Wipo minding culture

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INTELLECTUAL PROPERTY NEEDSAND EXPECTATIONS OFTRADITIONAL KNOWLEDGE HOLDERS

WIPO Report on Fact-finding Missionson Intellectual Property and TraditionalKnowledge (1998-1999)


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Cover artwork extracted from work entitled Mural Munupi by Susan Wanji Wanji, MunupiArts and Crafts Association, Pirlangimpi Community, Melville Island, Australia. The artwork wasused with the full express, full and informed consent of the artist. All rights reserved.


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1

INTELLECTUALPROPERTYNEEDSAND

EXPECTATIONS

OF

TRADITIONALKNOWLEDGEHOLDERS

WIPO Rep o rt o n Fa ct-Find ing Mission s

o n Int ellectua l Pro pert y a nd Trad it io na l

Kno w led g e (1998-1999)

GenevaApri l 2001


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IP N EEDSAN DEXPECTATIONSOFTRADITIONALKNOWLEDGEHOLDERS2


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Table of Contents

Executive Sum m ary ________________________________________________________________________ 5

A cknow ledgem ents________________________________________________________________________ 9

List of A bbreviations ______________________________________________________________________ 13

Introduction _____________________________________________________________________________ 15

M ethodology ____________________________________________________________________________ 19

Term inology _____________________________________________________________________________ 21

Part I. Framing the IP Needs and Expectations of Traditional Knowledge Holders

Introduction to Intellectual Property _________________________________________________________ 32

O ther Relevant M ultilateral Institutions and Initiatives___________________________________________ 49

C ustom ary Law s and Protocols _____________________________________________________________ 57

Part II. Identifying the IP Needs and Expectations of Traditional Knowledge Holders:

Results of the Nine Fact-finding Missions

FFM to the South Pacific ___________________________________________________________________ 69FFM to Eastern and Southern A frica _________________________________________________________ 85

FFM to South A sia _______________________________________________________________________ 101

FFM to N orth Am erica____________________________________________________________________ 115

FFM to C entral A m erica __________________________________________________________________ 133

FFM to W est A frica ______________________________________________________________________145

FFM to the A rab C ountries________________________________________________________________159

FFM to South A m erica - M ission to Peru _____________________________________________________171

FFM to South A m erica - M ission to Bolivia ___________________________________________________ 185

FFM to the C aribbean Region _____________________________________________________________191

Part III. Summary, Reflections and Conclusions 207

Annexes

1. C ontracting Parties of Treaties Adm inistered by W IPO _______________________________________ 243

2. Term s of Reference for FFM s ____________________________________________________________247

3. Table of C ountries Visited _______________________________________________________________ 249

4. W IPO Interim M ission Reports ___________________________________________________________251

5. Recom m endations and Resolutions on the Protection of Expressions of Folklore__________________ 319

6. List of States, O rganizations and Persons Subm itting Form al C om m ents on D raft Report __________ 3317. Bibliography__________________________________________________________________________ 335


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5

Executive Summary

This Report presents inform ation com piled by the W orld Intellectual Property O rganization (W IPO ) from nine

fact-finding m issions conducted by W IPO in 1998 and 1999 on the intellectual property (IP) needs and expec-

tations of holders of traditional know ledge (TK ).1

The fact-finding m issions (the FFM s) w ere designed to enable W IPO to identify, as far as possible, the IP needs

and expectations of TK holders. W hile the needs of TK holders have been referred to in other international

fora, there has been to date no system atic global exercise by international organizations to docum ent and

assess, first-hand, the IP-related needs of TK holders. A s the U nited N ations specialized agency responsible

for the prom otion of the protection of IP, W IPO undertook the FFM s as part of a new program m e of activities,

initiated in 1998, to explore and study current approaches to, and future possibilities for, the protection of the

IP rights of holders of TK.

The purpose of the Report is to provide inform ation to W IPO M em ber States, holders of TK, including indig-

enous peoples, the private sector, intergovernm ental and non-governm ental organizations, academ ic and

research institutions and other interested parties, on the IP needs and expectations of TK holders expressed to

W IPO during the FFM s.

It is expected that the findings of this Report w ill be discussed w ith W IPO M em ber States and others w ith a

view , particularly, to defining and guiding future W IPO activities on the protection of TK .

The m ain body of the Report is contained in the chaptersFraming the Intellectual Property Needs and

Expectations of Traditional Knowledge Holders,Identifying the Intellectual Property Needs and

Expectations of Traditional Knowledge Holdersand Summary, Reflections and Conclusions.

The first section of the chapter Framing the Intellectual Property Needs and Expectations of Tradi-

tional Knowledge Holdersprovides a basic and general introduction to the IP system , containing an

overview of the different types of protection offered, as w ell as the m anagem ent, transfer and enforcem ent

of rights.

This section points out inter aliathat IP is not lim ited to existing categories such as patents, copyright and

tradem arks. Indeed, the definition of IP in the C onvention Establishing the W orld Intellectual Property O rga-

nization, 1967 m akes it clear that intellectual propertyis a broad concept and can include productions and

m atter not form ing part of the existing categories of intellectual property, provided they result, as the defini-

tion states,from intellectual activity in the industrial, scientific, literary or artistic fields.2 This part of the

1 Term s such as traditional know ledge, as used in this Report, are described in the Term inologychapter.2 A rticle 2 (viii), C onvention Establishing the W orld Intellectual Property O rganization, 1967.


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chapter also dem onstrates that IP is evolutionary and adaptive. N ew advances in technology inform ation

technology and biotechnology particularly and changes in econom ic, social and cultural conditions require

continuous appraisal of the system and at tim es adjustm ent and expansion, accom panied often by contro-

versy. For exam ple, the last few decades have seen the recognition of new or extended IP rights, such assui

generisform s of protection for plant varieties (in the 1950s and 1960s) and layout designs (topographies) ofintegrated circuits (1980s), and patent protection for biological m aterial, plants and anim als (in the 1970s

and 1980s), copyright protection for com puter softw are (1980s) and protection for databases and com pila-

tions of data (1980s and 1990s). The possible protection of tradition-based innovations and creations by the

IP system , the subject of this Report, is a m ore recently articulated question.

The second section of the chapterFraming the Intellectual Property Needs and Expectations of Tradi-

tional Knowledge Holdersdescribes briefly other m ultilateral institutions and initiatives in w hich TK pro-

tection has em erged and is being addressed, w hile the final section presents inform ation, w ith exam ples

from the FFM s, of how custom ary law s and protocols are being applied to the protection of TK.

The chapter Identifying the Intellectual Property Needs and Expectations of Traditional Knowl-edge Holderscontains individual, detailed reports on each of the nine FFM s. The earlier chapter on

Methodology provides inform ation on how the FFM s w ere planned, conducted and subsequently re-

ported on.

The chapter on Terminologydescribes certain term s as they are used by W IPO in the Report. The C hapter

seeks less to define such term s, than to provide som e clarity and a com m on basis upon w hich the Report can

be understood.

The Summary, Reflections and Conclusionschapter seeks to sum m arize, reflect upon and draw broad

conclusions on w hat m ay be considered to be the m ain and m ost prevalent IP-related needs and expectations

expressed to W IPO during the FFM s by TK holders and others w ith w hom W IPO consulted. The m ain needsand expectations m ay be sum m arized as follow s:

The selection of an appropriate term or term s to describe the subject m atter for w hich protection is

sought.

A clear definition or description of w hat is m eant (and not m eant) for IP purposes by the term or term s

selected.

The adjustm ent of expectations through effective aw areness-raising as to the role and nature of IP protec-

tion in relation to TK.

The prevention of the unauthorized acquisition of IPRs (particularly patents) over TK by docum enting and

publishing TK as searchable prior art, w here so desired by the relevant TK holders.

A n analysis of how prior art is established for purposes of patent exam inations in the context of TK . G reater aw areness-raising on the IP system , particularly am ong sectors of society and com m unities unfa-

m iliar w ith it, such as indigenous and local com m unities and G overnm ental offices not directly involved in

IP law and adm inistration.

G reater understanding by the IP com m unity of the perspectives, expectations and needs of TK holders.

Facilitation of dialogue and contact betw een TK holders, the private sector, G overnm ents, N G O s and

other stakeholders to assist in developm ent of m odalities for cooperation betw een them , at com m unity,

national, regional and international levels.

Enhanced participation by the national and regional IP offices and the IP com m unity at large in TK -related

processes in w hich IP issues are raised.

Study of the relationship betw een collectivity of TK and IPRs, m ore particularly testing of options for the

collective acquisition, m anagem ent and enforcem ent of IPRs by TK holdersassociations, including theapplicability of collective m anagem ent of IPRs to TK .

Study of custom ary law s and protocols in local and traditional com m unities, including conclusions rel-

evant for the form al IP system .


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In the shorter term , testing the applicability and use of existing IP tools for TK protection, through practical

and technical com m unity-level pilot projects and case studies; and, provision of technical inform ation and

training to TK holders and G overnm ent officials on possible options under the existing categories of IP for

TK protection.

In the longer term , the possible developm ent of new IP tools to protect TK not protected by existing IPtools, the elaboration of an international fram ew ork for TK protection, using inter aliathe W IPO -U N ESC O

M odel Provisions for National Law s on the Protection of Expressions of Folklore A gainst Illicit Exploitation

and O ther Prejudicial A ctions, 1982 as a possible foundation, and the developm ent of asui generissystem

of com m unityor collectiverights to protect TK.

Facilitating access to the IP system , to enable TK holders to use and enforce rights under the IP system .

The provision of inform ation, assistance and advice w ith respect to the enforcem ent of TK protection.

The provision of legal/technical assistance w ith TK docum entation, including inform ation and advice on

the IP im plications of TK docum entation.

The provision of IP advice and assistance in respect of legislation, regulations, guidelines, protocols, agree-

m ents (including m odel term s), policies and processes on access to and benefit-sharing in genetic re-

sources. A ssistance and training for TK holders in the negotiation, drafting, im plem entation, and enforcem ent of

contracts.

The developm ent and testing, w ith the close involvem ent of indigenous peoples and local com m unities, of

best contractual practices, guidelines and m odel clauses for contracts, as w ell as the provision of infor-

m ation on and protection against unfair contract term s.

A w areness-raising on the potential com m ercial value of TK and the developm ent of tools for the eco-

nom ic valuation of TK.

It is evident that som e of the needs and expectations conflict, or reflect com peting policy objectives. W IPO

has not attem pted to m ediate the needs or resolveconflicts, but rather to report as fully as possible on the

inform ation received from FFM inform ants. W IPO recognises that it cannot address all these needs and acollaborative effort by other relevant organizations and processes w ould be desirable. The needs as identified

pose challenges for the entire IP com m unity national and regional IP offices, collective m anagem ent societ-

ies, the private sector, N G O s, civil society, consum ers, and the international com m unity, including W IPO and

its M em ber States. The needs and expectations as identified do not, therefore, represent a w ork program for

W IPO , although they are reflected in W IPO s activities relating to TK in the 2000-1 biennium , w hich w as

developed based on the inform ation obtained during the FFM s and other activities. These are described at

the end of the Summary, Reflections and Conclusionschapter.

Further exploration of the role of IP in TK protection also requires a technical understanding of IP and applica-

tion in the specifics of concrete uses of TK (in other w ords, it is m ore helpful to test the functionality of IP in

relation to specific cases, than m erely in a theoretical or ideological context). In addition, effective IP system sthat protect and m aintain TK w ill depend on a better understanding of the various system s of innovation and

intellectual property (form al and custom ary) and, equally, upon the participation of all stakeholders, govern-

m ents and local com m unities in the process. For its part, as the specialized U nited N ations agency responsible

for the prom otion of IP w orldw ide, W IPO is com m itted to continuing to address conceptual problem s and

undertake a practical and technical exam ination of the application of the IP system to various form s of TK in

order to provide an inform ed and realistic analysis.

A n efficient IP system that protects TK w ill prom ote continued creation and innovation based on that know l-

edge. IP is not only about conferring property rights. It is also about recognition of and respect for the

contributions of hum an creators. From this perspective, IP has a very im portant role to play in protecting the

dignity of holders of TK and, by recognizing property rights in relation to such know ledge, giving thoseholders a degree of control of its use by others. The protection of TK also benefits third parties, w ho are able

to enjoy access to protected tradition-based innovation and creation that m ay not be collected, recorded, or

find channels of distribution w ithout IP protection.

EXECUTIVESUMMARY


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The FFM s have show n the richness and diversity of TK on a global scale, both in term s of its inherent creativity

and as potential subject m atter for protection. The IP system cannot, how ever, respond fully to all the needs

of TK holders. M any of the problem s encountered by TK holders are less legalthan operationalTK

holders (as do som e other sectors of society) often lack the know -how and financial resources to take advan-

tage of the IP system , w hether in its present or in an evolved form , and they need support in this respect.There are nevertheless certain conceptual difficulties. H ow ever, the fact that existing standards of IP m ay not

be in perfect harm ony w ith elem ents of TK w orthy of protection, should not be seen as an insuperable

obstacle. IP has consistently evolved to protect new subject m atter, such as softw are and layout-designs, the

em ergence of w hich w as unforeseeable even tw enty years earlier. C opyright protection has been extended

to the digital environm ent. IP is now m oving forw ard to protect databases. G iven its evolutionary and

adaptive nature, it is not inconceivable that IP principles m ight provide effective protection for traditional

know ledge.


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9

Acknowledgements

This Report is the outcom e of nine fact-finding m issions (FFM s) to various regions of the w orld w hich W IPO

undertook from M ay 1998 to N ovem ber 1999. These m issions w ere m ade possible through the active sup-

port and advice of num erous individuals and institutions, both governm ental and non-governm ental. W IPO

w ishes to thank all those w ho supported the FFM s, w ho are too num erous to recount individually.

M ost of the inform ation included in this Report has been generously provided to W IPO by holders of tradi-

tional know ledge, innovations and culture, including indigenous peoples. This inform ation constitutes the

m ost im portant and valuable part of this Report and W IPO w ishes to thank in particular the holders of tradi-

tional know ledge w ho shared and contributed their know ledge, experiences and w isdom , and for the trust,

confidence and cooperation w hich their contributions im ply.

In preparing the reports of each of the FFM s in the chapter entitled Identifying the Intellectual Property

N eeds and Expectations of Traditional Know ledge H olders: Results of the N ine Fact-finding M issions, W IPO

requested several persons to review and com m ent on drafts of the reports, or parts thereof, for factual

accuracy, currency and com pleteness and any other com m ents. W e w ish to thank all those concerned for

their assistance in ensuring that the inform ation contained in the Report is as accurate and up-to-date as

possible. They are1 :

FFM to the South Pacific:M r. Stephen G ray, Lecturer, Law Faculty, N orthern Territory University, D arw in,

A ustralia; M s. Lassity M artin, C oordinator, H ouse of A boriginality Project, M acquarie U niversity, N ew South

W ales, A ustralia; M s. Sonia Sm allacom be, M anager, Indigenous C ultural and Intellectual Property Task Force,

A boriginal and Torres Strait Islander C om m ission, A ustralia (ATSIC ), C anberra, A ustralia; M r. M aui Solom on,

Barrister, M olesw orth C ham bers, W ellington, N ew Zealand; M s. M aria Te A ranga Tini, Trustee, Kim ihauora

C haritable Trust, M ount M aunganui, N ew Zealand; M s. Kesaia Tabunakaw ai, W ainim ate, Suva, Fiji; and, D r.

Jacob Sim et, Executive D irector, N ational C ultural C om m ission, Port M oresby, Papua N ew G uinea.

FFM to Eastern and Southern Africa:D r. D onna Kabatesi, D irector, Traditional and M odern H ealth Prac-

titioners Together A gainst A ids(TH ETA), Kam pala, U ganda; M r. A xel Thom a, C oordinator of the W orking

G roup of Indigenous M inorities in Southern A frica (W IM SA ), W indhoek, N am ibia; M r. C yril Lom bard, C RIA A

SA -D C , W indhoek, N am ibia; M r. Roger C hennells, A ttorney, C hennells and A lbertyn, Stellenbosch, South

A frica; M r. N igel C raw hall, the Indigenous Peoples of A frica Coordinating C om m ittee (IPAC C ), C ape Tow n,

South A frica; and, M s. Sibongile Pefile, M em ber, Research G roup for Traditional M edicines, U niversity of

C ape Tow n, C ape Tow n, South A frica.

1 The titles and affiliations of the persons listed here are those at the tim e at w hich their contributions w ere received.


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FFM to the Caribbean: M r. M acsood H oosein, Iw okram a International C entre for Rain Forest C onservation

& D evelopm ent, G eorgetow n, G uyana; M r. Bernard Jankee, D irector, A frican C aribbean Institute of Jam aica,

Institute of Jam aica, Kingston, Jam aica; M s. G ladys Alicia L. Young, Legal U nit, M inistry of Foreign A ffairs

and Foreign Trade, Kingston, Jam aica; and, M s. Sharon Le G all, A ttorney, Patent and Trade M ark A gent,

C ham p Fleurs, Trinidad and Tobago.

FFM to South Asia:D r. D . M . Karunaratna, D irector, N ational O ffice of Intellectual Property, M inistry of

Internal and International C om m erce and Food, C olom bo, Sri Lanka; Prof. C handra W ikram agam age, D irec-

tor G eneral, A cadem y of Sri Lankan C ulture, C olom bo, Sri Lanka; D r. R. V. Vaidyanatha A yyar, Secretary,

G overnm ent of India, M inistry of H um an Resource D evelopm ent, D epartm ent of C ulture, N ew D elhi, India;

D r. A nil K. G upta, C oordinator, SRISTI and H oneybee N etw ork, C entre for M anagem ent in A griculture, Indian

Institute of M anagem ent, A hm edabad, India; M rs. P. V. Valsala G . Kutty, D eputy Secretary, D epartm ent of

Education, M inistry of H um an Resource Developm ent, N ew D elhi, India; D r. R. A . M ashelkar, D irector G en-

eral, C ouncil of Scientific and Industrial Research, N ew D elhi, India; D r. N . L. M itra, D irector, N ational Law

School of India U niversity, Bangalore, India; D r. P. U sha Sarm a, C entre for Biochem ical Technology, N ew

D elhi, India; D r. D arshan Shankar, D irector, Foundation for the Revitalization of Local H ealth Traditions,Bangalore, India; D r. M . S. Sw am inathan, D irector, M . S. Sw am inathan Research Foundation, C hennai, India;

and, D r. M . A . Kam al, Joint Secretary, International Trade and O rganizations, M inistry of C om m erce, D haka,

Bangladesh.

FFM to West Africa: Professor C harles W am bebe, D irector G eneral, N igerian Institute for Pharm aceutical

Research and D evelopm ent (N IPRD ), A buja, N igeria; D r. S.O W illiam s, President, N igerian Folklore Society,

Lagos, N igeria (now , D irector G eneral of the N igeria C opyright C om m ision); Professor K. O ppong-Boachie,

D irector, C entre for Scientific Research into Plant M edicine (C SRPM ), M am pong, G hana; and Professor J.H .

Kw abena N ketia, D irector, International C enter for A frican M usic and D ance (IC A M D ), U niversity of G hana,

Legon.

FFM to North America: Prof. Russell Barsh, A ssociate Professor, The U niversity of Lethbridge, Lethbridge,

C anada, and Engelberg C enter for Innovation Law , Institute of Law and Society, N ew York U niversity, N ew

York, U SA ; M r. Preston H ardison, , C oordinator, Biodiversity Inform ation N etw ork (BIN 21), Seattle, W ashing-

ton, U SA ; M r. A llan M orin, M etis N ation of Saskatchew an, Saskatoon, C anada; M rs. N ita M orven, Re-

searcher, Ayuukhl N isgaa D epartm ent, N isgaa Tribal C ouncil, N ew A iyansh, C anada.

FFM to the Arab Countries: M r. A li H ussein A l-Law ati, D irector, D epartm ent of Plant Production Research,

D irectorate G eneral of A gricultural Research, M inistry of A griculture and Fisheries, M ucat, O m an; M s. A m na

Rashid J. A l-H am dan, H ead, Projects and Fieldw ork Studies Section, G .C .C . Folklore C enter, D oha, Q atar; D r.

A hm ed A ly M orsi, Professor of Egyptian and A rabic Folklore, C airo U niversity, C airo, Egypt; D r. A saad N adim ,

N ational A rt D evelopm ent Industries of M ashrabeya, C airo, Egypt; M r. M oham ed Kheireddine A bdel A li,D irector G eneral, O TPD A (Organisme Tunisien de Protection des Droits dAuteurs), Tunis, Tunisia.

FFM to South America

Peru: M r. M anuel Ruiz M uller, Program m e of International A ffairs, Biological D iversity, Peruvian Society of

Environm ental Law , Lim a, Peru.

Bolivia: M s. Erika D uenas, Intellectual Property D irector of the V ice-M inistry of International Econom ic

Relations and Integration (M inistry of Foreign A ffairs).

FFM to Central America: M r. A tencio Lopez,Asociacin Napguana, Panam a C ity, Panam a.

H ow ever, any errors are the sole responsibility of W IPO .


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In July 2000, this Report w as m ade available in draft form for public com m ent. The Report w as w idely

distributed in paper form , and w as also posted on W IPO s w ebsite. The com m enting period closed form ally

on D ecem ber 15, 2000, but all com m ents received before the Report w ent to press in A pril 2001 w ere taken

into account. A list of the States, organizations and individuals w ho com m ented on the draft Report is

contained in A nnex 6. This revised Report incorporates as far as possible all the com m ents received. Thosecom m ents received electronically are available on W IPO s w ebsite at http://w w w .w ipo.int/traditionalknow ledge/

com m ents/index.htm l.

The com m ents w ere received on the draft Report contributed to and enriched this Report. W IPO greatly

appreciates the efforts of those w ho provided com m ents.

U nless otherw ise indicated, the inform ation contained in this Report is current as at July 2000, w hen the draft

Report w as m ade available. The tables show ing m em bership of treaties at the beginning of the sections on

each of the fact-finding m issions are current as at M arch 2001.

A CKNOWLEDGEMENTS


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List of Abbreviat ions

C BD C onvention on Biological D iversity, 1992

FA O Food and A griculture O rganization

FFM Fact-finding m ission

ILO International Labor O rganization

IM R Interim M ission Report

IU CN The W orld C onservation U nion

IP Intellectual Property

IPRs Intellectual Property Rights

N G O N on-G overnm ental O rganization

O H C H R O ffice of the H igh C om m issioner for H um an Rights

PG R Plant G enetic Resources

PG RFA Plant G enetic Resources for Food and Agriculture

PIC Prior Inform ed C onsent

TK Traditional Know ledge

TRIPS Agreem ent A greem ent on Trade-Related A spects of Intellectual Property Rights, 1994

U NCC D U nited Nations C onvention to C om bat D esertification in C ountries Experiencing

Serious Drought and/or D esertification, Particularly in A frica, 1994

U N ESC O U nited Nations Educational, Scientific, and Cultural O rganization

U NEP U nited N ations Environm ent Program m e

W G IP W orking G roup on Indigenous Populations

W HO W orld H ealth O rganization

W IPO W orld Intellectual Property O rganization

W IPO C onvention C onvention Establishing the W orld Intellectual Property O rganization

W TO W orld Trade O rganization

W W F W orld W ildlife Fund


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Introduction

The World Intellectual Property Organization (WIPO): W IPO is one of the specialized agencies of the

U nited N ations (U N ) system of organizations. W IPO s m andate is the prom otion of the protection of intellec-tual property (IP) throughout the w orld through cooperation am ong States and, w here appropriate, in col-

laboration w ith any other international organization.1 The term intellectual propertyis defined in the

W IPO C onvention 2 to include rights relating to:

literary, artistic and scientific w orks;

perform ances of perform ing artists, sound recordings, and broadcasts;

inventions in all fields of hum an endeavor;

scientific discoveries;

industrial designs;

tradem arks, service m arks, and com m ercial nam es and designations;

protection against unfair com petition; and, all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

W IPO has currently 176 M em ber States, a list of w hich is contained in A nnex 1. W IPO s headquarters are in

G eneva, Sw itzerland. W IPO s m ain activities include:

facilitating the conclusion of new international treaties and the m odernization of national legislation;

adm inistration of m ore than tw enty international treaties in the fields of copyright, related rights, patents,

industrial designs and m arks;

providing technical advice and assistance to developing countries as part of an extensive developm ent

cooperation program ;

the assem bly and assim ilation of inform ation and advice to a diverse range of parties; and, the m aintenance of services for facilitating the obtaining of protection of inventions, m arks and industrial

designs for w hich protection in several countries is desired, such as the Patent C ooperation Treaty, 1970,

the H ague A greem ent C oncerning the International D eposit of Industrial D esigns, 1925, and the M adrid

A greem ent C oncerning the International Registration of M arks, 1891, and the Protocol Relating to that

A greem ent, 1989.

M any of the international treaties adm inistered by W IPO set out internationally agreed rights and com m on

standards for their protection in the various fields of IP. These treaties have been negotiated and adopted by

M em ber States w hich constitute unionsfor each treaty. The basic prem ise of these treaties is the sim plifi-

cation of the international intellectual property adm inistration and enforcem ent system . Intellectual property

rights (IPRs) are lim ited territorially and can only be exercised w ithin the jurisdiction of a country grantingthese rights. W ith the increasing interdependency of countries, m em bership of the treaties m akes it possible

for each m em ber country to agree to grant to nationals of other countries in the union the sam e protection

as they grant to their ow n nationals as w ell as to follow certain com m on rules, standards and practices.3


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C ertain of the treaties (such as the Patent C ooperation Treaty, 1970) establish m echanism s w hereby protec-

tion can be obtained in several countries (the so-called global protection treaties). See further under

Introduction to Intellectual Propertyin the chapter on Fram ing the Intellectual Property N eeds and Expec-

tations of Traditional Know ledge H oldersbelow .

WIPOs Work on the Protection of Traditional Knowledge: In N ovem ber 1997, the G lobal Intellectual

Property Issues D ivision (the G lobal Issues D ivision) w as established by the then new ly elected D irector Gen-

eral, D r. Kam il Idris. The G lobal Issues D ivision w as created to enable W IPO to rem ain at the forefront of

global IP developm ents by responding to three challenges facing the IP system in a rapidly changing w orld.

Thesechallenges w ere identified as:

accelerating technological advancem ent;

integration of the w orld econom ical, ecological, cultural, trading and inform ation system s; and

the grow ing relevance of IPRs.

The D ivisions first program of activities w as approved by W IPO s M em ber States as part of the W IPO Programand Budget for the 1998-1999 biennium .4 The program s overall objective is to identify key areas w here

econom ic, technological, cultural and social change m ay im pact on the IP system and to consider how such

im pact should be explored and addressed by W IPO and its M em ber States. The program s findings are

expected to provide input and resources for policy form ulation and for use in W IPO s other activities, such as

in the areas of developm ent cooperation and, possibly, progressive developm ent. A s the universality of IPRs

calls for the exploration of new w ays in w hich the IP system can serve as an engine for social, cultural,

econom ic and technological progress of the w orlds diverse populations, one of the areas identified for explo-

ration in the 1998-1999 biennium w as the needs and expectations of groups w hich have until now had little

or incom plete exposure to the IP system . The first such group identified w ere holders of traditional know l-

edge, innovations and culture (together referred to in this Report as traditional know ledgeor TK- see

discussion in the C hapter on Term inology). The m ain objective of the new W IPO activities in respect oftraditional know ledge under the W IPO Program and Budget for 1998-1999 w asto identify and explore the

intellectual property needs and expectations of new beneficiaries, including the holders of indigenous knowl-

edge and innovations, in order to promote the contribution of the IP system to their social, cultural and

economic development(M ain Program 11, Program and Budget 1998-1999).

D uring the 1998-1999 biennium , W IPO took an exploratory approach to its new activities on the IP aspects of

TK protection. W IPO s program recognized that basic conceptual groundw ork and system atic data collection

are required to assess the IP aspects of the protection of TK , and to identify the scope of future w ork in a w ay

w hich reflects the interests of all relevant stakeholders. To this end a range of activities w as carried out under

M ain Program 11 of the W IPO Program and Budget, including:

betw een June 1998 and N ovem ber 1999, W IPO conducted 9 fact-finding m issions (FFM s) to 28 countries

in the South Pacific, Southern and Eastern A frica, South A sia, N orth A m erica, C entral A m erica, W est

A frica, the A rab countries, South A m erica and the C aribbean;

in cooperation w ith the U nited N ations Educational, Social and C ultural O rganization (U N ESC O ), W IPO

organized four regional consultations on the protection of expressions of folklore, w hich w ere held for

A frican countries in Pretoria, South A frica (M arch 1999), for countries of A sia and the Pacific region in

H anoi, Vietnam (A pril 1999); for A rab countries in Tunis, Tunisia (M ay 1999); and for Latin A m erica and

the C aribbean in Q uito, Ecuador (June 1999)5 ;

in July 1998 and N ovem ber 1999, W IPO organized tw o Roundtables to facilitate an exchange of view s

am ong policym akers, indigenous peoples and other holders of TK on the m ore effective application of the

IP system for the protection of traditional and indigenous know ledge;

6

the interdisciplinary nature of the subject m atter involved m ade it necessary for W IPO to participate in

other international fora and m eetings such as on food security, agriculture, the environm ent, indigenous

populations, sustainable developm ent, trade, culture and biological diversity. These w ere m ostly orga-


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17

nized by intergovernm ental agencies w ithin the U N system and certain national, regional and non-gov-

ernm ental organizations. Several of these fora have recently highlighted the IP aspects of TK and re-

quested technical inform ation from and cooperation w ith W IPO ;

W IPO also undertook, in cooperation w ith the U nited N ations Environm ent Program m e (U N EP), an O n-site

D ocum entation Project on the Role of Intellectual Property Rights in the Sharing of Benefits A rising fromthe U se of Traditional Know ledge, Innovations and C reativity and A ssociated Biological Resources. This

project produced case studies w hich W IPO and U N EP subm itted to the fifth C onference of the Parties to

the C onvention on Biological D iversity, 1992 (the C BD ) in M ay 2000.

The Objectives of the Fact-finding Missions: The FFM s w ere designed to enable W IPO to identify, as far as

possible, the IP needs and expectations of TK holders. W hile the needs of TK holders have been referred to in

other international fora, there has been to date no system atic global exercise by international organizations to

docum ent and assess, first-hand, the IP-related needs of TK holders. A s the U nited N ations specialized agency

responsible for the prom otion of the protection of IP, W IPO undertook the FFM s as part of its explorative study

of current approaches to, and future possibilities for, the protection of the IP rights of holders of TK.

This Report:This Report presents the inform ation com piled from the FFM s and an analysis of the IP needs

and expectations of TK holders that w ere expressed to W IPO . Relevant inform ation from W IPO s other

activities in this area, as described above, is also integrated into the Report.

The purpose of the Report is to provide inform ation to W IPO M em ber States, holders of TK, including indig-

enous people, the private sector, intergovernm ental and non-governm ental organizations, academ ic and

research institutions and other interested parties on the IP needs and expectations of TK holders expressed to

W IPO during the FFM s.

The m ain body of the Report is contained in the chapters on Framing the Intellectual Property Needs

and Expectations of Traditional Knowledge Holders, on Identifying the Intellectual Property Needsand Expectations of Traditional Knowledge Holdersand the chapter containing the Summary, Re-

flections and Conclusions.

The first part of the chapter on Framing the Intellectual Property Needs and Expectations of Tradi-

tional Knowledge Holdersprovides a basic and general introduction to the IP system , containing an

overview of the different types of protection offered, as w ell as the m anagem ent, transfer and enforcem ent

of rights. The second part of the chapter describes briefly other m ultilateral institutions and initiatives in

w hich TK protection has em erged and is being addressed, w hile the final section presents inform ation, w ith

exam ples, of how custom ary law s and protocols are being applied to the protection of TK.

The chapter on Identifying the Intellectual Property Needs and Expectations of Traditional Knowl-edge Holderscontains individual, detailed reports on each of the 9 FFM s. The decision to report on each

m ission separately w as inform ed by the need to preserve the integrity of the inform ation arising from the

regions. This also creates a fram ew ork for highlighting sim ilarities and differences not only betw een com m u-

nities w ithin countries in a region, but also betw een regions. The inform ation is, how ever, presented accord-

ing to a sim ilar form at in each section to facilitate com parison betw een the m issions. The form at is broadly as

follow s: Term inology and Subject M atter; O bjectives of TK protection; Benefits and Beneficiaries of TK Pro-

tection; D ocum entation; M eans of Protecting TK; M anagem ent and Enforcem ent of Rights and Interests in

TK; and, G eneral.

The chapters on Methodologyand Terminologyprovide inform ation on how the FFM s w ere con-

ducted and on the use of certain term s in the Report. The M ethodology Chapter deals w ith how the FFM sw ere planned, conducted and subsequently reported on. It also, im portantly, highlights the role of W IPO s

M em ber States and the G overnm ents of the countries visited in planning and conducting of the m issions.

There is no consistency in the usage of certain term s in the area of TK and the chapter on Term inology

INTRODUCTION


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describes certain of the term s as they are used by W IPO in the Report and in its w ork. The C hapter seeks less

to define such term s, than to provide som e clarity and a com m on basis upon w hich the Report can be

understood.

It is expected that the findings of this Report w ill be discussed w ith W IPO M em ber States and others w ith aview , particularly, to defining and guiding future W IPO activities on the intellectual property protection of

traditional know ledge.

Notes

1 A rticle 3(i), C onvention Establishing the W orld Intellectual Property O rganization, 1967. The C onvention entered into force in1970.

2 A rticle 2(viii).

3 For further inform ation on W IPO , please see W IPO ,Intellectual Property Reading Material(W IPO Publication N um ber 476) andthe W IPO w ebsite at w w w .w ipo.int.

4 The program of activities of the G lobal Issues Division is contained in M ain Program 11 of the W IPO Program and Budget for1998-1999. The Program and Budget m ay be view ed on the W IPO w ebsite w w w .w ipo.int.

5 The Recom m endations, Resolutions and other docum ents from these Consultations are available from the International Bureauof W IPO and the W IPO w ebsite w w w .w ipo.int.

6 The Lists of Participants, Program s, and Papers of these Roundtables are available from the International Bureau of W IPO and theW IPO w ebsite w w w .w ipo.int.


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19

Methodology

The variety of cultures, traditions, and beliefs encountered over the course of the FFM s im pressed upon W IPO

the diverse local contexts w ithin w hich TK is created and thrives. In developing a plan for each FFM , a basic

foundational m ethodology w as adapted to m eet the specific requirem ents of the regions, countries, and

com m unities. W hat follow s is a broad outline of the general m ethodology used in planning and undertaking

each FFM .

The overall objective of the FFM s w as to identify and explore the intellectual property needs and expecta-

tions of new beneficiaries, including the holders of indigenous knowledge and innovations, in order to pro-

mote the contribution of the intellectual property system to their social, cultural and economic develop-

ment.

W hile taking into account the constraints of W IPO s resources, it w as considered desirable that as m any

regions as possible be visited. N ine FFM s w ere conducted to the South Pacific, Southern and Eastern A frica,

South A sia, N orth A m erica, C entral A m erica, W est A frica, the A rab C ountries, South A m erica and the C arib-

bean. The advice and interest of W IPO s M em ber States (through the national IP offices and their Perm anent

M issions to the U nited N ations in G eneva), the advice of the W IPO Regional Bureaus and that of the regional

and local coordinators, on the one hand, and prevailing political and other conditions of access, on the other,

com bined to identify w hich countries w ere visited. A total of 28 countries w ere visited, and approxim ately

3000 persons m et w ith or visited in approxim ately 60 cities, tow ns and villages. In so far as the individuals and

institutions w ith w hom W IPO m et are concerned, these w ere identified on the basis of suggestions m ade by

academ ics, non-governm ental experts and indigenous and local com m unity organizations from around the

w orld, the personal contacts and know ledge of W IPO staff, as w ell as the advice of G overnm ent officials (see

A nnex 3 Table of C ountries Visited).

The consultations, m eetings, interview s and visits w ere organized prior to the com m encem ent of each m is-

sion. FFM activities w ere either arranged by W IPO staff directly, or by the national IP office or other G overn-

m ent departm ents of the relevant m em ber states on behalf of W IPO . A representative of the national IP

office or other G overnm ent departm ent accom panied W IPO staff on m ost of the FFM activities. In som e

cases, a local coordinator w ithin each country w as requested by W IPO to assist w ith the logistical planning

required for each m ission. This included,inter alia,venue selection, participant selection, and general form at

of the activities.

W here possible, W IPO s Term s of Referencefor the FFM s w ere sent to all those w ith w hom W IPO m et prior

to the com m encem ent of the m issions. This w as to ensure that the purpose, nature and expected output of

the FFM s w ere clearly understood by inform ants before they m et w ith W IPO staff. The Term s of Reference are

reproduced in A nnex 2.


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The prim ary m ethods of data collection w ere:

the gathering of docum ents;

sem i-structured interview s; and

participatory observations involving the inform ants.

These three procedures w ere chosen to m axim ize the diversity of inform ation that could be gathered w hile

m inim izing researcher bias. This desire w as particularly relevant in the decision to use sem i-structured inter-

view m ethods, as opposed to com pletely structured interview s. A structured interview uses a predeterm ined

set of questions to elicit inform ation from the subjects, w hile a sem i-structured interview develops questions

w hich build from previous answ ers. Thus, the sem i-structured interview s w ere organized to follow tw o

interview threadsin order to provide som e com m on area for com parative analysis across the various geo-

graphic regions; how ever, the precise questions and form at of the interview w as adapted to the local context

of each inform ant.

The interview threads centered upon the needs, rights, and expectations of holders of TK now and in thefuture. Specifically, one thread focused upon the existing situation by exploring topics such as the inform ants

know ledge of the current form al IP system , gaps in the current system w ith respect to TK , effective protection

m easures currently in place for TK , and related form al instrum ents w hich affect the current state of traditional

practices. The second thread involved the exploration of future possibilities for the protection of the IP rights

of TK holders. Issues that w ere raised under this thread concerned,inter alia,inform antsfuture expectations

for IP protection, existing form s of TK that could be protected by IP regim es, and w hat new IP rights system s

m ight m eet the needs and expectations raised by inform ants.

The prim ary output of the FFM s is this Report. H ow ever, after each FFM , an Interim M ission Report (IM R) w as

produced and dissem inated to all individuals, organizations, and G overnm ent officials w ith w hom W IPO m et

during the relevant FFM . The IM Rs constituted factual accounts of W IPO s activities during each FFM . C opiesof the IM Rs w ere also m ade w idely available to G overnm ent representatives of W IPO s M em ber States, indig-

enous and local com m unities, organizations and individuals in other regions and are published on W IPO s w eb

site at w w w .w ipo.int. The IM Rs are contained in A nnex 4.

W IPO recognizes that the persons w ith w hom it consulted and m et are not representative of all TK holders and

other stakeholders. The availability of resources and the need to plan and com plete all nine FFM s w ithin the

1998-1999 biennium , lim ited the num ber of countries W IPO could visit, the tim e it could spend in each country

and the extent to w hich it could travel w ithin countries to consult w ith people. That said, W IPO hopes that this

Report serves, at the very least, as a useful basis for further w ork by W IPO and others in this area.


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21

Terminology

W ith any discussion, the im portance of establishing a com m on fram ew ork of understanding is vital for pro-

ductive dialogue. O ne of the com plicating factors of any discussion on TK is not so m uch the lack of options

for appropriate term inology, but rather the diverse m eanings and connotations associated w ith the existing

options. A s w ill be discussed below and as w as found on the FFM s, m any of the w ords used to describe

concepts in this field have different m eanings in different regions. There are three general com plications

w hich arise w hen utilizing term inology related to TK :

Context:The inability to translate the linguistic context a w ord enjoys in one language to another is particu-

larly troublesom e. Since the issues involved have had decades, if not centuries, of dom estic use, the associ-

ated term inology has often developed very specific connotations in specific contexts.

Absence of appropriate translation:For som e concepts, the term applied by holders of traditional know l-

edge in their native language has no correspondence in other languages, because of the unique developm ent

of the concept in that tradition. The result is the forced translation of a term to fit the constraints of the

target language, like a square peg in a round hole.

Non-standard usage: Even w ithin a single language, the m eaning attributed to a certain term by speakers

from different regions can have vastly different m eanings. These differences m ay arise from the im plied

m eaning of the term , or the perceived distinction betw een tw o term s. A nother com plication is the scope

attributed to certain term s for exam ple, does traditional know ledgesubsum e indigenous know ledge,

or are the tw o term s equivalent?

This chapter claim s neither to resolve these linguistic differences, nor offer a standardized form ulation for the

use of these term s in the future. This chapter seeks only to describe the w ays in w hich certain term s are used

in this Report. These term s are: biological diversity, expressions of folklore, heritage, indigenous

know ledge, intellectual property, sui generis, traditional know ledge, and traditional know ledge

holder. These term s appear frequently in this Report, and thus an understanding of how they are used is key

to understanding the Report.

In addition to these term s, certain com m ents on the D raft Report suggested additional term s w hose m ean-

ings could be discussed, perhaps in follow -up w ork. For exam ple, in its com m ent on the D raft Report, the

G overnm ent of C anada suggested that the Report m ay have benefited from a discussion of the m eaning of

the term protection, as the term is used in relation to the protection of TK. The com m ent states: Pro-

tection can have several different m eanings, such as preserving, prom oting w ider use, controlling use, pre-

venting m isuse, or channeling a proper share of benefits to TK holders.1


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In another com m ent, it is suggested that it w ould be helpful to investigate the m eanings of w ords such as

property, ow nership, custodianshipand stew ardship.2 A com m ent also suggested that the term

and concept indigenous intellectual propertyshould be used m ore.3 These are all useful suggestions.

A s certain com m ents on the D raft Report point out, it is clear that future discussions on intellectual propertyand TK w ill require, at least, shared understandings of w hat the relevant term s describe and w hat subject

m atter is covered by them .4

Biolog ical Div ersity (also Biodiv ersity )

The term biological diversity is used by various groups and organizations to refer to the m ultitude of unique

species, and varieties w ithin species, present in various ecosystem s throughout the w orld. The best expres-

sion of this term in the international context is probably provided by A rticle 2 of the C onvention on Biological

D iversity, 1992 (the C BD ), w hich defines the term 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 diversity within species, between species and of ecosystems.

Exp ression s of Folk lor e

W IPO uses the term expressions of folklorein the sense in w hich it is used in the W IPO -U N ESC O M odel

Provisions for N ational Law s on the Protection of Expressions of Folklore A gainst Illicit Exploitation and other

Prejudicial A ctions, 1982 (the M odel Provisions). Section 2 of the M odel Provisions provides that expres-

sions of folkloreare understood as productions consisting of characteristic elem ents of the traditional artistic

heritage developed and m aintained by a com m unity in the country or by individuals reflecting the traditional

artistic expectations of such a com m unity.

O nly artisticheritage is covered by the M odel Provisions. This m eans that, am ong other things, traditionalbeliefs, scientific view s (e.g. traditional cosm ogony) or m erely practical traditions as such, separated from

possible traditional artistic form s of their expression, do not fall w ithin the scope of the proposed definition of

expressions of folklore. O n the other hand, artisticheritage is understood in the w idest sense of the

term and covers any traditional heritage appealing to our aesthetic sense. Verbal expressions, m usical expres-

sions, expressions by action and tangible expressions m ay all consist of characteristic elem ents of the tradi-

tional artistic heritage and qualify as protected expressions of folklore.

The M odel Provisions also offer an illustrative enum eration of the m ost typical kinds of expressions of folklore.

They are subdivided into four groups according to the form s of the expressions,nam ely expressions by

w ords (verbal), expressions by m usical sounds (m usical), expressions of the hum an body (by action)

and expressions incorporated in a m aterial object (tangible expressions). The first three kinds of expres-sions need not be reduced to m aterial form ,that is to say, the w ords need not be w ritten dow n, the m usic

need not exist in m usical notation and the dance need not exist in choreographic notation. O n the other

hand, tangible expressions by definition are incorporated in a perm anent m aterial, such as stone, w ood,

textile, gold, etc. The M odel Provisions also give exam ples of each of the four form s of expressions. They are,

in the first case, folk tales, folk poetry and riddles,in the second case, folk songs and instrum ental m usic,

in the third case, folk dances, plays and artistic form s of rituals,and in the fourth case, draw ings, paint-

ings, carvings, sculptures, pottery, terra-cotta, m osaic, w oodw ork, m etalw are, jew elry, basket w eaving, needle-

w ork, textiles, carpets, costum es; m usical instrum ents; architectural form s.

W IPO is aw are that the term folkloreis believed to have a pejorative m eaning by m any persons, particularly

in certain regions. A s this is, how ever, the term that has been used at the international level for m any years,W IPO has retained it for the present.


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23

Heritage

The term heritageappears w ithin the context of, for exam ple, the heritage of indigenous peoples.

W IPO understands heritage of indigenous peoples(and other peoples) to refer broadly to the item s de-

scribed in paragraphs 11 and 12 of the D raft Principles and G uidelines for the Protection of the H eritage ofIndigenous People, 1995, elaborated by the Special Rapporteur of the Sub-C om m ission on the Prevention of

D iscrim ination and Protection of M inorities5 , D r. Erica Irene D aes. This docum ent is currently under revision.

H ow ever, paragraph 12 currently provides that:

The heritage of indigenous peoples includes all moveable cultural property as defined by the relevant

conventions of UNESCO; all kinds of literary and artistic works such as music, dance, song, ceremonies,

symbols and designs, narratives and poetry; all kinds of scientific, agricultural, technical and ecological

knowledge, including cultigens, medicines and the rational use of flora and fauna; human remains;

immoveable cultural property such as sacred sites, sites of historical significance, and burials; and docu-

mentation of indigenous peoples heritage on film, photographs, videotape or audiotape.

Indigenous Know ledge

Indigenous know ledgeis understood in at least tw o different w ays. First, it is used to describe know ledge

held and used by com m unities, peoples and nations that are indigenous. The notion indigenous peoples

has been the subject of considerable discussion and study. The description of the concept indigenousin the

Study of the Problem of Discrim ination Against Indigenous Populations6 , prepared by Special Rapporteur of the

U nited N ations Sub-C om m ission on Prevention of D iscrim ination and Protection of M inorities, M r. J. M artnez

C obo, is regarded as an acceptable w orking definition by m any indigenous peoples and their representative

organizations. The Study understands indigenous com m unities, peoples and nations asthose which, having a

historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider

themselves distinct from other sectors of the societies now prevailing in those countries, or parts of them. Theyform at present non-dominant sectors of society and are determined to preserve, develop and transmit to future

generations their ancestral territories, and their ethnic identities, as the basis of their continued existence as

peoples, in accordance with their own cultural pattern, social institutions and legal systems.

In referring to this description of indigenous peoples, the N ational Institute for the D efense of C om petition

and Intellectual Property Protection of Peru (IN D EC O PI), in its com m ent on the D raft Report, queries its ac-

ceptability: It w ould be interesting to know the opinion of the historians and to know if it is acceptable, for

exam ple, the definition that is m ade to the term indigenous.7 A nother com m ent also queried the lim ita-

tion of the description to pre-invasionsocieties.8

In this sense, indigenous know ledgew ould be the traditional know ledge of indigenous peoples. Indig-enous know ledge is therefore part of the traditional know ledge category, but traditional know ledge is not

necessarily indigenous. That is to say, indigenous know ledge is traditional know ledge, but not all traditional

know ledge is indigenous (see figure 1).9

TERMINOLOGY

Indigenous Know ledge

Traditional Know ledge

FIGURE1


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O n the other hand, indigenous know ledgeis also used to refer to know ledge that is itself indigenous.

Dictionaries define indigenousas:

originating or occurring naturally (in a country, region etc.); native; innate (to); inherent (in)10 ; and

(Esp. of flora and fauna) produced naturally in a region; belonging naturally (to soil etc.).

11

O r, as one of the com m ents on the D raft Report put it: (I)ndigenousm eans belonging to, or specific to, a

particular place.12

In this sense, the term s traditional know ledgeand indigenous know ledgem ay be interchangeable.13

Intel lectu al Propert y

Intellectual property (IP) refers to property rights in creations of the m ind, such as inventions, industrial de-

signs, literary and artistic w orks, sym bols, and nam es and im ages. The notion intellectual propertyis

defined in the C onvention Establishing the W orld Intellectual Property O rganization (W IPO ), 1967

14

to in-clude rights relating to:





industrial designs;


protection against unfair com petition; and,

all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

IP is generally divided into tw o m ain categories:

The protection ofindustrial propertyhas as its object patents, utility m odels, industrial designs, trade-

m arks, service m arks, trade nam es, geographical indications (indications of source or appellations of ori-

gin), and the repression of unfair com petition.15

Copyright includes literary and artistic w orks, such as novels, poem s and plays, film s, m usical w orks,

draw ings, paintings, photographs and sculptures, com puter softw are, databases, and architectural de-

signs.Related rights(also referred to as neighboring rights) include the rights of perform ing artists in

their perform ances, producers of sound recordings in their sound recordings, and those of broadcasters in

their radio and television broadcasts.

A dditionally,plant varietiesare protectable under the IP-related system of plant breedersrights.

A s the definition in the W IPO C onvention indicates, intellectual propertyis not confined to the specific

exam ples of intellectual property just m entioned. The phrase at the end of the definition in the W IPO C on-

vention (all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields

(article 2(viii)) m akes it clear that intellectual propertyis a broad concept and can include productions and

m atter not form ing part of the existing categories of intellectual property, provided they result from intellec-

tual activity in the industrial, scientific, literary or artistic fields.

Sui Generis

Sui generisis a Latin phrase m eaning of its ow n kind. A sui generissystem , for exam ple, is a system

specifically designed to address the needs and concerns of a particular issue. C alls for a sui generissystem

for TK protection are som etim es heard. This could m ean a system entirely separate from and different from


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25

the current IP system . Som e persons, how ever, also the use the term to refer to new IP, or IP-like, rights. There

are already several exam ples ofsui generisIP rights, such as plant breedersrights (as reflected in the Interna-

tional C onvention on the Protection of N ew Varieties of Plants, 1991 (The U PO V C onvention)) and the IP

protection of integrated circuits (as reflected in the Treaty on Intellectual Property in Respect of Integrated

C ircuits, 1989 (The W ashington Treaty)). In the field of TK , the 1982 M odel Provisions (see above) providesui generisprotection for expressions of folklore.

Tradi t ional Know ledge

Traditional know ledgeis one of several term s used to describe broadly the sam e subject m atter. O ther

term s in usage include indigenous cultural and intellectual property, indigenous heritageand custom -

ary heritage rights.

W IPO currently uses the term traditional know ledgeto refer to tradition-based literary, artistic or scientific

w orks; perform ances; inventions; scientific discoveries; designs; m arks, nam es and sym bols; undisclosed

inform ation; and all other tradition-based innovations and creations resulting from intellectual activity in theindustrial, scientific, literary or artistic fields. Tradition-basedrefers to know ledge system s, creations, inno-

vations and cultural expressions w hich: have generally been transm itted from generation to generation; are

generally regarded as pertaining to a particular people or its territory; and, are constantly evolving in re-

sponse to a changing environm ent. C ategories of traditional know ledge could include: agricultural know l-

edge; scientific know ledge; technical know ledge; ecological know ledge; m edicinal know ledge, including

related m edicines and rem edies; biodiversity-related know ledge; expressions of folklorein the form of

m usic, dance, song, handicrafts, designs, stories and artw ork; elem ents of languages, such as nam es, geo-

graphical indications and sym bols; and, m ovable cultural properties. Excluded from this description of TK

w ould be item s not resulting from intellectual activity in the industrial, scientific, literary or artistic fields, such

as hum an rem ains, languages in general, and other sim ilar elem ents of heritagein the broad sense.

G iven this highly diverse and dynam ic nature of TK it m ay not be possible to develop a singular and exclusive

definition of the term . H ow ever, a singular definition m ay not be necessary in order to delim it the scope of

subject m atter for w hich protection is sought. This approach has been taken in a num ber of international

instrum ents in the field of IP. For exam ple, article 2.1 of the Berne C onvention for the Protection of Literary

and A rtistic W orks (the Berne C onvention), does not include an exclusive definition for the m eaning of

literary and artistic w orks,but rather provides a non-exhaustive enum eration of subject m atter in order to

dem arcate the categories of creations w hich are protected under the C onvention.16 C ertain other interna-

tional agreem ents in the field of IP do not define a singular term w hich describes the totality of protected

subject m atter.17

W IPOs description of the subject m atter naturally reflects its IP focus. W IPOs activities are concerned w iththe possible protection of traditional know ledge that is intellectual propertyin the broad sense as de-

scribed in the definition of intellectual property. For purposes of the FFM s, W IPO also used the expressions

traditional know ledge, innovations and cultureand traditional know ledge, innovations and practices,

w hich, for W IPO , had the sam e m eaning as the shorter traditional know ledge.

Traditional know ledgeis a w orking term only. W IPO acknow ledges the right of indigenous groups, local

com m unities and other TK holders to decide w hat constitutes their ow n know ledge, innovations, cultures

and practices, and the w ays in w hich they should be defined.

The Future H arvest Centres supported by the C onsultative G roup on International A gricultural Research (C G IAR)

observed, in their com m ent on the D raft Report, that the Report tends to lim it the sphere of TK , as beingself-contained and isolated.18

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Referring to the diagram at the end of this chapter (Figure 2), the com m ent suggests that the diagram :

should have another outmost sphere which is the changing environment: biophysical (e.g. in relation to

soil erosion, introduction of germplasm) and socio-economical-political (e.g. market conditions, war and

civil unrest). Very few indigenous communities remain isolated. It is often within this gray area in which TKinterfaces with modernity (voluntarily or forced by circumstances) and continuously innovates. In short, TK

is generated and applied within and outside community boundaries. Most likely, the innovations outside

the respective community boundaries are where IP issues are most relevant.

The findings of the FFM s and other activities of W IPO lend support to these view s, as did other com m ents on

the D raft Report.

The description of traditional know ledgein the D raft Report stated that traditional know ledgeis also

characterized by being developed in a non-system atic w ay.Follow ing a com m ent of the Future H arvest

C entres that this w ould depend upon how one defines system aticand that it is certainly arguable that

indigenous and local com m unities have system aticallydeveloped and m aintained TK to m eet changinglocal conditions and, am ongst other things, provide for food security, w e have am ended our w orking defini-

tion accordingly. A s the Future H arvest C entres correctly note:

There is an extensive scientific literature attesting to the systematic, if locally specific, nature of traditional

biodiversity knowledge. It is precisely these systems of plant use, culture and knowledge that local com-

munities seek to preserve through IP (formal or informal). To deny their systematic nature already places

TK at a disadvantage in terms of developing and applying appropriate IP tools.19

C ertain other com m ents on the D raft Report also referred to the w orking definition of TK.20

Tradi t ional Know ledge Holder

W IPO uses the term traditional know ledge holderto refer to all persons w ho create, originate, develop and

practice traditional know ledge in a traditional setting and context. Indigenous com m unities, peoples and

nations are traditional know ledge holders, but not all traditional know ledge holders are indigenous.

Conclusion: In sum m ation, W IPO s focus is on traditional knowledgeas described above. Traditional

know ledge is created, originated, developed and practiced by traditional knowledge holders, the in-

tended beneficiaries of W IPOs w ork in this field. From W IPOs perspective,expressions of folkloreare a

subset of and included w ithin the notion traditional know ledge. Traditional know ledgeis, in turn, a

subset of the broader concept ofheritage.Indigenous knowledge, being the traditional know ledge

ofindigenous peoples, is also a subset of traditional know ledge. A s som e expressions of folkloreare created by indigenous persons, there is an overlap betw een expressions of folkloreand indigenous

know ledge, both of w hich are form s of traditional know ledge. See figure 2.

H eritage

Traditional Knowledge

IndigenousKnow ledge

Expressions

of Folklore

FIGURE2


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Notes

1 C om m ent on the Draft Report by the G overnm ent of C anada, dated February 19, 2001.

2 C om m ent on the D raft Report by M r. G raham D utfield, Researcher, O xford C entre for the Environm ent, Ethics and Society,U niversity of O xford, dated D ecem ber 12, 2000.

3 C om m ent on the D raft Report by M r. Bill M orrow , South A ustralia, A ustralia, dated D ecem ber 15, 2000. M r. M orrow attachedto his com m ent the follow ing tw o texts: B. M orrow , M abo and the O w nership of Dream s(1993) A rt M onthly A ustralian, p.7;and, B. M orrow , Aspects of Intellectual Property and Textilesin Building on Batik The Globalization of a Craft Community,(Eds. M . H itchcock and W . N uryanti) (U niversity of North London, A shgate, 2000), p. 10.

4 For exam ple, com m ent on the D raft Report by the G overnm ent of C anada, dated February 19, 2001.

5 N ow the Sub-C om m ission on the Prom otion and Protection of H um an Rights.

6 E/C N .4/Sub.2/1986/7 and A dd. 1-4

7 C om m ent on the D raft Report by IN D EC O PI, dated January 2, 2001.

8 C om m ent on the D raft Report by M r. C . Ray Brassieur, dated Septem ber 15, 2000.

9 J. M ugabe, Intellectual Property Protection and Traditional Know ledge,Intellectual Property and Human Rights (W IPO , 1999),p. 97 at pp. 98-99

10 C ollins English D ictionary, Fourth Edition, 1998.

11 C oncise O xford D ictionnary, Sixth Edition, 1976.

12

C om m ent on the D raft Report by M r. G raham D utfield, Researcher, O xford C entre for the Environm ent, Ethics and Society, datedD ecem ber 12, 2000.

13 C om m ent on the D raft Report by M r. G raham D utfield, Researcher, O xford C entre for the Environm ent, Ethics and Society, datedD ecem ber 12, 2000.

14 A rticle 2(viii).

15 A rticle 1.2, Paris Convention for the Protection of Industrial Property, 1883.

16 A rticle 2.1 stipulates that [t]he expression literary and artistic w orksshall includeevery production in the literary, scientific andartistic dom ain(em phasis added). This inclusive characterization is illustrated by the w ords such asand a non-exhaustiveenum eration of exam ples, w hich illustrate the categories of subject m atter falling w ithin the scope of protected subject m atter.O ver tim e new categories have been added to the non-exhaustive list (e.g., choreographic and architectural w orksw ereadded in 1908 at the Berlin Revision C onference, oral w orksat the 1928 Rom e Revision C onference, etc.).

17 The Paris Convention for the Protection of Industrial Property (1883) (the Paris Convention) does not provide an exclusivedefinition of the m eaning of term s w hich describe the subject m atter protected by industrial property rights, such as inven-tion,industrial design,distinctive signs, etc. The TRIPS A greem ent, finally, does not define the term s by w hich it describes

the subject m atter covered by the rights for w hich it establishes international standards.18 C om m ent on D raft Report of the Future H arvest C entres supported by the C G IA R, dated N ovem ber 3, 2000.

19 C om m ent on D raft Report of the Future H arvest C entres supported by the C G IA R, dated N ovem ber 3, 2000. See also theC om m ent on the D raft Report by the Indigenous PeoplesSecretariat, D enm ark, dated January 15, 2001.

20 See, for exam ple, the com m ent on the D raft Report by Dr. V.K. Joshi, Faculty of Ayurveda, Institute of M edical Sciences, BanarasH indu U niversity, Varanasi, India, dated D ecem ber 11, 2000.

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Part I

Framing the Intellectual PropertyNeeds and Expectat ions ofTradit ional Know ledge Holders

W e live in a global village, it is often said, in w hich increasing com plexity m akes each actor interdependent

w ith all others. In todays global m arkets, sm all farm ers in Peru m ay be affected by im port regulations on the

other side of the globe. Sim ilarly, TK holders are affected by an increasing num ber of factors, especially w hen

it com es to their IP needs and expectations. This chapter elaborates som e of the factors, processes and

conditions w hich shape their IP needs and expectations.

Som e FFM inform ants indicated that TK holders are situated betw een their ow n custom ary regim es and the

form al IP system adm inistered by governm ents and inter-governm ental organizations such as W IPO . It is also

suggested that TK holders are situated w ithin their ow n system , but increasingly have contact and interac-

tions w ith the form al IP system .* Either w ay, their IP needs and expectations are shaped by the contact and

interactions betw een these system s. At the sam e tim e, the form al IP system is continuously evolving and its

evolution m ay affect TK holders in such areas as IP protection in the digital environm ent, protection for

biotechnological inventions, expressions of folklore and non-original databases. The IP needs of TK holders

receive their com plexity, diversity and relevance from the m ultiple intersections of these factors and pro-

cesses.

In this chapter, these factors are presented in three sections:

the first section provides a brief description of the m ain contours of the form al IP system , including

ongoing IP developm ents, particularly those w hich are relevant to TK holders and relate to their IP needs

and rights;

the second section provides a synoptic survey of non-IP m ultilateral institutions and initiatives relevant to

the protection of TK; and,

the final section recognizes that custom ary law s and protocols shape the IP needs and expectations of TK

holders, and provides a few concrete exam ples of such law s and protocols from som e of the FFM s.

* C om m ent on D raft Report by the Future H arvest C entres supported by the C G IA R, dated N ovem ber 3, 2000.


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Introduction

to Intellectual Property

What is Intellectual Property?:Intellectual property (IP) refers to property rights in creations of the m ind,

such as inventions, industrial designs, literary and artistic w orks, sym bols, and nam es and im ages. The notion

intellectual propertyis defined in the C onvention Establishing the W orld Intellectual Property O rganization,

19671 to include rights relating to:





industrial designs;


protection against unfair com petition; and,

all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

IP is generally divided into tw o m ain categories:

The protection ofindustrial propertyhas as its object patents, utility m odels, industrial designs, trade-

m arks, service m arks, trade nam es, geographical indications (indications of source or appellations of ori-

gin), and the repression of unfair com petition.2

Copyrightincludes literary and artistic w orks, such as novels, poem s and plays, film s, m usical w orks, and

draw ings, paintings, photographs and sculptures, com puter softw are, databases, and architectural de-

signs. Related rights(also referred to as neighboring rights) include the rights of perform ing artists in

their perform ances, producers of sound recordings in their sound recordings, and those of broadcasters in

their radio and television broadcasts.

A dditionally,plant varietiesare protectable in m any countries under the IP-related system of plant breeders

rights.

A s the definition in the W IPO C onvention indicates, how ever, intellectual propertyis not confined to the

specific exam ples of intellectual property just m entioned. The phrase at the end of the definition in the W IPO

C onvention (all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic

fields) m akes it clear that intellectual propertyis a broad concept and can include productions and m atter

not form ing part of the existing categories of intellectual property, provided they result from intellectual

activity in the industrial, scientific, literary or artistic fields.

Intellectual property rights (IPRs) are m uch like any other property rights they allow the ow ner, or creator, of

a patent, tradem ark, or copyright w ork to benefit from his or her innovation and creativity. These rights are


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outlined in A rticle 27 of the U niversal D eclaration of H um an Rights, w hich includes, as a hum an right, the

right to benefit from the protection of the m oral and m aterial interests resulting from authorship of any

scientific, literary, or artistic production.

Objectives of IP Protection: The prim ary purpose of m ost branches of the IP system (excluding tradem arksand geographical indications) is to prom ote and protect hum an intellectual creativity and innovation. IP law

and policy does so by striking a careful balance betw een the rights and interests of innovators and creators,

on the one hand, and of the public at large, on the other. Thus, by granting exclusive rights in an invention,

for exam ple, the IP system encourages further innovation, rew ards creative effort, and protects the (often

substantial) investm ent necessary to m ake and com m ercialize the invention. The patent system also encour-

ages people to disclose inventions, rather than retain them as trade secrets, thus enriching the store of

publicly-available know ledge and prom oting further innovation by other inventors. Thus, public dissem ina-

tion of inform ation is an im portant IP objective. C opyright and other IP branches w ork in a sim ilar w ay. The

progress and w ell-being of hum anity rests on its capacity for new creations in areas of technology and cul-

ture. The prom otion and protection of IP can also spur econom ic grow th, create new jobs and industries, and

enhance the quality and enjoym ent of life. H ow ever, the IP system also responds to the needs of the public atlarge. M ost IP rights are of lim ited duration, after w hich the creations falls into the public dom ain (only

tradem arks m ay be renew ed indefinitely, and geographical indications can subsist indefinitely).

The protection of tradem arks and geographical indications is aim ed at the protection of the goodw ill and

reputation of tradespersons and their products and to prevent the unauthorized use of such signs w hich is

likely to m islead consum ers.

The Nature and Scope of Intellectual Property Rights:Intellectual property rights com prise generally

exclusive rights to prevent or authorize the reproduction, adaptation, use, sale, im portation and other form s

of exploitation of the creation or innovation that is the subject of the rights. In som e cases, an intellectual

property right m ay not be an exclusive right, but m ay rather com prise the right to claim a reasonable rem u-neration upon the exercise by a third party of any of the acts referred to. A m ore precise and detailed

exposition of the rights granted under each branch of the IP system is contained in the sections on each

branch below .

Limitations and Exceptions: A ll IP rights are subject to various exceptions and lim itations, and in som e

cases com pulsory (non-voluntary) licenses, tools w hich can be used to balance the rights of creators and

users. For the purpose of achieving the public policy goals of IP, the possibility of im posing lim itations on IPRs

can be an im portant tool in the hands of law m akers.

Constant Evolution: A nother feature of the IP system is that it is in constant evolution. N ew advances in

technology inform ation technology and biotechnology particularly and changes in econom ic, social andcultural conditions, require continuous appraisal of the system and at tim es adjustm ent and expansion, ac-

com panied often by controversy. For exam ple, the last few decades have seen the recognition of new form s

of IP, such as asui generisform of protection for plant varieties (in the 1950s and 1960s), patent protection

for biological m aterial, plants and anim als (in the 1970s and 1980s), asui generisform of protection for

layout designs (topographies) of integrated circuits (1980s), copyright protection for com puter softw are (1980s)

and protection for databases and com pilations of data (1980s and 1990s). The possible protection of tradi-

tion-based innovations and creations by the IP system , the subject of this Report, is a m ore recently articulated

question.

International Protection of IP: The IP rights granted in a country apply only in the territory of that country

(this is the principle of territoriality). C onsequently, copyright is effective only in the country w here thecopyright w ork w as created, the country of w hich the author is a national or the country in w hich the w ork

w as first published. A patent, a m ark or an industrial design is only effective in the country in w hich they w ere

registered. IPRs are thus territorial in scope and not effective in other countries. Therefore, if the ow ner of,


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for exam ple, a patent desires protection in several countries, a patent m ust be obtained in each of them

separately. In order to guarantee the possibility of obtaining protection in foreign states for their ow n nation-

als, m any states have concluded international IP agreem ents. International agreem ents also establish stan-

dards and com m on understandings at the international level. International treaties are interpreted and ap-

plied at the national level through national legislation and the courts. The first such agreem ent, the ParisC onvention for the Protection of Industrial Property (the Paris Convention) w as concluded as far back as

1883.3

The A greem ent on Trade-Related A spects of Intellectual Property Rights (the TRIPS A greem ent) w as con-

cluded in 1994 as part of the M arrakesh A greem ent Establishing the W orld Trade O rganization (the W TO ).

The TRIPS A greem ent cam e into force on January 1, 1995. For m ore inform ation of the TRIPS A greem ent, see

text box The TRIPS A greem ent.

International agreem ents on IP typically include substantive obligations and also regulate relations betw een

parties in accordance w ith one of tw o principles: national treatmentand reciprocity.U nder the principle

of national treatment, a foreign national is afforded the sam e level of protection as a national of thatcountry. Thus, a national of country X w ould receive the sam e benefits in country Y as if he or she w ere a

national of country Y. U nder the principal of reciprocity, a foreign national is given the sam e rights in a

country as the rights that a national of that country has in that foreign country. Thus, a national of country X

w ould receive the sam e benefits in country Y that a national of country Y w ould receive in country X. Inter-

national IP treaties generally operate on the nat

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