Does the WIPO’s Framework on Traditional Knowledge

Address the Concerns of Indigenous Peoples?

Par Christophe DERNONCOURT

Master 2 Propriété Industrielle

Université Paris II Panthéon-Assas

Sous la Direction du

Professeur Jean-Christophe GALLOUX

Année 2013/2014

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Acknowledgement

First, I express my sincere gratitude to my supervisor Pr. Galloux for having accepted this

subject and provided guidance in the writing of this dissertation.

I would also thank my former teacher Howard Johnson whose passionate teachings

encouraged me to lead research in international intellectual property law and in particular in

the issue of developing countries and indigenous peoples.

My sincere thanks also go to University Paris II Panthéon-Assas and the teaching staff of my

Master degree, as well as all my fellow classmates who made this year unforgettable.

Finally, I would like to thank my family and all the people who have helped and supported

me in the writing of this paper, including Eric Le Bellour who has always been inclined to

assist me.

This dissertation is the result of the author’s own independent work and investigation. Law

school does not approve or disapprove the opinions expressed in this paper.

Tout d’abord, je souhaite exprimer ma sincère gratitude envers mon directeur de mémoire, le

Professeur Galloux, pour avoir accepté ce sujet et pour ses conseils dans l’écriture de ce

mémoire.

Je remercie également mon ancien professeur Howard Johnson dont les enseignements

passionnés ont éveillé mon intérêt pour le droit international de la propriété intellectuelle et

notamment la question des pays en développement et des peuples autochtones.

Mes remerciements s’adressent également à l’Université Paris II Panthéon-Assas et à

l’équipe enseignante du Master, ainsi qu’à tous mes camarades de promotion qui ont rendu

cette année inoubliable.

Enfin, je remercie mon entourage et toutes les personnes qui m’on aidé et soutenu dans

l’écriture de ce mémoire, notamment Eric Le Bellour qui a toujours accepté de me fournir les

moyens nécessaires à la réussite de ce travail.

La faculté n’entend donner aucune probation ni improbation aux opinions émises dans ce

mémoire, ces opinions doivent être considérées comme propres à leur auteur.

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Abstract

This study is a review of the draft sui generis regime for the protection of TK proposed by the

WIPO Intergovernmental Committee (Annex 1) on 9 July 2014. It aims at assessing to which

extent the proposed provisions incorporate the requests of the main beneficiaries, i.e.

indigenous and local communities. Nevertheless, the dissertation also critically analyzes the

relevance of these requests in light of all parameters in question. In particular, in the context

of an intellectual property protection, certain demands of indigenous peoples, although often

legitimate, seem unrealistic or counterproductive for the elaboration of an efficient

international system of protection. This study is thus seeking to objectively examine what is

to become the next intellectual property right.

Ce mémoire est une étude du projet de régime sui generis pour la protection du Savoir

Traditionnel, proposé par le Comité Intergouvernemental de l’OMPI (Annexe 1) le 9 juillet

2014. Il vise à évaluer dans quelle mesure les dispositions proposées tiennent compte des

demandes des principaux intéressés, à savoir les communautés locales et autochtones.

Néanmoins, ce mémoire analyse également la pertinence de ces demandes, en tenant compte

de tous les paramètres en jeu. En particulier, dans le contexte d’une protection par le droit de

la propriété intellectuelle, certaines exigences des peuples autochtones, bien que souvent

légitimes, sont irréalisables ou contreproductives pour l’élaboration d’un système de

protection efficace au niveau international. Cette étude cherche donc autant que possible à

analyser de façon objective ce qui semble se dessiner comme le prochain droit de propriété

intellectuelle.

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Table of Contents

Introduction .................................................................................................................................... 5

Part I: Traditional Knowledge and Indigenous People in the International

Context .............................................................................................................................................. 8

Chapter 1: The Current Global Protection of Traditional Knowledge .... 9

I. The stakes of a multilateral protection: the concerns of indigenous peoples beyond the North-

South divide .................................................................................................................................... 9

II. The existing instruments protecting traditional knowledge: toward a necessary sui generis

right? ............................................................................................................................................. 14

Chapter 2: The WIPO’s Solution, Appropriate for Misappropriation? ........ 22

I. The place of indigenous peoples in the Intergovernmental Committee forum .......................... 22

II. The Draft Articles, between the demands of indigenous peoples and the international reality 24

Part II: The Future Traditional Knowledge Right ...................................................... 31

Chapter 1: The acquisition of traditional knowledge right ............................ 32

I. The criteria for the protection .................................................................................................... 32

II. The beneficiaries of the protection ........................................................................................... 40

Chapter 2: The Exercise of the Traditional Knowledge Right ........................ 45

I. The scope of protection ............................................................................................................. 45

II. The enforcement of the right .................................................................................................... 52

Conclusion .................................................................................................................................... 56

Annex 1 ............................................................................................................................................. 58

Bibliography .................................................................................................................................. 73

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Introduction

On 9 July 2014, the WIPO Intergovernmental Committee on Intellectual Property and

Genetic Resources, Traditional Knowledge and Folklore (“the IGC”) adopted the Draft

Articles for the Protection of Traditional Knowledge.1 Although the framework developed by

the IGC is not perfectly complete and still need to be transmitted for discussion to the WIPO

General Assembly in September 2014, this decision constitutes a new important step forward

for the recognition and the establishment, at an international level, of an intellectual property

right protecting traditional knowledge of indigenous peoples.

The decision is all the more a satisfaction that the process has been long and difficult before

coming to such an achievement. From at least as far back as 1980s, concerns about the

misappropriation of traditional knowledge (“TK”) and genetic resources (“GRs”) of

indigenous and local communities have emerged. Many international texts and conventions

were then adopted to address the demands of developing countries and TK-holders. Among

them are the UN Declaration on the Rights of Indigenous Peoples2, the International Labour

Organization Convention No.1693, and the Convention on the Biological Diversity (the

“CBD”) along with its Nagoya Protocol.4

Nevertheless, these international texts, despite their importance in recognizing the rights of

indigenous communities, do not properly address the issue of traditional knowledge per se,

and are more focused on traditional knowledge associated to genetic resources or other

concerns of indigenous peoples such as self-determination, development and land rights.5

1 WIPO IGC, Decision of 28

th session of the Committee, 9 July 2014, WIPO/GRTKF/IC/28/REF/DECISIONS;

WIPO, The Protection of Traditional Knowledge : Draft Articles, 2014, WIPO/GRTKF/IC/28/5. The Draft

Articles are reproduced in Annex 1. 2 UN Declaration on the Rights of Indigenous Peoples adopted by the General Assembly of the UN, 13

September 2007. 3 International Labour Organization Convention No.169 concerning Indigenous and Tribal Peoples in

Independent Countries, 27 June 1989. 4 Convention on the Biological Diversity, 5 June 1992 ; Nagoya Protocol on Access to Genetic Resources and

the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological

Diversity, 29 October 2010. 5 For example CBD Art. 8(j) refers to “knowledge, innovations and practices of indigenous and local

communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological

diversity” (emphasis added); see also ILO Conv. No. 169, Art. 7.1 and the UN Declaration, Art. 31.

6

Besides, they are criticized as they lack effective enforcement mechanisms, necessary to

sufficiently ensure the respect of indigenous communities’ rights.6

In 2000, the IGC was mandated by the WIPO General Assembly to provide a platform for

discussions on the relationships existing between intellectual property and TK and to

“identify and explore the intellectual property needs and expectations of new beneficiaries,

including the holders of indigenous knowledge and innovations”.7 The IGC was thus

involved in the development of sui generis systems for the protection of three important

issues related to indigenous peoples, namely Genetic Resources, Folklore (also called

Traditional Cultural Expressions, “TCEs”) and TK.8

After nearly 15 years of negotiation at WIPO, the emergence of a new intellectual property

right protecting TK against misuses and misappropriations, with all the efficient and complex

system it implies, should hence meet the satisfaction of indigenous and local communities.

However, the question remains: to what extend does the framework developed by the IGC

really address their concerns? This question deserves to be raised since indigenous and local

communities have expressed their reluctance toward an intellectual property protection,

emphasizing that TK have more spiritual and cultural than commercial values.9 Furthermore,

most indigenous peoples are seeking a system which can safeguard and preserve their TK

and not a system which allow them to exploit it.10

But above all, the issue of TK is a very complex one, having important economic and social

implications at an international level; the weakness of indigenous and local communities in

the international debate then involves a real risk that their requests be not reflected in the final

text.

6 See for example Srinivas K., “Protecting traditional knowledge holders’ interests and preventing

misappropriation – traditional knowledge commons and biocultural protocols: necessary but not sufficient?”,

I.C.J.P. 2012, 19(3), 401- 422, 403 ; see also Nijar G., “Traditional knowledge systems, international law and

national challenges: marginalization or emancipation?”, E.J.I.L, 2013, 24(4), 1205-1221, 1210 and 1217-1218;

Dodson M. and Barr O., “Breaking the deadlock: developing an indigenous response to protecting indigenous

traditional knowledge”, 11 Austl. Indigenous L. Rev., 2007, 19, 22. 7 WIPO/IPTK/RT/99/2

8 Note that the IGC developed three different drafts regarding GRs, TCEs and TK. Nevertheless, although all

these issues are linked to each other and often raise similar difficulties, this study only focuses on the draft

provisions for the protection of TK. 9 CIEL, The Gap between Indigenous Peoples’ Demands and WIPO’s Framework on Traditional Knowledge,

Sept. 2007, 3, accessible at http://www.ciel.org/Publications/WIPO_Gap_Sept07.pdf (accessed, 03/08/2014). 10

OseiTutu J. J., “A sui generis regime for traditional knowledge: the cultural divide in intellectual property

law”, 15 Marq. Intell. Prop. L. rev. 147 2011, 188; see also Farley C., “Protecting folklore of indigenous

peoples: is intellectual property the answer?”, 30 Conn. L. rev. 1, 1997, 55.

7

This study is thus a review of the draft sui generis regime for the protection of TK proposed

by the IGC. It aims at assessing whether the proposed provisions embody the approach of the

first concerned beneficiaries, i.e. indigenous and local communities. Nevertheless, this does

not mean that all requests of indigenous peoples should be accepted and implemented in the

framework. Especially, in the context of an intellectual property protection, certain demands

of indigenous peoples, although often legitimate, seem unrealistic or counterproductive for

the elaboration of an efficient international system of protection.

Part I explores the TK issue in the international intellectual property context, whereas Part II

examines in more depth the WIPO draft framework, following the logical of every existing

IPRs.

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Part I: Traditional Knowledge and Indigenous

People in the International Context

The debate regarding the creation of an international regime of protection for TK involves the

participation of an important number of actors, which go far beyond the strict sphere of users

and right-holders. Indeed, the question has been rapidly taken over by the international

community and more precisely by Member States of the different multilateral organizations

concerned with TK issues. In that respect, the long pace of work to come to the WIPO draft

provisions has clearly brought out the differences of approach and the divide between

industrialized and developing countries. Whereas the latter - main providers of TK - consider

the issue of an international protection as essential for their economic development and the

struggle against illegitimate misappropriation, the former - main users of TK - on the contrary

see TK as a freely accessible public good which should not be subject to any monopoly

right.11

Long regarded as a deadlock in multilateral intellectual property negotiations, the

issue of traditional knowledge right has then mainly developed at national and regional

levels. There are consequently reasons to believe that the draft international solution currently

developed by the WIPO constitutes a first important recognition of this grass-root movement.

However, given the international tense debate mainly steered by economic, political and

social considerations, it has often been very difficult for small indigenous and local

communities to occupy a leading position in the drafting of an appropriate regime of

protection for their TK.12

And yet, beyond the economic and development perspectives it

may offer to developing countries, such a protection is also considered as crucial for the

survival of most communities.13

Chapter 1 provides a clear overview of the current global situation with respect to the

protection of traditional knowledge. Chapter 2 examines the future traditional knowledge

right as proposed by the IGC and its implementation in the international intellectual property

system.

11

See OseiTutu, supra no. 10. 12

Antons C., “Geographies of knowledge: cultural diffusion and the regulation of heritage and traditional

knowledge/cultural expressions in Southeast Asia”, W.I.P.O.J., 2012, 4(1), 83-91, 85 ; see also for example,

WIPO/GRTKF/IC/7/Prov2, para 135. 13

See for example Arowolo A., “African traditional knowledge systems management: the struggle between

science and tradition”, IUP Journal of Knowledge Management, Vol. IX, 4, 2011, 8.

9

Chapter 1: The Current Global Protection of Traditional

Knowledge

Traditional knowledge is not a marginal resource in the world. Often seen as ancient or

primitive, TK nevertheless remains, whatever the form it may take, an important basis for the

present-day life of most people around the world.14

For example, in 2001, it was estimated

that 70 percent of the Indian rural population depended on the old Ayurveda system of

traditional medicine.15

Besides, the significant value of TK has also been highlighted by the

increasing misappropriation that multinational corporations and industrialized countries have

carried out in order to take economic advantages of it. The stakes of the establishment of an

appropriate international regime for the protection of TK are then real and should not be

undermined (I). Unfortunately, so far, very little have been made at the multilateral level to

grant such a protection, especially in respect of the global IP system which is criticized as

fostering the misappropriation process instead of providing the proper legal means to contend

with it (II).

I. The stakes of a multilateral protection: the concerns of indigenous peoples beyond the

North-South divide

The international debate has brought out three major trends concerning the protection of

TK.16

Developed countries like the USA, Japan, Canada and the EU are quite reluctant to a

special regime of protection, considering especially that TK is part of the public domain as

soon as it is freely accessible outside the sphere of the indigenous community. Developing

countries (DCs) and least-developed countries (LDCs) for their part see in the protection of

TK held by their peoples a potential to create economic growth opportunities.17

Finally,

indigenous and local communities, as TK-holders, are looking for a positive system that is

sufficiently able to ensure the safeguarding of their cultural heritage.18

In brief, the TK issue

involves various and different motivations at the negotiation table. Whether they are

economic, social or cultural, these concerns play an important role in the elaboration of a

framework for the protection of TK.

14

Biber-Klemm, “The protection of traditional knowledge on the international level - Reflections in connection

with world trade”, UNCTAD Meeting, 2000, 2. 15

WHO, Legal Status of Traditional Medicine and Complementary/Alternative Medicine : a Worldwide Review,

2001, 9. 16

See CIEL, supra no. 9, 1-2. 17

See for example WIPO/RT/LDC/1/14, para. 10. 18

CIEL, supra no. 9, 1.

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A. The potential economic interests of TK in the North-South divide

In 2005 it was estimated that there existed over 300 million indigenous people in the world,

living in approximately 70 countries - a great majority of them being DCs or LDCs.19

These

indigenous and local communities hold and use in their daily life the knowledge they have

inherited from their ancestors for a multitude of generations. Such knowledge is kept and

maintained with care within the ethnic groups since it vitally contributes to their identity,

cohesion and survival. On the other hand, a certain amount of TK associated to these

communities has also significantly contributed to the development of new products in modern

industries and therefore constitutes a real economic opportunity, especially in the agricultural

and pharmaceutical sectors. It is difficult to precisely estimate the economic value of TK in

the global market, but certain figures give an insight. For instance, three-quarters of the plants

that provide active ingredients for prescription drugs came to the attention of researchers

because of their use in traditional medicine.20

This is not negligible when one knows that the

estimated market value of plant-based medicines sold in OECD countries in 1990 amounted

to $61 billion.21

Many other examples of well-known traditional knowledge that have been

widely observed and used in modern societies may be cited : this includes inter alia the

traditional medicinal uses of the Indian neem, the Tai healers’ use of the plao-noi plant to

treat ulcers, the traditional aflaj and qanat water system developed by local communities in

Oman, Yemen and Iran to maintain sustainable irrigation, the San use of the hoodia plant to

stave off hunger, the sacred use of the Ayahuasca vine in the western Amazon, the Inuit’s

knowledge of seasonal migration patterns of certain species in the Hudson Bay region, the

use of the hallucinogenic yagè plant by Colombian shamans in religious ceremonies…22

In this context, the control of the utilization of TK turns out to be an interesting deposit for

states rich in this kind of resources. By the elaboration of a TK right, DCs and LDCs then

hope to eventually benefit from the global IP system which has been so far a burden for their

19

United Nations Development Program, “UNDP and indigenous peoples: a policy of engagement”, 2005, at

11; see also Dodson M and Barr O., supra no. 6, 25 ; Carpenter A., Katyal S. and Riley A., “In defense of

property”, 118 Yale L. J. 2009, 1022, 1103. 20

Gray A., “Between the spice of life and the melting pot: biodiversity conservation and its impact on

Indigenous peoples, IWGIA, 1991, 70 ; see also Nijar, supra no. 6, 458-459. 21

Principe, Economics and Medicinal Plants , in Medicinal Plants : Their Role in Health and Biodiversity

(Tomlinson and Akerele eds.), 1998, 44-45 22

WIPO, Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural

Expression : an Overview, WIPO Publications, 2012 ; OseiTutu, supra no. 10, 165 ; Commission on Intellectual

Property Rights (UK), Integrating Intellectual Property Rights and Development Policy (2002) 67 ; see also,

Dutfield G., “TRIPS-related aspects of traditional knowledge”, Case W. Res. J. Int’l L., 2001, 233 – 275.

11

economic development. Since 1994 and the adoption of the WTO Agreement on Trade-

related Aspects of Intellectual Property Rights (“TRIPS”),23

DCs and LDCs have expressed

their concerns about the harmful effects the high international IP standards are having on

their development.24

Indeed, although IPRs have been praised for their incentive effects on

national innovation, technology transfer and economic growth stimulation,25

they have

actually failed to provide positive results concerning less industrialized countries, whose

innovation capacity is relatively limited.26

Quite the opposite, IPRs clearly seem to worsen

the situation in very poor countries due notably to the restricting impact of monopoly rights

on vital issues such as access to medicines, education and food security.27

The global IP

system is consequently criticized as having been elaborated only by and for Western

countries, main producers of IP subject matters. Indeed, as highlighted by Shubbah Gosh,

IPRs have a new strategic role in that they “can serve as an instrument by member states to

subsidize its constituencies and engage its resources more effectively in the international

marketplace”.28

Thus, information-exporting countries have tended to favour a globalized

protectionist model so as to maximize their economic gains.29

On the contrary, DCs and

LDCs are more importers than exporters of IP products and therefore suffer from this

unwanted system. This does not mean that DCs and LDCs are not important providers of the

global knowledge pool; it is simply that in the actual situation their creations and resources

hardly fit the Western IP categorization system, i.e. copyright, trademarks, patents, designs

and geographical indications.

23

The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization,

signed in Marrakesh, Morocco on 15 April 1994. 24

See Gervais D., “Traditional knowledge: a challenge to the international intellectual property system”, 7 Int’l

Intell. Prop. L. & Pol’y 76-1, 2002, 76-2. 25

Gould, D. M. and Gruben W. C., “The role of intellectual property rights in economic growth”, 48 Journal Of

Development Economics 1996, 323-350; Demiray A. D., “Intellectual Property and the External Power of the

European Community: The new Extension”, 16 Mich. J. Intern’l. L. 1994, 187, 200 Brangstetter L. G., “Do

stronger patents induce more local innovation ?” in Maskus K. and Reichman J. (eds), International Public

Goods and Transfer of Technology: Under a Globalized Intellectual Property Regime, CUP 2005, 309-320, 310

; also OseiTutu, supra no. 10, 152. 26

Blakeney M. and Mengistie G., “Intellectual property policy formulation in LDCs in Sub-Saharan Africa”,

African Journal of International and Comparative Law 19(1), 2011, 66-98, 73. 27

On the harmful impacts of IPRs on public health, education and food security in poor countries, see :

Bambauer D. E., “Why Intellectual Property Rights matter to Less-Developed Countries”, Information

Technologies and International Development, Vol.1(3), 2004, 63-71, 67 ; UNESCO, World Information Report

1997/1998, UNESCO, 1998, p.320 ; Haugen H.M., Muller M.R and Narasimhan S.M., “Food security and

intellectual property rights: finding the linkages” in Intellectual Property and Human Development, CUP, 2010,

Chapter 3, 103-138, p. 10 . 28

Ghosh S., “The traditional terms of the traditional knowledge debate”, Northwestern Journal of International

Law & Business, 2003, 589, 598. 29

Drahos P., A Philosophy of Intellectual Property, Dartmouth 1996, 190-191.

12

In such circumstances, TK represents an attractive option for less developed countries in

order to rebalance the current international IP system.30

The economic perspectives it induces

have therefore strongly reinforced the support of DCs and LDCs toward the concerns

expressed by indigenous and local communities in relation to the misuse of their TK.

Nevertheless, in the interests of indigenous peoples, it is important that the debate about the

protection of TK do not derive in the continuation of debates between North and South in

ownership and control of resources31

nor in the elaboration of a legal system only steered by

global economic considerations.

B. Preservation v. exploitation: the Great Dilemma of indigenous peoples

Indigenous people have expressed one major concern in relation to the elaboration of a

regime protecting their TK. Indeed, according to their requests, the international model must

primarily ensure the preservation of TK within the community and prevent any form of

misappropriation.32

Misappropriation refers to the extraction and utilization of TK (and their

associated resources) as well as the acquisition of IPRs derived from such knowledge and

resources without the prior consent of, and the provision for benefit-sharing with, the

individuals or community that provided the TK and the related resources.33

For instance,

lucrative and commercial medicines have been developed from TK held by the Kaani

community in relation to certain berries helping to overcome fatigue.34

Likewise, in 1986, a

US patent was granted to a US citizen, Loren Miller, with respect to a plant variety used by

Amazonian indigenous communities in religious ceremonies.35

Given the close and vital

dependence of indigenous peoples’ lifestyles on their traditional resources, such

embezzlements are recognized very detrimental thefts and real threats to the safeguarding of

TK.

More than the commercial value, indigenous representatives have insisted on the cultural,

spiritual - and often sacred – value of traditional practices and knowledge.36

Placed in a

30

Castle D. and Gold R., “Traditional knowledge and benefit sharing: from compensation to transaction, in

Philips P. and Onwueke C. (eds), Accessing and Sharing the Benefits of the Genomics Revolution (2007), 67. 31

Ghosh, supra no. 28, 592. 32

Liu Y., “Justification of subject-matter for legal protection of traditional knowledge”, EIPR 2007, 29(11),

456-460, 456 ; see also Milius, “Justifying intellectual property in traditional knowledge”, I.P.Q. 2009, 2, 185-

216, 187. 33

Dutfield G., The Public and Private Domains : Intellectual Property Rights in Traditional Knowledge, 21/3

Science Communication, 2000, 278. 34

Nijar G., “Incorporating traditional knowledge in an international regime on access to genetic resources and

benefit sharing : problems and prospects” , E.J.I.L. 2010, 21(2), 457-475, 462. 35

US. Plant no. Plant 5 751 issued on 17 June 1986 « Da vine ». 36

CIEL, supra no. 9, 3.

13

different context, the use of TK may be considered as disrespectful and also constitute a

threat of a different nature. It is for example the case when TK has been intended to be kept

secret or only accessible to a small amount of people but is largely disclosed and widespread

through commercialization and modern means of communication.

However, while indigenous peoples emphasize the need of a preservative system, some of

them are inclined to offer their knowledge for exploitation as soon as they can derive fair

benefits of the process.37

In that way, TK holders can benefit from their indigenous

knowledge and use that particular trade route on the road to economic prosperity.38

But in the

same time this is with reason a good alternative to preserve the knowledge. First, because the

diffusion of TK will necessarily lead to its conservation.39

Second, because it will help

resolving the serious problem of the rejection of traditions by indigenous youth who sees in

modern lifestyles the hope for a better life.40

Indeed, it must be noted that indigenous people

are among the poorest in the world; the risk of the extinction of certain communities involves

the risk that humanity loses their TK.41

By providing economic incentives for the

maintenance of traditional ways of life, the model may then greatly serve the longevity of

both communities and TK. In addition, as Carlos Correa noted:

“fencing off their knowledge does nothing to protect it from being ever more eroded,

undermined, or ignored at the risk of being lost”.42

On the other hand, the system may also turn out to be counter-productive. Indeed, an over-

exploitation of TK resources would be likely to dilute the traditional character and more

especially its linkage to a specific indigenous community. There is then a risk that the

knowledge loses its sacred value, becomes trivial and enters the so-called “public domain”.

Furthermore, one may legitimately point out the problematic - and a bit cynical - question of

the excessive accumulation of wealth generated by a sensible property management of

traditional resources. Indeed, if the system enables TK-holders to earn too much money, is

there not a risk that their traditional ways of life disappear?

37

Milius D., “Justifying intellectual property in traditional knowledge”, I.P.Q. 2009, 2, 185-216, 190. 38

Ibid., 187. 39

See Liu, supra no. 32, 456. 40

Wendland W., “Intellectual property, traditional knowledge and folklore: WIPO’s exploratory program”, IIC

2002, 33(4), 485-504, 498 41

Gervais D. « Traditional knowledge & intellectual property: a TRIPS-compatible approach”, 2005 Mich. St.

L. Rév. 137, 138. 42

Correa C., “Traditional knowledge and Intellectual Property- issues and options surrounding the protection of

traditional knowledge”, Quatar UN Office, 2001, 7.

14

The TK issue thus forms a great dilemma for indigenous peoples: their opinions differ

between keeping their TK secret within the community and sharing it in order to get a fair

benefit from it. In addition, the legal model must embody a certain moderation regarding its

implications so as not to unreasonably denature the original functions of TK in the daily life

of communities it is associated with. In that respect, the call for a tailored instrument, that is

adapted to each indigenous tribe, renders the elaboration of a comprehensive global system

even more complicated.

II. The existing instruments protecting traditional knowledge: toward a necessary sui

generis right?

To be the most efficient, it is important that the legal TK instrument covers the widest

possible territory and be supported by a well-organized system. While intellectual property

law meets these fundamental requirements, there is currently no multilateral IP treaty that

precisely addresses the question of TK. It may then be tempting to rely on traditional IPRs

that are already strongly implemented in the global legal landscape in order to apply them to

TK. Nevertheless, this has proven to be a very limited solution. In fact, it is currently only at

the national and regional levels that appropriate IP instruments specific to TK can be found.

A. At the international level

In the area of public international law, there already exists a various range of legal

instruments that address the issue of indigenous TK. These especially include the 1970

UNESCO Cultural Property Convention,43

the 1972 World Heritage Convention,44

the ILO

Convention 169,45

the CBD,46

and the 1994 UN Convention to Combat Desertification.47

Nevertheless, a standard criticism of these conventions is that they consider the protection of

TK as only a part of the greater concern for global ecological sustainability.48

Some other

declarations may also be cited such as the 1993 Mataatua Declaration49

, the 1992 Kari-Oca

43

UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November

1972. 44

UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of

Ownership of Cultural Property, 14 November 1970. 45

International Labour Organization Convention No.169 concerning Indigenous and Tribal Peoples in

Independent Countries, 27 June 1989. 46

Convention on the Biological Diversity, supra no.4. 47

UN Convention to Combat Desertification (UNCDD), 17 June 1994. 48

Milius, supra no. 37, 200. 49

Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, June 1993.

15

Earth Charter50

and the UN Declaration on the Rights of Indigenous Peoples.51

However,

besides their similar inabilities to properly address the treatment of TK per se, these

international declarations are not legally-binding and merely call for better conducts of

signatory states.

It is noteworthy that, despite the continuous adoption of mutually supportive texts, none of

the international IP treaties mentions the treatment of TK. In that respect, certain authors have

considered that, in some cases, the TK issue should not be dealt with IPRs, but should remain

a matter for environmental regulation or self-governance treaties.52

Yet, there is no

convincing reason why TK could not be dealt by intellectual property law. Indeed,

intellectual property law is a flexible and “broad concept that can include matter that does not

currently fall within existing categories”.53

Moreover, intellectual property law is one of the

most globally developed system, offering a solid framework for the protection of TK.

1. From local to global protection: a straight TRIPS

Among the international IP agreements, the TRIPS Agreement is the last great achievement

in date and undoubtedly the most “ambitious intellectual property convention ever

attempted”.54

Indeed, due to the inclusion of the TRIPS Agreement in the Marrakesh package

of agreements, any of the 160 WTO-members has to implement it in its internal order. The

TRIPS Agreement is also the only multilateral treaty to deal with all major existing IPRs.

Last but not least, all the provisions are strongly enforceable since the agreement benefits

from the elaborated WTO dispute settlement.55

Consequently non-compliant measures may

be challenged and punished by heavy trade sanctions from other Member States.56

The inclusion in this major agreement of provisions that would adequately address the

concerns of indigenous peoples is therefore the ultimate dream of TK right supporters.

50

Kari-Oca Declaration and Indigenous Peoples Earth Charter, May 1992. 51

UN Declaration, supra no. 2. 52

See Gervais D, supra no.41, 156 ; see also Harms L., “Indigenous traditional knowledge and intellectual

property law”, IIC 2010, 41(5), 503-505. 53

WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders : WIPO Report on

Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), 2001, 6. 54

Reichman J., “Compliance with the TRIPS Agreement: Introduction to a Scholarly Debate”, 29 Vand. J.

Transnat’l L. 1996, 363-390, 366. 55

See art. 64 of the TRIPS Agreement. 56

Annex 2 of the WTO Agreement, Understanding on rules and procedures governing the settlement of disputes

(1994).

16

However, the TRIPS Agreement does absolutely not treat or even mention the issue of TK.57

Such a deficiency contributes to the criticisms toward the TRIPS Agreement according to

which the treaty is intended to benefit only Western countries and not developing countries.58

Many propositions have fed the discussions about how the TRIPS provisions could be

adapted to cover TK. For instance, a solution has been intended to amend the Agreement and

require the disclosure of TK in patent application, so that it will be in line with the CBD.59

Likewise, the provisions on geographical indications have been proposed to be extended in a

such a way that they can embrace TK.60

But the discussion has mainly focused on Article

27(3) of the Agreement, which deals with some aspects of the patentability of certain

biotechnological inventions, and especially provides that patent can be excluded in relation to

plant varieties if Member states have opted for a sui generis right.61

At the Doha Round in 2001, WTO Member States directed the TRIPS Council to explore the

relationship between the TRIPS Agreement, the CBD and the protection of TK.62

Nevertheless, developed countries have agreed on a “consensus”63

to wait first for more

certitude concerning the elaboration of an international sui generis right at the WIPO64

:

“Once WIPO has completed work on model national legislation, attention could be

focused on how and to what extent the protection of traditional knowledge can be

included in the TRIPs Agreement.”65

However, one may wonder why such a process should be applied to TK whereas it was not

even applied to geographical indications. As OseiTutu rightfully pointed out, before their

recognition in the TRIPS Agreement, geographical indications had not been explicitly

57

See Drahos P. and Braithwaite J., Information Feudalism: Who Owns the Information Economy?, Earthscan,

2002, 10. 58

Arewa O., “TRIPS and traditional knowledge: Local communities, local knowledge, and global intellectual

property frameworks, 10 Marq. Intell. Prop. L. Rev., 2006, 155, 160-163 ; Adewopo A., “The global

intellectual property system and Sub-Saharan Africa: a prognostic reflection”, 33 U. Tol. L. Rev., 2002, 749,

749-750. 59

Milius, supra no. 37, 215. 60

See Gopalakrishnan, N., Nair P., Babu A., “Exploring the relationship between geographical indications and

traditional knowledge: an analysis of the legal tools for the protection of geographical indications in Asia”

ICTSD Working Paper, 2007. 61

Stoll P.-T. and von Hahn A., “Indigenous peoples, indigenous knowledge and indigenous resources in

international law”, Part II, in Von Lewinski (ed.), Indigenous Heritage and Intellectual Property: Genetic

Resources, Traditional Knowledge and Folklore, Kluwer Law International, 2008, 38. 62

Doha Ministerial Declaration, 14 November 2014, para. 19. 63

Cottier T., “The protection of genetic resources and traditional knowledge: towards more specific rights and

obligations on world trade law”, 1 Journal of International Economic Law, 1998, 555, 581-4 64

Maina C., “Power relations in the traditional knowledge debate: a critical analysis of forums”, ICJP, 2011,

18(2), 143-178, 156. 65

Opinions of the European Union, Japan and Singapore, in TRIPS Council, The Protection of Traditional

Knowledge and Folklore: Summary of Issues Raised and Points Made (2002), WTO/IP/C/W/370, at 27.

17

protected as IPRs in any widely accepted international agreement.66

By the way, geographical

indications and traditional knowledge are substantially very close. Indeed, geographical

indications seem to be the cunning found by industrialized European countries to protect

certain products of their heritage and hence, in a way, a certain form of their traditional

knowledge.67

Anyway, it seems that indigenous people have to wait before the issue of a sui generis TK

right comes onto the TRIPS agenda. Until then, there remains the question of the extent to

which they can rely on traditional IPRs already recognized at the international level to get an

emergency alternative.

2. Traditional IPRs - Traditional Knowledge: traditionally incompatible?

Dodson and Barr provided a good understanding of the current situation:

“Although the categories provided by intellectual property law fails to at times

suffice, for the most part intellectual property law fails to protect indigenous rights

and interests. It seems that the failure is because Western constructs of intellectual

property focus on individual knowledge and creativity, rather than communal trans-

generational knowledge”.68

The fact that TK is collectively held admittedly raises the issue of the complex right

management; nevertheless it does not exclude in itself the possibility of using existing IPRs

to protect TK. There indeed exist many examples of collective ownership of IPRs,69

the first

of them being geographical indications. Actually, the real difficulties lie more in how little

appropriate the regimes of “Western IPRs” are in respect of TK subject-matters.

For instance, some IPRs like distinctive signs, copyright and design right are by their very

nature inappropriate to TK insofar as they cannot cover knowledge as such. In light of these

intellectual property regimes, indigenous knowledge is an intangible good, like ideas and

genres, and only its tangible expressions can be protected.70

In that regard, current

international IP obligations are more likely to provide a solution for certain forms of

traditional cultural expressions and other TK-issued products. For instance, the sign Arte Seri

66

OseiTutu, supra no. 10, 170. 67

Actually, given the fact that they protect “products” and not directly the “know-how” that is embodied in,

geographical indications are even closer to TCEs. See Article 22 of the TRIPS Agreement which defines

geographical indications as “indications which identify a good as originating in the territory of a Member, or a

region or locality in that territory, where a given quality, reputation or other characteristic of the good is

essentially attributable to its geographical origin”. 68

Dodson and Barr, supra no. 6, 23. 69

OseiTutu, supra no. 10, 167 70

See on this Brown M., “Can culture be copyrighted ?”, 49 Current Anthropology, 1998, 193.

18

was registered as a trademark to identify authentic ironwood products that are made by

traditional methods from the Olneya tesota tree71

and the appellation of origin olinala has

been used to protect a lacquered wooden product whose characteristics are derived from the

indigenous resources of the locality. Nonetheless, IPRs appear to only apply to “goods” and

are therefore unable to cover several forms of TK, in particular medicinal and other scientific

knowledge.72

As to how patents could be used, the main problems relate to how hardly TK can meet the

protection criteria. Currently, relying on patent rights appears inadequate because TK is

commonly viewed as prior art, therefore not meeting the novelty requirement.73

In addition,

patent rights have been developed to protect “inventions”, and not skills, know-how or

knowledge. In that sense, patents are arguably more tailored for TK-based inventions than

TK itself:

“While discoveries and other forms of traditional medicinal knowledge based on

plants or animal parts or fluids generally cannot be patented, either because they are

obvious or because they are in the public domain, drugs derived from such plants and

animals are generally patentable. These patents will belong to the company that

developed and refined the molecule. However, the research and development efforts

concerning traditional medicinal knowledge and products is often inspired by holders

of traditional knowledge”.74

Seen that way, existing IPRs appear to contribute in the misappropriation process more than

they struggle against it. This is the reason why certain countries have developed mechanisms

to negatively protect certain of their TK from the scope of IPRs. For example Chinese

Intellectual Property Office got equipped with teams of patent examiners specialized in

traditional Chinese medicine and has established since 2002 a specific database to meet their

examination needs. Likewise, some countries such as New Zealand have provided

mechanisms designed to prevent the registration of trademarks in respect of indigenous

words.75

Besides all these substantive difficulties, the granting of IPR protection is mostly determined

by the fulfilling of administrative formalities and the payment of official fees. The costs of

71

WIPO, supra no. 22. 29. 72

Gervais, supra no. 24, 76-8 ; See also Bicskei M., Bizer K., Sidali K. and Spiller A., “Reform proposals on the

geographical indications of the European Union for the protection of traditional knowledge”, WIPOJ, 2012,

3(2), 222-236. 73

Li X., “Novelty and inventive step : obstacles to traditional knowledge protection under patent regimes : a

case study in China”, EIPR, 2007, 29(4), 134-139, 134-136. 74

Gervais, supra no. 41, 76-3. 75

New Zealand Trade Mark Act, 2005, s.17

19

registering, maintaining, monitoring and defending an IPR may rapidly amount to hundreds

of thousands of dollars. The excessive size of these amounts effectively prevents indigenous

and local communities from lodging applications or at least considerably limits the number of

IPR they can apply for…76

Finally, TRIPS obligations on confidential information probably provide the best solution for

indigenous peoples since TK is often intended to remain secret within the community.77

A

good illustration of the way in which provisions on undisclosed secrets can be used is the

Australian case Foster v Mountford.78

In this case, members of the Pitjantjatjara Council

successfully relied on breach of confidence rules to obtain an interlocutory injunction

restraining the publication of the Nomads of the Australian Desert book. They indeed proved

that certain information contained in the book had been supplied in confidence to the author

35 years earlier.

However, once again, limits have been highlighted, especially regarding the lack of complete

harmonization of the regime of undisclosed information that experiences serious differences

between civil law and common law countries,79

and that is above all strongly associated to

trade secrets rather than cultural secrets.

B. At regional and national levels

Considering the absence of a comprehensive international instrument, many countries have

adopted national or regional measures to explicitly protect their TK. Even though protections

granted to indigenous peoples via domestic legislation is limited in their territorial

effectiveness, they offer the advantage of being tailored to the specific needs and

characteristics of TK present in the country, including their community context, their

development dimension, the social identity of their holders as well as their method of

transmission.

Among the existing domestic mechanisms, the Australian legislations recognize the “special

knowledge held by Indigenous persons about biological resources”80

and, in certain states,

mechanisms of mutual support between Aboriginal health workers and conventional medical

76

Githaiga, "Intellectual property law and the protection of indigenous folklore and knowledge", E Law paras,

5(2), 1998, 88. 77

TRIPS Agreement, art. 39. 78

Foster and Others v Mountford and Rigby Ltd (1976) 14 ALR 71. See the comments of Antons C., “Foster v

Mountford: cultural confidentiality in a changing Australia”, University of Wollongong Papers, 2009. 79

Gervais, supra no. 24, 76-8. 80

Australia Environmental Protection and Biodiversity Conservation Amendment Regulations 2005 S.8A01(c).

20

practitioners have been successfully established81

; the constitution of Ecuador expressly

enshrines and protects the practice of indigenous knowledge82

; Brazilian local regulations

recognize the rights of indigenous and local communities to prevent unauthorized use and

exploitation of information and data that embody TK83

; in Bolivia, a national legal system

protects certain areas, such as the Chaco National Park, wherein indigenous knowledge is

used in management practice84

; in Thailand, national laws tend to safeguard and promote

Thai medicinal knowledge in the country85

; in South Africa, national laws recognize and

regulate the practice of traditional medicine86

; following the Pacific Community’s Regional

Framework, Samoa enacted a sui generis model for the protection of its TK in 201187

; in the

Philippines, traditional medicinal practices and certain other forms of TK are recognized in

different acts88

; Peru has provided since 2002 sui generis protection for the TK of its

indigenous peoples89

; in Ethiopia, TK is recognized and protected through the national

conservation of cultural heritage process90

; the Indian legislation has established mechanisms

of fair compensation for traditional agricultural knowledge holders…91

At regional level, the ARIPO’s Swakopmund Protocol92

is probably one of the most advanced

scheme and an important instrument since it covers a great amount of territories where TK is

commonly viewed as vital for populations. Likewise, in other part of the world, including

South Asian, Andean and Pacific regions, draft frameworks have also been elaborated in

order to provide member states with appropriate models to be implemented in national

legislations.93

81

See for instance Health Practitioners and Allied Professionals Registration Act, 1985 of the Northern

Territory of Australia. 82

Constitution of Ecuador, 1998, art. 44. 83

See Brazilian Provisional Act No. 2, 186-16, 2001. 84

Bolivia, Supreme Decree No. 24, 122, 1995. 85

Protection and Promotion of Traditional Thai Medecinal Intelligence Act, B.E. 2542, 1999. 86

South African Traditional Health Practitioners Act, 2004. 87

Samoan Intellectual Property Act 2011. 88

Philippian Traditional and Alternative Medicine Act, 1997 ; Indigenous Peoples Rights Act, 1997. 89

Peruvian Law 27811 indtroducing a Protection Regime for the Collective Knowledge of Indigenous Peoples

derived from Biological Resources, 2002. 90

Research and Conservation of Cultural Heritage Proclamation, 2000; Access to Genetic Resources and

Community Knowledge, and Community Rights Proclamation, 2006. 91

Indian Biological Diversity Act 2002. 92

ARIPO’s Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions, 2010. 93

Draft Legal Instrument for South Asian Association for Regional Cooperation Countries on Protection of

Traditional Knowledge, 2006 ; Pacific Regional Framework for the Protection of Traditional Knowledge and

Expressions of culture, 2002 ; Andean Community Decision 486, Common Intellectaul Property Regime, 2000.

21

All these national and regional provisions have so far significantly influenced the work

within the WIPO IGC.94

Indeed, considering the analysis of this Chapter, the elaboration of

international standards in relation to the protection of traditional and indigenous knowledge

appears to follow a three-step process: 1. The development and the testing of solutions at a

national and regional level, including experimenting with existing IPRs and the elaboration of

sui generis models, 2. The drafting of an international convention that provides an

harmonized framework for further domestic legislations, and 3. the inclusion in the

multilateral mandatory TRIPS Agreement of standards provisions based on existing rules.

Today, the situation is stagnating at step 2, but the solution currently developed by the WIPO

IGC seems to be the key to move to step 3. However, does it really bring the right and

appropriate solution for indigenous peoples?

94

See on this Taubman A. and Leistner M., “Analysis of different areas of indigenous resources” in Von

Lewinski (ed.), Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and

Folklore, Kluwer Law International, 2008, 156.

22

Chapter 2: The WIPO’s Solution, Appropriate for

Misappropriation?

The assessment of how appropriate the WIPO‘s framework on TK is in relation to the

concerns of indigenous peoples necessarily implies considering to which extent such peoples

are involved in the decision process. There is indeed a palpable will of the IGC to integrate

TK-holders’ opinions into the debate. On the other hand, there are also significant political

and economic considerations around the issue of indigenous knowledge. It results that,

although the IGC is intended to provide a discussion platform for all actors, the first people

concerned with a protection regime have experienced important difficulties to impose

themselves in the negotiations (I). Consequently, the way how the IGC deals with the TK

issue is partially rejected by indigenous communities who mainly disagree with the choice of

an IP-anchored right (II).

I. The place of indigenous peoples in the Intergovernmental Committee forum

In 1998, WIPO was requested by its member states to analyze the relationship between

intellectual property and traditional knowledge.95

After three years of fact-finding missions,

WIPO released a report relating the needs and expectations of indigenous peoples and other

holders of TK.96

Before that, in 2000, at the 26th

session of the WIPO General Assembly,

Member states had already decided to create a special body, the IGC, to deal with this

matter.97

The IGC was initially mandated to explore in more depth the IP options for the

protection of TK - as well as folklore and genetic resources – but rapidly it was instructed by

the WIPO General Assembly to work on the development of an appropriate international

instrument, including a possible sui generis regime.

However, many criticisms have been addressed to the IGC, especially concerning its slow

pace of work that contrasts with the “urgent need to expedite the establishment of

international legally binding instruments”.98

It is true that the IGC has had trouble taking

things further, but this is primarily due to the unwillingness of developed countries to discuss

95

WIPO, Main Programme 11, Programme and Budget 1998/1999, WO/BC/18/X and WO/PC/8/Y, 1998. 96

WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders : WIPO Report on

Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), WIPO Publications,

2001. 97

WIPO, Matters concerning Intellectual Property and Genetic Resources, Traditional Knowledge and

Folklore, WIPO/GA/26/6, 2000. 98

WIPO, Bandung Declaration on the protection of traditional cultural expressions, traditional knowledge, and

genetic resources, WIPO/GRTKF/IC/11/12, 2007, para. 8.

23

substantive provisions of the new framework.99

For instance, one of their strategy has been

“to reiterate their repeated calls for "further study", and this tactic has generally impeded a

full substantive discussion.”100

There is nevertheless a certain blessing in disguise in this slowness in the sense that it has

allowed a constructive discussion and the elaboration of a multitude of documentations.

Another major problem experienced at the IGC concerns the difficulties in the participation

of indigenous peoples. It is noteworthy that, contrary “to other processes at WIPO, the IGC

has made significant effort to enhance the participation of representatives of indigenous and

other local communities”.101

In comparison, only Member states and certain international

intergovernmental organizations can participate in the WTO meetings. Similarly, indigenous

communities “were not among the parties that negotiated the CBD”. 102

However, despite the efforts to integrate TK-holders, the IGC’s work has mainly been

conducted without their broad-based contribution. Indeed, although at times they see their

interests represented by their countries’ delegations, indigenous communities often have to be

satisfied with a mere “observer” status.103

This means that, according to Rule 24 of the

WIPO’s General Rules of Procedures, they can take part in the debates when invited but can

never submit proposals, amendments or motions… Furthermore, besides its complexity, the

accreditation is not ex officio but decided by the Organization on the basis of subjective

information; therefore the process can be used to exclude certain indigenous representatives

who would be seen as undesirable.104

Finally, the participation of TK-holders is also impeded by the costs to attend the IGC

meetings. In that respect, the creation of a Voluntary Fund, based on voluntary contributions

by governments, NGOs and other private or public entities, has been initiated by WIPO in

order to improve the involvement of poor indigenous representatives. But due to the weak

amount of donation, it has so far failed to financially support all the eligible representatives.

Indeed, at the beginning of the 28th

session on 7-9 July 2014 for instance, the amount

99

See for instance Roberts T., « Intellectual property : 9th meeting of the Intergovernmental Committe on

genetic resources, traditional knowledge and folklore, Geneva, April 24-28, 2006 », EIPR 2006, 28(8), N155;

CIEL, supra no. 9, 4. 100

Ibid. 101

Ibid., 2. 102

Srinivas, supra no. 6, 402-403. 103

See Antons C. , supra no. 12, 85. 104

Maina C., “Power relations in the traditional knowledge debate: a critical analysis of forums”, ICJP, 2011,

18(2), 143-178, 161.

24

available in the account of the Fund was only 823.10 Swiss Francs.105

Amendments were

therefore proposed by the delegations of Australia, Finland, New Zealand and Switzerland to

draw contributions from the regular WIPO budget, in the absence of sufficient voluntary

contributions.106

In this context, it has appeared difficult for indigenous communities to get heard at the IGC

sessions. These meetings are primarily member driven and the lobbying carried out by TK-

holders and NGOs is all the more difficult that countries delegations do not always have the

same ambitions and concerns regarding the TK issue. Maina related for instance that

“member states representatives and indigenous peoples do not share the same views and

national tensions are sometimes evident at international meetings”.107

There is therefore great

doubt that the framework elaborated by the IGC completely meets the satisfaction of

communities. And this doubt is emphasized by the fact that the draft had to be transmitted to

the WIPO General Assembly for approval, giving the final word to the decision power of

Member States.108

II. The Draft Articles, between the demands of indigenous peoples and the international

reality

In addition to the difficulties regarding their participation in the discussion forums,

indigenous people have expressed their concerns about the IP-anchored mandate of the IGC.

Indeed for a majority of TK-holders, the elaboration of an appropriate system goes beyond

the field of IP and can only be achieved if it addresses in the same time the issues of human

rights.109

On the contrary, the adoption of an instrument that is fundamentally entrenched in

“Western” intellectual property law is negatively perceived by certain indigenous

communities because they keep considering that IPRs are inappropriate and favor

misappropriation.

In that regard, certain authors have argued that intellectual property law should not be the key

for the protection of TK, including Harms who stated:

105

WIPO/GRTKF/IC/27/3 para.1 106

WIPO/GRTKF/IC/28/10 107

Maina, supra no. 104, 160. 108

WIPO IGC, Decision of 28th

session of the Committee, 9 July 2014, WIPO/GRTKF/

IC/28/REF/DECISIONS. 109

See OseiTutu, supra no. 10, 205-207 ; see also Munzer S. and Raustiala K., “The uneasy case for intellectual

property rights in traditional knowledge, 27 Cardozo Arts & Ent. L.J., 37, 48.

25

“Does one protect culture by means of barriers or does one protect it by removing barriers? I

believe in the latter. It will require some serious legal engineering and mental gymnastics to

change IP law in order to accommodate [TK] protection”.110

This view is nevertheless not entirely shared by indigenous and local communities.111

A. The choice of a new intellectual property right

As a special body created by and administered under the aegis of WIPO, the IGC could not

choose other track but intellectual property for the development of its framework. Even

though its work has always been driven by the need to find adequate responses to concerns

related to misappropriation of TK, the two options considered by the IGC were related to the

international IP architecture, i.e. whether enhance the current IPRs in a way to embrace TK or

elaborate a sui generis form of protection specific to TK.112

The former, due to the exploitative and individualistic nature of current IPRs that contrasts

with the trans-generational and communal nature of TK, has proven to be quite impossible,

unless taking the risk of endangering the very foundations of all the IP system.113

On the other hand, the emergence of a new kind of IPRs has in general been positively

welcomed by a majority of indigenous and local communities’ representatives, provided that

such IPR is adapted to the particular characteristics of TK. Indeed the point “is not that TK

holders do not recognize intellectual property concepts, but rather that the formal intellectual

property system is a type of intellectual property system which they are not familiar”.114

The use of monopolistic and exclusive methods to protect informal knowledge is actually not

uncommon within traditional societies, especially through hereditary secrets or customary

rituals.115

But in that respect, indigenous communities see their TK as a responsibility

towards other community members rather than property owned by an individual or group;

“[t]hus, for many traditional communities, their TK entails a bundle of relationships and

obligations rather than a bundle of economic rights as under the common law property

system. The notion that such elements of TK can be ‘owned,’ and with it the possibility that

110

Harms L., “Indigenous traditional knowledge and intellectual property law”, IIC 2010, 41(5), 503-505, 504. 111

See Wendland, supra no.40, 504. 112

See CIEL, supra no.9, 3-4. 113

Gervais, supra no. 41, 143 ; see also Wendland W., “Intellectual property, traditional knowledge and

folklore: WIPO’s exploratory program”, IIC 2002, 33(4), 485-504, 502. 114

WIPO, supra no. 96, 287. 115

Id., 62.

26

other responsibilities and relationships pertaining to that knowledge could be negated, is

incomprehensible”.116

Though, several aspects of the IGC’s framework reveal that the TK right is still much

anchored in the logical and spirit of intellectual property law as designed by developed

countries.

First, the future instrument was conferred the common structure of the current forms of IPRs,

i.e. an identifiable subject-matter, an identifiable beneficiary, and defined restricted acts in

relation to the said subject-matter without the prior authorization of the right-holders and in

the absence of statutory exceptions.117

Second, the framework pays as much attention to the commercial value as the spiritual

dimension of TK. Indeed, even though the Preamble tends to recognize the social, spiritual,

ecological and cultural value of TK, discussions are still ongoing on whether the “economic”

and “commercial” value should be taken into account as well.118

Similarly, while it is almost

clear that the future instrument is to:

“promote and support the [conservation of and] preservation [of] [and respect for] traditional

knowledge [by respecting, preserving, protecting and maintaining traditional knowledge

systems [and providing incentives to the custodians of those knowledge systems to maintain

and safeguard their knowledge systems]”119

,

there are still references in the Preamble to Western intellectual property notions, e.g. the

“safeguard of the public domain” and the “transfer and dissemination of knowledge”.120

In

that last regard, paragraph (vii) is directly inspired from the objectives article of the TRIPS

Agreement that provides:

“The protection and enforcement of intellectual property rights should contribute to the

promotion of technological innovation and to the transfer and dissemination of technology, to

the mutual advantage of producers and users of technological knowledge and in a manner

conducive to social and economic welfare, and to a balance of rights and obligations”.121

116

Curci J., The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual

Property, Cambridge University Press, 2010, 92. 117

See Gervais, supra no. 24, 76-7. 118

Draft Articles, Preamble (i). 119

Draft Articles, Preamble (iii). 120

Draft Articles, Preamble (v) : “recognize the value of a vibrant public domain and the body of knowledge

that is available for all to use, and which is essential for creativity and innovation, and the need to protect,

preserve and enhance the public domain” and (vii): “[the protection of traditional knowledge should]

contribute toward the promotion of innovation and to the transfer and dissemination of knowledge to the mutual

advantage of holders and users of traditional knowledge and in a manner conducive to social and economic

welfare and to a balance of rights and obligations”. Note that both these propositions are still under discussion. 121

The TRIPS Agreement, art. 7.

27

One may express reasonable doubts on whether the balance inherent to other IPRs should be

applied to TK right, because indigenous knowledge is not a non-rival good as other

intellectual property subject matters. Indeed, inventions and intangible works are non-

competing in the sense that “their use by an individual does not prevent others from using

them in the same amount. On the contrary, it is precisely their use, their movement that

implement and extent their value”.122

In contrast, the wide dissemination and the repeated use

of a traditional knowledge weakens the link that associates such knowledge to the original

indigenous community and, therefore, by becoming over time a common good of humanity

(or written in Western IPR language, a “public domain” item), it loses its “traditional” feature

and in the same time its protection under the TK right.

B. The ambitions of the future convention

The IGC’s instrument is intended to establish international standards in relation to the

protection of indigenous traditional knowledge. In doing so, it should not refer to common

principles of existing IPRs as if they were a prerequisite for the elaboration of a new sui

generis right. At the risk of repeating oneself, classical intellectual property rules have not for

purposes to protect cultural heritage but to promote creativity, efficiency and

commercialization.123

Thus it would be more sensible to rely on principles embodied in

indigenous customs whose objectives are more adapted and familiar to TK-holder.124

Indigenous and local communities have emphasized the need for a better “recognition that

customary laws can be used to regulate and control the manner in which such knowledge is

communicated, shared, used and applied.”125

In order to address their concerns, the IGC requested a study on the role of customary law

and its relationship with TK.126

Nevertheless, the recommendations of the study are not

reflected in the Draft Articles, which only contain the commitment of Member States to:

“not restrict the generation, customary use, transmission, exchange and development of

traditional knowledge by the beneficiaries, within and among communities in the traditional

and customary context, [in accordance with national law]”.127

122

Barbato, Intellectual Property and Human Rights, Università degli Studi di Roma La Sapienza, Thesis, 2010,

2. 123

OseiTutu, supra no. 10, 187-188. 124

See for instance WIPO/GRTKF/IC/7/15/Prov.2, para. 24 : “Customary law is the laws that most matters for

indigenous peoples and is inalienable from their identity and integrity” (Call of the Earth). 125

CIEL, supra no. 9, 3. 126

WIPO, Customary Law, Traditional Knowledge and Intellectual Property : an Outline of the Issues, 2007,

available at : http://www.wipo.int/export/sites/www/tk/en/resources/pdf/overview_customary_law.pdf (accessed

10/08/2014).

28

On the other hand, it is true that customs, by their very nature, are different and vary from a

country to another, from a region to another and even from a community to another.

Moreover, very few Member States fully recognize indigenous customs in their domestic

statutes. Consequently, by relying on local indigenous customary laws instead of common

international standards, the future convention might see its scope be significantly restricted

due to the failure to fully harmonize the international regime.

Currently, the question of how customary laws should be implemented in the IGC’s

framework is still under debate.

So is the question of the framework’s legal binding force. Indeed, Draft Articles are still

using an ambiguous vocabulary, e.g. “shall”/”should”, “Member states”/”Contracting

Parties”. The lack of consensus around these notions somehow reveals certain incertitude as

to which value is to be given to the framework within the international IP landscape. Should

it be an instrument that merely recognizes TK and provides Member states with a model for

their domestic legislation? Or should it be a legally binding document creating a union

between countries like the Berne and Paris conventions128

?

Some indigenous and local communities highlighted the necessity of a legally binding

document for their needs to be met.129

On the other hand, developed countries expressed their

reluctance towards binding international standards, considering primarily that the IGC was

only a forum for discussions.130

Nonetheless, it seems more and more likely that the WIPO’s framework is to become a new

international convention in the end. According to the Australian delegation’s view, the IGC

has been “on path to build a third pillar for the world IP community – a pillar which would

complement the pillars of the Berne and Paris Conventions.”131

However, even if it was the

case, the question would remain of whether all WIPO Member States would adopt it,

including developed countries. Likewise, a standard criticism to the WIPO system concerns

the difficulties to enforce the provisions of its conventions. Indeed, WIPO is only equipped

with a mechanism for the resolution of disputes between private parties132

but, contrary to the

127

Draft Articles, Preamble (ix). 128

Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, as amended on

September 28, 1979 ; Paris Convention for the Protection of Industrial Property, March 1883, as amended on

September 28, 1979. 129

See WIPO/GRTKF/IC/9/14/ Prov. 2, para. 50. 130

See for instance, the European Union and the USA in WO/GA/41/15, 5-7; also, CIEL, supra no. 9, 11. 131

WIPO, Report of the WIPO General Assembly, Thirtieth (16th

Ordinary) Session, 2003, WO/GA/30/8, 13. 132

WIPO Arbitration and Mediation Center.

29

WTO, it does not provide an effective system to sanction Member states that do not fulfill

their obligations. Therefore, like the Berne and Paris convention, recognition in the TRIPS

Agreement would be required before the convention on TK could be globally effectively

enforced.133

In that regard, TK-holders have also expressed concerns regarding the relationship of the

instrument with other international agreements and treaties. They indeed consider that the

future convention on the protection of TK should be “mutually supportive with other

international systems and processes discussed at the CBD and the Food and Agricultural

Organization of the United Nations (FAO)”.134

The idea is still to entrench the indigenous

knowledge protection in a system that is not solely limited to intellectual property but also

addresses human rights and self-determination issues.135

Despite considerable efforts, their

requests appear to be only partially satisfied; while the Preamble and Article 10 of the draft

framework consider the relationship with other international agreements, they are currently

excessively anchored in the intellectual property system. According to these provisions, the

instrument is to:

“take account of, and operate consistently with, other international and regional instruments

and processes, in particular regimes that relate to intellectual property and access to and

benefit sharing from genetic resources which are associated with that traditional

knowledge”136

and

“establish a mutually supportive relationship [between [intellectual property [patent] rights

[directly based on] [involving] [the utilization of] traditional knowledge and with relevant

[existing] international agreements and treaties.]137

Also, there is curiously no mention in the instrument on TK of the non-diminishment

principle whereas such principle is present in the draft article 10 of the instrument on

Traditional Cultural Expressions.138

Yet, this clause is viewed important by TK holders

because it ensures that the future convention does not nullify or diminish rights that have

133

See Harms, supra no. 52, 505 : «It took TRIPS to make the Berne and Paris Conventions after a century

somewhat effective ». 134

CIEL, supra no. 9, 6. 135

See WIPO/GRTKF/IC/11/5 (b), 17. 136

Draft Articles, Preamble (iv) 137

Draft Articles, Art. 10. 138

WIPO, The Protection of Traditional Cultural Expressions : Draft Articles, 2014, WIPO/GRTKF/IC/28/6.

Article 10 contains another paragraph that provides: “Nothing in this [instrument] may be construed as

diminishing or extinguishing the rights that indigenous [peoples] or local communities have now or may acquire

in the future.]”. Note that paragraph 13 of the Preamble also contains this statement.

30

been previously recognized and contained in treaties, agreements and other constructive

arrangements.139

The first part of this study revealed that the protection of indigenous knowledge involves a

number of considerations and stakes. Especially, it has brought to the fore and engages with

one of the major challenges facing the global intellectual property system, namely struck the

balance between developed and developing countries’ interests. While it appears that an

appropriate regime protecting traditional knowledge constitutes one of the key to this

problem, indigenous and local communities are still truly worried about the approach

followed by the international community. Indeed, according to a majority of indigenous

representatives, the IGC’s work remains too much entrenched in intellectual property notions

as conceived by Western countries.

Also, there has been serious risks that debates about the future instrument exclusively take

account of Member states’ issues, relegating indigenous people’ concerns to a position of

secondary importance. The efforts made by the Committee to improve the participation of TK

holders in the negotiations are still insufficient, since the latter are not invited to the decision

making process.

In such circumstances, formal outlines of the draft regime turn out not to fully satisfy the

expectations of indigenous and local communities. Especially, the absence of reference to

indigenous customary laws, the reserved integration of the instrument in a broader system

that includes human right issues, as well as the reluctance of certain Member states to provide

the future convention with a legally-binding force, all this is already suggesting an overall

disappointment. And that is even before getting into substantive aspects of the future TK

right.

139

WIPO, Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources: certain suggested

cross-cutting issues, 2014, WIPO/GRTKF/IC/27/INF/10, 13.

31

Part II: The Future Traditional Knowledge Right

As previously noted, the structure of the Draft Articles on the protection of TK, as approved

by the IGC on 9 July 2014, is based on the common structure of existing IPRs, namely: a

preamble defining the intentions of contracting parties along with a list of definitions

concerning the terms used (Preamble, Policy Objectives and Use of Terms), a defined

subject-matter with different criteria for eligibility (Article 1), a designed right-holder

(Article 2), a list of restricted acts outlining the scope of the protection (Article 3),

complementary obligations for Member states (Article 3bis), a list of sanctions and remedies

(Article 4) and additional measures (Article 4bis140

), certain obligations regarding the

administration of rights (Article 5), a list of exceptions and limitations to restricted acts

(Article 6), a precise duration of the right (Article 7), the establishment of the required

formalities for the protection (Article 8), and final provisions concerning the application of

the convention (Article 9: transitional measures ; Article 10: the relations with other

international agreements ; Article 11 : national treatment ; Article 12 : transboundary

cooperation).

Although this demonstrates, once again, the difficulty of the IGC to withdraw from the basic

intellectual property concepts, this common architecture nevertheless establishes a certain

consistency and prevents the future TK right from being completely marginalized or

disconnected from the whole system. In that sense, it guarantees legal certainty and improves

global harmonization insofar as contracting countries are familiar with such a system and are

more likely to align the regime of the new instrument to those of other existing IPRs.

Chapter 1 deals with the draft provisions on right acquisition (Articles 1, 2, 8 and 11) and

Chapter 2 analyses the draft provisions on the enforcement of right (Articles 3 - 7 and 12).

140

Note that this article actually concerns the issue of disclosure requirement in patent and plant variety

applications, a question which is still much under debate.

32

Chapter 1: The acquisition of traditional knowledge right

An important mission of the IGC has been to discuss and reach a consensus on the meanings

to be assigned to the concept of indigenous traditional knowledge (and, in the same time, of

folklore and genetic resources). According to Wendland:

“Clarity on terminology and subject-matter [is] important in order to be able to delimit the

scope of WIPO’s work. This [is] also deemed necessary in order to adjust possibly high

expectations concerning the relevance and role of intellectual property law”141

Reaching broad agreements on the notion of TK does not merely imply to provide a legal

definition of the term but also to clarify how such a definition is adapted to intellectual

property. In addition, it is noteworthy that the IGC’s work is divided in three fields, i.e. TK,

TCEs and GRs, and three distinct frameworks are currently under discussion, including the

Draft Articles on the protection of TK. Therefore, the search for a precise meaning of

traditional knowledge requires clarifying its relationship with the two other concepts in a

manner that all of the three instruments might be mutually supportive and fully cover

indigenous communities’ assets.

The IGC has then been trying to supply precise criteria for the protection (I) as well as a

clearer definition of who the beneficiaries are (II).

I. The criteria for the protection

According to Article 1, protection is granted to traditional knowledge that fulfills a number of

additional criteria. However, as noted by certain NGOs, “defining traditional knowledge has

been a challenge for the IGC, and this is largely due to the fact that such knowledge is

complex in nature”.142

Indeed, traditional knowledge may cover different concepts in

particular when it is related to genetic resources or folklore,143

and WIPO itself has had great

difficulties to properly define the notion over time.

A. Traditional knowledge as a subject-matter

In the same way as inventions, signs and works are respectively the subject-matters of

patents, trademarks and copyright, “traditional knowledge” is unsurprisingly the subject-

matter of the protection granted by the IGC’s draft framework.

141

Wendland, supra no. 113, 489. 142

CIEL, supra no. 9, 3. 143

See Curci J., The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual

Property, Cambridge University Press, 2010, Chapt 4 “Towards clearer legal definitions”.

33

Given the real hardship it is to define the notion and especially to distinguish it from other

knowledge, scholars suggested to state “simply that TK is the knowledge held by traditional

peoples and communities”.144

Another solution is to keep the notion undefined and vague so

that each country might adapt the notion to its proper needs. Such an approach is not unusual

in international intellectual property law. For instance, it may be noted that neither the TRIPS

Agreement nor the Paris Convention defines the notion of “invention”, leaving Member

states free to build their own thresholds for patent protection.145

Representative of indigenous and local communities have mainly endorsed such options,

stating that a loose definition is likely to broaden the protection granted and, in the same time,

that the perception of TK may differ from tribe to tribe and community to community.146

Despite those requests, the IGC opted for a middle position. According to the Draft Articles’

Use of Terms:

“Traditional knowledge [refers to]/[includes]/[means], for the purposes of this instrument,

know-how, skills, innovations, practices, teachings and learnings of [indigenous [peoples]

and [local communities]]/[or a state or states].

[Traditional knowledge may be associated, in particular, with fields such as agriculture, the

environment, healthcare and indigenous and traditional medical knowledge, biodiversity,

traditional lifestyles and natural resources and genetic resources, and know-how of traditional

architecture and construction technologies.]”

Several comments can be made regarding this definition.

1. Traditional but not indigenous

Firstly, it is interesting to see that the IGC has opted for the term “traditional knowledge”

instead of a multitude of available alternatives, e.g. “indigenous knowledge”, “community

knowledge”, “indigenous heritage”, “traditional medicine”, “local and traditional

knowledge”, “traditional and local technology, knowledge, know-how and practices”.147

“Traditional knowledge” is admittedly the most commonly used term, but the absence of

144

Dutfield, supra no. 22, 240. Dutfield argues that this is the approach adopted by the CBD, in Article 8(j),

which refers to: “knowledge, innovations, and practices of indigenous and local communities embodying

traditional lifestyles”. 145

See for instance the TRIPS Agreement, art. 27 : “Subject to the provisions of paragraphs 2 and 3, patents

shall be available for any inventions, whether products or processes, in all fields of technology, provided that

they are new, involve an inventive step and are capable of industrial application” (emphasis added). See also

WIPO/GRTKF/IC/3/8, 5. 146

Gowda P. and Khan U., “Sacred but vulnerable: a critical examination of the adequacy of the current legal

framework for protection of tribal sacred traditional knowledge”, 2008 NUJS L. Rev. 109, 112; see also Antons

C., supra no. 12, 86. 147

Wenland, supra no. 40, 490-491 ; Dodson and Barr, supra no. 6, 24.

34

reference to the “indigenous” feature also suggests that traditional knowledge may emerge

from sources that are not necessarily indigenous. It is actually what the WIPO’s fact-finding

missions reported:

“[i]ndigenous knowledge is therefore part of the traditional knowledge category, but

traditional knowledge is not necessarily indigenous. That is to say, indigenous knowledge is

traditional knowledge, but not all traditional knowledge is indigenous.”148

In any case, the definition provided by the draft framework reveals a persistent consensus

deficiency on this issue, as illustrated by the current debate over the wording option between

“of indigenous and local communities” and “of states”.

Regarding this last issue, if discussions are still ongoing within the IGC this is because

certain national governments are seeking to widen the definition of the subject-matter in a

manner to cover other forms of knowledge.149

In particular, they explain that an

encompassing definition of TK should also include traditional knowledge that has long

entered mainstream culture or become widely spread across the nation.150

These attempts by

Member states to take up the subject in their own interests are viewed with an extreme

distrust by organizations representing indigenous people. For the latter, it is indeed

fundamental that discussions remain focused on the local origins of TK, and especially its

link to indigenous communities.151

Nevertheless, it is true that the concept of “indigenous” induces a categorization of the

national population (i.e. indigenous/non-indigenous) which may be detrimental to certain

peoples. As rightly pointed out by the delegation of Trinidad and Tobago, in certain

countries, especially small islands states, there are no indigenous people or local

communities, but rather a whole community.152

An appropriate definition of traditional

knowledge must therefore reflect this kind of realities.

Notwithstanding, the reference to the indigenous link is still present in the draft framework,

and in particular it constitutes, with “traditional”, the determinants of the different criteria for

eligibility.

148

WIPO, supra no. 96, 23 ; also Wendland, supra no. 40, 492 – 493. 149

See for example the statements of China in WIPO/GRTKF/IC/21/7/PROV.2, 16: “With regard to countries

which had a long history, for example in relation to traditional medicine and other TK, this TK had sometimes

been codified, and its scope of transmission was quite large. This kind of TK was obviously known by people

outside the community, but whether it was open or still secret, it needed to be protected so as to prevent its

misappropriation. For these reasons, the Delegation of China suggested that appropriate criteria and measures to

protect TK were needed and that TK that was already in the public domain should not be excluded”. 150

Antons C., supra no. 12, 85. 151

Ibid. 152

WIPO/GRTKF/IC/21/7/PROV.2, 24.

35

2. An exhaustive list?

Secondly, the IGC’s draft framework provides a positive definition of what TK is by listing

its constituting elements, i.e. know-how, skills, innovations, practices, teachings and

learnings.

This definition significantly differs from that elaborated by the WIPO Secretariat in 2002, for

which TK was a wider category that included folklore as well. More precisely it referred to:

“tradition-based literary, artistic or scientific works; performances; inventions; scientific

discoveries; designs; marks, names and symbols; undisclosed information; and all other

tradition-based innovations and creations resulting from intellectual activity in the industrial,

scientific, literary or artistic fields”.153

In that respect, the current IGC’s definition seems closer to what was covered by the former

expression “tradition-based innovations”. The listed constituting elements are also more

consistent with other national or regional frameworks, such as the Swakopmund Protocol.154

However, there are still debates about whether such a list should be limited to the stated

categories or, on the contrary, should be non-exhaustive.155

TK is, by its very nature,

evolving and perceived differently depending on the communities. There is thus reason to

believe that the listed materials are not completely in line with how certain indigenous people

culturally perceive their TK.156

Furthermore, intellectual property law experience has proven

that a subject-matter categorization is likely to be incomplete and outdated over time.157

In

that sense, a loose or non-exhaustive listing may improve the adaptation of the IPR in

question to external changes.

On the other hand, the question arises as to whether TK should include traditional lifestyles,

languages, or even religions, customs, methods of governance and so on.158

Certain

sociologists indeed highlighted for instance the close relationship between TK and religions

153

WIPO IGC, Elements of a Sui Generis System for the Protection of Traditional Knowledge, December 2002,

WIPO/GRTKF/IC/4/8, 9-10. 154

ARIPO’s Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions, 2010.

According to the Protocol, the notion of TK includes “know-how, skills, innovations, practices and learning”. 155

The debate is illustrated by the undecided wording: “refers to”, “means” and “includes”. 156

See Gowda, supra no. 146, 113. 157

See for instance the Berne convention, art. 2 which establishes a list of examples for copyrightable subject-

matters. The list is written in old terms but is also non-exhaustive and has therefore permitted to include new

forms of copyrightable works such as software. See WIPO Copyright Treaty, 20 December 1996, Art.4.

Similarly, the TRIPS Agreement, art. 15.1 is sufficiently vague to include other kinds of sign than those listed,

such as three-dimentional signs, sounds or even odors. 158

See Liu, supra no. 32, 457-458.

36

in primitive societies.159

And one may remind the case of the yagè plant whose

hallucinogenic property has been traditionally known and used by Colombian shamans in

religious ceremonies. Nevertheless, protecting certain elements of traditional lifestyles may

be viewed as an unreasonable extension of the concept of traditional knowledge, as

understood in its intellectual property meaning. Indeed, even though exclusive rights were to

be granted for traditional lifestyles or elements thereof, they would be impractical to

enforce.160

The preservation of languages, beliefs, or divine worships requires a protective

regime that goes beyond the framework of monopoly rights or mandatory obligations.161

3. The irrelevance of the field associated with the knowledge

Finally, the second paragraph of the definition gives examples of fields with which TK is the

most often associated, i.e. medicine, natural and genetic resources, agriculture, constructions

and so on.

Nevertheless, the wording clearly suggests that this list is not exhaustive and that therefore

the activity area does not constitute a relevant condition for the existence of TK. As to

patents, the TRIPS Agreement provides a similar statement in article 27, according to which

patent is available to any inventions, whatever their fields of technology.162

B. Additional criteria for eligibility

In copyright law, a work is protected as long as it is original.163

Likewise, an invention is

patentable only if it is new, involves an inventive step and is capable of industrial

application.164

According to Article 1 of the IGC’s draft instrument, protection is granted to

TK that meets a number of additional criteria, namely:

“(a) that is created, and [maintained] in a collective context, by indigenous [peoples] and local

communities [or nations] [,whether it is widely spread or not];

(b) that is [directly] [linked]/[distinctively associated] with the cultural [and]/[or] social

identity and cultural heritage of indigenous [peoples] and local communities [or nations];

(c) that is transmitted from generation to generation, whether consecutively or not;

159

See Durkheim E., The elementary forms of religious life (1912), available at

http://www.gutenberg.org/files/41360/41360-h/41360-h.htm (accessed 11/08/2014) 160

See also Milius, supra no. 37,214. 161

Liu mentioned the example of traditional medicine practitioners in the Chinese Yunnan province who were

required not to change their lifestyles. He rightly argued that such obligations did not respect their right to

autonomy and equal treatment. See Liu, supra 32, 457-458. 162

The TRIPS Agreement, art. 27(1): “patents shall be available for any inventions, whether products or

processes, in all fields of technology”. 163

See the Berne convention, arts. 2(3), 8, 11, 14. 164

The TRIPS Agreement, art. 27(1).

37

(d) which may subsist in codified, oral or other forms; and [or]

(e) which may be dynamic and evolving.”

Member states still disagree on certain notions and on whether these criteria should be

cumulative or not. But above all, particular attention is paid to a last criterion which requires

that TK :

“has been used for a term as has been determined by each [Member State]/[Contracting Party]

[but not less than 50 years].”

Before analyzing the significance of each of these requirements, it is noteworthy that the

Draft Articles do not provide a precise definition of “traditional”. Actually, this is probably

because the “traditional” feature is reflected in all the enounced eligibility criteria of which it

is the determinant. In that sense, traditional is the key notion of TK.165

As reported by WIPO

at the very beginning of its study on TK, traditional means that knowledge has generally been

transmitted from generation to generation, is generally regarding as pertaining to a particular

people or its territory and is constantly evolving in response to a changing environment.166

Given the particular subjective link existing between TK and community, indigenous groups

have asserted that only TK-holders should reserve the right to decide what constitutes their

own knowledge and how it should be defined.167

In that regard, the Mataatua Declaration

states that “in the development of policies and practices, indigenous peoples should [...]

define for themselves their own intellectual and cultural property”.168

Notwithstanding, the IGC opted for an approach more consistent with the current intellectual

property system in that it defined the protectable subject-matter in accordance with objective

elements rather than subjective decision power. It is in fact the position adopted by other

frameworks, including the Swakopmund Protocol.169

It therefore implies that communities

who are invoking rights on their knowledge must first gather serious evidence that such

knowledge meets the requirements of the framework and especially that it is “traditional”.170

But this does not mean that proofs must be solely objective and an important place is still

accorded to how indigenous and local communities subjectively perceive their knowledge as

165

Lopez Romero T., “Sui generis systems for the protection of traditional knowledge” Int. Law: Rev. Colomb.

Derecho Int. Bogotá, no. 6, 2005, 301-339, accessible at http://www.javeriana.edu.co/juridicas/pub_rev

/international_law/ultimo_numero/9.pdf (accessed 14/08/2014), 307. 166

WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders : WIPO Report on

Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), 2001, 11. 167

Wendland, supra no. 40, 496. 168

Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, June 1993, 1.1. 169

Swakopmund Protocol, s.4. 170

See Simpson T., “The cultural and intellectual property rights of indigenous peoples”, IWGIA, 1997, 18-22,

21.

38

part of their own identity and culture. In that sense, communities can still decide what TK is,

or rather what it is not.

1. TK as part of the community

The criteria enounced in (a) and (b) of Draft Article 1 embody the intimate relationship that

links TK to the community.171

Indigenous people have insisted on the needs that the

protectable subject matter must be based on central characteristics, in particular that TK is

“the very foundation of their cultural heritage, cultural identity and social integrity”.172

In that

respect, TK constitutes means of identification for the group since its preservation and

integrity is linked to the preservation of the culture itself.173

Moreover, its close link to the

group is also due to the holistic nature of TK insofar as every community member and every

generation participates in the creation and maintenance of the knowledge. As pointed out by

Arowolo, TK is seen as holistic in reason of “centuries of association with the environment

and traditional religion, thereby creating an understanding of the interrelationships between

different elements of a landscape or habitat”.174

2. TK as an ancestors’ legacy

As reflected in Draft Article 1(c) and (d), TK is passed on within a community over

generations. The transmission may take different forms which often vary from one people to

another. This is primarily due to the fact that, as TK is an integral part of the group identity,

transmission systems are based on the specific customary rules of the said group. Admittedly,

most common means of knowledge transfer include oral transmissions and learnings through

observation and hands-on experience. Nevertheless, in practice it is not only limited to those

means.175

In addition, the holistic nature of TK and the transmission process permits the adaptation of

knowledge to environmental evolutions and other external changes. Thus TK is by nature

171

See WIPO, supra no. 22, 11. 172

CIEL, supra no. 9, 3. 173

Lopez Romero T, supra no. 165, 308-310. 174

Arowolo, supra no. 13, 13. 175

Niedzielska M., “The intellectual property aspects of folklore protection”, Cop. Mont. Rev. W.I.P.O., 1987,

16, 339-340 ; Wendland, supra no. 40, 496.

39

evolving as long as “every generation makes its own contribution to improvise and adapt the

knowledge system”.176

3. Not archaic, not ancient, but still old?

The use of the term “traditional” may be perceived as implying that protection is to be

granted solely to knowledge that has remained primitive and faithful to ancient cultures.177

However, as embodied in Draft Article 1(e), TK is dynamic and evolving in that its character

changes as the needs of the people change.178

Consequently, it cannot remain archaic:

“Contrary to a common perception, traditional knowledge is not necessarily ancient. It is

evolving all the time, a process of periodic, even daily creation as individuals and

communities take up the challenges presented by their social and physical environment. In

many ways therefore, traditional knowledge, is actually contemporary knowledge.”179

In this context, how could it be consistent to require that TK be used for a minimum period of

time if, in the same time, it is commonly accepted that TK may evolve into “contemporary

knowledge”?180

There are reasons to believe that the minimum of use requirement is not

appropriate to the notion of TK. And it is all the more inadequate that the proposed period of

50 years is absolutely not based on any serious reflective rationale.

4. Formalities: following the patent or the copyright scheme?

A last condition is also under debate at the IGC.181

It concerns whether the protection granted

by the draft instrument might be determined by the prior fulfillment of certain administrative

formalities. It is indeed common in industrial property law to require that applicants proceed

to the registration of their rights before fully enjoying them.182

That is primarily intended to

ensure legal certainty for third parties. In the context of TK, there is nevertheless doubt that

formalities are appropriate to both the nature of the protected subject-matter and the

specificity of their holders. For instance, TK is often kept secret within the community; a

176

See Gupta A., “Framework for rewarding indigenous knowledge in developing countries: Value chain for

grassroots innovations”, Paper presented at WTO Expert Committee, IIMA, 3 September 2001, 2. 177

See Wendland, supra no. 40, 491. 178

Mugabe J., "An exploration in international policy discourse", 1995, WIPO/GRTKF/IC/3/9, annex III, p.4 ;

see also, Arowolo, supra no. 13, 13. 179

WIPO, Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore, WIPO

Publication No. L450GTF/E, available at http://www.wipo.int/export/sites/www/freepublications/

en/intproperty/450/wipo_pub_l450gtf.pdf (accessed 14/08/2014), 2; see also Gupta A., supra no. 176, 2 : “the

traditional ways of knowing may produce contemporary innovations which may be of considerable importance

and in some cases may even advance the frontiers of knowledge”. 180

It must be noted that the alternative proposed in Draft Article 1 does not recognize the evolving and dynamic

characteristics as a criterion for eligibility. 181

Draft Articles, art. 8. 182

See for instance the TRIPS Agreement, arts. 15 (trademarks), 22 (geographical indications) and 29 (patents).

40

public recording of its description might then destroy this secrecy.183

Furthermore, as

previously seen, indigenous and local communities are not familiar with the current

intellectual property system. There is then an important risk that they do not proceed to the

registration of all of their TK, simply because they do not know how to proceed or because

they lack the economic resources to do so. In that respect, most of the existing national or

regional frameworks expressly reject administrative formalities as a condition for

protection.184

On the whole, the overall definition reflects the inherent characteristics of traditional

knowledge as viewed by their holders. Indeed, the Draft Articles consecrate the holistic

nature as the central element for the definition of protectable subject-matters. Nonetheless,

the IGC has still not succeeded in reaching broad agreements and discussions are still

ongoing. In that regard, if a minimum of use or formalities were to be required, this might

significantly reduce the adequacy of the whole framework with the needs of indigenous and

local communities.

II. The beneficiaries of the protection

Another main task of the IGC has been to provide a proper definition of the protection

beneficiaries. Indeed, contrary to other IPRs, the identification of right holders cannot solely

take account of the concept of “a creator”. This is because the existence of TK does not only

depend on a creation process but also on the maintenance and adaptation of “keepers”. In

addition, the holistic nature of TK requires to clearly outline the contours of the associated

community.

Article 2 of the draft framework differentiates between the case when TK is claimed by a

local community and the case when it is not possible to attribute TK to a specific community.

A. The principle: a collective ownership of TK associated to a specific community

At issue is not just the question of identifying who are entitled to the right but also knowing

who are actually not.185

Indeed, a precise definition of the beneficiaries permits, by exclusion,

to define those who have to respect legal obligations in relation to the use of TK.186

183

See WIPO, Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources : certain

suggested cross-cutting issues, 2014, WIPO/GRTKF/IC/27/INF/10, 12. 184

For instance, Swakopmund Protocol, s. 5.1 : “Protection of traditional knowledge shall not be subject to any

formalities”. 185

See OseiTutu, supra no. 10, 181.

41

According to Draft Article 2, the beneficiaries of protection are “indigenous [peoples] and

local communities” that are specifically concerned with the creation and the maintenance of

the protected TK. Unlike provisions on subject-matters, the central notion here is hence

“indigenous”. Though, the draft framework does not supply any definition of the term, what

might be viewed quite regrettable for an intended future international convention which aims

at harmonizing national regulations.

However, it must be noted that it is very difficult, and probably even impossible, to establish

a universal definition of “indigenous” people, because of the varied and changing contexts in

which they can be found.187

Even the UN Declaration on the Rights of Indigenous Peoples

chose to leave the notion unclear to avoid the risk of an inappropriate or too-limited

approach.188

As to indigenous people themselves – those who consider as such -, they

generally deny the need for a definition but rather insist on their right to self-definition. 189

Even though the draft instrument allows every Member state to adopt an approach more

suited to their peoples, some issues also arise as a consequence of the absence of precise

criteria. Especially, some have argued that the term “indigenous” may merely be viewed as

referring to societies living according to traditional lifestyles, as opposed to modern

lifestyles.190

In that context, could the instrument be inappropriately used to protect certain

know-how of local populations in developed countries whose lifestyles are based on old

cultural practices, whereas such populations would not commonly be seen as “indigenous”?

Put differently, would there not be a risk that it is used by certain states as a complementary

tool to geographical indications?191

In order to ensure a better legal certainty, several documents have tried to draw up a

definition based on the characteristics common to most indigenous people.192

These include

186

Stoll and von Hahn, supra no. 61, 11. 187

World Bank Operational Manual, Operational Directive : Indigenous Peoples, Sept. 1991, available at :

http://www.ifc.org/wps/wcm/connect/835cc50048855270ab94fb6a6515bb18/OD420_IndigenousPeoples.pdf?M

OD=AJPERES (accessed 15/08/2014). Also, Working Paper by the Chairperson-Rapporteur, Erica-Irene A.

Daes, on the concept of "indigenous people" (E/CN.4/Sub.2/AC.4/1996/2) 10 June 1996, para 9 : “The concept

of “indigenous” is not capable of a precise, inclusive definition that can be applied in the same manner to all

regions of the world”. 188

Wiessner S., “Indigenous sovereignty: a reassessment in light of the UN Declaration on the Rights of

Indigenous Peoples, 41 Vanderbilt Jrnl. Transnat’l L. 2008, 1141, 1163. 189

Stoll and von Hahn, supra no. 61, 11. 190

OseiTutu, supra no. 10, 197. 191

See OseiTutu, supra no. 10, 199. 192

See ILO Convention No. 169, art. 1; Working Paper by the Chairperson-Rapporteur, Erica-Irene A. Daes, on

the concept of "indigenous people" (E/CN.4/Sub.2/AC.4/1996/2) 10 June 1996, para 69; Hanning M., "An

examination of the possibility to secure intellectual property rights for plant genetic resources developed by

42

(without being limited to): their presence on particular geographical areas to which they are

historically attached, self-identification and identification by others as a distinct community,

close attachment to genetic resources and primarily subsistence-oriented production, past or

current experience of marginalization or discrimination, the voluntary perpetuation of cultural

distinctiveness and notably of languages, social organizations, religions and customary modes

of organization.

Another issue concerns the international implementation of the instrument. There is indeed

uncertainty as to how the future convention is to be fully respected if each Member states can

apply its own vision of the beneficiaries, and therefore reject the vision of others. Like many

multinational conventions, the draft framework contains an article entitled “National

Treatment”.193

Such a provision is intended to ensure that no discrimination is made between

nationals of a Member states and foreigners. Nevertheless, the IGC has so far failed to reach

broad agreements on the extent of this national treatment. Especially, it is still under debate

whether foreign beneficiaries are entitled to the same protection of nationals or only the

minimum protection provided by the international instrument. But above all, the national

treatment rule does not exclude the possibility for one Member state to reject legitimate

“indigenous” people as beneficiaries on the ground that they do not fulfill their national

criteria. In that sense, the lack of harmonized definition may significantly reduce the scope of

the draft framework.

B. The exception: the state authority as the guardian of certain TK

By exception, Draft Article 2.2 authorizes Member states to designate a national authority as

custodian of the protection benefits in certain restricted cases.

The first is the case where the TK is not claimed by a specific indigenous or local community

and/or cannot be attributed to a specific indigenous or local community, despite reasonable

efforts to identify them. The framework unfortunately does not define what is meant by

indigenous peoples of NAFTA states : domestic legislation under the international convention for protection of

new plant varieties”, 13 Arizona Journal of International and Comparative Law, 1996, 175-252, 178 ; Carpenter

A., Katyal S. and Riley A., “In defense of property”, 118 Yale L. J. 2009, 1022, 1034 – 1035. 193

Draft Articles, art. 11.

43

“reasonable efforts” but one may assume that it includes more or less the same efforts as for

the identification of “orphan” works’ authors in copyright law.194

Another case where the national authority may act as the beneficiary is when the TK material

is held by a community that does not claim right to it and is located in a territory that is

exclusively and entirely coterminous with the territory of the Member state. Nonetheless, one

may legitimately wonder why a state could be entitled of rights in relation to TK located

outside its territory. And above all, why could it decide that a protection right should be

attributed to TK whereas the holder community has decided to the contrary. If it is because

the said community is not aware of its right to claim ownership on TK, then the framework

should address such issue by providing information obligations on Member states. On the

contrary, it aggravates the situation by allowing state authorities to abuse the weakness of

indigenous community and take over their legitimate interests.

A final exception that is even more surprising concerns the case where the Member state’s

constitution does not recognize indigenous or local communities; then that Member state may

act as a direct beneficiary with regard to the traditional knowledge existing within its

territory. There appears to be a clash of definitions here. Indeed, this is the indigenous

communities and their relationship to TK which give the said TK its subject-matter value

under the instrument. If a Member state does not recognize indigenous communities as such,

how could it be protected TK? Despite this issue, that exceptional case seems to be more

suited to the concerns of certain small countries like Trinidad and Tobago, who argued that,

although TK exists within their territories and is held by their overall populations, they do not

have “indigenous” communities.195

The fact that national authorities can act as beneficiaries involves a last major concern: who

would benefit from the incomes? Would they be redistributed in a manner or another between

other indigenous communities or populations located in the state’s territory? Or would they

directly go to the state’s treasury?… These interrogations illustrate why indigenous and local

communities have been so much reluctant to the broad definition of “beneficiaries” advocated

by developing countries.196

194

See for instance, Canadian Copyright Act 1985, s. 77: “the Board is satisfied that the applicant has made

reasonable efforts to locate the owner of the copyright and that the owner cannot be located”; see also Berne

convention, art. 7.3. 195

See supra no. 149, in WIPO/GRTKF/IC/21/7/PROV.2, 24. 196

Antons C., supra no. 12, 86.

44

As seen, defining precise criteria for the acquisition of right is fundamental in the elaboration

of a legal framework for the protection of TK. Unfortunately, while the IGC undertook to

properly address the concerns of indigenous and local communities, several aspects are still

unsatisfactory. In particular, international debates surrounding requirements of a minimum

of use, formalities and the possibility for Member states to act on behalf of local communities

reveal how much the elaboration of the draft instrument is steered by considerations that go

far beyond mere indigenous peoples’ concerns. Yet, the IGC’s framework should arguably

remain a discussion platform in the interests of TK-holders and not become a battlefield

between developed and developing countries.

And the sad part about all this is that definitions of subject-matter and beneficiaries are the

most complete aspects of the draft regime, in comparison to the scope of protection and

control mechanisms.

45

Chapter 2: The Exercise of the Traditional Knowledge

Right

As much important as defining the subject-matters and beneficiaries of the protection

framework, outlining the scope of the protection also appears to be a fundamental aspect of

the IGC’s instrument. Indeed, the draft convention is intended to provide harmonized

obligations on Member states in respect of TK. The issue thus involves many political and

economic considerations, and a consensus has appeared to be most difficult. In addition, the

specific nature of TK, as inherently opposed to the traditional conception of intellectual

property, has required the WIPO Committee to introduce new approaches regarding the

determination of restricted acts (I) and the control by beneficiaries (II). However, it must be

noted that a majority of the IGC’s proposals concerning these matters is still muddled,

because Member states consider it premature to discuss them before having clarified the issue

of the acquisition of right.

I. The scope of protection

The social balance inherent to all IPRs is embodied in Articles 3 and 6 of the draft

instrument, which respectively relates to the scope of protection and its limitations. As

previously seen, this balance consists of a social justice in that it aims at contributing to

public policies to the mutual advantage of producers and users of subject-matters.197

As a

consequence, the protection of TK is then outlined by an exhaustive list of restricted acts in

favor of indigenous communities but also by certain exceptions to the benefit of users.

A. Prohibited acts

Even though the provisions on prohibited acts are still under discussions, several comments

can be made with respect to the general approaches adopted by the IGC. In particular, it may

be noted that the Draft Article 3 differentiates between three cases in which TK can be found:

first when TK is sacred, secret and otherwise closely held within the community, second

when TK is publicly available but is also still somehow used and developed by the

community, and third when TK is publicly available and/or widely known and/or in the

“public domain”. Considering this categorization, the draft instrument provides a de

crescendo protection that combines economic and moral rights.

197

OseiTutu, supra no. 10, 178- 179 ; Draft Articles, Preamble (vii).

46

1. A tiered approach in determining restricted uses

As to the first category of TK, the draft instrument does not supply any definition of what is

understood by “sacred” and “secret” TK. One may nevertheless assume that the former is

particularly subjective whereas the latter implies objective evidence. Indeed, “no object or

thing is sacred unless a person or group of persons attach certain sanctity with it and revere

and respect the same”.198

Due to its religious dimension, the term “sacred” seems more

adapted to qualify artifacts and cultural expressions than knowledge, for which the wording

“secret” is to be preferred.199

Provided that the framework is adopted as such, beneficiaries would be conferred the

exclusive right to maintain, use and control their TK, including the right to authorize or deny

access to it. They should then be able to derive an equitable share and benefit from it. In that

regard, the draft instrument supplies indigenous and local communities with decision power

rather than merely placing them in the position of tax collectors.

Also, considering the secret nature of this category of TK, any unauthorized disclosure is

intended to be punished as well under the draft framework.

But above all, beneficiaries of the protection are also conferred moral rights in respect of their

TK. These include the right to be attributed the subject-matter and the right that the said

subject-matter and its context are respected.200

These moral rights are directly inspired from

copyright, and notably the right to paternity and the right to integrity of the work.201

Indigenous and local communities have insisted on the need of this aspect of protection, as

many uses of TK are derogatory, offensive or fallacious.202

One may nevertheless regret that

the draft framework does not provide a droit de suite as in copyright law, that is to say a

resale royalty. Indeed, as Wendland highlighted:

198

Gowda P. and Khan U., “Sacred but vulnerable: a critical examination of the adequacy of the current legal

framework for protection of tribal sacred traditional knowledge”, 2008 NUJS L. Rev. 109, 112. 199

For instance, in the case Yumbulul v Reserve Book of Australia [1991], 21 IPR 481, the Yumbulul

community invoked the sacred nature of the Morning Star Pole, an artefact whose design was reproduced on a

banknote. On the contrary, in the case Foster and Others v Mountford and Rigby Ltd (1976) 14 ALR 71,

members of the Pitjantjatjara Council relied on breach of confidence rules to obtain an interlocutory injunction

restraining the publication of the Nomads of the Australian Desert book that disclosed certain knowledge in

respect of the location of religious sites. See also, Milpurrurru v Indofum (Pty) Ltd., [1990] 30 IPR 209. 200

Draft Articles, art. 3.1(b). 201

Berne convention, art. 6bis ; see also the propositions to amend the Australian Copyright Act in order to

develop indigenous communal rights (ICMR) http://ab-ed.boardofstudies.nsw.edu.au/go/aboriginal-

art/protecting-australian-indigenous-art/background-information/proposals-for-change/indigenous-communal-

moral-rights-icmr (accessed 17/08/2104). 202

Wendland, supra no. 40, 500-501.

47

“When the knowledge of a traditional community is passed on to an outsider who

subsequently publishes it, it becomes difficult for the community to control how the

knowledge is used and who else can acquire it”.203

In that sense, an adaptation of the copyright droit de suite might allow a better control of

indigenous and local communities on their TK.204

Concerning the second category, i.e. non-sacred TK publicly available but still used by the

community, the draft instrument defines the notion of “publicly available” as referring to TK

“that has lost its distinctive association with any indigenous community and that as such has

become generic or stock knowledge, notwithstanding that its historic origin may be known to

the public.”205

Taking account of the impaired link between TK and the associated

community, the IGC has opted for a reduced level of protection. Indeed, in this case,

beneficiaries would only be granted the moral rights to paternity and integrity, and the

economic right to obtain a fair and equitable share of the benefits. In that regard, they would

not enjoy the right to decide whether TK may or may not be used by third parties, but would

only be entitled to a part of the profits resulting from uses.

As in the case of sacred/secret TK, a disclosure mechanism in intellectual property

applications should also be respected by users.

Finally, as to the third and last category, debates continue to exist on whether a protection

should be granted. Indeed, certain Member states consider that TK does not deserve

protection as soon as it belongs to the public domain. On the other hand, others, including

indigenous and local communities, argue that moral rights must be respected and fees be paid

by any user.206

2. The public domain issue

The public domain concept being integral to the balance inherent in the existing intellectual

property system, the IGC decided to define the notion in the framework:

“Public domain refers, for the purposes of this instrument, to intangible materials that, by

their nature, are not or may not be protected by established intellectual property rights or

related forms of protection by the legislation in the country where the use of such material is

carried out. This could, for example, be the case where the subject matter in question does not

203

Wendland, supra no. 40, 499. 204

Wendland W., “Intellectual property, traditional knowledge and folklore: WIPO’s exploratory program: Part

1: Part ”, IIC 2002, 33(5), 606-621, 612, Gervais, supra no. 41, 150. 205

Draft Articles, Use of Terms. 206

See WIPO/GRTKF/IC/11/5, annex, 31; also WIPO, Note on the Meanings of the Term “Public Domain” in

the intellectual Property System with Special Reference to the Protection of Traditional Knowledge and

Traditional Cultural Expressions/Expressions of Folklore, WIPO/GRTKF/IC/17/INF/8; Draft Articles, art. 3.3.

48

fill the prerequisite for intellectual property protection at the national level or, as the case may

be, where the term of any previous protection has expired”.207

Nevertheless, this definition is too general and too much anchored in the logical of traditional

IPRs. Indeed, public domain has been a malleable instrument used to address certain

particular policies; for instance, the assumption that copyright shall not protect ideas208

stems

from the common conception that intellectual property must respect several social values,

including cultural enhancement and accessibility of information.209

However, there are

reasons to believe that similar social objectives may turn out misappropriate when TK is at

stake. One may even argue that the respect of indigenous people’s fundamental rights to the

preservation of their weak culture and identity constitutes valid social values with which

intellectual property should comply.

In that regard, indigenous and local communities have insisted on the fact that public domain

was a concept that they did not recognized.210

On the contrary, they have always perceived

public domain as a mean of misappropriation in that it enables anybody to use TK without the

prior informed consent of their holders.211

On the opposite side, certain “Eurocentric” views

have rejected intellectual property rights protection for TK on the basis that such rights would

shrink the public domain.212

Their main argument is that traditional knowledge is knowledge

and therefore, like ideas for copyright, should not be subject to monopoly rights.

The international debate surrounding the public domain concept is embedded in the draft

framework’s definitions of “misappropriation” about which discussions are still ongoing

concerning the alternative to adopt. Whereas the first proposed alternative meets TK-holders

requirements by disapproving any access or use of TK, the second option excludes from the

scope of misappropriation the acquisition of TK “through lawful means such as independent

discovery or creation, reading books, receiving from sources outside of intact traditional

communities, reverse engineering, and inadvertent disclosure resulting from the holders’

failure to take reasonable protection measures”.213

207

Draft Articles, Use of Terms. 208

TRIPS Agreement, art. 9.2. 209

See Melzer R. and Guibault L., “Workshop discussions” in Guibault L. and Hugentholtz P. (eds), The Future

of Public Domain: Identifying the Commons in Information Law, Kluwer Law. Int. 2006, 347, 358 citing

Sherman; also OseiTutu, supra no. 10, 178. 210

WIPO IGC, The Protection of Traditional Cultural Expressions/Expressions of Folklore : Revised Objectives

and Principles, WIPO/GRTKF/IC/9/4, 10. 211

CIEL, supra no. 9, 10. 212

Kuruk P., « Goading a reluctant dinosaur: mutual recognition agreements as a policy response to the

misappropriation of foreign traditional knowledge in the United States », 34 Pepp. L. Rev., 2007, 629, 648. 213

Draft Articles, Use of Terms.

49

In view of this, another issue arises regarding the existence of TK that have been disclosed,

used and diffused prior to the establishment of an international protection. Should such

knowledge be considered public domain? Or should the protection mechanism retroactively

apply?214

There is here a question of legal certainty for third parties who freely used TK at a

time it was not illegal to do so. On the other hand, TK would never have entered “public

domain” if it had been protected from the beginning; and if users were admittedly not guilty

of any infringement or criminal offense, they were somehow guilty of misconduct and moral

theft. In addition, intellectual property law is not opposed to this view insofar as subject-

matters may be protected from the date they got their essential qualities that make them

protectable under the relevant legal instrument.215

Currently, the draft framework does not solve this issue and its Article 9, entitled

“Transitional Measures”, is still very muddled.

3. Complementary measures

Provided it is adopted as such, Draft Article 3bis adds complementary measures to be

complied with by Member states. The provisions nonetheless appear more like a list of goal

commitments than precise compulsory obligations. Indeed, they overall aim at encouraging

the preservation of TK through varied means, while however guaranteeing respect of

customary rules and secrecy of certain TK. These additional measures include in particular

the development and use of voluntary codes of conduct as well as the provision of adequate

means to dispute validity of patents and other IPRs based on TK and genetic resources. For

that purposes, the draft framework recognizes the need for global elaboration of databases

and codification of oral information related to TK. 216

Indeed, despite all conceivable efforts,

patent examiners cannot possibly have access to the entire prior art, and notably to

undocumented knowledge.217

In addition, certain jurisdictions – like the United States - do

not take account of unrecorded foreign knowledge in the assessment of prior art.218

This is

214

WIPO, International Workshop on Methodologies Regarding Free, Prior and Informed Consent and

Indigenous Peoples, 2005, available at http://www.un.org/esa/socdev/unpfii/documents/workshop_FPIC_

WIPO_en.pdf (accessed 20/08/2014), para. 9. 215

For instance, in the French case Cour de Cassation, Ch. com., 18 Feb. 2004, 02-10.576 “Caron”, the Supreme

Court stated that “Champagne” was fully protected even before its complete registration as a geographical

indication, because it acquired for long its notoriety and essential qualities. 216

See Milius D., supra no. 37, 201. 217

Dutfield G., “A critical analysis of the debate on traditional knowledge, drug discovery and patent-based

biopiracy”, EIPR, 2011, 33(4), 238-244, 242. 218

Ibid.; note that it is not completely true anymore for the USA because the passing of the American Invents

Act in 2011 changed the assessment of prior art and now takes account of unrecorded information, at least only

for patents filed after 16 March 2013.

50

why the development of registers should significantly help for the defensive protection of

TK. On the other hand, Member states should also ensure that it is not done in a manner that

jeopardizes the positive protection of TK through secret and other indigenous customary

means.

Similarly, the IGC has been thinking about requiring patent applicants to disclose any TK-

related information on which their inventions are based.219

This proposal, although still

under debate, has been welcomed by indigenous and local communities who regard it as an

appropriate measure to curb the misappropriation of their TK.220

B. Exceptions and limitations

On the other hand, in its general intellectual property objectives to contribute toward the

promotion of innovation and dissemination of knowledge “in a manner conducive to social

and economic welfare and to a balance of rights and obligations”, the draft framework

provides certain limitations and exceptions to the rights granted to indigenous and local

communities.

Because prohibited acts are defined according to a tiered approach, some have argued that

exceptions should “also follow this approach, i.e. that various degrees of excepted acts would

mirror the various kinds of subject matter and the tiered rights applied to them”.221

The draft

framework does not clearly embody these requests222

; however its exceptions are intended to

remain optional for Member states, as proven by the wording “may”. This implies that

contracting parties retain their choice to implement the limitations of the instrument,

according to their proper needs and common legal doctrine. One may then wonder whether

they could adopt other legal exceptions, that is beyond the limitations provided by the draft

convention. There are reasons to think they should not. Indeed, besides the fact that the

instrument aims at approximating national regulations, exceptions are also detrimental to

right-holders. Permitting Member states to adopt extensive limitations would then

significantly threaten to upset the global system of protection. In that regard, the TRIPS

219

Draft Articles, art. 4bis. 220

CIEL, supra no. 9, 7. 221

WIPO, Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources : certain suggested

cross-cutting issues, 2014, WIPO/GRTKF/IC/27/INF/10, 11. 222

It must nevertheless be noted that arts. 6.2 and 6.3 establish a distinction between uses of sacred and secret

TK and uses of other TK.

51

Agreement is based on the principle that Member states can grant more rights to the benefit

of right-holder, but never less.223

Two kinds of exceptions are enshrined in the draft framework. Firstly, Member states may

adopt general appropriate exceptions, provided that such exceptions fulfill a list of

cumulative conditions: thus, any excepted use of TK shall be made with the involvement of

their holders, respect their moral rights to paternity and integrity, not conflict with the normal

utilization of their TK, be compatible with fair practice, and not prejudice the legitimate

interests of the beneficiaries taking account of the legitimate interests of third parties.224

Those requirements are overall inspired from existing exceptions in other traditional

intellectual property conventions.225

In this context, Member states might have the possibility

to apply mutatis mutandis to the draft instrument the definitions already elaborated under the

other agreements concerning certain complex notions, e.g. fair practice.226

In addition to the aforementioned requirements, the draft framework provides a

supplementary condition that exceptions cannot apply when there is reasonable apprehension

of irreparable harm related to the TK in question. It is not decided yet whether this

requirement would apply to all forms of TK, nevertheless the condition has its real

significance mainly in relation to secret and sacred TK. Indeed, in these cases, most uses are

likely to have the negative effects to irremediably disclose or disseminate knowledge.

Secondly, the draft instrument also draws a list of specific exceptions. These especially

include an adaption of the copyright fair dealing exception with regard to particular purposes,

such as education and non-commercial research. In that respect, the exclusion of profit-

making or commercial research should significantly restrain the application of the limitation,

223

The TRIPS Agreement, art. 1.1, indeed provides: “Members may, but shall not be obliged to, implement in

their law more extensive protection than is required by this Agreement”. This principle has especially allowed

developed countries to ratchet up the global intellectual property system, through bilateral “TRIPS-Plus”

agreements negotiated with developing countries. See on this Drahos P., “BITs and BIPs: Bilateralism in

Intellectual Property”, JWIP 2001, 6, 791-808. 224

Draft Articles, art. 6.1. 225

For instance, art. 10 of the Berne convention authorizes quotations of a copyrighted work, provided that the

said work has lawfully been available to the public, that the use is compatible with fair practice and does

not exceed the extent justified by the purpose and that sources and names are rightfully mentioned; see also, the

TRIPS Agreement, arts. 13, 17, 26 and 30. On the three-step test of the Berne conv., see Schonwetter T., “The

three-step test within the copyright system”, University of Cape Town, South Africa - Department of

Commercial Law, available at http://pcf4.dec.uwi.edu/viewpaper.php?id=58&print=1 (accessed 23/08/2014). 226

In Ashdown v Telegraph Group [2001] 1 Ch 685 ChD, 698-699, the English and Welsh Court relied on

Laddie’s assumption that the copyright “fair practice” should be assessed according to three factors: whether the

use is in commercial competition with the owner’s exploitation of the work, whether the work has already been

published or exposed to the public and the amount and importance of the work which has been taken. These

factors could constitute a reasonable basis for the definition of “fair practice” in relation to traditional

knowledge under the draft framework.

52

because, as Nijar noted, research for non-commercial purposes somehow “opens up

commercial opportunities and is harnessed for commercial ends”.227

Other authorized exceptions should concern inter alia the use and preservation of non-secret

TK in museums and cultural institutions, the use of TK in case of national emergency, or

even the patent-like exclusion from protection of diagnostic, therapeutic and surgical

methods228

.

II. The enforcement of the right

The difference of nature between TK and the subject-matters of traditional IPRs has also

obliged the IGC to modify its approach in relation to the enforcement of the future TK right.

Indeed, the fact that TK is mostly perpetual and collective renders inappropriate any attempt

to transpose the common rules of existing IPRs to the regime for TK. In that respect, the

provisions elaborated in the draft instrument seem interesting.

A. Duration of the TK right

In light of the traditional intellectual property conception, defining the duration of the TK

right is no easy task. Indeed, because of its very nature, TK may possibly exist forever. Some

have then requested that the right be perpetual.229

Yet, considering its objective to benefit

public interests in the end, intellectual property is particularly reluctant to accept a protection

ad vitam aeternam. Nevertheless this does not mean that a perpetual protection is absolutely

inconsistent with the intellectual property core principles, as illustrated by the examples of

geographical indications and trademarks for which the granted protection may last forever.230

On the other hand, TK may disappear, or at least it may lose its traditional feature and

become trivial knowledge. TK may also evolve and take new forms. Defining the right

duration on the strict basis of a number of years would clearly not take account of the

changing nature of TK.

In such circumstances, the IGC adopted a more appropriate solution than those commonly

used in other IPRs. In fact Article 7 of the draft framework does not refer to a minimum

number of years to define the period of protection but only states that TK must be protected

227

Nijar G., “Incorporating traditional knowledge in an international regime on access to genetic resources and

benefit sharing : problems and prospects” , E.J.I.L. 2010, 21(2), 457-475,464-465. 228

TRIPS Agreement, art. 27.3. 229

Gupta A., WIPO-UNEP Study on the Role of Intellectual Property Rights in the Sharing of Benefits Arising

from the Use of Biological Resources and Traditional Knowledge, 2004, 161 ; Kuruk, supra no. 212, 655. 230

OseiTutu, supra no. 10, 192- 193.

53

as long as it satisfies the criteria of eligibility for protection. This approach seems to have

overall met the satisfaction of indigenous and local communities.231

B. The enforcement of the TK right

According to the draft instrument, right-holders must give their prior informed consent to the

use of their TK, otherwise such use is considered as a misappropriation or misuse and

constitutes an infringement of their rights. Posey and Dutfield outlined the two elements of

the prior informed consent, i.e. the full disclosure of the reasons, procedures, risks and

implications of the activity and the right to stop this activity from proceeding at any

moment.232

In that way, consent is viewed as having a “power-equalizing” function in that it

aims at restoring a balance of powers in the unequal relationships between users and right-

holders.233

Nevertheless, in the context of TK, this function remains limited because of the

critical capacity of indigenous and local communities to make informed decision when facing

complex commercial, technological and legal matters.234

There is therefore a need to adapt

the procedure for prior informed consent to the particular situation of TK-holders, especially

by taking account their customary rules.235

Unfortunately, whereas it represents an important

pillar in the exercise of the TK right, the draft instrument elaborated by the IGC does not

clarify the issue of the elements of the prior informed consent. For instance, it does not

explain how consent should be expressed, whether it should be by contracts or in any other

forms.236

This is all the more regrettable that consent is also a prelude to exploitation negotiations and

therefore somehow corresponds to the equivalent of intellectual property licenses of other

IPRs. By retaining the right to authorize access and use of their TK, beneficiaries are indeed

entitled to grant users a license based on their terms. In that regard, the question arises as to

whether systematic refusal can amount to an abuse of right and whether prior informed

consent can be compulsory. Some countries, including South Africa and Pakistan, have

231

CIEL, supra no. 9, 9. 232

Posey D. and Dutfield G., Beyond Intellectual Property : Toward Traditional Resource Rights for Indigenous

Peoples and Traditional Communities, International Development Research Centre, 1996, 47. 233

Nijar G., supra no. 6, 1216, citing Michel Pimbert. 234

Anderson J., "Options for the future protection of GRTKTCEs : the traditional knowledge licenses and labels

initiative", WIPOJ 2012, 4(1), 73-82, 75. 235

See Nijar, supra no. 34, 472. Note also that the Nagoya Protocol, art.12 expressly requires that prior informed

consent be given in accordance with customary rules of the community. 236

See on the use of contracts as a remedy : Tsikun M. and Ni K.-J., “Using licensing contracts to protect

holders of traditional knowledge related to genetic resources – a reflection on ICBG projects”, IIC 2011, 42(3)

299-315, 314-315.

54

rejected the idea that state authority could override the decision of TK-holders, whereas some

others, including Brazil and Bhutan, have provided for the veto power.237

The issue finds

absolutely no answer in the IGC’s draft instrument. Nevertheless, the Swakopmund Protocol

explicitly recognizes the possibility of compulsory license:

“Where protected traditional knowledge is not being sufficiently exploited by the rights

holder, or where the holder of rights in traditional knowledge refuses to grant licences subject

to reasonable commercial terms and conditions, a Contracting State may, in the interests of

public security or public health, grant a compulsory licence in order to fulfill national

needs”238

The exercise of the TK right also implies the right to “fair and equitable compensation”,239

which must be regarded as the equivalent of the CBD’s “equitable sharing of the benefits”

arising from the use of TK.240

Nonetheless, the draft instrument does not provide any definite

clue concerning the proportion to be shared with the holders. In practice, in the agreement

between the Peruvian Aguaruna community and Monsanto, the royalties paid by the

industrial company were agreed to range from 1-2% of the net sales of the licensed

products.241

As previously argued, it is important for the preservation of the indigenous and

local communities’ lifestyles that the reward is not too much important, without being

however unreasonably low.

A last aspect of the exercise of the TK right concerns the enforcement procedure to follow in

case of infringement, i.e. when uses of TK fall within the list of restricted acts and do not

benefit from any exception. Article 4 of the draft instrument requires Member states to ensure

that beneficiaries can rely on an accessible, effective, fair, equitable, adequate, appropriate

and not burdensome procedure for the enforcement of their rights. In that respect, there is

reason to assert that a specific procedure would be more appropriate to address the needs of

indigenous and local communities than the complex and costly procedures already dedicated

to other IPRs.242

In particular, a predominant place should be attributed to customary rules

that are more familiar to indigenous peoples and adapted to the TK in question. The draft

framework partially incorporates this idea by providing that “where appropriate, sanctions

and remedies should reflect the sanctions and remedies that indigenous and local

237

Nijar, supra no. 34, 466. 238

Swakopmund Protocol, s. 12. 239

Draft Articles, art. 4.6. 240

CBD, art. 8(1)(j). 241

Tsikun and Ni, supra no. 236, 308. 242

See Wendland, supra no. 204, 610.

55

communities would use”.243

In addition, another solution would be to improve and promote

arbitration and mediation activities in the framework of WIPO.244

The WIPO Arbitration and

Mediation Center could indeed assist indigenous parties in the resolution of disputes. This

arbitration procedure has primarily been used to resolve domain name disputes, but has also

dedicated service for art and cultural heritage issues.245

Efforts should then increasingly be

made to enhance the WIPO assistance to the particular problems of indigenous and local

communities in the overall management of their TK.

C. One right but many right-holders

Besides the difficulties to precisely define the outlines of such community, the collective

nature of TK also raises the issue of the management of the TK right. Indeed, any collective

IPR that already exists, including geographical indications and certification trademarks, can

be properly exercised only through the formation of an entity that acts as a representative of

the right holders. This is because collective ownership is likely to excessively complicate, or

even saturate, the management process. In addition, the need of a representative is also

explained by the fact that TK is not held by every member of the community but by the

community as a whole, and the latter can only legally exist through a separate body. In

practice, indigenous and local communities have very often relied on representative

organizations and associations that have provided them with experience and assistance.246

The necessary recourse to a distinct entity should then arguably not suggest that the draft

framework failed to be in adequacy with the inherent collective nature of TK.

On the other, the draft framework also addresses the instances where the same protected TK

is to be found in the territory of several Member states or is to be shared by several

communities. Member states are then required to appropriately cooperate, with the

involvement of indigenous peoples.247

One may however regret that the provision is not

stricter and more precise on the cooperation mechanisms. Indeed, given the transboundary

dispersion of TK and/or communities, such instances are not uncommon.248

243

Draft Articles, art. 4.5. 244

Umuera S., “Recent developments in intellectual property and at WIPO”, 4 Int’l Intell. Prop. L. & Pol’y

2000, 1-1, 1-7. 245

WIPO, Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural

Expression : an Overview, WIPO Publications, 2012, 36. 246

For examples, see Tsikun and Ni, supra no. 236, 307, 314-315. See also Mutter K., “Traditional knowledge

related to genetic resources and its intellectual property protection in Columbia”, EIPR 2005, 27(9), 327, 332. 247

Draft Articles, art. 12. 248

For instance see the Hmong example explained by Antons, supra no. 12, 87. Also Nijar, supra no. 34, 468.

56

Conclusion

As previously demonstrated, the international intellectual property protection of indigenous

knowledge is involving a three-step process. It first begun with the proliferation of national

systems of protection which are as varied as tailored to the local communities’ needs. Then

came the feeling that a harmonized instrument recognizing and protecting TK at the

international level was necessary. Eventually, once the international consensus is reached, the

process should get complete with the total implementation of the said instrument in the

intellectual property landscape especially through the insertion of stringent provisions in the

TRIPS Agreement.

Currently, the IGC’s work is on the path to carry the second step out. Nevertheless,

uncertainty remains concerning the time it will still take before international IP standards for

the protection of TK are established. There are reasons to believe that the Draft Articles are to

travel back and forth between the General Assembly and the IGC for a long time yet, before a

final text is adopted. In that regard, in September 2014, the WIPO Assembly will probably

consider the need for additional IGC meetings instead of enacting the draft instrument.249

This should not be regarded as another failure in the TK protection consensus but as a chance

for the IGC to perfect its framework. Indeed, while the elaborated instrument overall

addresses the concerns of indigenous peoples, certain aspects are still very critical. In

particular, the participation of indigenous communities in the decision-making process

deserves to be greatly enhanced. The IGC should also consider adopting different approaches

than those usually existing in relation to traditional IPRs. For instance, the inherent balance of

rights and obligations should be reviewed by taking account of the predominant necessity to

preserve TK instead of emphasizing its wide dissemination. Indigenous customs and ethnic

rules should also occupy a larger place in the protection mechanisms, and in particular in the

enforcement mechanisms.

On the other hand, it is true that all requests of indigenous and local communitie cannot

realistically be incorporated in the future international convention. In that sense, the draft

249

See WIPO General Assembly, Decision of the Forty-Third Session, 23 Sept. – 2 Oct. 2013, Matters

Concerning the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional

Knowledge and Folklore, Agenda Item, 35, accessible at

http://www.wipo.int/export/sites/www/tk/en/igc/pdf/igc_mandate_1415.pdf (accessed 24/08/2014).

57

instrument may sometimes be viewed by indigenous and local communities as inappropriate

or incomplete. Likewise, the long pace of work and the difficulties to reach multilateral

agreements on fundamental aspects are playing in the favor of misappropriation actors.

Thus, while the WIPO’s framework admittedly brings the sweet smell of hope, it also brings

a bitter taste of frustration.

58

Annex 1

Intergovernmental Committee on Intellectual Property and Genetic Resources,

Traditional Knowledge and Folklore, WIPO/GRTKF/IC/28/5, 2014

The Protection of Traditional Knowledge: Draft Articles Rev. 2 (March 28, 2014, 8:00 pm)

PREAMBLE/INTRODUCTION

Recognize value

(i) recognize the [holistic] [distinctive] nature of traditional knowledge and its [intrinsic]

value, including its social, spiritual, [economic], intellectual, scientific, ecological,

technological, [commercial], educational and cultural value, and acknowledge that

traditional knowledge systems are frameworks of ongoing innovation and distinctive

intellectual and creative life that are [fundamentally] intrinsically important for

indigenous [peoples] and local communities and have equal scientific value as other

knowledge systems;

Promote awareness and respect

(ii) promote awareness and respect for traditional knowledge systems; for the dignity,

cultural [integrity] heritage and intellectual and spiritual values of the traditional

knowledge [holders]/[owners] who conserve, develop and maintain those systems; for the

contribution which traditional knowledge has made in sustaining the livelihoods and

identities of traditional knowledge [holders]/[owners]; and for the contribution which

traditional knowledge [holders]/[owners] have made to the [conservation of the

environment] conservation and sustainable use of biodiversity, to food security and

sustainable agriculture, healthcare, and to the progress of science and technology;

Alternative

(ii) promote respect for traditional knowledge systems, for the dignity, cultural integrity

and spiritual values of the traditional knowledge holders who conserve and maintain

those systems;

[End of alternative]

Promote [conservation and] preservation of traditional knowledge

(iii) promote and support the [conservation of and] preservation [of] [and respect for]

traditional knowledge [by respecting, preserving, protecting and maintaining traditional

knowledge systems [and providing incentives to the custodians of those knowledge

systems to maintain and safeguard their knowledge systems]];

Consistency with relevant international agreements and processes

(iv) take account of, and operate consistently with, other international and regional

instruments and processes, in particular regimes that relate to intellectual property and

access to and benefit sharing from genetic resources which are associated with that

traditional knowledge;

59

[Promote access to knowledge and safeguard the public domain

(v) recognize the value of a vibrant public domain and the body of knowledge

that is available for all to use, and which is essential for creativity and innovation, and

the need to protect, preserve and enhance the public domain;]

Document and conserve traditional knowledge

(vi) contribute to the documentation and conservation of traditional knowledge,

encouraging traditional knowledge to be disclosed, learned and used in accordance

with relevant customary practices, norms, laws, and/or understandings of traditional

knowledge holders, including those customary practices, norms, laws and/or

understandings that require prior informed consent or approval and involvement and

mutually agreed terms before the traditional knowledge can be disclosed, learned or

used by others;

Promote innovation

(vii) [the protection of traditional knowledge should] contribute toward the promotion

of innovation and to the transfer and dissemination of knowledge to the mutual

advantage of holders and users of traditional knowledge and in a manner conducive to

social and economic welfare and to a balance of rights and obligations;

Provide new rules and disciplines

(viii) [recognize the need for new rules and disciplines concerning the provision of

effective and appropriate means for the enforcement of rights relating to traditional

knowledge, taking into account differences in national legal systems;]

Relationship with customary use

(ix) not restrict the generation, customary use, transmission, exchange and

development of traditional knowledge by the beneficiaries, within and

among communities in the traditional and customary context, [in

accordance with national law].

POLICY OBJECTIVES

This instrument should aim to:

Provide Indigenous [Peoples] and [local communities] [and nations]/[beneficiaries] with the [legal

and practical/appropriate] means, [including effective and accessible enforcement measures/sanctions,

remedies and exercise of rights], to:

a. [prevent] the [misappropriation/misuse/unauthorized use/unfair and inequitable uses] of

their traditional knowledge;

b. [control ways in which their traditional knowledge is used beyond the traditional and

customary context;]

c. [promote [the equitable sharing of benefits arising from their use with prior informed

consent or approval and involvement or approval and involvement]/[fair and equitable

compensation], as necessary; and]

d. encourage [and protect] [tradition-based] creation and innovation.

60

[Prevent the grant of erroneous intellectual property/[patent rights] over [traditional knowledge and

[[traditional knowledge] associated [with] genetic resources].]]

USE OF TERMS

For the purposes of this instrument:

[Misappropriation means

Option 1

any access or use of the [subject matter]/[traditional knowledge] without prior informed consent or

approval and involvement and, where applicable, without mutual agreed terms, for whatever purpose

(commercial, research, academic and technology transfer).

Option 2

is the use of protected traditional knowledge of another where the [subject matter]/[traditional

knowledge] has been acquired by the user from the holder through improper means or a breach of

confidence and which results in a violation of national law in the provider country, recognizing that

acquisition of traditional knowledge through lawful means such as independent discovery or creation,

reading books, receiving from sources outside of intact traditional communities, reverse engineering,

and inadvertent disclosure resulting from the holders’ failure to take reasonable protection measures is

not [misappropriation/misuse/unauthorized use/unfair and inequitable uses.]

[Misuse may occur where the traditional knowledge which belongs to a beneficiary is used by the

user in a manner that results in a violation of national law or measures endorsed by the legislature in

the country where the use is carried out; the nature of the protection or safeguarding of traditional

knowledge at the national level may take different forms such new forms of intellectual property

protection, protection based on principles of unfair competition or a measures-based approach or a

combination thereof.]

[Public domain refers, for the purposes of this instrument, to intangible materials that, by their

nature, are not or may not be protected by established intellectual property rights or related forms of

protection by the legislation in the country where the use of such material is carried out. This could,

for example, be the case where the subject matter in question does not fill the prerequisite for

intellectual property protection at the national level or, as the case may be, where the term of any

previous protection has expired.]

[Publicly available means [subject matter]/[traditional knowledge] that has lost its distinctive

association with any indigenous community and that as such has become generic or stock knowledge,

notwithstanding that its historic origin may be known to the public.]

Traditional knowledge [refers to]/[includes]/[means], for the purposes of this instrument, know-how,

skills, innovations, practices, teachings and learnings of [indigenous [peoples] and [local

communities]]/[or a state or states].

[Traditional knowledge may be associated, in particular, with fields such as agriculture, the

environment, healthcare and indigenous and traditional medical knowledge, biodiversity, traditional

lifestyles and natural resources and genetic resources, and know-how of traditional architecture and

construction technologies.]

[Unauthorized use is use of protected traditional knowledge without the permission of the right

holder.]

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[[“Use”]/[“utilization”] means

(a) where the traditional knowledge is included in a product [or] where a product has been

developed or obtained on the basis of traditional knowledge:

(i) the manufacturing, importing, offering for sale, selling, stocking or using the product

beyond the traditional context; or

(ii) being in possession of the product for the purposes of offering it for sale, selling it or

using it beyond the traditional context.

(b) where the traditional knowledge is included in a process [or] where a process has

been developed or obtained on the basis of traditional knowledge:

(i) making use of the process beyond the traditional context; or

(ii) carrying out the acts referred to under sub-clause (a) with respect to a product that is a

direct result of the use of the process;

(c) the use of traditional knowledge in non-commercial research and development; or

(d) the use of traditional knowledge in commercial research and development.]

ARTICLE 1

SUBJECT MATTER OF [PROTECTION]/[INSTRUMENT]

The subject matter of [protection]/[this instrument] is traditional knowledge:

(a) that is created, and [maintained] in a collective context, by indigenous [peoples] and local

communities [or nations] [,whether it is widely spread or not];

(b) that is [directly] [linked]/[distinctively associated] with the cultural [and]/[or] social

identity and cultural heritage of indigenous [peoples] and local communities [or nations];

(c) that is transmitted from generation to generation, whether consecutively or not;

(d) which may subsist in codified, oral or other forms; and [or]

(e) which may be dynamic and evolving.

[Criteria for Eligibility

Protected traditional knowledge is traditional knowledge that is [distinctively] associated with the

cultural heritage of beneficiaries as defined in Article 2, that is generated, [maintained], shared and

transmitted in a collective context, is intergenerational and has been used for a term as has been

determined by each [Member State]/[Contracting Party] [but not less than 50 years].]

ARTICLE 2

BENEFICIARIES OF PROTECTION

2.1 Beneficiaries [of protection] are indigenous [peoples] and local communities [and/or nations]

who create, [hold], maintain, use and/[or] develop the [subject matter]/[traditional knowledge]

[meeting the criteria for eligibility defined in Article [1]/[3].]

62

Alternative

2.1 [Beneficiaries of [protection] are indigenous [peoples] and local communities[250]

who create,

[hold], maintain, use and/[or] develop the [subject matter]/[traditional knowledge] defined in Article

1.]

[End of alternative]

2.2 [Where the [subject matter]/[traditional knowledge] [is not claimed by specific indigenous

[peoples] or local communities despite reasonable efforts to identify them,] [Member

States]/[Contracting Parties] may designate a national authority as custodian of the

[benefits]/[beneficiaries] [of protection under this instrument] where the [subject matter]/[traditional

knowledge] [traditional knowledge meeting the eligibility criteria in Article 1] as defined in Article 1:

(a) is held by a community [whose] in a territory [is] that is entirely and exclusively

coterminous with the territory of that [Member State]/[Contracting Party];

(b) [is not confined to a specific indigenous [people] or local community;

(c) is not attributable to a specific indigenous [people] or local community; or

(d) [is not claimed by a specific indigenous [people] or local community.]]

2.3 [The [identity] of any national authority established under Paragraph 2 [should]/[shall] be

communicated to the International Bureau of the World Intellectual Property Organization.]

ARTICLE 3

[[CRITERIA FOR AND] SCOPE OF PROTECTION

Scope of Protection

3.1 Where the [subject matter]/[traditional knowledge]/[protected traditional knowledge] is

[sacred], [secret] or [otherwise known] [closely held] within indigenous [peoples] or local

communities, [Member States]/[Contracting Parties] [should]/[shall]:

(a) [ensure that beneficiaries have the exclusive and collective right to]/[provide legal, policy

and administrative measures, as appropriate and in accordance with national law that

allow beneficiaries to]:

i. [create,] maintain, control and develop said [subject matter]/[traditional

knowledge]/[protected traditional knowledge];

ii. discourage the unauthorized disclosure, use or other uses of [secret] [protected]

traditional knowledge;

iii. [authorize or deny the access to and use/utilization of said [subject

matter]/[traditional knowledge]/[protected traditional knowledge] based on prior

and informed consent; and]

250

[Where a [Member State’s]/[Contracting Party’s] constitution [does not recognize] indigenous or local communities, then that [Member State]/[Contracting Party] may act as a beneficiary with regard to the traditional knowledge that exists within its territory.] [Note: This footnote is to be read as part of the alternative to Paragraph 1.]

63

iv. [be informed of access to their traditional knowledge through a disclosure

mechanism in intellectual property applications, which may [shall] require evidence

of compliance with prior informed consent or approval and involvement and

benefit sharing requirements, in accordance with national law and international

legal obligations],

(b) [ensure that]/[encourage] users [to]:

i. attribute said [subject matter]/[traditional knowledge]/[protected traditional

knowledge] to the beneficiaries;

ii. [provide beneficiaries with [a fair and equitable share of benefits]/[fair and

equitable compensation], arising from the use/utilization of said [subject

matter]/[traditional knowledge] based on mutually agreed terms;]

Alternative

ii. enter into an agreement with the beneficiaries to establish terms of use of the

[subject matter]/[traditional knowledge]/[protected traditional knowledge];

[End of alternative]

iii. use/utilize the knowledge in a manner that respects the cultural norms and practices

of the beneficiaries as well as the inalienable, indivisible and imprescriptible nature

of the moral rights associated with the [subject matter]/[traditional

knowledge]/[protected traditional knowledge].

3.2 [Where the [subject matter]/[traditional knowledge]/[protected traditional knowledge]is still

[held], [maintained], used [and]/[or] developed by indigenous [peoples] or local communities, and is

publicly available [but neither widely known, [sacred], nor [secret]], [Member States]/ [Contracting

Parties] [should]/[shall] [ensure that]/[encourage] that users]/[provide legal, policy and administrative

measures, as appropriate and in accordance with national law to [ensure] [encourage] users [to]]:

(a) attribute and acknowledge the beneficiaries as the source of the [subject

matter]/[traditional knowledge]/[protected traditional knowledge, unless the beneficiaries

decide otherwise, or the [subject matter]/[traditional knowledge] is not attributable to a

specific indigenous [people] or local community;

(b) [provide the beneficiaries with [a fair and equitable share of benefits]/[fair and equitable

compensation] arising from the use/utilization of said [subject matter]/[traditional

knowledge]/[protected traditional knowledge] based on mutually agreed terms;]

Alternative

(b) enter into an agreement with the beneficiaries to establish terms of use of the [subject

matter]/[traditional knowledge]/[protected traditional knowledge];

[End of alternative]

(c) [use/utilize the knowledge in a manner that respects the cultural norms and practices of

the beneficiaries as well as the inalienable, indivisible and imprescriptible nature of the

moral rights associated with the [subject matter]/[traditional knowledge]/ [protected

traditional knowledge][; and][.]]

64

(d) [be informed of access to their traditional knowledge through a disclosure mechanism in

intellectual property applications, which may [shall] require evidence of compliance with

prior informed consent or approval and involvement and benefit sharing requirements, in

accordance with national law and international legal obligations].]

3.3 [Where the [subject matter]/[traditional knowledge]/[protected traditional knowledge] is

[publicly available, widely known [and in the public domain]] [not covered under Paragraphs 2 or 3],

and protected under national law, [Member States]/[Contracting Parties] [should]/[shall] [ensure

that]/[encourage] users of said [subject matter]/[traditional knowledge] [to]:

(a) attribute said [subject matter]/[traditional knowledge]/[protected traditional knowledge]

to the beneficiaries;

(b) use/utilize the knowledge in a manner that respects the cultural norms and practices of the

beneficiary as well as the inalienable, indivisible and imprescriptible nature of the moral

rights associated with the [subject matter]/[traditional knowledge]/[protected traditional

knowledge][;] [and]

(c) where applicable, deposit any user fee into the fund constituted by such [Member State]/

[Contracting Party].]

Alternative

3.3 [Protection does not extend to traditional knowledge that is widely known or used outside the

community of the beneficiaries as defined in Article 2.1, [for a reasonable period of time], in the

public domain, protected by an intellectual property right or the application of principles, rules, skills,

know-how, practices, and learning normally and generally well-known.]]

[ARTICLE 3 BIS

COMPLEMENTARY MEASURES

3BIS.1 [Member States]/[Contracting Parties] should [endeavour to], subject to and consistent

with national and customary law:

(a) facilitate/encourage the development national traditional knowledge databases for the

defensive protection of traditional knowledge, [including through the prevention of the

erroneous grant of patents], and/or for transparency, certainty, conservation purposes

and/or transboundary cooperation;

(b) [facilitate/encourage, as appropriate, the creation, exchange and dissemination of, and

access to, databases of genetic resources and traditional knowledge associated with

genetic resources;]

(c) [provide opposition measures that will allow third parties to dispute the validity of a

patent [by submitting prior art];]

(d) encourage the development and use of voluntary codes of conduct;

(e) [discourage information lawfully within the beneficiaries’ control from being disclosed,

acquired by or used by others without the beneficiaries’ [consent], in a manner contrary to

fair commercial practices, so long as it is [secret], that reasonable steps have been taken

to prevent unauthorized disclosure, and has value;]

65

(f) [consider the establishment of databases of traditional knowledge that are accessible to

patent offices to avoid the erroneous grant of patents compile and maintain such

databases in accordance with national law;

i. there should be minimum standards to harmonize the structure and content of such

databases;

ii. the content of the databases should be:

a. languages that can be understood by patent examiners;

b. written and oral information regarding traditional knowledge;

c. relevant written and oral prior art related to traditional knowledge.]

(g) [develop appropriate and adequate guidelines for the purpose of conducting search and

examination of patent applications relating to traditional knowledge by patent offices;]

3BIS.2 [In order to document how and where traditional knowledge is practiced, and to preserve

and maintain such knowledge, efforts [should]/[shall] be made by national authorities to

codify the oral information related to traditional knowledge and to develop databases of

traditional knowledge.]]

3BIS.3 [Member States]/[Contracting Parties] [should]/[shall] consider cooperating in the

creation of such databases, especially where traditional knowledge is not uniquely held

within the boundaries of a [Member States]/[Contracting Parties]. If protected traditional

knowledge pursuant to article 1.2 is included in a database, the protected traditional

knowledge should only be made available to others with the prior informed consent or

approval and involvement of the traditional knowledge holder.

3BIS.4 Efforts[should]/[shall] also be made to facilitate access to such databases by intellectual

property offices, so that the appropriate decision can be made. To facilitate such access,

[Member States]/[Contracting Parties] [should]/[shall] consider efficiencies that can be

gained from international cooperation. The information made available to intellectual

property offices [should]/[shall] only include information that can be used to refuse a

grant of cooperation, and

thus [should]/[shall] not include protected traditional knowledge.

3BIS.5 Efforts [should]/[shall] be made by national authorities to codify the information related

to traditional knowledge for the purpose of enhancing the development of databases of

traditional knowledge, so as to preserve and maintain such knowledge.

3BIS.6 Efforts [should]/[shall] also be made to facilitate access to information including

information made available in databases relating to traditional knowledge by intellectual

property offices.

3BIS.7 Intellectual property offices [should]/[shall] ensure that such information is maintained in

confidence, except where the information is cited as prior art during the examination of a

patent application.]

66

ARTICLE 4

SANCTIONS, REMEDIES AND EXERCISE OF RIGHTS/APPLICATION

4.1 [Member States [should]/[shall] ensure that [accessible, appropriate and adequate] [criminal,

civil [and] or administrative] enforcement procedures[, dispute resolution mechanisms][, border

measures][, sanctions] [and remedies] are available under their laws against the [willful or negligent

[harm to the economic and/or moral interest]] [infringement of the protection provided to traditional

knowledge under this instrument] [[misappropriation/ misuse/unauthorized use/unfair and inequitable

uses] or misuse of traditional knowledge] sufficient to constitute a deterrent to further infringements.]

4.2 The procedures referred to in Paragraph 1 should be accessible, effective, fair, equitable,

adequate [appropriate] and not burdensome for [holders]/[owners] of protected traditional knowledge.

[These procedures should also provide safeguards for legitimate third party interests and the public

interest.]

4.3 [The beneficiaries [should]/[shall] have the right to initiate legal proceedings where their

rights under Paragraphs 1 and 2 are violated or not complied with.]

4.4 [Where appropriate, sanctions and remedies should reflect the sanctions and remedies that

indigenous people and local communities would use.]

4.5 [Where a dispute arises between beneficiaries or between beneficiaries and users of

traditional knowledge, each party [may]/[shall be entitled to] refer the issue to an [independent]

alternative dispute resolution mechanism recognized by international, regional or [, if both parties are

from the same country, by] national law [, and that is most suited to the holders of traditional

knowledge].]

4.6 [Where, under applicable domestic law, the [intentional] wide diffusion of [protected subject

matter]/[traditional knowledge] beyond a recognizable community of practice has been determined to

be the result of an act of [misappropriation/misuse/unauthorized use/unfair and inequitable uses] or

other violation of national law, the beneficiaries shall be entitled to fair and equitable

compensation/royalties.]

[ARTICLE 4 BIS

DISCLOSURE REQUIREMENT

4 BIS.1 [[Patent and plant variety] Intellectual property applications that concern [an invention] any

process or product that relates to or uses traditional knowledge shall include information on the

country from which the [inventor or the breeder] applicant collected or received the knowledge (the

providing country), and the country of origin if the providing country is not the same as the country of

origin of the traditional knowledge. The application shall also state whether prior informed consent or

approval and involvement to access and use has been obtained.]

4 BIS.2 [If the information set out in Paragraph 1 is not known to the applicant, the applicant shall

state the immediate source from which the [inventor or the breeder] applicant collected or received the

traditional knowledge.]

4 BIS.3 [If the applicant does not comply with the provisions in Paragraphs 1 and 2, the application

shall not be processed until the requirements are met. The [patent or plant variety] intellectual

property office may set a time limit for the applicant to comply with the provisions in paragraphs 1

67

and 2. If the applicant does not submit such information within the set time limit, the [patent or plant

variety] intellectual property office may reject the application.]

4 BIS.4 [Rights arising from a granted patent or a granted plant variety right shall not be affected by

[any later discovery of] a failure by the applicant to comply with the provisions in Paragraphs 1 and 2.

Other sanctions, outside of the patent system and the plant variety system, provided for in national

law, including criminal sanctions such as fines, may however be imposed.]

Alternative

4 BIS.4 [Rights arising from a grant shall be revoked and rendered unenforceable when the applicant

has failed to comply with the obligations of mandatory requirements as provided for in this article or

provided false or fraudulent information.]

[End of alternative]

Alternative

[NO DISCLOSURE REQUIREMENT

Patent disclosure requirements shall not include a mandatory disclosure requirement relating to

traditional knowledge unless such disclosure is material to the patentability criteria of novelty,

inventive step or enablement.]

[End of alternative]

ARTICLE 5

ADMINISTRATION [OF RIGHTS]/[OF INTERESTS]

5.1 [Member States]/[Contracting Parties] [may]/[shall] [establish]/[appoint] a competent

authority or authorities, [with the free, prior and informed consent of] [in consultation with]

[traditional knowledge [holders]/[owners]], in accordance with their national law [and without

prejudice to the right of traditional knowledge [holders]/[owners] to administer their rights/interests

according to their customary protocols, understandings, laws and practices].

Optional addition

[Where so requested by the beneficiaries, a competent authority may, to the extent authorized by the

beneficiaries and for their direct benefit, assist with the management of the beneficiaries’

rights/interests under this [instrument].]

[End of optional addition]

Alternative

5.1 [Member States]/[Contracting Parties] may establish a competent authority, in accordance

with national law, to administer the rights/interests provided for by this [instrument].

[End of alternative]

68

5.2 [The [identity] of any authority established under Paragraph 1 [should]/[shall] be

communicated to the International Bureau of the World Intellectual Property Organization.]

[ARTICLE 6

EXCEPTIONS AND LIMITATIONS

General Exceptions

6.1 [Member States]/[Contracting Parties] may adopt appropriate limitations and exceptions

under national law [with the prior informed consent or approval and involvement of the beneficiaries]

[in consultation with the beneficiaries] [with the involvement of beneficiaries][, provided that the use

of [protected] traditional knowledge:

(a) [acknowledges the beneficiaries, where possible;]

(b) [is not offensive or derogatory to the beneficiaries;]

(c) [is compatible with fair practice;]

(d) [does not conflict with the normal utilization of the traditional knowledge by the

beneficiaries; and]

(e) [does not unreasonably prejudice the legitimate interests of the beneficiaries taking

account of the legitimate interests of third parties.]]

6.2 [When there is reasonable apprehension of irreparable harm related to [sacred] and [secret]

traditional knowledge, [Member States]/[Contracting Parties] [may]/[shall]/[should] not establish

exceptions and limitations.]

Specific Exceptions

6.3 [[In addition to the limitations and exceptions provided for under Paragraph 1,] [Member

States]/[Contracting Parties] may adopt appropriate limitations or exceptions, in accordance with

national law, for the following purposes:

(a) teaching, learning, but not research resulting in profit-marking or commercial

purposes;

(b) for preservation, display, research and presentation in archives, libraries, museums or

cultural institutions, for non-commercial cultural heritage or other purposes in the public

interest; and

(c) in the case of a national emergency or other circumstances of extreme urgency [or in

cases of public non-commercial use];

(d) [the creation of an original work of authorship inspired by traditional knowledge.]

This provision, with the exception of Subparagraph (c), [should]/[shall] not apply to traditional

knowledge described in Article 3.1.]

6.3 Regardless of whether such acts are already permitted under Paragraph 1, the following

shall be permitted:

(a) the use of traditional knowledge in cultural institutions recognized under the

69

appropriate national law, archives, libraries, museums for non-commercial cultural

heritage or other purposes in the public interest, including for preservation, display,

research and presentation should be permitted; and

(b) the creation of an original work of authorship inspired by traditional knowledge.]

6.4 [[There shall be no right to [exclude others] from using knowledge that:]/[The provisions of

Article 3 shall not apply to any use of knowledge that:]

(a) has been independently created [outside the beneficiaries’ community];

(b) [legally] derived from sources other than the beneficiary; or

(c) is known [through lawful means] outside of the beneficiaries’ community.]

6.5 [Protected traditional knowledge shall not be deemed to have been misappropriated or

misused if the protected traditional knowledge was:

(a) obtained from a printed publication;

(b) obtained from one or more holders of the protected traditional knowledge with their prior

informed consent or approval and involvement; or

(c) mutually agreed terms for [access and benefit sharing]/[fair and equitable compensation]

apply to the protected traditional knowledge that was obtained, and were agreed upon by

the national contact point.]]

6.6 [[Member States]/[Contracting Parties] may exclude from protection diagnostic,

therapeutic and surgical methods for the treatment of humans or animals.]]

6.7 [National authorities shall exclude from protection traditional knowledge that is already

available without restriction to the general public.]

ARTICLE 7

TERM OF PROTECTION/RIGHTS

[Member States]/[Contracting Parties] may determine the appropriate term of protection/rights of

traditional knowledge in accordance with [Article 3/[[which may] [should]/[shall] last as long as the

traditional knowledge fulfills/satisfies the [criteria of eligibility for protection] according to Article

[1]/[3].]]

ARTICLE 8

FORMALITIES

Option 1

8.1 [Member States]/[Contracting Parties] [should]/[shall] not subject the protection of traditional

knowledge to any formality.

70

Option 2

8.1 [[Member States]/[Contracting Parties] [may] require formalities for the protection of

traditional knowledge.]

Alternative

[The protection of traditional knowledge under Article 3.1 [should]/[shall] not be subject to any

formality. However, in the interest of transparency, certainty and the conservation of traditional

knowledge, the relevant national authority (or authorities) or intergovernmental regional authority (or

authorities) may maintain registers or other records of traditional knowledge to facilitate protection

under Articles 3.2 and 3.3.]

[End of alternative]

ARTICLE 9

TRANSITIONAL MEASURES

9.1 These provisions [should]/[shall] apply to all traditional knowledge which, at the moment of the

provisions coming into force, fulfills the criteria set out in Article [1]/[3].

Optional addition

9.2 [[Member States]/[Contracting Parties] [should]/[shall] ensure [the necessary measures to

secure] the rights [acknowledged by national law] already acquired by third parties are not affected, in

accordance with its national law and its international legal obligations.]

Alternative

9.2 [[Member States]/[Contracting Parties] [should]/[shall] provide that continuing acts in respect

of traditional knowledge that had commenced prior to the coming into force of this [instrument] and

which would not be permitted or which would be otherwise regulated by this [instrument], [should be

brought into conformity with these provisions within a reasonable period of time after its entry into

force[, subject to respect for rights previously acquired by third parties in good faith]/should be

allowed to continue].

Alternative

9.2 [Notwithstanding Paragraph 1, [Member States]/[Contracting Parties] [should]/[shall] provide

that:

(a) anyone who, before the date of entry into force of this instrument, has commenced

utilization of traditional knowledge which was legally accessed, may continue such utilization

of the traditional knowledge[, subject to a right of compensation];

(b) such right of utilization shall also, on similar conditions, be enjoyed by anyone who

has made substantial preparations to utilize the traditional knowledge.

(c) the foregoing gives no right to utilize traditional knowledge in a way that contravenes

the terms the beneficiary may have set out as a condition for access.]

71

[ARTICLE 10

RELATIONSHIP WITH OTHER INTERNATIONAL AGREEMENTS

This instrument [should]/[shall] establish a mutually supportive relationship [between [intellectual

property [patent] rights [directly based on] [involving] [the utilization of] traditional knowledge and

with relevant [existing] international agreements and treaties.]

[ARTICLE 11

NATIONAL TREATMENT

[The rights and benefits arising from the protection of traditional knowledge under national/domestic

measures or laws that give effect to these international provisions [should]/[shall] be available to all

eligible beneficiaries who are nationals or residents of a [Member State]/[Contracting Party]

[prescribed country] as defined by international obligations or undertakings. Eligible foreign

beneficiaries [should]/[shall] enjoy the same rights and benefits as enjoyed by beneficiaries who are

nationals of the country of protection, as well as the rights and benefits specifically granted by these

international provisions.]

Alternative

[Nationals of a [Member State]/[Contracting Party] may only expect protection equivalent to that

contemplated in this instrument in the territory of another [Member State]/[Contracting Party] even

where that other [Member State]/[Contracting Party] provides for more extensive protection for their

nationals.]

[End of alternative]

Alternative

[Each [Member State]/[Contracting Party] [should]/[shall] in respect of traditional knowledge that

fulfills the criteria set out in Article 1, accord within its territory to beneficiaries of protection as

defined in Article 2, whose members primarily are nationals of or are domiciled in the territory of, any

of the other [Member States]/[Contracting Parties], the same treatment that it accords to its national

beneficiaries.]

[End of alternative] ]

ARTICLE 12

TRANSBOUNDARY COOPERATION

12.1 In instances where the same [protected] traditional knowledge [under Article 3] is found within

the territory of more than one [Member State]/[Contracting Party], those [Member

States]/[Contracting Parties] [should]/[shall] endeavour to cooperate, as appropriate, with the

involvement of indigenous and local communities concerned, where applicable, with a view to

implementing this [instrument].

72

12.2 Where the same [protected] traditional knowledge [under Article 3] is shared by one or more

indigenous and local communities in several [Member States]/[Contracting Parties], those [Member

States]/ [Contracting Parties] [should]/[shall] endeavour to cooperate, as appropriate, with the

involvement of the indigenous and local communities concerned, with a view to implementing the

objectives of this [instrument].

[End of Annex and of Document]

73

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- Working Paper by the Chairperson-Rapporteur, Erica-Irene A. Daes, on the concept of

"indigenous people" (E/CN.4/Sub.2/AC.4/1996/2) 10 June 1996

- World Bank Operational Manual, Operational Directive : Indigenous Peoples, Sept. 1991,

available at : http://www.ifc.org/wps/wcm/connect/835cc50048855270ab94fb6a6515bb18/-

OD420_IndigenousPeoples.pdf?MOD=AJPERES (accessed 15/08/2014)

82

Case-laws

- Ashdown v Telegraph Group [2001] 1 Ch 685 ChD

- Cour de Cassation, Ch. com., 18 Feb. 2004, 02-10.576 “Caron”

- Foster and Others v Mountford and Rigby Ltd (1976) 14 ALR 71

- Milpurrurru v Indofum (Pty) Ltd., [1990] 30 IPR 209

- Yumbulul v Reserve Book of Australia [1991], 21 IPR 48

Websites

- http://ab-ed.boardofstudies.nsw.edu.au/go/aboriginal-art/protecting-australian-indigenous-

art/background-information/proposals-for-change/indigenous-communal-moral-rights-icmr

(accessed 17/08/2104).

- http://www.wipo.int/

- www.wto.org

- www.cbd.int/