Traditional Knowledge & Indigenous Peoples: The Philippines' Legal Landscape National Forum on...

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Transcript of Traditional Knowledge & Indigenous Peoples: The Philippines' Legal Landscape National Forum on...

  • Slide 1
  • Traditional Knowledge & Indigenous Peoples: The Philippines' Legal Landscape National Forum on TK Protection Intellectual Property Office/National Museum Elpidio V. Peria Biodiversity, Innovation, Trade and Society (BITS) Policy Center, Inc. 21-22 March 2012
  • Slide 2
  • OVERVIEW Constitutional Basis International Commitments Scope of Legislative Efforts & Community Initiatives Issues for Further Resolution and Action Way Forward
  • Slide 3
  • Constitutional Basis The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development (sec. 22, Article II, Declaration of Principles and State Policies) The State shall recognize, respect and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national plans and policies (sec. 17, Article XIV, ELSTACS)
  • Slide 4
  • International Commitments Describe the main attributes of the product Link the product attributes to customer needs INTERNATIONAL INSTRUMENT/ARENA SUBJECT MATTER Intl Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Non-discrimination esp on equal participation in all cultural activities WTO-TRIPS Agreement (art. 27.3[b]) Protection of traditional knowledge & folklore Convention on Biological Diversity - Nagoya Protocol on ABS Sustainable use Customary law, community protocols FAO-ITPGRFA - Standard Matls Transfer Agrmt Farmers' Rights- Art. 9 Benefit-Sharing UNESCO Conventions - Intangilble Cultural Heritage - Diversity of Cultural Expressions Preservation of cultural heritage UN Declaration on the Rights of Indigenous Peoples (UNDRIP) Right to self-determination; Cultural heritage protection WIPO-IGCProtection of Intellectual property aspects of genetic resources, traditional knowledge, TCEs
  • Slide 5
  • The Legal Landscape (1): At a Glance Describe the main attributes of the product Link the product attributes to customer needs LegislationSUBJECT MATTER Indigenous Peoples' Rights Act (IPRA. Republic Act 8371) -rights to self-determination; cultural integrity; free and prior informed consent (FPIC); ancestral domains Cultural Heritage Act (Republic Act 10066) Protection of elements of cultural heritage Wildlife Act (Republic Act 9147) Traditional use; right to FPIC in bioprospecting activities Traditional and Alternative Medicine Act (Republic Act 8423) Right to a share from the commercialization of traditional medicine knowledge Plant Variety Protection Act (Republic Act 9168) Farmers' rights to save, exchange, use, share and sell seeds Intellectual Property Code (Republic Act 9283) Sui generis protection of plant varieties and animal breeds and a system of protection for community intellectual rights
  • Slide 6
  • The Legal Landscape (2): At a Glance Describe the main attributes of the product Link the product attributes to customer needs Legislation/ Administrative Issuance SUBJECT MATTER Animal Welfare Act ( Republic Act 8485) -grant of exception to the killing of animals when made part of a ritual required by tribal or ethnic custom of indigenous cultural communities Magna Carta of Women (Republic Act 9710) Protection of the rights of Moro and indigenous women to their indigenous knowledge systems and practices, traditional livelihood, and other manifestations of their cultures and ways of life Technology Transfer Act (Republic Act 10055) Research and devt institute or institution (RDI) to disclose any biodiversity and genetic resource, TK,IKSP in all applications for intellectual property protection
  • Slide 7
  • Indigenous Peoples' Rights Act (IPRA, Republic Act 8371) Chapter VI Cultural Integrity sec. 29- Protection of Indigenous Culture, Traditions and Institutions sec. 30 Educational Systems sec. 31- Recognition of Cultural Diversity sec. 32- Community Intellectual Rights sec. 33- Rights to Religious, Cultural Sites and Ceremonies sec. 34- Right to IKSP and to Develop Own Sciences and Technologies sec. 35- FPIC requirement for Access to BGR sec. 36- Sustainable Agro-techical development
  • Slide 8
  • Indigenous Peoples' Rights Act (IPRA, Republic Act 8371) Sec. 32. Community Intellectual Rights ICCs/IPs have the right to practice and revitalize their own cultural traditions and customs. The State shall preserve, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation of their laws, traditions and customs.
  • Slide 9
  • Indigenous Peoples' Rights Act (IPRA, Republic Act 8371) Sec. 34. Right to Indigenous Knowledge Systems and Practices and to Develop own Sciences and Technologies ICCs/IPs are entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights. They shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives of these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge of the properties of flora and fauna, oral traditions, literature, designs, and visual and performing arts.
  • Slide 10
  • National Cultural Heritage Act (Republic Act 10066) Art. V Registration and Conservation of Cultural Property sec. 14 Philippine Registry of Cultural Property (PRECUP) sec. 16 Documentation and Preservation of Traditional and Contemporary Arts sec. 19 National Inventory of Intangible Cultural Heritage sec. 21- Indigenous Properties
  • Slide 11
  • Wildlife Act (RA 9147) Sec. 7 Collection of Wildlife Collection of wildlife may be allowed in accordance with sec. 6 of this Act; xxxx.... Provided, further, That collection of wildlife by indigenous people may be allowed for traditional use and not primarily for trade.xxx Sec.14 Bioprospecting The Secretary xxx...before granting the necessary permit, shall require that prior informed consent be obtained by the applicant from the concerned indigenous cultural communities. xxx...The prior informed consent from indigenous peoples shall be obtained in accordance with existing laws.
  • Slide 12
  • Traditional and Alternative Medicine Act (RA 8423) Sec. 2 Declaration of Policy It shall also be the policy of the State to seek a legally workable basis by which indigenous societies would own their knowledge of traditional medicine. When such knowledge is used by outsiders, the indigenous societies can require the permitted users to acknowledge its source and can demand a share of any financial return that may come from its authorized commercial use.
  • Slide 13
  • Traditional and Alternative Medicine Act ( RA 8423 Implementing Rules and Regulations, Rule IX ) Sec. 3 DOCUMENTATION OF IKS on TRADITIONAL AND ALTERNATIVE HEALTH CARE The Board shall endeavor to develop workable mechanisms, in accordance with the customary practices of the place, for the identification and documentation of indigenous knowledge systems relevant to the utilization of biological and genetic resources that are applied in traditional and alternative health care practices of the community
  • Slide 14
  • Traditional and Alternative Medicine Act ( RA 8423, Implementing Rules and Regulations, Rule IX) Sec. 4 INTELLECTUAL PROPERTY RIGHTS The Institute shall endeavor to monitor and inventory Philippine natural health products that have been inappropriately applied for IPR protection in the Philippines and abroad without complying with applicable laws and regulations And shall make representations with the appropriate international institutions with the assistance of other institutions and agencies of the Government of the Philippines to cancel these rights or to renegotiate the terms and conditions thereof that are favorable to Philippine interests
  • Slide 15
  • Traditional and Alternative Medicine Act ( RA 8423, Implementing Rules and Regulations, Rule IX) Sec. 4 INTELLECTUAL PROPERTY RIGHTS The application of existing forms of intellectual property rights on biological and genetic resources as well as indigenous knowledge systems shall be without prejudice to the application of whatever sui generis rights that may be provided by law to the appropriate local and indigenous communities. The Board or other appropriate governmental bodies shall also intervene, whenever it becomes necessary for the protection of the general welfare of the communities involved, to protect and ensure the rights of the communities during the negotiations for benefit sharing.
  • Slide 16
  • Plant Variety Protection Act (RA 9168) Section 43. Exceptions to Plant Variety Protection. - The Certificate of Plant Variety Protection shall not extend to: d) The traditional right of small farmers to save, use, exchange, share or sell their farm produce of a variety protected under this Act, except when a sale is for the purpose of reproduction under a commercial marketing agreement. The Board shall determine the condition under which this exception shall apply, taking into consideration the nature of the plant cultivated, grown or sown. This provision shall also extend to the exchange and sell of seeds among and between said small farmers: Provided, That the small farmers may exchang