UNITED
NATIONS
United
Nations Conference on
Trade and Development TD
Distr.
GENERAL
TD/B/COM.1/EM.13/2
22 August 2000
Original: ENGLISH
TRADE AND DEVELOPMENT BOARD
Commission on Trade in Goods and Services, and Commodities
Traditional Knowledge, Innovations and Practices
Geneva, 30 October – 1 November 2000
Item 3 of the provisional agenda
SYSTEMS AND NATIONAL
EXPERIENCES FOR PROTECTING
TRADITIONAL KNOWLEDGE,
INNOVATIONS AND PRACTICES
Background note by the UNCTAD secretariat
Executive summary
The importance of protecting the knowledge,
innovations and practices of indigenous and local communities (TK) is
increasingly recognized in international forums. Developing countries seek to
ensure that the benefits of cumulative innovation associated with TK accrue to
its holders while enhancing their socio-economic development. They also aim at
preventing the improper appropriation of TK, with little or no compensation for
the custodians of TK and without their prior informed consent.
Building on work carried out in other
intergovernmental organizations, this note briefly describes possible
instruments for the protection of TK, including traditional/customary law,
modern intellectual property rights instruments, sui generis systems, and documentation of TK and instruments
directly linked to benefit-sharing. In addition to national systems, the
protection of TK and equitable sharing of the benefits derived from the use of
biodiversity resources and associated TK may also require measures by user
countries or cooperation at the multilateral level.
Protection of TK is a necessary but not sufficient
requirement for its preservation and further development. To harness TK for
development and trade, developing countries need assistance to build national
capacities in terms of raising awareness on the importance and potential of TK
for development and trade; developing institutional and consultative mechanisms
on TK protection and TK-based innovation; and facilitating the identification
and marketing of TK-based products and services. There is also a need to
promote an exchange of experience among developing countries on national
strategies for TK development, sui
generis systems for the protection of TK and the commercialization of
TK-based products and services. Special attention should be given to building
such capacities in LDCs.
This note provides some analysis and background
information to aid experts in their work. The final chapter contains a list of
questions proposed for discussion.
CONTENTS
|
Chapter |
Paragraphs |
|
|
I. |
Introduction |
1 – 8 |
|
II. |
The characteristics of traditional
knowledge and its role in the global economy |
9 – 16 |
|
III. |
International
debate |
17 – 29 |
|
IV. |
Systems for the protection
of traditional knowledge |
30 – 59 |
|
|
A.
Objectives |
31 – 32 |
|
|
B.
Strengthening customary law |
33 |
|
|
C. Existing intellectual property rights instruments |
34 – 43 |
|
|
D. Sui generis
legislation |
44 – 50 |
|
|
1. Possible elements of sui generis systems |
46 |
|
|
2. Examples of sui generis
systems |
47 – 50 |
|
|
E. Access and benefit-sharing mechanisms |
51 – 56 |
|
|
F. Documentation of traditional knowledge |
57 – 59 |
|
V. |
Harnessing traditional knowledge
for development and trade |
60 – 70 |
|
|
A. Promoting innovation and commercialization of TK |
62 – 65 |
|
|
B. Capacity-building |
66 – 70 |
|
VI. |
Possible issues for discussion by
experts |
71 – 74 |
|
|
A. Systems for the protection
of TK and benefit sharing |
72 |
|
|
B. Harnessing traditional knowledge for development and trade |
73 |
|
|
C. Capacity-building needs |
74 |
|
|
Notes |
|
|
|
References |
|
I.
INTRODUCTION
1. The
protection of knowledge, innovations and practices of indigenous and local
communities (hereafter referred to as “traditional knowledge”, TK) has been
receiving increasing attention on the international agenda in recent years.
This is due to several factors. First, it has been recognized that TK plays a
key role in the preservation and sustainable use of biodiversity. This is
highlighted in both the Convention on Biological Diversity (CBD) and the
International Undertaking on Plant Genetic Resources (IU) of the Food and
Agriculture Organization (FAO).
2. Second, many activities and
products based on TK are important sources of income, food, and healthcare for
large parts of the populations in many developing countries, including the
least developed countries (LDCs). However, TK is being rapidly lost
as local ecosystems are degraded and traditional communities are integrated
into the wider society.
3. Third,
concerns have been raised about how the benefits derived from the use of biodiversity
and associated TK are appropriated and shared. The vast majority of plant
genetic resources and other forms of biodiversity are found in – or originate
from - developing countries. Access to these resources and the associated TK
can provide substantial benefits to companies and scientific research centres
in both developed and developing countries. However, there is concern that TK
is at times appropriated, adapted and patented by scientists and industry, for
the most part from developed countries, with little or no compensation to the
custodians of this knowledge and without their prior informed consent.
4. Fourth, while the need to
protect TK and to secure fair and equitable sharing derived from the use of
biodiversity and associated TK has been fully recognized, there is no agreement
on what would be the most appropriate and effective ways to achieve these
objectives. There have been calls for a better understanding of the needs of TK
holders and exchanges of information on the effectiveness of existing systems
of protection such as customary law, intellectual property rights (IPRs), sui generis systems, access and
benefit-sharing mechanisms, voluntary measures and documentation.
5. Fifth, the long term sustainable economic development of many indigenous
and local communities may depend on their ability to harness their TK for
commercial benefit. Traditional technologies and innovations, which are by
their very nature adapted to local needs, can contribute to a viable and environmentally
sustainable path to economic development. It is therefore important to
encourage TK-based innovations and, if desired by the communities concerned,
explore the commercialization of TK-derived products.
6. From a
trade and development perspective, systems for the protection of TK should seek
to preserve TK to ensure that the benefits of cumulative innovation accrue to
TK holders, while at the same time allowing developing countries to utilize
their TK to promote development and trade. This inter alia raises the question of responsibilities of both TK
holders and users in ensuring equitable sharing of benefits deriving from the
use of biodiversity resources and associated TK. It is also important to ensure
that the commercialization of TK-based products contributes to the long-term
socio-economic viability of indigenous and local communities, as well as the
creation of new trading opportunities for developing countries. This could be
done, for example, through partnerships or other benefit sharing arrangements
aimed at promoting innovation and the production of value-added products, or by
seeking to ensure that TK-based products are traded as distinct products, based
on their long-term uses and traditional know-how. Similarly, the promotion of
innovation and capacity building play important roles in developing country
efforts to ensure that their TK contributes to their socio-economic
development.
7. UNCTAD’s
member States decided to address the protection of TK as part of UNCTAD’s work
in the area of trade and environment. The Plan of Action adopted by UNCTAD’s
tenth Conference stated that: “UNCTAD should also, in full cooperation with
other relevant organizations, in particular and where appropriate WIPO and WHO,
promote analysis and consensus building with a view to identifying issues that
could yield potential benefits to developing countries” (UNCTAD, 2000). It
specifies that this work should inter
alia focus on: “Taking into account the objectives and provisions of the
Convention on Biological Diversity and the TRIPS Agreement, studying ways to
protect traditional knowledge, innovations and practices of local and
indigenous communities and enhance cooperation on research and development on
technologies associated with the sustainable use of biological resources”
(paragraph 147, third bullet). In preparing this Expert Meeting, the UNCTAD
secretariat has been working closely with the secretariats of other intergovernmental
organizations, in particular the CBD and the World Intellectual Property
Organization (WIPO).
8. This
issues note provides information and analysis aimed at assisting experts in
their discussions. Chapter VI contains a list of questions that could be
addressed by experts.
II. The Characteristics of traditional knowledge
and its role in the global economy
9. For the
purposes of this paper and Meeting, the term “traditional knowledge” will be
used to refer to “the knowledge, innovations and practices of indigenous and
local communities embodying traditional lifestyles” as well as “indigenous and
traditional technologies” (CBD Art. 8(j) and 18.4).[1] Thus understood, traditional knowledge has
certain characteristics. Usually it is held collectively, although certain
types of TK may be the purview of specific individuals or subgroups within the
community. It tends to be transmitted orally from generation to generation;
accordingly, it is usually undocumented. TK is not static, but dynamic,
evolving over time as communities respond to new challenges and needs. Indeed,
what makes TK ‘traditional’ “is not its antiquity, but the way it is acquired and used. In other words, the social process
of learning and sharing knowledge, which is unique to each…[traditional]
culture, lies at the very heart of its traditionality.” (Four Directions
Council, 1996).
10. Access to
and use of TK within and outside communities is generally governed by a wide
variety of unwritten customary laws. This seems to be true whether or not
notions of ownership and property would be strictly applicable to traditional
societies. Indeed many traditional communities express preference for words
like stewardship and custodianship, which imply responsibilities as well as
rights. Proprietary systems exist in many traditional societies. But any assumption that there is a generic form of customary
regulations governing TK use and dissemination ignores the intricacies and
diversity of traditional systems. According to the Canadian indigenous peoples
organization, the Four Directions Council (1996): “Indigenous peoples possess
their own locally-specific systems of jurisprudence with respect to the
classification of different types of knowledge, proper procedures for acquiring
and sharing knowledge, and the rights and responsibilities which attach to
possessing knowledge, all of which are embedded uniquely in each culture and
its language.”
11. TK is
valuable not only to those who depend upon it for their survival but also to
modern industry and agriculture, and to sustainable development more generally.
According to the World Health Organization (WHO, 1993), up to 80 per cent of
the world’s population depends on traditional medicine for its primary health needs.
In India, for example, there are 600,000 licensed medical practitioners of
classical traditional health systems and over one million traditional
community-based health workers (Hafeel and Shankar, 1999). “Possibly two thirds
of the world’s people could not survive without the foods provided through
indigenous knowledge of plants, animals, insects, microbes and farming systems”
(Rural Advancement Foundation International, 1994). Over 90 per cent of food in
sub-Saharan Africa is produced using customary farming practices (Dakora,
1997). For those comprising the poorest segments of societies, particularly
women, indigenous people and rural inhabitants of developing countries,
traditional knowledge is indispensable for survival. This is especially true in
many LDCs.
12. A number
of TK-derived products are traded internationally. These include handicrafts,
medicinal plants, traditional agricultural products, and non-wood forest
products (NWFPs). For example, some 150 NWFPs, including rattan, cork, essential
oils, forest nuts, and gum arabic, are traded internationally in significant
quantities. The total value of the world NWFP trade is of the order of US$ 11
billion (FAO, 1995).
13. Biogenetic
resources and their associated TK also provide significant inputs into other
markets including pharmaceuticals, cosmetics, agriculture, food additives,
industrial enzymes, biopesticides, and personal care (Ten Kate and Laird,
1999). However, the
future of bioprospecting is difficult to predict. While enhanced abilities to
screen huge quantities of natural products and analyse and manipulate their DNA
structures might suggest that bioprospecting will become more popular, it is
also possible that advances in biotechnology and new drug discovery approaches
based, for example, on combinatorial chemistry and human genomics will in the
long term reduce industrial interest
in natural product research for food, agriculture and health, as well as
associated TK.[2] Concerns
about food safety and other unknown side effects of DNA-modified products may
promote interest in natural product research, especially in organic
agricultural products. The recent interest in bio-dynamic agriculture which is
based on TK is one such example of agricultural uses of TK.
14. There have
been some attempts to estimate the contribution of TK, particularly
biodiversity-related TK, to modern industry and agriculture. For
pharmaceuticals, the estimated market value of plant-based medicines sold in
OECD countries in 1985 was US$ 43 billion (Principe, 1989). That many of these
would have used TK-leads in their product development is borne out by
biochemist Norman Farnsworth’s (1988) estimation that of the 119 plant-based
compounds used in medicine worldwide, 74 per cent had the same or related uses
as the medicinal plants from which they were derived. It is particularly
difficult to estimate the contribution of traditional crop varieties
(landraces) to the global economy.
However, a study on the use and value of landraces for rice breeding in
India (Evenson, 1996) estimated that rice landraces acquired from India and
overseas contributed 5.6 per cent, or US$ 75 million, to India’s rice yields.
Assuming that landraces contribute equally to other countries where rice is
cultivated, the global value added to rice yields by use of landraces can be
estimated at US $400 million per year.
15. Unlike
wild biodiversity, the source of plant-based medicines, agricultural
biodiversity has developed under farmer selection in farming systems for over
10,000 years by the direct application of TK. Farmers have always swapped crops
and landraces widely, and by acclimatizing them to new and very different
ecosystems, have created the rich portfolio of agrobiodiversity on which food
security depends. It is therefore characteristic of agriculture that countries
overwhelmingly depend on agricultural genetic resources that originated
elsewhere. This is the basis of the concept of farmers’ rights, recognized by
the 1989 FAO Conference as arising from the past, present and future
contributions of farmers in conserving, improving, and making available plant
genetic resources, particularly those in the centres of origin/diversity.[3]
Agricultural genetic resources provide the basic
material with which both traditional and modern farmers work.
16. Estimating
the full value of TK in monetary terms is difficult if not impossible. First,
TK is often an essential component in the development of other products. Second,
as many and possibly most TK-derived products never enter modern markets, they
are excluded from sectoral or GNP indices. However, if those who depend on
TK-derived products were deprived of them, the cost of replacing them through
purchases of substitutes in the market would probably be quite high,
particularly as a portion of their incomes. And third, a great deal of TK is
likely to have cultural or spiritual value that cannot be quantified.
III. INTERNATIONAL DEBATE
17. The international debate on TK
covers many issues, such as biodiversity, food and agriculture, health,
expressions of folklore, trade and development, and human rights.[4]
18. The CBD is the only international legal binding
instrument that explicitly refers to the protection of TK. Article 8(j) states
that: “(Each contracting Party shall, as
far as possible and as appropriate,) Subject to its national legislation, respect, preserve and maintain knowledge, innovations
and practices of indigenous and local communities embodying traditional
lifestyles relevant for the conservation and sustainable use of biodiversity
and promote the wider application with the approval and involvement of the
holders of such knowledge, innovations and practices and encourage the equitable
sharing of benefits arising from the utilization of such knowledge, innovations
and practices”.
19. The CBD
further stipulates that access to genetic resources can only occur on mutually
agreed terms (MAT) and with the “prior and informed consent”(PIC) of the Party
providing such resources, unless otherwise determined by that Party (Art. 15).[5]
Other Articles relevant for TK protection include 10(c), 17.2, 18.4 and 19[6].
The fact that Article 8(j) is subject to national legislation seems to imply
that responsibility for its implementation lies with national Governments.
However, there has been recent discussion on the role of multilateral
mechanisms and the responsibility of user countries to support PIC requirements
in provider countries (see section IV).
20. Article
8(j) is not explicit regarding the means by which national Governments would
draw up national legislation to reflect its intent. To address this, the fourth
Conference of Parties (COP IV) agreed to establish an Ad hoc Open Ended
Inter-sessional Working Group on Article 8(j) and Related Provisions of the
Convention on Biological Diversity. COP V adopted the Working Group’s
recommendations for a work plan. In its decision V/16, the COP emphasized the
need for case studies to enable a meaningful assessment of the effectiveness of
existing legal and other appropriate forms of protection for TK, and invited
Parties and Governments to exchange information and share experiences regarding
national legislation and other measures for the protection of TK (UNEP, 2000a).
21. In the FAO, the Commission on Genetic Resources
for Food and Agriculture is the forum for negotiations among Governments on the
revision of the International Undertaking on Plant Genetic Resources (IU) in
harmony with the CBD. The IU is expected to become a legally binding agreement,
closely linked both to FAO and the CBD, regulating access and benefit-sharing
for plant genetic resources for food and agriculture. Its objectives are the
conservation and sustainable use of plant genetic resources for food and
agriculture, and the fair and equitable sharing of benefits that arise
therefrom. The IU also covers farmers’ rights[7]
in recognition of the contribution of farmers and their communities to the
preservation and sustainable use of plant genetic resources that are the basis
of agriculture and food security. Because of the high level of interdependency
between countries with regard to these resources,[8]
a Multilateral System for Access and Benefit Sharing[9]
is being developed. Benefit-sharing would also be multilateral, and include the
transfer of technology, capacity-building, exchange of information, and
funding.
22. The World
Health Assembly has adopted a number of resolutions drawing attention to the
important role played by traditional medicine in the primary health care of
individuals and communities in many developing countries. International trade
in herbal medicines is rapidly increasing. However, according to the World
Health Organization (WHO), in most countries the herbal medicines market is
inadequately regulated. Through its Traditional
Medicine Programme, the WHO supports member States inter alia in their efforts to formulate national policies on
traditional medicine and to study the potential usefulness of traditional
medicine, including evaluation of practices and examination of the safety and
efficacy of remedies.
23. Traditional
forest-related knowledge (TFRK) is a specific subset of TK covered by the CBD.
In addition, trade and development issues related to TFRK have been discussed
in the Intergovernmental Panel on Forests and its successor, the International
Forum on Forests, and will be an important programme area for the United
Nations Forum on Forests. In a broad sense, any actions that protect either
indigenous and local communities living in close contact with forests, or the
forests on which their traditions depend, could be considered as actions aimed
at protecting TFRK. These include, for example, actions relating to traditional
resource rights. TFRK can also be included in criteria for sustainable
management of forests and certification of forests and forest products.[10]
24. Discussions
on the protection of TK initially centered around “expressions of folklore”.
The United Nations Educational, Scientific and Cultural Organization (UNESCO)
and WIPO jointly held three expert meetings which led, in 1982, to the adoption
of the “Model Provisions for National Laws on the Protection of Expressions of
Folklore Against Illicit Exploitation and Other Prejudicial Actions”. These
provisions have not yet been adopted in full by any country.
25. WIPO
was mandated in its 1998-1999 programme to undertake exploratory groundwork in
order to provide an informed analysis of the intellectual property (IP) aspects
of TK. In this context, it has been examining the intellectual property needs
of holders of TK and genetic resources and the feasibility of TK databases.
WIPO held a Roundtable on Intellectual Property and Traditional Knowledge in
Geneva in November 1999 and undertook nine fact-finding missions. WIPO and UNEP
jointly prepared and submitted to COP V selected case studies on the role of
intellectual property rights (IPRs) in the sharing of benefits arising from the
use of biological resources and associated TK (UNEP/WIPO, 2000). Elements of
the 2000-2001 programme include: case studies on the use of IPR systems to
protect TK; a study on customary law governing TK in relation to formal IPR
systems; information exchange on IP implications of TK documentation and
increased training; and awareness-raising worldwide for TK stakeholders.
26. In
the WTO, the relationship between the CBD and the TRIPS Agreement, including
with regard to the protection of TK, has been discussed in both the TRIPS
Council and the Committee on Trade and Environment (CTE). The TRIPS Agreement
does not explicitly address the protection of TK.[11]
Several WTO Members have argued that nothing in the TRIPS Agreement prevents
WTO Members from implementing national measures to support CBD objectives,
including the protection of TK through sui
generis systems. However, it has also been argued that national action
alone may not be sufficient to achieve benefit-sharing and that some
international action is required. In this context, some have suggested that the
TRIPS Agreement could include a provision that requires the disclosure, in the
process of patent application, of the origin of any relevant biological
resources and associated knowledge. In this regard, reference has been made to
Article 29 of the TRIPS Agreement.
27. With regard to UNCTAD, apart from the
above-mentioned reference to the protection of TK, the Plan of Action, in
paragraph 147, includes several other points of relevance to work in this area.
These include transfer of technology issues (second bullet), promotion of trade
in environmentally preferable products (fifth bullet), the BIOTRADE Initiative
(sixth bullet), and biotechnologies (ninth bullet). Such work is being
implemented through UNCTAD’s main functions, i.e. intergovernmental work,
policy research and technical cooperation for capacity building, and, in
accordance with UNCTAD’s mission, should focus on strengthening the development
dimension. Chapter V of this paper provides a brief summary of UNCTAD’s
capacity building activities that are relevant for TK.
28. The Global Knowledge Conference in 1997
emphasized the urgent need to learn, preserve and exchange TK and encourage its
role in local and national development. In the context of the Partnership for
Information and Communication Technology for Africa (PICTA), the World Bank
agreed to lead an Indigenous Knowledge Initiative to stimulate recognition,
utilization and exchange of indigenous knowledge in the development process (www.worldbank.org/afr/ik). Since the beginning of the 1990s,
the World Bank also has a revised policy directive on the rights of indigenous
peoples to choose the manner and level of participation in development
projects. In this context, special procedures are outlined for incorporating
indigenous peoples’ concern into Bank-funded investment projects through the
design of Indigenous Peoples Development Plans.
29. In 1994, UNDP collaborated with the
Indigenous Peoples Biodiversity Network to create the Indigenous Knowledge
Programme, which aims at the conservation and promotion of indigenous
knowledge. The overall
objective of UNDP’s work with indigenous peoples is to integrate indigenous
perspectives and concepts of development in future programmes and projects, and
to make indigenous peoples’ concerns a cross-cutting issue within UNDP. To do
so, UNDP has prioritized the design of policy and operational guidelines for
engagement with indigenous peoples for use of its country offices.
IV.
Systems for the Protection of Traditional Knowledge
30. As can be
seen above, TK has a bearing on debates in several international forums.
Nevertheless, no international system has yet been designed and implemented
that effectively preserves TK, protects the rights of TK-holders, and
compensates them equitably for its use. This chapter sets out a menu of
possible options from which Governments could choose.
A. Objectives
31. When
designing systems to protect TK, the objectives must be clear. Some possible
objectives of protection schemes could be to:
·
preserve and conserve TK
·
increase awareness of the value of TK, among both TK-holders and others
·
enable communities to continue using TK in the context of their
traditional lifestyles
·
prevent the unauthorized use of TK
·
encourage TK-based innovations
·
commercialize certain types of TK
·
equitably share the benefits arising from the commercial use of TK
·
facilitate access to TK for varying purposes, including research,
commercial applications, or use by other traditional communities
·
encourage the conservation and sustainable use of biodiversity
·
promote social justice and equity
·
recognize traditional customary laws and practices
·
guarantee the participation of local and indigenous communities in the
policy and decision-making processes related to TK
·
recognize the important role of women as holders of TK and ensuring
their participation in decision- and policy-making processes
32. There are
different approaches to building systems to protect TK. One approach is to
examine to what extent modern IPR regimes as specified in the TRIPS Agreement
can be used or complemented to protect TK and promote the CBD objectives
(particularly benefit-sharing), or how sui
generis (“of its own kind”) systems can be designed to take account of the
specific characteristics of TK where existing IPR regimes are not suitable.
Another approach is to strengthen and further develop existing TK protection
systems, based on documentation of TK, building institutions, developing
networks and strengthening the use of customary law. Both approaches can be
used. In fact, any country designing a TK protection system can choose from a
menu of options to create a combination of elements that will best meet its
specific needs. These include:
·
Strengthening customary law
·
IPR protection, including existing IPR instruments
·
Sui generis systems
·
Prior informed consent and access and benefit-sharing mechanisms
·
Documentation of TK
·
Other measures to strengthen and develop TK protection systems.
B.
Strengthening customary law
33. Securing
the protection of TK according to the existing
regulations requires, above all, respecting and, where necessary, strengthening
the relevant customary law. This is easiest to achieve in countries where
customary law systems can operate with relative freedom. In such cases, the
possibility arises for traditional rules and norms to be asserted with as much
legal effect within that country as patent rights, trademarks and copyrights.
But whether customary laws regulating cultural and intellectual property are
fully incorporated into national legal systems, are enforceable in local courts
alone, or are just given some minimal recognition at the state level, the
common assumption that traditional knowledge is by definition part of the
public domain becomes much more open to challenge than if customary law has no
recognition at all. All too often TK is misappropriated because it is conveniently assumed that since it has been publicly
disclosed, communities have given up all claims over it. In fact, it is
possible that the acts of disclosure and subsequent commercial use contravened
customary law. Before considering the applicability of conventional IPRs or sui generis systems, consideration
should be given to enhancing the status of the established laws of the
TK-holding communities.
C. Existing intellectual property rights
instruments
34. This
section examines to what extent some IPR instruments could be used or adapted
to meet certain TK protection needs. This subject is controversial. The TRIPS
Agreement covers several areas of IPRs that could be relevant to this issue,
including the protection of inventions through patents and plant variety
protection, copyright, trademarks, geographical indications, and trade secrets.
Before going further, it is worth bearing in mind two important points. First,
these IPRs were never designed with the intent of protecting TK, and thus do
not easily accommodate the (usually) collective nature of TK generation and
ownership. Second, discussion of this matter is difficult to separate from
related issues such as the extent to which expanded IPRs can encroach on the
public domain, incentivize the privatization of public goods, and encourage
misappropriation of knowledge belonging to people who are in a weak position
both to avail themselves of IPR protection and to contest the illegitimate IPR
claims of others.
35. Patents: Patents are the subject of
considerable debate in connection with TK. Patents protect inventions which, through
an examination, are considered to be new, to involve an inventive step, and be
capable of industrial application. Currently, some 97 per cent of patents in
the world are held in industrial countries (UNDP, 1999). While individual TK
holders could in theory acquire a patent, it is generally the case that TK is
passed on orally from generation to generation and evolves incrementally. Thus,
it would be difficult to meet the criteria of novelty and inventive step.
Second, TK tends to be generated collectively to the extent that no inventors
are identifiable. Indeed, the source of much TK cannot be traced to a specific
community or even to a geographical region. Even if these obstacles were
somehow overcome, most traditional communities do not have the resources to
file patent applications or to take legal action to prevent patent
infringement.
36. It has
been suggested that TK holders could take advantage of utility model (petty
patent) systems that are less expensive to use and have less exacting inventive
step requirements. Kenya’s Industrial
Property Act 1989 allows utility models for traditional medicinal knowledge
in the form of “herbal as well as nutritional formulations which give new
effects”. Another possibility is to adapt IPR systems to include new forms of
ownership such as communitarian titles. (Cottier, 1997)
37. For
many traditional communities, patents are viewed primarily as a source of
concern rather than an opportunity. There are several cases where TK has been
used by others to develop a product that is then patented, with neither prior
informed consent of the TK holders nor benefit sharing. In this context,
concerns have been raised that some national patent laws define novelty in a
territorially limited sense so that an ‘invention’ can be ‘novel’ even if it
exists in an undocumented form in another country.
38. A possible
means to help ameliorate this concern is through certificates of origin,
according to which patent applications for inventions based on genetic
resources would include a certificate of origin of the genetic resources and
associated TK used and evidence that PIC had been obtained from the country
and/or indigenous or local community concerned. Putting this in place at the
national level should be fairly straightforward. Some have suggested an
international certification system, where countries providing genetic resources
and/or TK would issue standard certificates indicating that all obligations had
been fulfilled in accordance with their national laws. (Tobin and Ruiz, 1996).
This has been proposed by several countries at the CTE. In the negotiations leading to the
recent adoption of the Patent Law Treaty, some developing countries suggested
the inclusion of provisions in the treaty aimed at preventing the granting of
patents involving unauthorized use of TK, for example through compulsory
disclosure of the source of TK and/or PIC.[12]
Another, complementary approach to address the
concern about patents being granted improperly (e.g. an invention that is not
new being awarded a patent due to inadequate information) is to develop a
database of TK that can be used in national patent offices during the patent
examination process. Indeed, in the WIPO Standing Committee on Information
Technologies, such a proposal was made by India and accepted by that Committee.[13] This is also relevant to the issue of
documentation of TK discussed below.
39. Geographical Indications: Under Article
22.1 of the TRIPS Agreement, geographical indications “identify a good as
originating in the territory of a [WTO] member, or a region or locality in that
territory, where a given quality, reputation or other characteristic of the
good is essentially attributable to its geographic origin.” Like trademarks,
they allow producers to differentiate themselves and segment the market, thus
achieving higher returns, if consumers are willing to pay a price premium for
their distinct product.
40. Geographical
indications have certain characteristics that are more in line with the ways in
which traditional communities use their knowledge. As pointed out by Downes and
Laird (1999a), geographical indications are based on collective traditions and
a collective decision-making process; protect and reward traditions while allowing
evolution; emphasize the relationships between culture, land, resources and
environment; are not freely transferable from one owner to another; are not
subject to unconditional control by a private owner; and can be maintained as
long as the collective tradition is maintained. Some developing countries are
interested in exploring the use of geographical indications for TK-based
products such as kava from the South Pacific.
41. Trademarks: Like geographical
indications, trademarks are marketing tools based on claims to distinctive or
authentic products, and are indefinitely renewable. Collective marks or
certification marks, which are usually owned by associations of producers,
could be used to protect goods based on TK. Certification marks indicate that
certain claimed characteristics of the goods (e.g. origin, quality, production
method) have been authenticated by the producer organization owning the mark.
In the United States, the Intertribal Agriculture Council licenses use of its
annually-renewable ‘Made by American Indians’ mark for the promotion of
agricultural or other Indian-made products that have been produced and/or
processed by enrolled members of recognized Tribes.” (Dutfield, 2000). The
“Ayurveda” trademark has been used extensively by India for marketing ayurvedic
products, especially medicines and foods.
42. Trade secrets: The protection of
undisclosed information (trade secrets) is covered by TRIPS Art. 39. Trade
secrets could potentially be used to protect a fair amount of TK with
commercial value. To do so, the community would have to comply with the
condition that the information “has been subject to reasonable steps under the
circumstances, by the person lawfully in control of the information, to keep it
secret” (TRIPS Art. 39 (c)). If an individual such as a shaman or a small group
of individuals (e.g. a family) has exclusive access to information, that
individual, group, or the whole community would probably have a trade secret.
(Axt, et al, 1993) This system is
widely used in Chinese traditional medicine.
43. Copyright: Although folklore is not
dealt with explicitly in this paper, it should be mentioned that copyrights
seem to have some potential for its protection. The usual problems of
attributing ownership and protecting information already in the public domain
exist here as well. The 1976 Tunis Model
Law on Copyright in Developing Countries, adopted by a committee of
governmental experts with the support of UNESCO and WIPO, specifically
addressed these difficulties and may be worth reconsidering.
D. Sui
generis systems
44. Many
interested parties, particularly in developing countries, are calling for the
development of sui generis systems to
protect TK (please note that this is not to be confused with the sui generis system for the protection of
plant varieties referred to in Article 27.3(b) of the TRIPS Agreement[14]).
As discussed in chapter III, CBD’s COP V recognized the potential importance of
such systems and called for an exchange of experiences.
45. Most
discussions of sui generis systems
for the protection of TK focus on the national level and on IPRs. Sui generis legislation to protect TK
can comprise or be developed in conjunction with regulations governing access
to genetic resources and benefit-sharing, as well as institutional and
regulatory mechanisms and other measures such as registries of TK. To
accommodate such a system, it is likely that other laws and policies governing
natural resources, protected areas, environmental protection, intellectual
property and land tenure would need to be reviewed (UNEP, 2000b). It is of
paramount importance that traditional communities participate in the
development of any such system, and that their cosmovisions, customary laws,
and priorities are respected and taken into account. To oversee implementation
and ensure enforcement of provisions, institutional measures such as setting up
a multi-stakeholder coordinating body might be considered.
1. Possible elements of sui generis systems
46. In
October 1999, the CBD’s Panel of Experts on Access and Benefit-sharing met and
suggested possible elements for sui
generis legislation to protect TK. Regarding rights, the Panel suggested
that legislation could include recognition: of ancestral community rights over
TK; that these rights exist even when information is already in the public
domain; that these rights may be collective in nature; of the distinction
between rights over genetic resources (where vested in the State) and rights
over knowledge associated with such resources (vested in local and indigenous
custodians); and that the use of genetic resources implies use of associated
TK. The Panel also suggested that legislation could include the creation of
administrative and judicial review processes to resolve disputes;
benefit-sharing mechanisms; registers of TK; and programmes and processes for
the strengthening of TK systems.
2.
Examples of sui generis systems
47. Some countries have introduced legislation which seeks inter alia to protect the rights of TK
holders. Examples include the Andean Community member States, Brazil, Costa Rica, Panama and the
Philippines (recently Thailand has developed legislation in the area of
community rights related to TK in three areas: medicine, forestry and food -
plant varieties). The Peruvian Government is drafting legislation specifically
on TK protection (“Proposal of Regime of Protection of the Collective Knowledge
of Indigenous Peoples”) with the active participation of traditional
communities and their representative organizations. According to the draft law,
those wishing to access TK for scientific, commercial, or industrial
applications are required to secure the PIC of the holders of the knowledge. A
register of collective knowledge will be created, with access requiring the
written consent of the indigenous peoples who own the specific knowledge. In
order to find out whether the register contains knowledge that may be of interest,
the competent national authority administering the register will provide
interested parties with information on the uses that certain indigenous peoples
have for biological resources.
48. The
Organization of African Unity (OAU) has drafted “African Model Legislation for
the Protection of the Rights of Local Communities, Farmers and Breeders, and
for the Regulation of Access to Biological Resources”. It determines that any
written contract shall be entered into by the state and the collector, but with
the full participation and approval of the concerned local community or
communities. It further suggests an institutional arrangement for developing a
system of registration of items protected by community intellectual rights and
farmers’ rights according to their customary practices and law. Other
provisions pertain to the development of a national information system to
compile and document information on local knowledge and innovation practices of
the communities and guidelines for collectors of resources (OAU, 1998).
49. A model
Community Intellectual Rights Act proposed by the Third World Network in 1996
aims to protect the innovation and intellectual knowledge of local communities.
It declares that “the local community shall at all times and in perpetuity be
the lawful and sole custodians and stewards of all innovation”. In view of its
definition of innovation[15],
the Act basically declares that all innovations derived in any degree from
community knowledge are innovations of that community and owned in perpetuity
(Nijar, 1996).
50. It is been
suggested that the UNESCO/WIPO ‘Model Provisions for National Laws on the
Protection of Expressions of Folklore Against Illicit Exploitation and Other
Prejudicial Actions’ could be extended beyond folklore to encompass other types
of TK. In these Provisions, protection is not limited in time and is subject to
authorization if use of traditional heritage is made both with gainful intent
and outside traditional or customary context.
E.
Access and benefit-sharing mechanisms
51. Prior informed consent: PIC represents
the CBD’s key mechanism for providing legal protection of TK and benefit
sharing. However, much will depend on national and sub-national legislative
definitions of what constitutes PIC, as well as the mechanism for enforcing it.
Where PIC is given, mutually agreed terms (MAT) and benefit-sharing
arrangements become a part of the contractual arrangement between the local
community and the researcher/collector (Fourmile-Marrie, 1998). PIC could
provide a link between traditional or customary systems of TK protection and
modern IPR instruments.
52. In
principle, the Convention refers only to the PIC of the State in possession of
the genetic resources to which access is sought. Access legislation in the
Philippines, Costa Rica and the Andean Community requires that PIC is also
obtained from local and indigenous communities. For this to function properly,
the rights of traditional communities to their TK should be recognized in
national legislation.
53. The
CBD Panel of Experts on Access and Benefit-sharing recognized that it might
be necessary to explore possible measures to support, in user countries, PIC
requirements in provider countries (UNEP, 1999). This has been reflected in CBD
Decision V/26.[16] Since the Panel was unable to come
to any conclusions on the issue of IPRs, COP V requested the CBD secretariat to
prepare a report on issues identified as requiring further study.[17]
The Panel recognized that IPR
application procedures could require that the applicant submit evidence of PIC,
but that the effectiveness of such measures should be further evaluated.[18]
54. National legislation: Some 50 countries
are currently in the process of writing access and benefit-sharing legislation.
This includes the Andean Community member States, Brazil, Costa Rica, India,
Panama, the Philippines, and Thailand. It is important that any legislation
developed should be flexible and not unduly complicated so as to keep
transaction costs reasonably low. Also, it should be borne in mind that the
special characteristics of agricultural biodiversity may necessitate
multilateral benefit-sharing arrangements, rather than bilateral arrangements.
55. Contractual agreements: Apart from
legislative protection for TK, contractual arrangements have been used for
exchanges of biological resources and associated TK between TK holders and
companies. One example is the know-how license agreement between the Aguaruna
of Peru and the United States pharmaceutical company Searle (Tobin, 1997). The
contract option has some limitations. These include the disparity in bargaining
power of the parties, the high transaction costs, the secrecy of contracts, and
the fact that such agreements are generally not binding on third parties. Some
countries are in the process of formulating standard form contracts to reduce
transaction costs.
56. Guidelines and codes of conduct: A
number of guidelines for access and benefit sharing have been developed,
primarily by members of associations that seek access to genetic resources. One
example is the International Society
on Ethnobiology’s Code of Ethics.[19]
The Government of Switzerland undertook a broad consultative process on this
subject with relevant industries and other stakeholders in its country and drew
up a set of draft voluntary guidelines that it presented to COP V of the CBD
(UNEP, 2000).
F. Documentation of traditional knowledge
57. Documentation
of TK, innovations, technologies, and practices in ordered collections or
databases, generally called registers or registries, can contribute to
preserving and protecting that knowledge.
58. In
India there are several interesting initiatives. Several NGO-driven People’s
Biodiversity Registers (PBRs) document TK at the village level across the
country. These aim to record TK for the benefit of present and future
generations of local communities, to promote its continued use through
recognition of its value and inter-community exchanges, and to protect it from
misappropriation. A bottom-up approach is envisaged, aimed in the long term at
creating a network of decentralized databases giving full credit to the
provider of the information, be it an individual or a community (WTO, 2000).[20] The Society for Research and Initiatives for
Sustainable Technologies and Institutions (SRISTI) aims to strengthen the
capacity of grassroots innovators by documenting and disseminating
technological and institutional grassroots innovations, protecting IPRs of
innovators, and providing them with financial support (Gupta, 1999). As of
November 1999, SRISTI had surveyed some 4,500 villages and documented 10,300
innovations related to agriculture, farm implements, herbal medicine, and soil
conservation (Varma, 1999).
59. Registries
can be an important tool to preserve TK for the use of local communities and
the rest of the world. This is especially important because so much is being
lost as elder generations pass on. Although entering knowledge in such a
database would not necessarily establish a legal claim for most types of TK,
such documentation can help to demonstrate the existence of prior art in the
case of patent claims based upon TK. Consideration needs to be given to levels
of accessibility to registries, since making TK more readily available could
facilitate its being used without proper acknowledgement or compensation. Even
with user access agreements, enforcing conditions is likely to present a
practical challenge (Downes and Laird, 1999b).
V.
Harnessing TK for development and trade
60. Legal protection of TK is a necessary but not
sufficient requirement for its preservation and further development. According
to the World Bank, TK is an underutilized resource in the development process.
Its dissemination can help to reduce poverty (www.worldbank.org/ afr.ik).
Adequate protection needs to be supplemented by measures to (i) raise awareness
of the importance of TK and its preservation; (ii) further develop TK-based
innovation; and (iii) exploit the opportunities for commercialization of
TK-based products and services. This can best be achieved on the basis of
comprehensive national strategies to harness TK for development and trade,
reflecting the national development objectives and interests of indigenous and
local communities. Besides the promotion of the use of adequate instruments of
TK protection, such national strategies may comprise institutional mechanisms
(both at intra-ministerial level and consultative mechanisms with
non-governmental stakeholders) and a set of policy instruments and incentive
measures to promote TK-based innovation and commercialization of TK-based
products and services.
61. In this regard, the notion of a national
system of TK-based innovation can be important. This refers to a network of
economic agents and government institutions, based on supportive policies, that
influence the innovative behaviour and performance of traditional and local
communities in a forward-looking and coherent way. Even if single elements of
such systems are strong, the system as a whole may be weak. The capability to
learn and build new competencies will depend on how well the parts fit together
and on the strength of these connections. The focus on innovation as a process
wherein individuals and organizations take new initiatives is useful also
because it brings entrepreneurship to the forefront. Without a general climate
promoting individual and collective entrepreneurship, the strengthening of the
knowledge base might not have any major positive impact (Nelson, et al, 1993). However, it must be
recognized that, for efforts to integrate TK into national systems of
innovation to succeed, they must reflect the reality that a great deal of TK is
tacit, that is to say uncodified and, in many cases, inherently uncodifiable
(Mytelka and Tesfachew, 1998). Accordingly, partnerships involving the TK
holders themselves are essential in order that traditional know-how can be
transferred and made useable. Principles of equity, prior informed consent and
transparency should of course be integral to such partnerships. The tacit
nature of a great deal of TK also makes the need for documentation of TK an
urgent and pertinent issue.
A. Promoting innovation and commercialization
of traditional
knowledge
62. Strengthening
the innovative capacity of indigenous and local communities to further develop
TK in a range of natural product-based industries can support their long-term
sustainable economic development and help to protect their TK. Central and
local governments can enhance innovation by creating special supportive
mechanisms or facilitating the exchange of experience and skills among
indigenous and local communities. The Government of India, for instance, has
set up a national innovation foundation with initial funding of US$ 5 million.
This is intended to build national registers, mobilize IPRs for innovations
based on these registers, set up incubators for converting innovations into
viable business opportunities, and help in the dissemination of this
information across different regions of the country.
Box 1
Examples of
commercialization of TK-based products and services
Art and handicrafts:
Indigenous artworks as tourist souvenirs are usually made by indigenous artists
and crafts-people. However, traditional artworks are sometimes mass-produced
for tourists as generic traditional works and sold through the souvenir trade.
Usually this does not breach copyright because no specific artworks are
copied. In such cases, certificates of
authenticity guaranteeing that the item is in fact made by a traditional artist
may be needed. In addition, fine art produced by traditional community artists
specifically for art collectors and the investment market can generate
significant revenues.1
Traditional medicines: Part of
the US$ 60 billion world market for
herbal medicines is based on TK. This may provide trading opportunities for developing
countries, but taking advantage of such opportunities may require appropriate
legislation, quality control and marketing as well as further study of suitable
intellectual property protection. India, for example, currently exports more
medicinal plants than herbal products, due to difficulties in getting
formulations cleared by the United States Food and Drug Administration (FDA)
and non-acceptance by medical insurance companies (particularly in Europe).
However, the situation is changing and India is entering world markets for
herbal products in a significant way. India’s exports of medicinal plants and
herbal products are about US$ 8 million annually, but growing quickly.
Maharishi Ayurveda Products is planning to enter the roughly US$ 4 billion
Japanese market with a portfolio of 120 ayurvedic products. This will include
food supplements, aromatic oils, cosmetics and body care products.
Native species: Some
countries are promoting the sustainable exploitation of native species.
Indigenous peoples across Australia use some 10,000 native plant species for
food. However, only a fraction is being exploited, largely by non-indigenous
enterprises, in the still nascent but rapidly growing native bushfood industry.2
The principal value of these various bushfoods is as ingredients (flavours,
spices, condiments) in the preparation of other foods. The industry’s real
potential, based on the ‘organic-ness’ of its products, lies in overseas
markets. The industry is starting to cultivate many popular food plants to reduce
reliance on wild sources, providing opportunities for greater quality control,
more reliable supplies, improved access to markets, selection of best strains
and development of new varieties (Fourmile-Marrie). The potential for participation
of local communities is large but needs encouragement. Indigenous communities
may need to examine appropriate forms of intellectual property protection to
capitalize on their TK in the market place without jeopardizing the very values
that sustain it.3
TK-related resource-based products: A collaboration established in 1994 between POEMA and Daimler Benz of
Brazil includes research in natural products (such as fibres, dyes, oils,
latex, and resins) for the automobile industry, as well as the establishment of
a pilot plant for the manufacture of truck headrests from coconut fibre
(previously burned as waste) and latex. The pilot plant, administered by the
Association of Rural Producers of Ponta de Pendras, Marajo Island, has been
able to increase its production capacity from approximately 1,000 units per
month to 4,000. This was achieved with the technical assistance and know-how of
POEMA/Daimler Benz and funds from Bank of Amazonia SA. The association
maintains direct relationships with its clients in São Paulo and continues to
study ways of increasing and diversifying its production line.4
UNCTAD BIOTRADE and POEMA have created the Programme Bolsa Amazonia to foster
and replicate these types of partnerships in the Amazonian region.5
1
For example,
recent auction sales in Melbourne (February 1999) realized about A$ 4.4
million. The total value of the Aboriginal art market in Australia is around A$
200 million per year. Half the sales are
related to the tourism market. Of the total Aboriginal art trade, about A$ 50
million is estimated to go directly
to Aboriginal producers.
2
The Australian
Native Bushfood Industry Committee (ANBIC) has been established with a grant
from the Rural Industries Research and Development Corporation. In the early
1990s, the bush food industry was worth an estimated $15 million per year, with
ANBIC hoping to accelerate its growth to $100 million within three years. Few
Aboriginal peoples/communities are currently participating in this industry (Fourmile-Marrie, 1995).
3
Aboriginal communities might find that plant breeders rights (PBRs) have
already been taken out on many traditional species by both local and overseas
companies. This means that they may only be able to grow certain species under
license (Fourmile-Marrie, 1999).
4
The EU Directive
for the Processing of End-of-Life-Vehicles is likely to encourage further
developments in this regard.
5
For more information, see: www.ufpa.br/poema
63. Commercialization of TK-based products and
services may provide opportunities, but it should be recognized that certain
indigenous communities prefer to focus on cultural and spiritual values (Posey,
1999). It should also be noted that there are limitations for the commercialization
of TK. In certain cases there is potential for over-harvesting of economically
significant natural products, such as Pacific Yew.[21] In others,
sustainable harvesting of a plant on which a TK-based product is derived is
feasible, but may be blocked due to a preservationist conservation policy that
does not allow any kind of
harvesting. A good example is the jeevani herbal product based upon the TK of
the Kani people of South India (Anuradha, 1998). Commercialization of TK may inter alia require appropriate systems
of intellectual property protection that take into account the need to enhance
the value of TK-based products (for example through brand names or geographical
indications), but without adversely affecting traditional values. Communities
that are interested in exploring possibilities of commercially exploiting their
TK should first assess what aspects of their TK could be of interest to the
wider world. They should then decide whether certain categories should be
considered as “off-limits” for commercialization due inter alia to religious, cultural, spiritual or environmental
sustainability considerations.
Thereafter, they can develop a plan of action or a commercial roadmap
(Lettington, 2000).
64. Since
local and indigenous communities tend to be relatively small, they cannot
usually on their own generate the economies of scale necessary in particular
for entering the international trade arena. Thus partnerships become very
important. These could take several forms. For example, local and indigenous
communities could form a producers’ association for one type or a defined range
of products. Also, an association of communities organized in this manner could
potentially make use of trademarks or geographical indications to differentiate
their products from others in the market. The Native American Indians in the
United States have done this, for example (see paragraph 41).
65. Interest in the commercialization of
TK-based products and services is on the rise because of commercial interest in
biodegradable products and other shifts in consumer behaviour in developed and
developing countries. Experts may discuss examples along the lines of those
provided in box 1.
B.
Capacity-building
66. Capacity-building
can help indigenous and local communities in harnessing TK for development and
trade. Discussions within the CBD and recent seminars[22]
suggest that the following focus could be given to capacity-building
activities: (a) awareness-building on the importance and potential of TK for
development and trade; (b) assistance in developing institutional and
consultative mechanisms to harness TK for development and trade; (c)
facilitation of the identification and marketing of TK-based products and
services; (d) promotion of exchange of experiences among developing countries
on national strategies, sui generis
systems for the protection of TK, and the commercialization of TK-based
products and services; and (e) special attention to building such capacities in
LDCs.
67. In
accordance with its mandate, UNCTAD is implementing capacity building projects
to promote sustainable development through trade. These activities fall into
two clusters: (a) the building of institutional and policy-making capacity for
harnessing TK for development and trade, including assistance on equitable
sharing of TK-derived benefits; and (b) the identification of and promotion of
exports of TK-based goods and services.
68. The
BIOTRADE Initiative of UNCTAD seeks to enhance the capability of developing
countries to produce value-added products and services from biodiversity for
both domestic and international markets.[23].
Country programmes are being developed in the Amazonian and Andean regions
under the project “Implementation of the BIOTRADE Initiative of UNCTAD in the
Amazonian Region”.[24]
These programmes seek to identify opportunities and constraints for sustainable
development of biodiversity resources in each beneficiary country, focusing on
bio-business development, bio-partnerships, incentives for conservation,
sustainable use, and benefit-sharing. A subregional programme on TK, IPRs and
benefit sharing, as they relate to trade and biodiversity, is under way in the
Andean region in cooperation with the Andean Community (CAN), the Corporación
Andina de Fomento (CAF), the International Centre on Trade and Sustainable
Development (ICTSD) and the BIOTRADE counterparts in the beneficiary countries.
69. The
UNEP-UNCTAD Capacity Building Task Force on Trade, Environment and Development
seeks to contribute to the promotion of production and trading opportunities
for environmentally preferable products, including organic and TK-based
products from developing countries, inter
alia based on the forging of proactive inter-community, public-private and
business partnerships.[25]
An UNCTAD/UNDP project in India explores how to add value to TK through
partnerships with the private sector and how to commercialize such
technologies. Incentives and experiences for developing such partnerships are
being examined. An UNCTAD/UNDP project in Viet Nam examines the role of
partnerships, including benefit sharing arrangements (at the national level)
between scientific research institutes/universities and farmers, to support TK-based
innovations.
70. As part of
its capacity building work, UNCTAD is also promoting the exchange of national
experiences among developing countries. Under the project “Strengthening
Research and Policy Capacities in Trade and Environment in Developing
Countries”, 10 developing countries have identified several priority issues for
examination, including national experiences with (a) sui generis systems for the protection of TK and (b) benefit
sharing.[26]
These issues have been discussed in seminars that were based on a series of
country-focused papers. Studies have also been produced under the BIOTRADE
Initiative, for example on codes of conduct, registers of TK, and geographical
indications.[27]
VI.
Possible issues for discussion by experts
71. The
questions below are intended to stimulate the discussion of experts. In
addition, country-focused papers by experts will elaborate on questions
outlined in document TD/B/COM.1/EM.13/1.
A.
Systems for the protection of TK and benefit sharing (chapter IV)
72. Experts
may wish to address the following questions:
·
What is the economic value of TK?
·
What should be the objectives for protecting TK?
·
What systems are available to achieve different objectives? For example,
what are the lessons learnt regarding the use of customary law, existing IPR
instruments, sui generis systems,
prior informed consent, benefit sharing mechanisms, documentation, etc.?
·
How can national systems for the protection of TK and instruments such
as PIC be supported by policies and measures implemented by user countries or
at the multilateral level?
·
What rules are in place to regulate access to TK held in registries?
·
To
what extent have benefit sharing arrangements been successful? What are the
conditions for effective benefit sharing arrangements?
B.
Harnessing TK for development and trade (chapters II and V)
73. Experts
may wish to elaborate on the following issues:
·
How can TK and TK-based innovation contribute to sustainable
socio-economic development in developing countries?
·
What experiences have developed and developing countries had in
promoting the innovative capacity of indigenous and local communities? What
policies and mechanisms have been used in this regard?
·
What
are the experiences of developing countries and donor programmes in promoting
trade in TK-based products? How do these programmes relate to programmes for
environmentally preferable and fairtrade products? What is the role of modern
IPR instruments in promoting trade in TK-based products from developing
countries?
·
What
is the role of product certification and labeling?
·
How can developing countries obtain greater benefits from the
commercialization of TK-based products? What would be the role of
inter-community, public-private, and business partnerships?
C. Capacity-building needs
(chapter V)
74. Experts
may wish to focus on the following questions:
·
What
are the capacity-building needs of developing countries in their efforts to:
-
protect TK;
-
promote TK-based innovations;
-
harness TK for development and trade;
-
promote trade in environmentally
preferable and TK-based products?
·
Building on paragraphs 68–70, how can UNCTAD, within its existing
mandate and in co-operation with other organizations, assist developing
countries in this regard? What are the specific needs of developing countries,
in particular LDCs, for such capacity-building activities, in particular with
regard to research and analysis; facilitating exchange of
experience among developing countries; and training?