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HIVE: Introduction to the Intellectual Property Regime

As NTFP-EP is proudly launching HIVE, its new e-learning platform, we're opening the second quarter of the year is a series of webinars designed to build capacity on how local and indigenous communities can use existing tools and mechanisms to protect their intellectual property rights over their traditional knowledge and traditional cultural expressions. This is a recording of the first of three webinars on intellectual property rights.

Introduction to the Intellectual Property Regime

An overview of the main principles of the Intellectual Property System from a traditional knowledge perspective will be presented. There will also be an exploration of the potential value that Intellectual Property could bring in support of traditional knowledge protection. Gaps within the Intellectual Property System will also be discussed along with the examination of various Intellectual Property Tools and their potential for protecting traditional knowledge. Particular focus will be given to the Madrid Protocol.

Uploaded April 12, 2018 14:00-16:00 UTC +8

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HIVE: Introduction to the Intellectual Property Regime

  1. 1. The e-Learning Platform
  2. 2. INTRODUCTIONTO INTELLECTUAL PROPERTY ATTY. JENNIFER CORPUZ PROGRAMME COORDINATOR,TEBTEBBA FOUNDATION
  3. 3. Session Objectives ■ Be familiar with the current international system for the protection of intellectual property (IP), as well as the basic IP tools; ■ Identify the limitations of and opportunities provided by the IP system for the protection of traditional knowledge (TK); ■ Know about the Madrid System for the International Registration of Marks.
  4. 4. Outline ■ Basic Principles of the Intellectual Property System ■ Intellectual PropertyTools ■ The IP System andTraditional Knowledge (TK) andTraditional Cultural Expressions (TCEs) ■ The Madrid System
  5. 5. Basic Principles ■ Creations of the human mind / Intellectual creations – Intangible ■ Legal Property; Exclusive and Private Rights ■ Formality – registration ■ Limits – Temporal (time) – Geographical (territory) – Public Domain
  6. 6. Intellectual Property Rights: An Exchange Protection of the moral and economic rights of creators Public access to the fruits of creativity
  7. 7. Milestones : 1883 to 2018 Paris Convention 1883 1886 1891 1893 1925 1960 1967 1970 1989 2002 Berne Convention Madrid Agreement BIRPI Hague Agreement BIRPI moves to Geneva WIPO Convention WIPO established PCT Madrid Protocol Internet Treaties 2009 STLT 2010
  8. 8. Basic facts aboutWIPO ■ WIPO’s Mission: To promote the protection of IP rights worldwide and extend the benefits of the international IP system to all Member States ■ Status: A self-funded specialized agency of the UN & international intergovernmental organization ■ Member States: 191 ■ Staff: 950 from 101 countries ■ Treaties Administered: 26 ■ Decisions by: General Assembly, Assemblies of Member States of Each Union, WIPO Coordination Committee, WIPO Conference
  9. 9. What doesWIPO do?
  10. 10. WIPO External Offices Rio de Janeiro, Brazil Tokyo, Japan Beijing, China Moscow, Russia Singapore, Singapore
  11. 11. National IP Offices
  12. 12. Example: IP &TK Legal Landscape of the Philippines  Describe the main attributes of the product  Link the product attributes to customer needs Legislation SUBJECT MATTER Indigenous Peoples' Rights Act (IPRA. Republic Act 8371) -rights to self-determination; cultural integrity; free and prior informed consent (FPIC); ancestral domains Cultural Heritage Act (Republic Act 10066) Protection of elements of cultural heritage Wildlife Act (Republic Act 9147) Traditional use; right to FPIC in bioprospecting activities Traditional and Alternative Medicine Act (Republic Act 8423) Right to a share from the commercialization of traditional medicine knowledge Plant Variety Protection Act (Republic Act 9168) Farmers' rights to save, exchange, use, share and sell seeds Intellectual Property Code (Republic Act 9283) Sui generis protection of plant varieties and animal breeds and a system of protection for community intellectual rights
  13. 13. Intellectual Property Tools Time Limited Territorial Exclusive Industrial Property - patents - trademarks - industrial designs - geographical indications Copyright & Related Rights - literary, artistic, musical works - actors, music distributors, etc.
  14. 14. Intellectual PropertyTools 1. Copyright 2. Patents 3. Trademarks 4. Geographical Indications 5. Unfair Competition 6. Industrial Design 7. Trade Services
  15. 15. Copyright ■ Protects the expression of ideas, not the idea per se ■ Works must be original ■ Copying is prohibited ■ No formalities – registration not necessary
  16. 16. Books, songs, paintings, drawings, films, newspapers, magazines Examples
  17. 17. Patents ■ Protects inventions – new and inventive products and processes. ■ An invention is: – A technical solution to a problem (or product) or – A new way of doing something (a process)
  18. 18. Patents
  19. 19. Trademarks
  20. 20. Source: IP Office, Peru Source: http://www.ic.gc.ca/app/opic- cipo/trdmrks/srch/viewTrademark?id=0792174&l ang=eng&tab=reg (Canadian IP Office)
  21. 21. Trademarks ■ Sign that protects brands and reputations – important for marketing ■ Consists of: words, letters, numbers, symbols, shape and packaging of goods, sounds or fragrances can be subject of a mark ■ Elements: the mark – Must be distinctive – Cannot be generic, descriptive or deceptive – Should not be identical or confusingly similar ■ Usually required to be registered ■ Prevent others from using it in a certain territory for certain goods/services ■ 10 years duration; renewable
  22. 22. Trademarks ■ Examples: logos, drawings, packaging ■ Collective (Peru, Philippines) & certification (Cowichan) marks Source: IP Office, Peru Source: http://www.ic.gc.ca/app/opic- cipo/trdmrks/srch/viewTrademark?id=0792174&l ang=eng&tab=reg (Canadian IP Office)
  23. 23. Geographical Indications ■ Sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin ■ Geographical origin may be important because: – Natural factors – i.e., local soil, climate etc. – Human factors – i.e., skills, knowledge, practices/traditions ■ Examples: champagne, Darjeeling for tea from India – Other products: agricultural products, wines, spirits, handicrafts
  24. 24. Geographical Indications
  25. 25. Industrial Designs ■ Protect the aesthetic or ornamental aspect of a product, or how it looks rather than how it works or what it does (functionally) ■ Only new designs are protected – must differ from existing designs ■ Usually must be registered for protection - filing an application and paying a fee (though can be protected by copyright of unfair competition laws too)
  26. 26. Industrial Designs
  27. 27. Unfair Competition ■ Prevents: – the false labelling of products – creating confusion discrediting other brands – Passing off your product as if it was something else ■ Supplements other IP regimes ■ No registration required
  28. 28. Trade Secrets ■ Also called “Confidential Information” ■ Protects secret knowledge, such as manufacturing processes, secret ingredients etc. ■ Prevents someone from using the information if it is secret, indefinitely ■ Will not protect where there has been incidental / independent discoveries ■ No registration required ■ Has protected tribal secrets in the past (Foster v Mounford)
  29. 29. Trade Secrets (or Confidential Information)
  30. 30. Summary Patents Copyright Trademarks Geographical indications Industrial designs Trade secrets …
  31. 31. INTELLECTUAL PROPERTY AND TK: WHAT ARETHE ISSUES?
  32. 32. Dancing and Music Performance, Solomon Islands, 2012
  33. 33. Copper Work, Oman, 2010
  34. 34. Orchid, Bhutan, 2011
  35. 35. Traditional Knowledge of Indigenous Peoples in the Philippines
  36. 36. Traditional Knowledge of Indigenous Peoples in the Philippines
  37. 37. «Traditional Knowledge » know-how, innovations, information, practices, skills, learning ex.: hunting, fishing techniques, traditional medicine, migration patterns, hybridization, etc.
  38. 38. «Traditional Cultural Expressions » Forms in which culture and knowledge are expressed, elements of cultural heritage Ex: rituals, songs, dances, paintings, drawings, crafts, poems, tales, textiles...
  39. 39. « Genetic resources » Genetic material of actual or potential value Genetic material: any material of plant, animal, microbial or other origin containing functional units of heredity Convention on Biological Diversity, 1992 Ex.: medicinal plants, traditional crops, animal breeds
  40. 40. Traditional Knowledge vs. Intellectual Property System Traditional Knowledge Intellectual Property Creation Collective Individual Maintenance Collective Individual Ownership Collective Individual Term of Ownership Indefinite Fixed Public domain No Yes
  41. 41. What does “protection” mean?
  42. 42. Trade WTO Biodiversity CBD, Nagoya Protocol Food and agriculture FAO International Treaty Human rights UNDRIP Universal Declaration on Human Rights ILO Convention 169 Cultural heritage and cultural diversity UNESCO 2003 and 2005 Innovation and Creativity/IP IP Conventions WIPO IGC Health WHO
  43. 43. What does protection mean under the intellectual property system? TreatingTK andTCEs as Intellectual Property Have a say over access and use ofTK/TCEs by third parties Using IP principles and values to prevent misuse and misappropriation [exclusive rights model] Property rights + prevention of access and use without PIC [moral rights model] Acknowledgement of source + prevention against derogatory use [access and benefit-sharing / “use now, pay later” models] Benefit-sharing / compensation Balance and proportionality: IP rights do not provide absolute and perfect control: limitations and exceptions / limited term / public domain
  44. 44. Example ofTK Protection from the Philippines: Joint IPOPHL-NCIP Administrative Order “Rules and Regulations on Intellectual Property Rights Application and Registration Protecting the Indigenous Knowledge Systems and Practices of the Indigenous Peoples and Indigenous Cultural Communities”
  45. 45. Draft IPOPHL-NCIPAdministrative Order ■ Scope: “examination and registration on intellectual property applications that use indigenous knowledge, systems and practices (IKSP) of indigenous peoples” ■ Objectives: 1. Harmonized rules to protect intellectual creations of indigenous peoples 2. Provide institutional arrangements between IPOPHL and NCIP 3. Prevent misappropriation of IKSP
  46. 46. Salient Features of the Draft Joint Administrative Order  IPRs applicants required to disclose IKSP used (mandatory disclosure)  If registration not required – disclosure in all communication of subject matter to the public  IPOPHL may, motu proprio or upon request, refer applications to NCIP for verification of ownership and compliance with free, prior and informed consent (FPIC) requirements  Registration only upon compliance with disclosure and evidence of FPIC and benefit-sharing  IPOPHL reserves judgment to determine registration, existence of misappropriation  Collective management by IPs of artistic/literary work
  47. 47. THE MADRID SYSTEM FORTHE INTERNATIONAL PROTECTION OF MARKS
  48. 48. The Madrid System ■ Madrid Agreement Concerning the International Registration of Marks (1891) ■ The Protocol Relating to the Madrid Agreement (1989) – entered into force on December 1, 1995 – came into operation on April 1, 1996. ■ Administered by the International Bureau of theWorld Intellectual Property Organization (WIPO) – maintains the International Register – publishes theWIPO Gazette of International Marks
  49. 49. Members of the Madrid Union - 116 ■ Bahrain ■ Bhutan ■ Brunei Darussalam ■ Cambodia ■ China ■ North & South Korea ■ India ■ Indonesia ■ Japan ■ LAO PDR ■ Philippines ■ Singapore ■ Thailand ■ Vietnam
  50. 50. Objectives of the Madrid System 1. Facilitate the obtaining of protection for marks (trademarks and service marks) – International Register = bundle of national registrations 2. Provides for ease of protection and management of marks – Renewal – Amendment – Limitation
  51. 51. How the Madrid SystemWorks
  52. 52. Conclusion ■ Although there are gaps, it is possible to provide protection forTK andTCEs using the tools available in the current international system for protection of intellectual property ■ The next session will delve more deeply into the gaps and limitations, as well as good practices (examples), in using the current intellectual property system to protectTK andTCEs
  53. 53. Thank you! Next Session: ProtectingTraditional Knowledge,Traditional Cultural Expression of Indigenous Peoples and Local Communities May 3, 2018 14:00 UTC +8 bit.ly/NTFPProtectingTK

As NTFP-EP is proudly launching HIVE, its new e-learning platform, we're opening the second quarter of the year is a series of webinars designed to build capacity on how local and indigenous communities can use existing tools and mechanisms to protect their intellectual property rights over their traditional knowledge and traditional cultural expressions. This is a recording of the first of three webinars on intellectual property rights. Introduction to the Intellectual Property Regime An overview of the main principles of the Intellectual Property System from a traditional knowledge perspective will be presented. There will also be an exploration of the potential value that Intellectual Property could bring in support of traditional knowledge protection. Gaps within the Intellectual Property System will also be discussed along with the examination of various Intellectual Property Tools and their potential for protecting traditional knowledge. Particular focus will be given to the Madrid Protocol. Uploaded April 12, 2018 14:00-16:00 UTC +8

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