1. 1 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Traditional Knowledge and Intellectual Property: Looking at the Future Outlining the issues: WIPO’s Perspectives Professor Mpazi Sinjela Dean WIPO Worldwide Academy

2. 2 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect

3. 3 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect What is Traditional Knowledge? What is TK? What needs to be protected? What is the problem regarding protection of TK and access to genetic resources? Why is the debate on TK contentious?

4. 4 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Economic Considerations Recent developments in biotechnological sciences – ability to find greater use for genetic resources Recent surge to appropriate and commercialize traditional knowledge Developments of a multitude of dissemination options (e.g. internet) have increased economic and cultural potential of expressions of folklore Recognition of intellectual property as tool for economic development

5. 5 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Economic Considerations medicinal substances derived from plants* PCT applications published in 2005

6. 6 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect International patent applications on human, animal or plant cell lines by year of publication (Source: Patentscope)

7. 7 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Economic Considerations Economic Considerations Annual Income generated from genetic resources estimated at US$500 to $800 billion Estimated annual sales of traditional medicines US$43 billion

8. 8 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Economic Value of TK Medicine Australia annual expenditure on alternative medicine US$1000 million China herbal medicine production US$2.3 billion Japan annual sales of herbal medicine US$1.5 billion ROK annual sales of herbal medicine US$543.5 million Australia over 2.8 million traditional Chinese medicine consultations each year ROK import of herbal medicines US$106 million 300 herbal pharmaceutical companies, 13,733 herbal medicine dealers, 820 wholesalers, and 10,751 drugstore dealing with herbal medicines, Over 9000 licensed traditional medicine doctors work at 81 oriental medical hospitals and 7172 oriental medicine clinics

9. 9 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Left: Banduk Marika Djanda and the Sacred Waterhole (lino print) Right: Indofurn’s ‘Djanda and the Sacred Waterhole’ carpet Left: Banduk Marika Djanda and the Sacred Waterhole (lino print) Right: Indofurn’s ‘Djanda and the Sacred Waterhole’ carpet

10. 10 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Fight Against Bio-piracy Fight Against Bio-piracy n Turmeric with Wound Healing Properties - US Patent No. 5- 401-5041– challenged by Indian Council for Scientific Research (CSIR) – Patent revoked – “invention” based on Traditional Knowledge “been in use in India for centuries”

11. 11 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Fight Against Bio-piracy Fight Against Bio-piracy  Claim for new process for extracting insecticide from neem tree - (tree has more than 60 known properties) - EPO Patent No. 536257 granted to RW Grace Co. and US Dept. of Agriculture - revoked – “its use have been known” and used in India for a long time

12. 12 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Fight Against Bio-piracy Claim to appropriate hoodia plant found in South African – appetite suppressant – weight loss – known and used by indigenous peoples for centuries challenged Benefit sharing arrangement between indigenous community and prospectors agreed upon instead

13. 13 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Problem of Protection No agreed definition of TK Article 8 (j) of Convention on Biological Diversity (1992) TK defined as: “innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity”

14. 14 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Problem of Protection Problem of Protection TK defined by some as: - “a body of knowledge built by a group of people through generations living in close contact with nature and includes a system of classification, a set of empirical observations about the local environment, and a system of self-management that governs resources use” (M. Johnson)

15. 15 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Overlapping areas of concern Definitions are needed to focus work, but need not create firm boundaries: - Cultural heritage - expressions of folklore or traditional cultural expressions (TCEs) - Traditional knowledge (TK) - ‘technical’ know-how - e.g. medical and agricultural knowledge - Genetic resources

16. 16 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Rationale for Protection recognize spiritual, cultural and commercial values associated with TK safeguard against third party claims of IP rights over TK protect TK against unauthorized disclosure or use prevent culturally offensive or inappropriate use of TK material preserve the environment prevent erosion of TK which is linked to indigenous peoples land and thus preserve the lifestyles of the indigenous peoples

17. 17 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Previous Efforts: Folklore Protection Bern Convention contains provision on protection of folklore: Art. 15.4 “In the case of certain unpublished works of unknown authorship” 1978 WIPO/UNESCO discussions on protection of expressions of folklore 1982 adoption of “Model Provisions for National Laws on Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions” 1996 WIPO Performance and Phonograms Treaty - reference made to the Protection of Expressions of Folklore

18. 18 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Is TK and IP at odds? Concerns raised regarding contemporary IP system: - imposing an IP system on traditional cultures, overriding collective values of indigenous and other traditional communities - IP concerns ‘mainstream’ technology; commercializes & commodifies knowledge & culture; facilitates misappropriation of TK and cultural expressions - IP rights are private, individual - at odds with values of traditional communities - IP concerns creativity and innovation, not tradition

19. 19 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Contemporary Efforts-Protection of TK, TCEs and Genetic Resources Establishment of WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)

20. 20 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Fact Finding Missions and Establishment of IGC 1998-99 –WIPO missions to some 60 locations for dialogue with over 3,000 representatives of TK holder communities –Objective - to base the new program on direct learning of the needs and expectations of TK holders –insights gained still central to WIPO’s work on subject 2001 establishment of IGC: - An international forum for debate and dialogue concerning the interface between IP and TK, TCEs and genetic resources

21. 21 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Work of IGC Indigenous and local communities continue to innovate and create within their traditions –seek recognition for their past and continuing contribution to humanity’s cultural and intellectual heritage –and appropriate respect for customary laws IGC a process of reviewing the core principles of IP law, assessing how to apply those principles for equitable protection of TK and TCEs –analyzing validity, equity, effectiveness of IP system from the distinct vantage point of indigenous and local communities Responding to critical concerns about the relevance and legitimacy of IP system, the IGC has seen deep reflection on the nature of IP, its objectives, its assumptions, its limitations and its boundaries.

22. 22 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect IGC’s Draft Provisions for Protection of TK/TCEs Under current discussion are provisions for enhanced protection of TK and TCEs against misappropriation and misuse - Two approaches: Positive protection - the creation of positive rights in TK/TCEs that empower TK/TCEs holders to protect and promote their TK/TCEs Defensive protection - measures which ensure that illegitimate IP rights (particularly patents) are not granted to parties other than the customary TK/TCEs holders

23. 23 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect IGC: Mechanisms for protecting TK/ TCEs Existing IP systems applied to TK/TCE subject matter (e.g., copyright protection of TCEs and patent protection for medicinal TK) Adaptation and sui generis elements of existing IP systems to TK/TCEs subject matter (e.g., the incorporation of TK subject matter in the IPC) Stand alone sui generis systems for the protection of TK/TCEs

24. 24 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect IGC: Mechanisms for protecting TK/ TCEs Use of conventional IP systems to protect TK/TCEs has disclosed certain shortcomings, e.g.: –Novelty, originality, non-obviousness, inventive step –collective ownership and compensation –requirements for the protected subject matter to be fixed in material form (TK and TCEs are often transmitted orally) –limitations on the term of protection in conventional IP system

25. 25 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect IGC’s Draft Provisions for Protection of TK/TCEs If Member States so choose, draft provisions could form the basis of a new international instrument to protect TK –the draft provisions could provide the substance or content of an international instrument –political decision remains as to what legal status and future process is needed to carry this forward

26. 26 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Some key substantive issues under discussion: –misappropriation - what does misappropriation of TK/TCEs mean? what is the cause of action and the nature of the damage? –retroactivity - is the existing public domain legitimate and inviolable? –localization - how to recognize and defer to a community’s customary law? –collectivity - what is the legal status or legal personality for traditional communities? –ownership - what is the nature of custodianship? Who benefits? –subject matter - what makes knowledge and cultural expressions ‘traditional’?

27. 27 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Decisions of the 11 th Session (2007) of the IGC to recommend to the WIPO General Assembly to renew the current mandate of the Committee to continue work on questions included in previous mandate new work to focus on consideration of international dimension, without prejudice to work in other fora no outcome is excluded, including possible development of an international instrument(s) the ICG urged to accelerate its work and to present a progress report International Bureau to continue to assist the IGC by providing Member States with necessary expertise and documentation.

28. 28 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect IGC future focus: Legal form of protection General scope of subject matter Eligibility for protection Beneficiaries of protection Equitable compensation and recognition of knowledge holders Principle of prior informed consent Exceptions and limitations Duration of protection Application in time Administration and enforcement of protection International and Regional Protection

29. 29 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect Concluding Remarks Policy Considerations: –Quest for National/Community Development –Quest for protection of TK and genetic resources should not bar access to these resources for development of new products in medicines, food and agriculture –Need to take into account equity, fairness and justice

30. 30 Wednesday, 06 July 2016 WIPO Worldwide Academy Igniting the power of the human intellect THANK YOU