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The Intellectual Property and Traditional Knowledge Puzzle

The Intellectual Property and Traditional Knowledge Puzzle. Wend Wendland, Director, Traditional Knowledge Division.

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The Intellectual Property and Traditional Knowledge Puzzle

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  1. The Intellectual Property and Traditional Knowledge Puzzle Wend Wendland, Director, Traditional Knowledge Division

  2. Text-based negotiations with the objective of reaching agreement on a text(s) of an international legal instrument(s) which will ensure the effective protection of genetic resources, traditional knowledge and traditional cultural expressions

  3. Challenges . . . Diverse stakeholders, diverse objectives International coherence: fragmentation of international norm-setting Top-down or bottom up: minimal successful national experience Legislative approach: interface with practical mechanisms Participation: challenges to inclusivity

  4. Opportunities. . . Historical opportunity: first developing country-led IP normative process Cutting edge: fresh uses for age-old IP values and principles Narrowing the trust-gap: growing confidence in the process International comity: IP and mutual supportiveness

  5. Traditional knowledge: draft sui generis instrument Traditional cultural expressions: draft sui generis instrument Genetic resources: draft ‘objectives and principle’; textual proposals on a mandatory disclosure requirement; database proposals http://www.wipo.int/tk/en/igc/index.html

  6. Traditional knowledge and traditional cultural expressions What is “traditional” knowledge?Publicly available TK? Who should the beneficiaries of protection be? How should traditional knowledge be protected? Exclusive right/right of prior and informed consent?

  7. Genetic resources GRs are not intellectual property Access and benefit-sharing regulated by the CBD, [Nagoya Protocol] and the FAO’s International Treaty For intellectual property, two main issues: ‘defensive protection’ of GRs: prevention of erroneous patents: databases proposal (quality of patent examination issue) proposed disclosure requirement: (CBD implementation issue)

  8. Suggested objectives…. • Acknowledgement and benefit-sharing • Innovation • Robust public domain • Equitable access to benefits of innovation • Practical implementability

  9. Models worth looking at Compensatory liability scheme (Reichman and Lewis, 2005) FAO’s International Treaty on Plant Genetic Resources for Food and Agriculture Pacific Model Law on Traditional Knowledge and Cultural Expressions WHO Legal Framework for Sharing of Pathogens, 2011 Waitangi Tribunal Report 2011 (WAI 262 Report)(New Zealand)

  10. WIPO IGC has three sessions left before a decision on a Diplomatic Conference will be taken in September 2012 • February 2012: genetic resources • April 2012: TK • July 2012: TCEs

  11. www.wipo.int/tk/en Sign up for TK e-Newsletter and e-Updates: email grtkf@wipo.int

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