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HIVE: Protecting Traditional Knowledge, Traditional Culture Expression of Indigenous Peoples and Local Communities

The definition of TK, TCEs, and examples examples under various legal regimes will be investigated. Available Intellectual Property tools to protect TK and TCEs. The rationale, objectives and methodology of the negotiations under the Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (IGC) under the World Intellectual Property Organization (WIPO) will also be examined.

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HIVE: Protecting Traditional Knowledge, Traditional Culture Expression of Indigenous Peoples and Local Communities

  1. 1. Protecting TK and TCEs of Indigenous Peoples and Local Communities Community Intellectual Property Rights Webinar Series – Webinar 2
  2. 2. Objectives of Webinar 2 • Review what traditional knowledge (TK) and traditional cultural expressions (TCEs) are, their definitions and examples under various legal regimes. • Identify available Intellectual Property tools to protect TK and TCEs and provide actual examples. • Examine the rationale, objectives and methodology of the negotiations under the WIPO Inter-governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (IGC).
  3. 3. Outline of the Session 1. Review of the Intellectual Property (IP) System and IP Tools. 2. What are Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs)? 3. Does the IP system protect TK and TCEs? 4. If it doesn't, should the IP system protect TK and TCEs? And if so, how? • Why should TK and TCEs be protected? • What do we mean by protected? Legal protection? National or international protection?
  4. 4. Intellectual Property Rights: An Exchange Protection of the moral and economic rights of creators Public access to the fruits of creativity
  5. 5. 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.
  6. 6. Intellectual Property – What for? Provides recognition for and commercial reward from creations and inventions: • Patents • Industrial designs • Copyright Helps to differentiate goods and services and to make them more attractive to consumers: • Trademarks • Geographical indications
  7. 7. Review: What IP tool was used here?
  8. 8. Review: What IP tool was used here?
  9. 9. Review: What IP tool was used here?
  10. 10. Review: What IP tool was used here?
  11. 11. Review: What IP tool was used here?
  12. 12. Review: What IP tool was used here?
  13. 13. Summary of IP Tools Patents Copyright Trademarks Geographical indications Industrial designs Trade secrets …
  14. 14. What is Traditional Knowledge • Includes know-how, practices, skills, and innovations • resulting from intellectual activity • in a traditional context • passed from generation to generation • that forms part of the traditional lifestyle of indigenous peoples and local communities
  15. 15. Exercise: Are these TK? • The use of Ayahuasca in the western Amazon to prepare various medicines • The recipe of vegetable soup which Emma’s Grandma told her • The use of the Hoodia cactus by Kung Bushmen in Africa to stave off hunger
  16. 16. Exercise: are these TK? • The use of plao noi in Thai communities to treat peptic ulcer • The use of parts of the neem tree to cure many ailments • Bedtime rituals used by many families in a community • Production of a variety of red rice called “Balatinao” by farmers in an upland community
  17. 17. What are Traditional Cultural Expressions? • Forms in which traditional culture is expressed • Form part of the identity and heritage of a traditional or indigenous community / nation • Are passed down from generation to generation
  18. 18. Shavante Indians using Buriti sticks to make a fire (UN Photo/Joseane Daher) A woman from the Ndebele tribe carries a traditional beer container (UN Photo/P Mugubane) Timorese in traditional dress take part in a ceremony (UN Photo/Martine Perret) Traditional dancers perform during the pre-independence march and rally of the Sudan People's Liberation Movement (UN Photo/Paul Banks ) Examples of TCEs
  19. 19. Examples of TCEs “Phu Cam” – vietnamese conical hat Toraja Carving from Sulawesi, Indonesia Bunong traditional dress from Mondulkiri, Cambodia Traditional Kachin Dance, Myanmar
  20. 20. What do these have in common?
  21. 21. However, gaps remain. • Public domain • Copying vs. inspiration • Offensive marks • While innovations based on TK and creations based on TCEs can be protected, the ‘underlying’ TK and/or TCEs are NOT protected, despite the fact that it is valuable and important
  22. 22. Some key questions 1. Should underlying TK and TCEs be “protected” in the intellectual property sense? 2. If so, what does “protected” mean? • Safeguarding or preservation? • National vs. international level protection? • Non-legal forms of protection? Trade WTO Biodiversity CBD, Nagoya Food and agriculture FAO International Treaty Human rights UNDRIP Universal Declaration Cultural heritage and cultural diversity UNESCO 2003 and 2005 Innovation and creativity Intellectual Property Conventions WIPO IGC
  23. 23. What does “protection” mean? 1. Legal protection 2. Treating TK as intellectual property: Holders have a say over access and use of TK by third parties 3. Using intellectual property principles and values to prevent unauthorized or inappropriate uses of TK by third parties (misuse and misappropriation) 4. Sui generis protection: Intellectual property adapted to respond to the particular features of TK
  24. 24. How to “protect”? • Legal measures? • Practical measures? • National level? • Regional level? • International level?
  25. 25. Legal Measures: Positive Protection
  26. 26. Adapted national law – New Zealand Trade Marks Act 2002 • Mark cannot be registered if offensive, including to Maori: s 17(1)(c) • Establishes a Maori Advisory Committee, which advises on whether the mark is offensive or not: s 178
  27. 27. Adapted national law – New Zealand Trade Marks Act 2002 • Mark cannot be registered if offensive, including to Maori: s 17(1)(c) • Establishes a Maori Advisory Committee, which advises on whether the mark is offensive or not: s 178
  28. 28. Sui generis national laws: Cook Islands Traditional Knowledge Act 2013 • Provides IP legal protection to “traditional knowledge” • Key features: • TK defined: knowledge, passed down from generation to generation, and includes: stories, carvings, music, ceremonies, transport, medicines etc.: s 4 • Rights holders: entitled to use, licence, generate commercial income from their TK (unless sacred knowledge) among other things: s 7 • But the TK must be registered for rights to be triggered: s 7 • Once registered, you can prevent others from using the TK – only with your express authorization: s 8
  29. 29. Sui generis national laws: Cook Islands Traditional Knowledge Act 2013 • Cannot use registered TK in a derogatory way: s 10 • Cannot use sacred TK in any way, without permission of rights-holders: s 12 • Rights are not limited in time, but exist in perpetuity: s 13(1)(b) • Detailed registration process: Parts 3 and 5 • Purpose: record TK and notify those of who owns certain TK to prevent unintended use • Detailed enforcement proceedings: Part 4 • Damages; injunctive relief: s 35 • Fines up to $500,000 NZD for use of sacred knowledge: s 45 • Delivery up; disposal of infringing works: ss 48 and 49
  30. 30. Peru - Law No. 27811 of 24 July 2002 Protection regime for the collective knowledge of indigenous peoples derived from biological resources • Collective knowledge connected with biological resources • Prior informed consent • License contracts for the use of collective knowledge • Benefit-sharing / Fund for the Development of Indigenous Peoples • Public register / Confidential register / Local registers • Role of the State • References to customary laws • Different rules for collective knowledge in the public domain
  31. 31. Peru - Law No. 27811 of 24 July 2002 Protection regime for the collective knowledge of indigenous peoples derived from biological resources IP Industrial property Patents Designs Brands Copyright Sui generis protection for TK
  32. 32. Other laws? http://www.wipo.int/tk/en/databases/tklaws/
  33. 33. Defensive Protection
  34. 34. The Indian Traditional Knowledge Digital Library (TKDL) • Objective: Prevent misappropriation of Indian TK • Break language and format barriers • Input: Ayurvedic, Unani, Siddha and Yoga systems of medicine in local languages • Output: Multilingual database (English, French, Spanish, German and Japanese) • For use of International Patent Offices, in the framework of access and non disclosure agreements: • For search and examination only … can give print outs to patent applicants for citation purposes • The content should not be disclosed to third parties
  35. 35. National Commission against Biopiracy (Peru) • Task: Developing actions to identify, prevent and avoid acts of biopiracy with the aim of protecting the interests of the Peruvian State. • Main functions: • provide protection against acts of biopiracy; • identify and follow up patent applications made or patents granted abroad that relate to Peruvian biological resources or collective knowledge of the indigenous peoples of Peru; • make technical evaluations of the above-mentioned applications and patent grants; • issue reports on the cases studied; • lodge objections or institute actions for annulment concerning the above-mentioned patent applications or patent grants;
  36. 36. Plant PATENT OR PATENT APPLICATION IP OFFICE STATUS Maca A preparation for fertility treatment (WO2008012628) EPO Rejected Yacón “Method for recovering and ameliorating diabetes” (2011-079806) Japan Abandoned Maca “Agent for preventing on treating osteoporosis” (2010-235533) Japan Abandoned Maca Compositions and methods for their preparation from Lepidium (WO 0051548 ) EPO Rejected Maca Functional Food Product Containing Maca (Publicación N° 2004-000171) Japan Rejected Maca Ameliorant for sleep disturbance (JP2007031371) Japan Rejected Maca The manufacturing method and composition of a maca extract (Kr20070073663) Rejected Maca Testosterona increasing composition (jp2005306754) Japan Rejected Sacha inchi An extract of a plant belonging to the genus Plukenetia volubilis and its cosmetic use. (WO/2006/048158 ) PCT Withdrawn Sacha inchi Utilisation d’huile et de protéines extraites de graines de Plukenetia volubilis linneo dans des préparations cosmétiques, dermatologiques et nutraceutiques. (FR 2880278) France Rejected Camu camu Preserves of fruit of Myrciaria dubia (Publicación N° 09 – 215475) Japan Abandoned Pasuchaca Inhibidor de α-glycosidase (P2005-200389A) Japan Abandoned
  37. 37. Practical Measures
  38. 38. The British Library Archival Sound Recordings • Non-legal measure • In collaboration with WIPO, it developed the following statement regarding the ethical and permitted use of all recordings from their archive:
  39. 39. The British Library Archival Sound Recordings • “… These recordings should not be altered… in ways that might be derogatory to the indigenous and local communities who are the traditional custodians…” • “While the British Library… may be the owner of the intellectual property in the digitization of the sound recordings… broader rights may… reside with the traditional custodians. Therefore, the prior information consent of the Library … as well as the traditional custodians is required for the republication and commercial use… of these materials…”
  40. 40. Best practice guides – Festivals • Three stage approach: • Developing a “Respect Strategy” • Preparing signs, notices and warnings • Monitoring infringements • Signs to appear at: • Ticket sales; site / venue; information leaflet; programs and tickets; website • Options: • (1) No filming at all • (2) Some filming, but for personal use / permission of custodians
  41. 41. Community Protocols • Community decides protocols for third parties accessing their traditional knowledge • Community determining their own rules • They will be unique to each community; dynamic and will change and evolve • No one size fits all • Example: The Ara Irititja Project (Australia) – community protocol that researchers must follow certain guidelines to access certain materials. Includes things like: • Confidentiality • Ownership rights and copyright resides with community (even for new materials generated)
  42. 42. International Level Protection
  43. 43. Normative Development at WIPO: the IGC • WIPO Intergovernmental Committee – 2000 • Forum where negotiations take place on international legal instruments • Member States, indigenous and local communities, business, civil society and other NGOs • In a way, this is a Forum where dialogues could take place between scientists and TK holders, but not in a systematic way
  44. 44. The current draft on TK protection includes: •Free, prior and informed consent •Collective rights, for Indigenous Peoples •Indefinite term of protection •Customary law •Disclosure of origin in patent applications
  45. 45. Homework for Webinar 3 • Three case studies will be distributed to the participants by email • There are sets of questions in the case studies that participants will need to answer in preparation for the nest webinar • All the questions can be answered using what we have learned from webinars 1 and 2
  46. 46. Iyaman! Maraming Salamat! Thank You!

The definition of TK, TCEs, and examples examples under various legal regimes will be investigated. Available Intellectual Property tools to protect TK and TCEs. The rationale, objectives and methodology of the negotiations under the Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (IGC) under the World Intellectual Property Organization (WIPO) will also be examined.

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