Presentation on theme: "Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions WIPO Headquarters Geneva, May 28, 2010."— Presentation transcript:
1 Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural ExpressionsWIPO HeadquartersGeneva, May 28, 2010
2 Outline Traditional Knowledge and Traditional Cultural Expressions Value of and Threats toIntellectual Property: Part of the Solution or Part of the Problem?The Contribution of IP: Actual and PotentialGenetic ResourcesWhat is the IP Question?The IGC and its new MandateConclusions
4 Traditional knowledge and traditional cultural expressions/expressions of folklore
5 The value and importance of traditional knowledge systems and expressions of traditional cultures biodiversity conservationfood securityenvironmental managementsustainable developmentprimary healthcarecultural identity and social cohesioncultural diversityimprovement of socio-economic livelihoods
6 Threats to their viability and maintenance: rejection of traditions by younger generations: the pull of modernitylack of respect for indigenous knowledge: prejudice against (“unscientific”)acculturation and diffusion: migration, urbanizationunauthorized commercial exploitation: challenges posed by new technologies
7 Cultural and biological heritage Human rights Intellectual property Approaches to “protection”Cultural and biological heritageHuman rightsIntellectual property“Stewardship”Self-determination, identity, culture“Ownership”Safeguarding of intangible cultural heritage (UNESCO Convention, 2003)Respect for and preservation and maintenance knowledge, innovations and practices…relevant for the conservation of biodiversity (CBD, 1992)Economic and moral rights under IP treaties (e.g.., Paris Convention, 1883, Berne Convention, 1886)Rights and interests under human rights conventions and declarations (eg., ILO, 1969, UNDRIP, 2007)
8 “Intellectual property” – creations and innovations of the human mind Intellectual property “protection” – provides creators and innovators with possibility to regulate access to and use of their works if they so wish, and with rights of attribution and integrityIP: proprietary and non-proprietary rightsIP rights do not provide perfect control: limitations and exceptions/ the public domainIP “protection” is not the same as “preservation/safeguarding”The world of IP is in transformation – e.g.., a2k movement
9 Intellectual property and TK/TCEs – a mismatch? “A song or story is not a commodity or a form of property but one of the manifestations of an ancient and continuing relationship between people and their territory”
10 Yet - protection of TK/TCEs can be achieved through judicious use of IP principles and systems: new applications of core values embedded in IP systemsFocus has been on prevention of acts by third parties beyond the community that are considered acts of misappropriation and misuseHow to avoid inappropriate forms of protection that interfere with communities’ own values and customary law and protocolsHow to respect other processes and integrate IP’s contribution within the holistic preservation, promotion and conservation of TK/TCEs
11 To what extent do existing IP systems protect TK and/or TCEs? What “gaps” are there?Should any gaps be filled?
12 Can existing IP systems protect TK and TCEs? Copyright and patent protection for contemporary creation and innovation based on TK and TCEsCopyright for unpublished works of unknown authors (Berne, 15.4)Related rights protection of recordings of cultural expressions and for “performers of expressions of folklore” (WIPO Performances and Phonograms Treaty, 1996)Databases and compilations of TK and TCEs can be protectedCollective trademarks/GIs can protect TK products (eg., foods, agricultural products, crafts) against passing offProtection of confidential information for secret TK and TCEsProtection against “unfair competition”
13 If at all, how should gaps be filled? Adjust/extend existing IP systems?Establish new, specific, distinct IP systems and mechanisms?Private law-making?Publicly-created law?
15 Age-old trade in animal and plant species Trade in species regulated by CITES; biodiversity conservation, use and equitable benefit-sharing governed by the CBDWhat does the protection of “genetic resources” in relation to IP refer to?GRs as such may not be IP; therefore may not be susceptible of direct protection by IP systemsRelationship between patent system and conservation, sustainable use and equitable benefit-sharing in biodiversity (objectives of CBD, 1992)
17 The Intergovernmental Committee: Origins Amendment of the Berne Convention, 1967Tunis Model Law on Copyright, 1976WIPO-UNESCO Model Provisions, 1982WIPO Performances and Phonograms Treaty, establishment of WIPO’s “Global Issues” Program:Roundtable and fact-finding missions: 1998 and 1999WIPO-UNESCO regional consultations: 1999Sub-regional consultations: 2000 and 2001Establishment of the Intergovernmental Committee: 2000
18 The Intergovernmental Committee: Key features Inclusion and consultationClarity and understanding“Protection” and not “preservation”“Defensive” and “positive” protection“Traditional”“Sui generis”“Originality” – between “inspiration” and “misappropriation”The “public domain”“Pre-existing” and “contemporary”: the adaptation rightContent and context
19 The Draft Provisions on TCEs and TK Draft provisions on TK and TCEsLists of Issues,Gap analyses, 2008Compilations, Factual Extractions and African Group commentsComments
20 New IGC mandatetext-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection of GRs, TK and TCEsa clearly defined work program. . . four sessions of the IGC and three inter-sessional working groups, in the bienniumbuild on the existing work of the IGC use all WIPO working documents, including WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5 and WIPO/GRTKF/IC/11/8Athe Committee is requested to submit to the 2011 General Assembly the text of an international legal instrument (or instruments). The General Assembly in 2011 will decide on convening a Diplomatic Conference“without prejudice to the work pursued in other fora”“bearing in mind the Development Agenda recommendations”
21 Draft Provisions: Some Key Issues Why protect? (Policy Objectives and Principles)Definition of the subject matter ?Beneficiaries?Which acts should be prevented?Exceptions and limitations?Fair and equitable benefit-sharing?Prior informed consent?Duration?Formalities?
22 Draft article 1: TCE provisions “Traditional cultural expressions” or “expressions of folklore” are any forms, whether tangible and intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof:verbal expressions, such as: stories, epics, legends, poetry, riddles and other narratives; words, signs, names, and symbols;musical expressions, such as songs and instrumental music;expressions by action, such as dances, plays, ceremonies, rituals and other performances,whether or not reduced to a material form; and,tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body‑painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewelry, baskets, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms;which are:(aa) the products of creative intellectual activity, including individual and communal creativity;(bb) characteristic of a community’s cultural and social identity and cultural heritage; and(cc) maintained, used or developed by such community, or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community.The specific choice of terms to denote the protected subject matter should be determined at the national and regional levels.
23 Draft article 5: TK provisions Protection of traditional knowledge should benefit the communities who generate, preserve and transmit the knowledge in a traditional and intergenerational context, who are associated with it and who identify with it […..]. Protection should accordingly benefit the indigenous and traditional communities themselves that hold traditional knowledge in this manner, as well as recognized individuals within these communities and peoples. Entitlement to the benefits of protection should, as far as possible and appropriate, take account of the customary protocols, understandings, laws and practices of these communities and peoples.
24 First Intersessional Working Group (TCEs): July 19 to 23, 2010 17th session of the IGC: December 6 to 10, 2010
26 What resources are available? Case-studiesLaws database and other databasesCustomary law studies and ongoing consultationPolicy options papers and questionnairesLegal analysesGuidelines and toolkitsHands-on training programs
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