Download - Traditional Knowledge & Indigenous Peoples: The Philippines' Legal Landscape National Forum on TK Protection Intellectual Property Office/National Museum.

Traditional Knowledge & Indigenous Peoples: The Philippines' Legal Landscape

National Forum on TK ProtectionIntellectual Property Office/National Museum

Elpidio V. PeriaBiodiversity, Innovation, Trade and Society (BITS) Policy Center, Inc.

21-22 March 2012

OVERVIEW

Constitutional Basis International Commitments Scope of Legislative Efforts & Community

Initiatives Issues for Further Resolution and Action Way Forward

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)

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 useCustomary law, community protocols

FAO-ITPGRFA - Standard Matls Transfer Agrmt

Farmers' Rights- Art. 9Benefit-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-IGC Protection of Intellectual property aspects of genetic resources, traditional knowledge, TCEs

The Legal Landscape (1): At a Glance


needs

Legislation SUBJECT 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

The Legal Landscape (2): At a Glance


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

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


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.


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.

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

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.

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.

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

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

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.

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 exchange or sell seeds for reproduction and replanting in their own land.

Intellectual Property Code (RA 8293)

Sec. 22.4 – Exceptions to Patentability

Provisions under this subsection shall not preclude Congress to consider the enactment of a law providing sui generis protection of plant varieties and animal breeds and a system of community intellectual rights protection.”

Summary of Sui Generis Protection Legally Available

IP Code (RA 8293)Sui generis protection of plant varieties and animal breeds

PVP Act (RA 9168) a plant variety protection system with sui generis

protection for farmers’ rights to seeds

NO policy proposal for right to animal breeds yet

System of community intellectual rights protection

IPRA (RA 8371)Right to practice and revitalize their own cultural traditions and customsRight to the restitution of cultural, intellectual, religious and spiritual property

TAMA (RA 8423)State policy to seek a legally workable basis by which indigenous societies would own their knowledge of traditional medicine

Right to require permitted users to acknowledge its source

Full ownership and control and protection of their cultural and intellectual rights

right to special measures

Right to demand a share of any financial return that may come from its authorized commercial use

Animal Welfare Act (RA 8485)

Sec. 6

The killing of any animal other than cattle pigs, goats, sheep, poultry, rabbits, carabaos, horses, deer and crocodiles is likewise hereby declared unlawful except in the following instances:

(1) When it is done as part of the religious rituals of an established religion or sect or a ritual required by tribal or ethnic custom of indigenous cultural communities; however, leaders shall keep records in cooperation with the Committee on Animal Welfare

- implementing regulations issued by DA, DAO 25-2007

Magna Carta of Women (RA 9710)

Sec. 28- Recognition and Preservation of Cultural Identity and Integrity

- The State shall recognize and respect the rights of Moro and indigenous women to practice, promote, protect, and preserve their own culture, traditions, and institutions and to consider these rights in the formulation and implementation of national policies and programs.

To this end, the State shall adopt measures in consultation with the sectors concerned to protect their rights to their indigenous knowledge systems and practices, traditional livelihood, and other manifestations of their cultures and ways of life: Provided, That these cultural systems and practices are not discriminatory to women.

IRR of Technology Transfer Act (RA 10055), Rule 12, sec. 3

Sec. 3 (c)(i)– Disclosures

- The RDI shall provide the GFA with a written disclosure on the following: (1) any biodiversity, genetic resources or materials, associated TK, and IKSP utilized in or which formed as basis in the development of the subject matter contained in the IPR application; (2) the primary source of any biodiversity, genetic resources or materials, associated TK,and IKSP utilized in or which formed as basis in the subject matter contained in the application; or (3) the secondary source, if no information on the primacy source is available

Community Initiatives (1)

TRIBAL BOTIKA

- an initiative of the Bukidnon-Daraghuyan tribal community to revitalize and protect their traditional knowledge of medicinal plants found within their ancestral domain in the vicinity of Mt. Kitanglad Range Natural Park, Malaybalay City, Bukidnon, Philippines

Other Community Initiatives (2)

Talaandig Community’s assertion of ownership of Mt. Kitanglad and Community Protocol based on IPRA’s sec. 70

SEARICE’s community registries anchored on the Local Government Code and PVP Act’s Sec. 72

PPRDI’s draft ordinance on Farmers’ Rights

BITS Policy Center's Art, Culture and Copyright Workshop where cultural rights' checklist and Artists' Template will be developed

Other Community Initiatives (3)

DRAFT GENERAL GUIDELINES ON FESTIVALS - developed during the workshop co-organized by Tebtebba and the Third World Network, held 4-5 October 2010, in La Trinidad, Benguet,

- MANDATORY ORIENTATION given to LGU organizers on indigenous cultures and practices to be included in festivals;

- MEMBERSHIP OF MEMBERS OF ICC in FESTIVAL COMMITTEES

- RULES on PICTURE-TAKING, T-SHIRTS; TRIBAL COSTUMES; STREET DANCING; PRIZES

Issues for Further Resolution and Action

- do these rules apply independently of each other in a particular situation or will they apply concurrently and cumulatively?

- is there one set of rules that will prevail over all other rules?

- how will customary law principles apply to non-indigenous peoples? How about extra-territorially?

- how do we expand principles on legal pluralism, whereby customary law of indigenous peoples co-exist with existing rules in civil law, political law, etc.

Ways Forward

- continuing collaboration among government agencies on these issues always a good working procedure

1) specific rules on Chapter VI of IPRA 2) monitoring the patenting of Phil natural products abroad and assert claims for benefit-sharing 3) sui generis rules on animal breeds 4) interplay of customary law with intellectual property rights 5) supplemental measures for the protection of intangible cultural heritage 6) reaching out to indigenous peoples nationwide – can they be assisted with their more pressing problems?