodiversity and Sustainable Development, Third World Network, Penang, Malaysia, 2002; N.S. Gopalakrishnan, Protection of Traditional Knowledge-The Needfor a Sui Ceneris LAW in India, 5 J.W.I.P. 5, September 2002, p. 725; U N Committee on Trade and Development, The TRIPS Agreement and Developing Countries; UNCTAD, New York and Geneva, 1996; Comnlission on Intellectual Property Rights, Integrating Intellectual Property Righhts and Development Policy, 2002; G. Tansey, Trade, Intellectual Property, Food and Biodiversity, London, 1999; M. Blakeney and P. Drahos (eds.), IP in Biodiversity and Agriculture: Regulating the Biosphere, Sweet & Maxwell, London, 2001; Costa e Silva, The Protection oflntellectual Propertyfor Local and Indigenous Communities, European Intellectual Property Review, 17, 1995, p. 546.

3 The literature as yet does not examine whether enlightenment values or constitutional law-based culture can also be considered traditional knowledge.

4 Old wives tales are still in common use.

PROTECTING TRADITIONAL KNOWLEDGE 679

least-developed countries, traditional medicines provide the only affordable treatment available to poor people.5

Knowledge of the healing properties of certain plants has been the source of many modern medicines. In addition, the use and continuous development by local farmers of plant varieties, and the knowledge associated with them, play an important role in agricultural systems in developing countries.

Traditional knowledge has been translated into commercial benefits by providing leads for development of useful products and processes. The valuable leads provided by traditional knowledge save time, money and investment of the modern biotech industry into any research and product development. The question that now needs to be addressed is whether a share of benefits should accrue to creators and holders of traditional knowledge, and if so, how.

The means of preservation, development, protection and equitable use of tramtional knowledge are under increasing attention in a range of policy discussions on matters as diverse as food and agriculture, the environment (notably the conservation of biological diversity), health, including traditional medicines, human rights and inhgenous issues, cultural policy, and aspects of trade and economic development. The role of intellectual property systems in relation to traditional knowledge has been a particular focus of discussion in a number of these policy contexts in various international fora.

Protection and recognition of the traditional knowledge is a recent phenomenon in the international community. In 198 1 the World Intellectual Property Organization (WIPO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a Model Law on Folklore.6 The concept of farmers rights was introduced in 1989 by the Food and Agriculture Organization (FAo) into its International Undertaking on Plant Genetic Resources,7 and in 1992 the Convention on Biological Diversity highlighted the need to promote and preserve traditional knowledge.8 To date, however, there are no comprehensive rules on the protection of traditional knowledge, as for other classes of intellectual property.

5 According to the World Health Organization (WHO) Fact Sheet No. 271, June 2002, in developing countries, up to 80 percent of the population depend on tramtional medicines to help meet their healthcare needs. See more on: c~http://www.who.int/medicines/organization/factheet271 .doc),.

6 See also: (chttp://www.unesco.or~), Culture, Copyright, Folklore. It should be noted that certain authors make a distinction between folklore and traditional knowledgesee, for example, J.C. Weiner, Protection ofFolklore: A Political and Legal Challenge, IIC International Review of Industrial Property and Copyright Law, 1987, 18/01, pp. 56-92; Ch. Haight Farley, Protecting Folklore .f Indigenous Peoples: Lr Intellecrual Property the Awwer? 30 Connecticut Law Review 1, 1997-and others tend to include folklore into traditional knowledgesee Dutfield, supra, footnote 1.

7 Resolution 8/83, adopted at the 22nd Session of the FAO Conference, Rome, 1983; avalable at: cchttp://www.fao.org/ag/cgrfa/iu. htm,,.

* The CBD came into force on 29 December 1993. See, for more information: ((http://www.biodiv.orgo.


Iv. THE CONVENTION ON BIOLOGICAL DIVERSITY AND TRADITIONAL KNOWLEDGE

Biological diversity encompasses all species of plants, animals and micro-organisms and variations between them, and the eco-systems of which they form a part. Traditional knowledge associated with biological resources is an intangible component of the resource itself.

The CBD is the only binding international agreement that contains explicit reference to traditional knowledge. The CBD seeks to promote the conservation of biodiversity and the equitable sharing of benefits arising out of the utilization of genetic resources.9 It asserts the sovereign rights of nations over their national resources, and their right to determine access according to national legislation with the aim of facilitating the sustainable use of these resources, promoting access and their common use.

As stated in the Preamble to the Convention, the Member countries recognize the desirability of sharing equitably the benefits arising from the use of traditional knowledge. Its Article S(i) provides:

Subject to its national legislation, respect, preserve and maintain knowledgc, innovations and practices of indigenous and local communities embodying traditional lifcstyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.

Like most provisions of the CBD, Article S(i) provides for a general framework and policy objectives within which States can act to fulfil their obligations.

V. CASES OF BIOPIRACY OF TRADITIONAL KNOWLEDGE

A number of cases relating to traditional knowledge have attracted international attention. These cases involve what is often referred to as biopiracy.lo In the well-known cases of Neem, Turmeric and Ayahuasca, the issue arose from the granting of patent protection to inventions relating to traditional knowledge which was already in the public domain. In these cases, patents were issued because the patent examiners were not aware of the relevant traditional knowledge.11

i For more information see Dutfield, supra, footnote 1; and Khor, supra, footnote 2. lo There is no accepted definition of biopiracy. The Action Group on Erosion, Technology and

Concentration (


A. T h e Neem Case

The Neem case was a landmark case it was the first time that a patent based on the traditional knowledge of a developing country had been successfully challenged. There were several issues raised in this case, the most important of which was the concern that if a multinational corporation could usurp traditional knowledge through patents, this would lead to the erosion of the diversity of the neem tree, neem seeds would become costly and thus not be available to poor farmers, and therefore developing countries and, in particular, India, would be robbed of their rights to use neem trees as they saw fit.

Neem (Azadirachta indica) is a tree from India and other parts of South and Southeast Asia. It is now planted across the tropics because of its properties as a natural medicine, pesticide and fertilizer.12 Neem extracts can be used against hundreds of pests and fungal diseases that attack food crops, the oil extracted from its seeds is used to treat colds and flu and, mixed in soap, it is believed to offer low-cost relief from malaria, skin diseases and even meningitis.

In 1994, the European Patent Office granted a European patent to the U.S. Corporation W.R. Grace and the U.S. Department of Agriculture for a method for controlling fungi on plants by the aid of a hydrophobic extracted neem 0i1.13

In June 1995, a legal opposition against the grant of this patent was filed by Magda Aelvoet, Member of the European Parliament, on behalf of the Green Group in the European Parliament, Brussels,14 Dr Vandana Shiva, on behalf of the Research Foundation for Science, Technology, and Natural Resource Policy, New Delhi, and the International Federation of Organic Agriculture Movements, based in Germany.15

The evidence was submitted that the fungicidal effect of hydrophobic extracts of neem seeds was known and used for centuries on a broad scale in Inda, both in Ayurvedcl6 medicine to cure dermatological diseases and in tradtional Indan agricultural practice to protect crops from being destroyed by fungal infections. Since this traditional Indian knowledge was in the public domain for centuries, it was argued that the patent application for neem lacked two basic statutory requirements for the grant of a European patent-namely, novelty and inventive step.

In addtion, the opponents of the patent charged that the fungicidal method claimed in the patent was based on one single plant variety (Azadirachta indica) and hence

12 See more in Neem, A Treefor Solving Global Problems, National Academy Press, Washington, D.C., 1992; Intellectual Piracy and the Neem Patents, Research Foundation for Science, Technology and Natural Resource Policy, -. Dehradun, I d a , 1993.

13 European Patent No. 436257 was granted bv the European Patent Office on 14 September 1994. 14 See more on: cchttp://www.greenGefa.org>>. 5 See more on: whttp://www.ifoam.orp. 16 Ayurveda is a system of healing that originated in India thousands of years ago. The word Ayumeda is

made up of two Sanskrit words: Ayu which means life and Veda which means the knowledge. Find more on: ((http://www.ayuNed.com)).


resulted in at least partially monopolizing this single plant variety. It was pointed out that since the European Patent Convention (EPc) explicitly prohibits the patenting of plant varieties, the patent should be revoked.

O n 15 June 1999, the Opposition Board of the European Patent Office held that due to the fact that all features of the present claim [of the patent] have been disclosed to the public prior to the patent application during field trials in the two Indian districts Punc and Sangli ofMaharashtra, Western India, in summer 1985 and 1986, it appeared to be mere routine work for a skilled person to add an emulsificr in an appropriate amount and that therefore the present subject-matter was considered not to involve an inventive step. The patent, therefore, was revoked by the European Patent Office in May 2000.

B. The Turmeric Case

In spite of the fact that the decision on the Turmeric case appeared later than the revocation of the neem patent, this case attracted even more attention &om the public.

Turmeric (Curcurnu longu) is a plant of the ginger family yielding safion-coloured rhizomes. It has been used as a dye, medicine and flavouring since 600 B.C. In 1280, Marc0 Polo described Turmeric as a vegetable with the properties of saffron, yet it is not really safk~n. Turmeric has been used medcinally throughout Asia to treat stomach and liver ailments. It also was used externally to heal sores and as a cosmetic.

In 1995, two Indian nationals at the University of Mississippi Medical Center were granted a U.S. patent on use of turmeric in wound he&ng.7 The Indlan Council of Scientific and Industrial Research (CSIR)~~ requested the U.S. Patent and Trademark Office (USPTO) to re-examine the patent.19

The CSIR argued that turmeric has been used for thousands of years for healing wounds and rashes and therefore its medicinal use was not novel. Their claim was supported by documentary evidence of tradltional knowledge, includmg an ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association. The USPTO upheld the CSIKS objections and revoked the patent in August 2002.

C. The Ayahuasca Case

The Ayahumcu case concerns both substance and procedures. For generations, shamans (medicine men) of indigenous tribes throughout the Amazon Basin have processed the bark of Bunisteriopsis caupi to produce a ceremonial drink known as ayahuasca. The shamans use

US. Patent No. 5401504 was granted for the use ofturmeric powder as a wound healing agent on 28 March

8 Scc, for more information, the official Website (chttp://www.csir.res.inn. lY See, for more information, the official Website c(http://www.uspto.gov)).

1995.


ayahuasca (which means vine of the SOLIY) in religious and healing ceremonies to diagnose and treat Illnesses, meet with spirits, and &vine the future.

An American, Loren Miller, obtained U.S. Plant Patent No. 5751 in June 1986, granting rights over an alleged variety of Banisteriopsis caapi which had been called Da Vine. The patent description stated that the plant was discovered growing in a domestic garden in the Amazon rain-forest of South America. The patentee claimed that Da Vine represented a new and distinct variety of Banisteviopsis caapi, primarily because of the flower colour.

The Co-ordinating Body of Indigenous Organizations of the Amazon Basinz0 learned of the patent in 1994. On their behalf, the Center for International Environmental Law ( C I E L ) ~ ~ filed a re-examination request on the patent. CIEL argued that a review of the record led to the conclusion that Da Vine was neither new nor distinct. They argued also that the granting of the patent would be contrary to the public and morality aspects of the Patent Act because of the sacred nature of Bunisteviopsis caupi throughout the Amazon region. In November 1999, the USPTO rejected the patent claim agreeing that Da Vine was not distinguishable from the prior art presented by the CIEL and therefore the patent should never have been issued.

However, the USPTO reversed its rejection in January 2001 and issued a certificate in April allowing the patent to stand for the remaining two years of its term. The main reason for this was the date of filing of the patent, as it was not covered by the new rules in the United States on inter partes re-examination.22 The CIEL was therefore unable to comment on the arguments made by the patentee that led to the patent being upheld. The indigenous peoples continue to protest against this patent.23

D. T h e Hoodia Cactus Case

In the Hoodia Cactus case, the issue was not whether the patent should or should not have been granted, but rather whether the local people known as the San, who had nurtured the traditional knowledge underpinning the invention, were entitled to receive a fair share of benefits arising from commercialization.

The San people, who live around the Kalahari Desert in southern Africa, have traditionally eaten the hooha cactus to stave off hunger and thirst on long hunting trips. In 1937, a Dutch anthropologist studying the San noted this use of hoodia. Scientists at the South African Council for Scientific and Industrial Research (S.A. cSIR)24 recently re-found his Report and began studying the plant.

20 An umbrella organization representing over 400 indigenous groups; see more on: cchttp://www.coica.orp. 2 See more on: c


In 1995 the S.A. CSIR patented hoodias appetite-suppressing element (P57). In 1997 they licensed this element to the U.K. biotech company Phytopharm. In 1998, the U.S. pharmaceutical company Pfizer25 acquired the rights from Phytopharm to develop and market P57 as a potential slimming drug and cure for obesity.26

On hearing of the possible exploitation of their traditional knowledge, the San people threatened legal action against the S.A. CSIR on grounds of biopiracy. They claimed that their traditional knowledge had been stolen, and that the S.A. CSIR had failed to comply with the rules of the CBD which require the prior informed consent of all stakeholders, including the original discoverers and users.

Phytopharm argued that it had conducted extensive enquiries but were unable to find any of the knowledge holders. The remaining San were apparently at the time living in a tented camp 1,500 miles from their tribal lands. The S.A. CSIR claimed that they had planned to inform the San of the research and share the benefits, but first wanted to make sure that the drug proved successful.

In March 2002, an understanding was reached between the S.A. C s l R and the San whereby the San, recognized as the custodians of traditional knowledge associated with the hoodia plant, will receive a share of any future royalties. Although the San will only receive a very small percentage of eventual sales,27 the potential size of the market means that the sum involved could still be substantial. The drug is unlikely to reach the market before 2006, and may as yet fai1.28

E. T h e Basmati Case

The Basmati Rice case concerned the protection of traditional knowledge and geographical indications.29

Basmati is a variety of rice fi-om the Punjab provinces of India and Pakistan.30 The rice is a slender, aromatic long-grain variety that originated in this region and is a major export crop for both countries.

The problem arose when the USPTO issued, in 1997, patents for three new strains of rice. These strains could be sold under the name Basmati, referring to a particular form of rice-long-grained, aromatic, and associated with the plains of Punjab. In 1998,

25 See, for more information: cchttp://www.pfizer.com/main.html)). 26 A market worth more than L6 billion sterling. 27 The S.A. CSIR agreed to pay the San 8 percent of payments made by its licensee, Phytopharm, during the

drugs clinical development over the first three years. Later, when the drug is marketed (sometime between 2006 and 2008) the San will receive 6 percent of all royalties.

28 See more on: cchttp://www.scienceinafrica.co.za/2003/may/san.h~~~. 29 S. Lall, India and Pakistan: Geographical Indications--The Basmati Issue, paper delivered at the International

Trademark Association Annual Meeting, Seattle, May 1999; Professor John Barton, Geographical Indications: the Basmati Case, in Integrating Intellectual Property Rights and Development Policy, London, September 2002, p. 89; and Gopalakrishnan, supra, footnote 2.

3 Trade Mark Ordinance of 2001, available at: cchttp://www.ficpi.orgn, Pakistan, Trade Mark Ordinance.


the U.S. k c e Federation submitted that the term Basmati was generic and referred to a specific type of aromatic rice. In response, U.S. and Indian civil society organizations collectively filed a petition seeking to prevent U.S.-grown rice from being advertised with the word Basmati. The U.S. Department of Agriculture and the U.S. Federal Trade Commission rejected the petition in May 2001. Neither considered that the labelling of rice as American-grown Basmati was misleading, and deemed Basmati to be a generic term. After the protest of India and Pakistan against the use the name Basmati, the USPTO disallowed the patent holder from using the name Basmati, as that name was not considered to be a generic name but denoted specific qualities of the famous Basmati Rice from the Punjab provinces of India and Pakistan.

The rice can now be sold only as Texniati or any other name that clearly informs the consumer that the rice is not fiom the Punjab region.

VI. THE APPLICATION OF EXISTING INTELLECTUAL PROPERTY RIGHTS TO TRADITIONAL KNOWLEDGE Traditional Knowledge and Intellectual Property Rights in International Law

With indigenous groups and peoples organizations stressing the need for more focused attention on traditional knowledge, a Madrid Workshop, organized under the auspices of the CBD, endorsed the need for a working group on Article 8(j).31 Under the CBD, the Working Group-known as the Access to Genetic Resources and Benefit-Sharing Group-has developed the Bonn Guidelines on Access and Benefit- Sharing. These Bonn Guidelines were adopted at the CBD Sixth Conference of Parties in 2002.32

A.

The Bonn Guidelines provide for a set of voluntary rules that wdl facilitate the drafting and further development of national biodiversity legislation or administrative regulation. The main objectives of the Guidelines are to contribute to the sustainable use of genetic resources and to provide a transparent framework to facilitate access and ensure benefit-sharing at national or regional levels. For biodiversity-rich countries, the importance of these Guidelines is that they advance the harmonisation of the steps for adequate access and benefit-sharing. The Guidelines also clarifj. and complement many of the existing obligations under the CBD.

The protection of traditional knowledge is also being discussed by a number of international bodies, including the World Intellectual Property Organization,33 the

3 Report on the Workshop on Traditional Knowledge and Biodwersity, Madrid, 24-28 November 1997,

32 7-19 April 2002, The Hague, avdable at: cchttp://www.biodiv.orp), Documents, Meetings. 33 See more on the official Website (chttp://www.wipo.org,,.

UNEP/CBD/TKBD/I/~, dated 15 December 1997.


World Health Organization WHO),^^ the United Nations Conference on Trade and Development (UNCTAD) ,35 the Food and Agriculture Organization of the United Nations36 and the United Nations Educational, Scientific and Cultural Organi~ation.~~

The FAO International Treaty and the Bonn Guidelines are important new developments of the protection of traditional knowledge. In addition, the Doha WTO Ministerial Declaration highlighted the need for further work in the TRIPS Council on protecting traditional knowledge.38

B. Protection of Traditional Knowledge Under Existing Modes oflntellectual Property Rights

Practically all types of intellectual property could, to some extent, be used for the protection of traditional knowledge.39 However, the absence of developed intellectual property regulatory systems and the courts (both for applicants and for governments) in developing countries should not be underestimated. Also, existing intellectual property systems are, to a large extent, based on individual intellectual achievements.

Copyright can be used to protect the artistic manifestations of traditional knowledge holders, especially artists who belong to indigenous and native communities, against unauthorized reproduction and exploitation. It could include works such as:

-

- theatrical works;

- pictorial works;

-

- musical works; and

-

literary works, i.e. tales, legends and myths, trahtions, poems;

textile works, i.e. fabrics, garments, textile compositions, tapestries, carpets;

three-dimensional works, i.e. pottery and ceramics, sculptures, wood and stone carvings, and artifacts of various kinds.

Related rights to copyright, such as performing rights, could be used for the protection of the performances of singers and dancers and presentations of stage plays, puppet shows and other comparable performances.

New plant products, cultivars and varieties of all species of plants may be protected under plant breeders rights. To be protected, a variety has to be different from known

34 See the official Website (


varieties and uniform and stable in its essential characteristics, even after a number of reproduction cycles. Varieties developed by the possessors of traditional knowledge could also be legally protected in this way. Improvements to varieties representing the natural state of plant diversity could also constitute new varieties eligible for protection.

The design and shape of utilitarian craft products such as furniture, receptacles, garments and articles of ceramics, leather, wood and other materials may qualify for protection as industrial designs,

All goods manufactured and services offered by manufacturers, craftsmen, professionals and traders in native and indigenous communities, or by the bodies that represent them or in which they are grouped, may be differentiated from each other with trademarks and service marks.

The protection of undisclosed information is achieved by the repression of unfair competition. The provisions against unfair competition may also be used to protect undisclosed tramtional knowledge, for instance traditional secrets kept by native and indigenous communities that may be of technological and economic value. Acknowledging that secret knowledge may be protected by means of unfair- competition law will make it possible for access to that knowledge, its exploitation and its communication to third parties to be monitored. Control over the knowledge, and regulation of the manner in which it may be acquired, used and passed on, will in turn make it possible to arrange contracts for the licensing of secret traditional knowledge and deriving profits from its commercial exploitation.

C. Examples of Protection of Traditional Knowledge in National Laws The WIPO Review of Existing Intellectual Protection of Traditional Knowledge studied

how countries use intellectual property tools for promoting and protecting tramtional knowledge and folklore.40 Australia, Canada, Colombia, Kazakhstan, New Zealand, the Russian Federation, Venezuela and Viet Nam provided actual examples of how existing intellectual property mechanisms have already been used in order to protect traditional knowledge.41

Australia identified several cases which demonstrated the ability of the Australian intellectual property regime to protect traditional knowledge;42 for example, Foster v. Mountford,43 a case which involved the importation of carpets manufactured in Viet Nam, which reproduced (without permission) either all or parts of well-known

Third Session of Intergovernmental Comnlittee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, WIW Review of Existing Intellectual Protection of Traditional Knowledge, WIPO/GRTKF/IC/3/7, Geneva, 13 June 2002, based on the responses of the countries to the WIPO Questionnaire.

4' See also UNCTAD, Systems and National Experience for Protecting Traditional Knowledge, Innovations and Practices, TD/B/co~. l /EM.l3 /2 , October 2000.

42 See generallv. M. Blakenev. Intellectual Proaertv. Bioloaical Divenitv and Aericulttrral Research in Australia. 53 Australia: J o u d of Agriculturd Research, 2005, ip . 127-0148,

Y

43 (1976) 29 FLR 233.

688 THE JOURNAL OF W O U D INTELLECTUAL PROPERTY

works created by Aboriginal artists. The Australian artists successfully claimed infringement of copyright as well as unfair trade practices-the labels attached to the carpets claimed that the carpets had been designed by Aboriginal artists and that royalties were paid to the artists on every carpet sold. In awarding damages to the plaintiffs, the judgment recognized the concepts of cultural harm and aggregated damages. Similar cases-Milpuirurru v. Indofurn Pty Ltd.,44 Bulun Bulun if3 Milpurrurru v. R. G. T. Textiles Pty Ltd.45 and Bulun Bulun v. Flash Screenp~inters4~-concerned the importation and sale in Australia of printed clothing fabric which infringed the copyright of the Aboriginal artist, Mr John Bulun Bulun. These cases led to the creation of a national certification trademark for Aboriginal and Torres Strait Islander artists in Australia.47 Like any other trademark, this certification mark or Label of Authenticity is intended to help promote the marketing of the art and cultural products and deter the sale of products falsely claiming to be of Aboriginal 0rigin.48

In Canada, copyright protection under the Copyright A ~ t 4 ~ has been widely used by indigenous artists, composers and writers of tradition-based creations such as wood carvings of Pacific coast artists, including masks and totem poles, the silver jewellery of Haida artists, songs and sound recordings of Aborignal artists and Inuit sculptures. Trademarks, including certification marks, are used by indigenous peoples to identify a wide spectre of goods and services, ranging from traditional art and artwork to food products, clothing, tourist services and enterprises run by First Nati0ns.5~ Many indigenous businesses and organizations have registered trademarks relating to traditional symbols and names. In contrast, industrial designs protection under the Industrial Design Act has not been widely used by indigenous persons or comm~ni t i e s .~~

In Colombia, a specific provision of law52 prohibits registration of the signs consisting of names of indigenous and Afro-American communities which constitute an expression of their culture, without the explicit authorization of the Communities in question or the request by the communities themselves. For example, the registration of the trademark Tairona has been rejected in Columbia on the grounds that Tairona is the name of an indigenous community that inhabited pre-Hispanic Colombia.

44 (1995) 30 1PR 209. 45 (1998) 41 IPR 513. 46 See also discussion in (1989) EIPR Vol. 2, pp. 346355. 47 See a paper prepared by the Aboriginal and Torres Straight Islander Commission in May 1999, GATT TRIPS

Reviav--Aboriginal and Tones Straight blander Peoples Issues, available at: cchttp://www.atsic.gov.au~), Issues, Indigenous Rights, Intellectual Property, GATT TRIPS Review.

4* See more about the Austrahan trademarks regime on: ((http://www.ipaustralia.gov.au,), Trademarks. 49 The Copyright Act of Canada came into force in 1924. A major revision to the Act was passed in 1988 and

another in 1997. Find the text of the Copyright Act on: cchttp://laws.justice.gc.ca)), Copyright Act. 5 Trademarks Act of 1985, Chapter T-13, avadable at: ((http://lois.justice.gc.can, Dcpartment of Justice

Canada, Consolidated Statutes and Regulations. As a consequence of the WTO TRIPS Agreement, Canada ha? cnacted amendments to its Trademarks Act, which entered into force on 1 January 1996. See also Ph. l3. Kerr, Trademark Law in Canada: An Overvino, and the Trademark Act of 1996 on cchttp://www.trademark-law-canada.com)).

5 The Industrial Design Act of Canada of 1985, amended in 1996; S 10 of the W I p o Review, supra, footnote 40.

52 Decision 486 of the Andean Community, Article 136(g).


In New Zealand the Trade Marks Act contains provisions that prevent the registration of trademarks where their use or registration would be likely to offend a significant section of the community, including the Maori.53

Both Kazakhstan and the Russian Federation have identified examples of protection of technical traditional knowledge through the grant of patents. In Kazakhstan, the external appearance of national outer clothes, head dresses (saykele), carpets (tuskiiz), decorations of saddles, national dwellings (yurta) and their structural elements, as well as womens apparel accessories, like bracelets (blezik), national childrens cots-crib-cradles and tableware (p iah, torcyk) are protected as industrial designs. The designations containing clements of Kazakh ornament are registered and protected as trademarks,s4

Viet Nam has mentioned a patent for a traditional preparation of medicinal plants used to help stopping drug-addiction, and a trademark registered for a traditional balm made of medicinal plants (Trtrong Son) .55

VII. TRADITIONAL KNOWLEDGE AND GEOGRAPHICAL INDICATIONS

At first sight, the use of geographical indcations for the protection of traditional knowledge seems particularly suitable. Geographical indications are not intended to reward innovation, but rather to reward the goodwill and reputation created or built up by a group of producers over many years or even centuries. Geographical inhcations can create economic rewards for producers who use traditional methods in the region where the product has been traditionally produced.

Geographical indications may be used to enhance the commercial value of natural, traditional and craft products of all kinds if their particular characteristics may be attributed to their geographical origin. A number of products that come from various regions are the result of traditional processes and knowledge implemented by one or more communities in a given region. The special characteristics of those products are appreciated by the public, and may be symbolized by the indication of source used to identifjr the products. Better exploitation and promotion of geographical indications would make it possible to afford better protection for the economic interests of thc communities with traditional knowledge.

For example, Venezuela and Viet Nam protect tradltional knowledge through geographical indications. Coccry the Pecuya, a liquor made &om the agave in Venezuela and

53 New Zealand has noted that Maori is used to refer to the indigenous people of New Zealand. New Zealand Trade Marks Act 1953, as amended by the Trade Marks Amendment Act of 1994 and 2002. The 2002 Act required the Commissioner to establish an Advisory Committee to provide advice on the registrability of trademarks which contain Maori signs, such as text or imagery. This took into account the new offensiveness test at Section 17(l)(b): an absolute ground for refusing registration of a trade mark that would be likely to offend a significant section of the community including Maori. See also T. Jackson and B.S. Waters, Intellectual Property in New Zealand, William Collins Publ. Ltd., Auckland, 2002.

54 12 of the Wrpo Review, supra, footnote 40. 55 Response of Viet Nam on the WIFO Questionnaire, in WIPO Review, id.


Pku Quoc, fish soya sauce, and Shun Tuyet MOC Chau, a variety of tea, in Vict Nam are protected as geographical indications.56

However, the protection of geographical indications is aimed at protecting the names of goods and not knowledge as such. Geographical indlcations could play a complementary role in protecting tradltional knowledge, but it seems to be not possible to protect all forms of traditional knowledge just by using this one form of intellectual property alone.

VIII. SUI GENENS PROTECTION O F TRADITIONAL KNOWLEDGE

A. The Reasons f o v Spec@ Protections of Traditional Knowledge The nature of traditional knowledge is such that it is transmitted orally rather than

written down. It also comprises several components: specific names, recipes, processes and technologies, plant varieties, medicines and artistic designs. Due to this specificity and complex nature, and in spite of all the efforts of the last two decades, final and universally acceptable solutions for the protection and promotion of traditional knowledge have not yet been developed.

Some intellectual property rights, such as copyright and patent, are legal rights created as mechanisms to encourage innovation-the creation and disclosure of new knowledge or new expressions often used for the protection of traditional knowledge. However, these rights are granted to a defined individual or group of individuals identified as the inventor or creator, although they can be transferred to another by sale or gift. Traditional knowledge and practices, in contrast, are often handed down from generation to generation, and have no clearly identifiable individual or original inventor. Moreover, it has been widely stated that these intellectual property rights are not suitable for traditional knowledge because they protect new knowledge that is created by individuals and do not recognize collective knowledge built up over time.

The other intellectual property rights, such as trademarks and geographical indlcations, concern only names-in other words, imitation is allowed as long as the product has a dlfferent name-and therefore does not offer a perfect solution for protecting traditional knowlcdgc either.

B. Examples o f Protection o f Traditional Knowledge Under a Sui Generis System

Several countries57 have already decided that the existing intellectual property system is not, on its own, adequate for the protection of traditional knowledge. These

56

57 Brazil, Costa Rica, Guatemala, Panama, the Philippines, Samoa and Venezuela have sui genetis systems of protection of traditional knowledge. Ecuador, New Zealand, Papua New Guinea, Peru, the Solomon Islands, Tanzania, Tonga, Trinidad and Tobago and Viet Nam are in the process of enacting srri genetis rysternc: see Wwo Review, supra, footnote 40.

13 of the Wrpo Review, id.

PROTECTING TRADITIONAL KNOWLE1)GE 69 1

countries have enacted or are in the process of enacting sui generis systems of protection to accommodate the special characteristics of traditional knowledge or folklore.58

Brazil was among the first countries to establish a sui generis system for the protection of traditional knowledge associated to biodiversity by a special law known as the Provisional Measure of 2 O O l . S 9 Protection is mainly obtained by a bilateral approach, that is, through contracts of access, the purpose of which is to ensure the sharing of benefits arising from the use of genetic resources and associated traditional knowledge. Article 9 of the Provisional Measure, however, seems to establish a proprietary regime of traditional knowledge rights, because it recognizes the indigenous and local communities' right to prevent unauthorized third parties from using, exploiting, experimenting, disclosing, transmitting and re-transmitting data and information that integrate or constitute associated traditional knowledge.

The Brazilian Law has also provisions on benefit-sharing, including compensation, access to and transfer of technology, licensing and capacity building. There is no pre- determined term of protection. The grant of industrial property rights in processes or products obtained from national genetic resources depends upon compliance with the Provisional Measure. That means that industrial property registration applicants must provide information on the origins of genetic resources and of associated traditional knowledge, whenever applicable. The Brazilian Law provides for sanctions including fines, the seizure of illegal material and products embodying unlawful material, prohibition of distribution, invalidation of patents or registrations, loss of governmental incentives, etc.

The Law on Biodiversity of Costa Rica does not establish a specific sui generis system of protection but establishes certain general criteria concerning community rights in traditional knowledge and calls for local and indgenous communities, through a participatory process, to establish the mechanism for the protection and registration of biodwersity-associated traditional knowledge.60 To date, it is perhaps the most ambitious and elaborate national law implementing the CBD. The Law's overall objective is to conserve biodiversity, sustainably uthze resources and distribute fairly the derived benefits and costs.

The Cultural Heritage Protection National Law of Guatemala6' provides for protection of traditional knowledge from a national cultural heritage approach. This means that expressions of national culture, which comprise all intangible expressions of cultural heritage inc ludq traditions, medicinal knowledge, music, performances and

58 Suigeneris systems of protection are already provided in areas such as the protection ofplant varieties (UPOV system) and protection of databases (EC Directive 96/9/EC, 11 March 1996). See also G.S. Nijar, Sui Generis Law

f . r Plant Varieties: Preserving the Knowledge and Creativity .f Traditional Breeders, Third World Network, Penang, 1999. 59 The Provisional Measure 2.186-16, of 23 August 2001. 6" The Ley de Biodiuersidad, or Biodiversity Law, was adopted by the Legislative Assembly of Costa Rica in

61 The Cultural Heritage Protection National Law No. 2697, as amended in 1998. April 1998.


culinary traditions included in the Culture Goods Registry, are under the protection of the State and thus cannot be disposed of by means of contractual arrangements. That is, they cannot be sold and there is no right for remuneration. The system, which is managed by the Ministry of Cultural Affairs, seems to follow a public good approach in the sense that traditional knowledge is to be identified, recorded and preserved by the State for the benefit of the entire society.

The sui generis system of Panama constitutes probably the first comprehensive system of protection of tradtional knowledge adopted. The regime, established by special law in 2000,62 covers the creations of indigenous peoples, such as inventions, designs and innovations, cultural historical elements, music, art and traditional artistic expressions. Two additional criteria are designated to identify the subject-matter of protection: traditional knowledge is protected to the extent it provides for the cultural identification of indigenous peoples and is susceptible to commercial use; collective exclusive rights are accorded to registered elements of traditional knowledge. The authority to attribute rights is vested upon the Congress or the Traditional Indigcnous Authority. Some elements of knowledge may be co-owned by various communities, in which case benefits will be jointly shared. The Law also provides for exceptions to rights conferred as well as measures of enforcement. Collective indigenous rights may also be a basis for opposing unauthorized third-party claims of intellectual property rights, such as copyright, trademarks, geographical indications and others. The Executive Decree No. 12 of2001 made clear that the regime also covers biodwersity-associated tradtional knowledge, thus giving a practical expression, as far as the territory of Panama is concerned, to the provisions of Article S(j) of the cBD.63

The Philippines has enacted the Indigenous Peoples Rights Act of 1997,64 which protects indigenous communities rights in general, including their rights in traditional knowledge and the rights to limit the access of researchers into their ancestral domains/lands or territories. It regulates the rights to be designated as sources of information in whatever writings and publications resulting from research, and the right to receive royalties from the income derived from any of the researches conducted and resulting publications. The enforcement of those rights follows procedures established by customary laws of indigenous peoples.

Samoa has the Village Fono Act 1990 which provides for an institutional structure within the village communities Village Fono (Village Council) and which, although indirectly, effectively protects Samoas trahtional form of governance.65

62 Law No. 20, Special Intellectual Property Regime on Collective Rights ofIndigenous Peoples for the Protcction and Defense of their Cultural Identity as their Traditional Knowledge, of 26 June 2000; and Executive Decree No. 12 of20 March 2001.

63 Id. 64 Republican Act No. 8371; see also WIPo/IrTK/RT/99/6A, 27 October 1999, round table on Intellectual

Property and Traditional Knowledge, The Experience .f the Philippines, available at: .

65 21 of the WIPO Review, supra, footnote 40.


Peru adopted new legislation on the Protection Regime for the Collective Knowledge of Indigenous Peoples in 2002 which recognized that the traditional knowledge of the indigenous peoples helps to conserve and make sustainable use of the components of biodversity.66 The new Law established a sui generis system to give adequate protection to those possessing traditional knowledge. The Regime recognized the indigenous peoples ownership and associated rights over their trahtional knowledge, as well as their right to decide on how it should be used. A voluntary Register is set up within the National Institute for the Defense of Competition and the Protection of Intellectual Property.67 The Law also stated that indgenous peoples may enter into knowledge licensing contracts which specie the terms for the use of their knowledge. One requirement for access to knowledge that is not within the public domain is prior informed consent by the people possessing the knowledge.

An innovative and extremely important feature of the Regime is the creation of a Fund for the Development of Indigenous Peoples, which will receive 0.5 percent of the sales resulting from the marketing of products developed on the basis of traditional knowledge. Article 7 of the Law states that:

. . . pursuant to this Decision and supplementary domestic legislation, the member countries recognise and uphold the rights and decision-making authority of indigenous, Afro- American and local communities, over their knowledge, innovations and traditional practices associated with genetic resources and their derivatives.

Thailand has developed a comprehensive suigeneris regime for traditional medicine. The Thai Traditional Thai Medicinal Intelligence Act distinguishes three different categories of Traditional Formulas: National Formula, Private Formula and General Formula. Under the National Formula, the Ministry of Public Health has authority to announce a certain formula of tradtional Thai medicine as a national formula; the rights of such formula belong to the State. Private Formula can be fieely used by the owner and third parties must obtain permission from the owner to use the formula. General Formula applies to well-known traditional formulas whch would remain fi-ee for use by any citizen.

There are no common themes or terms in the emerging of the sui generis system for the protection of tradtional knowledge. The establishment of a sui generis regime poses many complex conceptual and practical issues:

-

- requirements for protection; -

- title-holders;

definition of the subject-matter of protection;

extent of rights to be conferred;

G6 The Congress of Peru approved Law 2781 1 on 10 August 2002. See also Perus Submission to the WTO Committee on Trade and Environment: Perus Experience ofthe Protection of Traditional Knowledge and Access to Genpric Resources, wT/cT~/W/176, dated 27 October 2000.

67 The National Institute for the Defense of Competition and the Protection of Intellectual Property (INDECOPI); see, for more information: ((http://www.indecopi.gob.peo.


-

- duration of protection; - enforcement measures.

It is also not clear whether the search for a regime of protection of traltional knowledge should aim at a single regime covering all types of traltional knowledge, or for a set of different, specific regimes adapted to the nature of the subject-matter to be protected. As it seems rather difficult to define common rules, the second approach appears more appropriate at present. However, the subject-matters for the specific regimes and what complex issues might arise are still not clear.

modes of acquisition, including registration;

Any suigeneris regime should define the nature of the rights conferred. In most cases, intellectual property regimes grant exclusive rights which enables preventing third parties from exploiting the protected subject-matter. Some types of intellectual property rights, however, do not entail exclusivity. For instance, the TRIPS Agreement does not require the granting of exclusive rights over unlsclosed information.6*

It should be noted that the granting of exclusive rights may limit rather than promote the use of traditional knowledge. I t may also be in contradiction to the practices and values of traditional and indigenous communities. An alternative could be suggested which would provide for a right to remuneration not associated to the exercise of an exclusive right. However, this alternative may also contradict, in many cases, the practices and values of traditional and indigenous communities.

Ix. TRADITIONAL KNOWLEDGE AND THE WTO

The protection of traditional knowledge is currently being discussed in the WTO TRIPS Council and was explicitly listed for examination by that Council in the Doha Ministerial De~laration.6~ Paragraph 19 of the Doha Declaration instructs the TRIPS Council to continue the review of Article 27.3(b) of the TRIPS Agreement, and to examine the relationship between the TRIPS Agreement and the CBD and the protection of traditional knowledge and folklore as well as other relevant new developments.7

At present the TRIPS Agreement is silent on the issue of traltional knowledge, as TRIPS mainly regulates the trade aspects of existing intellectual property rights under established procedures.

68 Article 39. hY See more on: ((http://rn.wto.orgn, Doha Ministerial. 7 Doha Ministerial Declaration adopted on 14 November 2001, paragraph 19: We instruct the Council for

TKIPS, in pursuing its work programme including under the review of Article 27.3(b), the review of the implementation ofthe TRIPS Agreement under Article 71.1 and the work foreseen pursuant to paragraph 12 ofthis Declaration, to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments raised by Members pursuant to Article 71.1. In understanding this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension.


Article 27.3@) of the TRIPS Agreement allows Member States to exclude from patentability plants and animals, but not micro-organisms. This provision has given rise to considerable codision, as Member States have some flexibility in interpretation and in establishing their relevant laws.71

Many developing countries, such as India,72 Brazil73 and the African Group,74 would like the TRIPS Agreement, and in particular Article 27.3(b) which concerns the patentability of life forms, broadened to include issues such as disclosure requirements, benefit-sharing arrangements and prior informed consent. Most developed countries, however, oppose such a broadening of scope, arguing that these issues should not be discussed at the WTO but in other relevant fora such as the WIPO.

The relationship between the TRIPS Agreement and the CBD, including the protection of trahtional knowledge, has been addressed by the Secretariat of the WTO and examined by its Committee on Trade and Environment (cTE).7s The CTE considered the provisions of the TRIPS Agreement relevant to its work on the environment. However, the CBD Secretariat has not yet been given permanent observer status to the Council for TRIPS. The number of admitted observers is very limited and non-governmental organizations are not allowed to participate.

Some developing countries have argued that the TRIPS Agreement must be reviewed in light of the obligations on States under Article S(i) of the cBD.76 The African Group has been particularly active in relation to the review of Article 27.3(b). It wants that provision to be harmonised with the CBD, the objective of which is to protect the rights of indigenous people and local farming communities and to protect and promote biological diversity.77 The proposal of the African Group demanded that such harmonisation also be made with the FAO International Undertaking which seeks to protect and promote Farmers Rights and to conserve plant genetic resources.7*

India noted in its submission that while the TRIPS Agreement obliges Members to provide product patents for micro-organisms and for non-biological and

7 This leads to two questions: (a) does the exclusion for plants and animals apply only to naturally occurring plants and animals, or can Members exercise the option of exclusion to cover plants and animals that have been genetically modified or that contain parts (including micro-organisms) that have been genetically modified? (b) does the mandatory requirement to patent micro-organisms apply only to genetically modified micro-organisms or does it apply also to naturally occurring micro-organisms?

72 See Indias Submission to the WTO Committee on Trade and Environment, Protection of Biodiversity and Traditional Knowledgethe Indian Experience, W T / C T E / W / ~ ~ ~ , IP/C/W/198, 14 July 2000.

73 Communication from Brazil to the WTO TRIPS Council, Review of Article 27.3(b), IP/C/W/228, 24 November 2000.

74 Communication from Mauritius on behalf of the African Group to the WTO TRIPS Council, Review oftbe Provisions ofArticle 27.3(b), IP/C/W/206, 20 September 2000.

75 See Environment and TRIPS, W T / C T E / W / ~ and W/8/Corr.1; The CBD and TRIPS, WT/CTE/W/50; and The Relationship Between the CBD and TRIPS with a Focus on Article 27.3@), WT/CTE/W/125. The CTE was formally established in 1995 by the WTO General Council to examine the relationship between the provisions of the multilateral trading system and trade measures for environmental purposes, including those pursuant to multilateral environmental agreements.

76 See Submission by India to the WTO, supra, footnote 72. 77 CBD, Preamble, available at: cchttp://www.biodiv.orgil. 78 Supra, footnote 74.

696 THE JOURNAL O F WORLD INTELLECTUAL PROPERTY

microbiological processes, and to provide for the protection of plant varieties, the CBD reaffirms that Nation States have sovereign rights over their own biological resources, recognizes the desirability of sharing equitably the benefits arising from the use of these resources as well as traditional knowledge, and acknowledges that special provisions are required to meet the needs of developing countries.79 In order to reconcile any contradictions, India argues that the innovators share with holders of traditional knowledge the benefits arising from exploitation through transfer of information agreements.80

Brazil noted in its submission to the CTE the conceptual and operational difficulties in bringing traditional knowledge under the TRIPS Agreement.81 Venezuela disagreed and stated that binding international rules on the protection of traditional knowledge should be developed in the framework of TRIPS .~~

Developed countries have not contested the possibility, and the right, of countries to protect traditional knowledge. Thus, the United States has argued that there is no inconsistency between the CBD and the TRIPS Agreement and has encouraged the development of databases on traditional knowledge.83 In a second Communication from the United States, it was pointed out that national or local legislation or regulation could be adopted to establish the basis for contractual arrangements between suppliers and recipients of traditional k n o ~ l e d g e . ~ ~ However, the United States does not favour any specific provisions on the protection of traditional knowledge, at least in the framework of the TRIPS Agreement.

The EC and its Member States support the development of an international model for the legal protection of tradltional knowledge. Initially, the EC expressed the view that the issue should be first taken up by the WIPO Committee in co-operation with the CBD, and only when a model of protection is defined and is in place should attention be focused on how and to what extent the protection of traditional knowledge can be included in the TRIPS Agreement.x5 In its latest Communication to the TRIPS Council86 the EC stated that, while recognizing that traditional knowledge can be protected at national level, the EC supports the development of an international model of protection. The EC argued that, although it might be possible to protect some traditional knowledge-or at least innovations and goods related to traditional knowledge-through existing forms of intellectual property rights, it would be better to develop an international suigeneris model for such protection. In its Communication,

79 See supra, footnote 77. 8O Supra, footnote 72. 8' Supra, footnote 73. 82 WT/GC/W282, Communication &om Venezuela, 6 August 1999. 83 IP/C/W/209, Communication from the United States, 3 October 2000. 84 IP/C/W/257, Communication from the United States, 13 June 2001. 85 IP/C/W/254, Communication from the EC, 13 June 2001. 86 Communication from the European Communities and their Member States to the TRIPS Council,

IP/C/W/383, 17 October 2002.


the EC suggested that a broader scope of protection of traditional knowledge would improve confidence in the international intellectual property system and would allow more people, particularly &om developing countries, to benefit from the global intellectual property system.87

Developing countries positions aim at some recognition and protection of traditional knowledge, but considerable hesitation seems to exist about how to deal with the subject, the nature and scope of protection, and the extent to which the issue should be brought under the TRIPS Agreement. Some countries seem to be more concerned with avoiding the misappropriation of traditional knowledge and with the implementation of the sharing of benefits principle, than with the development of an intellectual property rights regime for traditional knowledge. Others seem to aim at preserving the room existing at the national level to legislate on the matter, while at least one country has so far proposed developing mandatory provisions in the context of the TRIPS Agreement. It is clear that significant preparatory work is still needed.

X. CONCLUSION

The protection of tradtional knowledge raises a whole series of questions which can be considered common to the protection of established forms of intellectual property and some which are not so common, and will need separate consideration. However, some broad themes for the ongoing debate on the establishment of a functioning system for the protection of tradtional knowledge can be sketched out.

The traditional justification for the protection of traditional forms of intellectual property is to stimulate innovation and reward the intellectual property holder for a limited period of time before the benefits of the innovation are to be made available to society in general. Traditional knowledge, by definition, is not something new or innovative but the distillation of practices or knowledge which has measurable effects and is in the social domain-albeit often in a limited part of the world. In these circumstances should traditional knowledge be protected at all? If intellectual property protection was limited to patent law, there would be strong arguments for limiting the extension of intellectual property protection and excluding the protection of traditional knowledge. But intellectual property is not limited to patents. There is strong enforcement of rules for the protection of trademarks and geographical indications. Both of these branches of intellectual property have elements which are similar to traditional knowledge: geographical indications are collective rights; trademarks are not innovative in the same way as patents and give lasting benefits to their promoters.

87 See also J.-Ch. Van Eeckhaute, Legal Issue3 on Traditional Knowledge Protection on the International Agenda: The EUApproach, Intellectual Property Law: Articles on Cultural Expressions and Indigenous Knowledge, Molengrafka 2002, pp. 139-148.


The establishment of a common system for the protection of traditional knowledge and the creation of rights which gve benefits to its holders may stimulate innovation and the spread of knowledge from limited communities to the global community. It may wcll serve the traditional justification of the protection of intellectual property. If this is accepted, then it appears appropriate to limit the benefits of the protection in time just as patents are limited in time. The time limitation may be different from other time limits in intellectual property but the idea of a time limit on protection appears reasonable once dissemination of the knowledge has taken place. This type of time limit would serve the setting of a balance between the need to reward and the need to promote the general benefits.

What forms of registration of traditional knowledge can be devised and how should the protection be maintained across borders? The EC approach in the current WTO discussions would appear to have merit. Common standards should be set at the international level with broad implementation powers set at the State level. Any definitions of traditional knowledge should be flexible so as to allow for local variations to encompass what is considered traditional knowledge in the local community. The definition of the beneficiaries of any protection of traditional knowledge should be set at the local level as much as possible.

The key debate remains stuck on the issue of whether to extend the family of intellectual property to include traditional knowledge or not. In practice, however, the issue has been resolved. States have decided in ad hoc ways to protect traditional knowledge and are now seeking ways to make that protection effective in a global market. In these circumstances, it is hard to argue that international protection should only be afforded to traditional intellectual property and not to traditional knowledge. A balance will have to be found between the promoters of the international protection of patents and trademarks and the promoters of the protection of traditional knowledge.