The Global Landscape of IP/TK

1. The Global Landscape of IP/TK Johanna von Braun, PhD University of Cape Town, South Africa 8 September, 2010

2. The Segregation & Overlap of TK Protection • TK cross cutting among different UN fora • Not all deal with IPRs, some deal with general protection of TK • Segregated mostly in relation to thematic areas / forms of TK

3. World Trade Organization • No mentioning of TK in TRIPS Agreement • Art. 27.3(b) – patentability or non-patentability of plant and animal inventions, and the protection of plant varieties. • in built review mechanism • Doha Round 2001 broadens mandate: • Review Article 27.3(b) • the protection of traditional knowledge and folklore. • to examine relationship between the TRIPS and CBD • TRIPS Agreement’s objectives (Article 7) and principles (Article 8), and must take development issues fully into account. • Developing countries call for: • disclosure of the source and country of origin of the biological resource and of the traditional knowledge used in the invention; • evidence of prior informed consent through approval of authorities under the relevant national regimes; and • evidence of fair and equitable benefit • 2008 Draft TRIPS Modalities proposed by 110 countries bringing together TRIPS CBD discussions with GI extensions and GI register

4. WIPO IGC • GA 2000 launches IGC on IP and Genetic Resources, Traditional Knowledge and Folklore (IGC). • Examine IP issues that arise in the context of: • access to genetic resources • protection of traditional knowledge • the protection of expressions of folklore • 2009  a new negotiation mandate • Undertake text based negotiations with objective of reaching agreement on intl legal instrument(s) which will ensure effective protection on GRs, TK, TCEs • Without prejudice on work in other fora(start withTCEs) • GA in 2011 PCT / SPLT discussions - Disclosure of source of genetic resources and TK in patent applications

5. Convention on Biological Diversity • 1992 – biological resources under national sovereignty • Three objectives • Conservation • Sustainable Use • Fair and Equitable Sharing of Benefits • Adds incentive to conserve / sustainably use • Acknowledges economic valuebiological resources and associated TK  Focuses on protection of TK associated with GRs

6. Key relevant obligations: • obtain permission before collecting resources and knowledge (Prior Informed Consent); • Agreed terms for exchange (Mutually Agreed Terms); • share benefits fairly with local providers and countries (Fair and Equitable Benefit Sharing); • 2002 Johannesburg Summit – Call for international regime to promote and safeguard the fair and equitable sharing of benefits arising out of the utilization of genetic resources  2003 Ad Hoc Working Group on ABS  COP X? • Approximately 60 national laws/policies emerged based on CBD / ABS.

7. FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) (2001) recognizes the enormous contributionILCs have made and will make for the conservation and development of Plant Genetic Resources for food and agriculture. Members should see to: (a) the “protection of traditional knowledge relevant to plant genetic resources for food and agriculture”; (b) that ILCs have “the right to equitably participate in sharing benefits arising from the utilization” of such resources; and (c) “the right to participate in making decisions on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.”

8. UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage 2003 – protection off: • practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. • transmitted from generation to generation through interaction with nature and environment. In form of: (a) oral traditions and expressions, (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship.

9. SA Political Landscape TK Protection

10. SA Political Landscape IP/TK Protection DTI: • IP Patent Amendment Act 2005 • Disclosure of title to use IBRs or TK in patent files • Draws from CBD/WIPO/WTO • IP Amendment Bill • Amends non-patent IP Protection to include for protection of TK DEA: • BioprospectingLegislation (NEMBA 2004; Regs 2008) • TK / use related to indigenous biological resources • Draws from CBD

11. SA Political Landscape IP/TK Protection DAC • National Heritage Resources Act • Aims to protect tangible and intangible cultural heritage • Draws from UNESCO DAFF • Plant Breeders Rights Act (1976/1996) • Plant Breeders’ Rights Policy Amendments under discussion • How to recognize the contribution of farmers to plant genetic diversity. • situating the traditional practices of farmers as exceptions to the exclusive rights of plant breeders under existing IPR laws. • acknowledging farmers through benefit sharing mechanisms such as financial payments and technology transfers. • develop plant variety protection regimes which recognized their heterogeneous plant varieties. DST • IP For Publically Funded R&D Act • Possible reduction of policy space for sui generis system of protection

12. SA Political Landscape/TK protection • National Indigenous Knowledge Systems Office (DST) • 2004 IKS Policy – recognizes, promotes, protects and develops IKS – on its own terms • Substantial effort in understanding the nature of community knowledge • Development of IKS legislation and policy • Participation at WIPO/IGC debates • Development of IKS national recording system that seek to collect TK in the public domain & secret knowledge for prior art and product development where in the interest of communities • Seeks to identify means of protection of TK, beyond IPRs, that are more suitable for nature of IKS • Corporate strategy calls for development of sui generis systems