«Traditional knowledge and indigenous communities»

The relationship between human rights, intellectual property and sustainable development: looking for integration. European Intellectual Property Institutes Network Team Report Series, Team Report 4. Team Advisor: Ana Georgina Alba Betancourt Team Members: Adam György, Gulben Karlidag, Jacques Stemmet, Marion Laperrière, and Zuzana Peniaskova. 14th EIPIN Congress (2013).

«Traditional knowledge can be understood as ‘knowledge, know--‐how, skills, innovations or practices that are passed between generations in a traditional context and that form part of the traditional lifestyle of indigenous and local communities who act as their guardian or custodian’. It therefore covers a broad range of subject matter like traditional agricultural, medicinal and biodiversity--‐related knowledge and cultural expressions that should be perceived together in the sense of the “heritage” of indigenous people.

»As to the protection of knowledge holders´ rights from the human rights perspective, reference must be made to Article 15 ICESCR. Under Article 15(1)(c), ‘any scientific, literary or artistic production’ shall be protected, including knowledge, innovations, and practices of indigenous and local communities. Furthermore, under Article 15(2), the conservation and the diffusion of the culture is one of the ends to be achieved. When reporting on realization of the rights under Article 15, states are among others asked ‘to provide information about measures taken to further enjoyment of the cultural heritage of indigenous peoples, the preservation of mankind’s cultural heritage and other measures taken for the conservation and development of culture’. The protection of knowledge holders therefore shall fall primarily within this cultural human right. The general problem of human rights conventions is that not all the states consider them as self--‐executing and equal to their constitutional rights. Owing to that, adequate protection on national level is required as well.

»Article 15 CESCR presents the same provision under which IPRs tend to be recognized as cultural rights and the conceptual issue which arises here is whether it is possible ‘to fit traditional knowledge within existing categories of IPRs’. In order to protect traditional knowledge, first of all, its holistic context must be respected: for indigenous people, traditional knowledge covers more than what can be traditionally protected by IP law. Current IP systems do not always fit the evolving nature of traditional knowledge, not alone forgetting the fact that the knowledge is often held collectively, and transmitted over generations. As a consequence, traditional knowledge is not always able to fulfil existing IP requirements for protection, like novelty, originality or creativity, and cannot be valued only through an economical perspective. Moreover, IP systems are costly and therefore may not be affordable for indigenous people, especially in case of potential disputes. Regardless of the difficulties, there are various legal tools that can be used in order to protect traditional knowledge; these tools may be in general approached as defensive protection and as positive protection. These two approaches should not represent different options; but on the contrary, should be undertaken in a complementary way.

»Defensive protection means safeguarding against unauthorized acquisition by third parties of IP rights over traditional knowledge. A typical example of defensive protection is publishing – creating databases of traditional knowledge as evidence of prior art in order to block others from patenting. On the other hand, disclosing the knowledge puts it in the public domain, where it can be used or exploited by others. For that reason, safeguarding represents just one side of protection and has to be completed by positive protection.

»Positive protection has as its objective the acknowledgement of the rights of traditional knowledge holders, to protect and promote traditional knowledge and repress its misappropriation and other unfair uses. In general three options are available in order to reach these goals: to use existing IP law systems, to extend or adapt IP rights or to use sui generis systems which give rights in traditional knowledge as such. There is no one--‐size--‐fits--‐all system that could suit various legal environments and indigenous communities – the key is to provide traditional knowledge holders with a choice that would address their interests.

»As already noted, existing IP law systems might not always provide satisfactory protection of traditional knowledge, patent laws or protection of plant varieties represent systems where most collision can be found. On the other hand, distinctive signs and in particular geographical indications seem to fit the concept of an appropriate protection framework for traditional knowledge, as associations on an indefinite basis can hold them.

»All of the above mentioned possible contradictions between traditional knowledge and IP rights can also be reflected in the light of the relationship between CBD and the TRIPS agreement. Under article 8(j) of the CBD, states shall ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity’. However, the strong formal, market--‐driven and individualistic orientation of the TRIPS agreement, makes it difficult for collectively held, non--‐codified and non--‐‘novel’ traditional knowledge to fit within its provisions. As a matter of fact, traditional knowledge holders are on many occasions excluded from protection and as a result thereof are often subjected to bio--‐piracy.»

Innovation Typologies
Thematic Readings

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