WIPO NATIONAL SEMINAR ON OMANI
TRADITIONAL VALUES IN A
GLOBALIZED WORLD
Muscat, February 13 and 14, 2005
Traditional Knowledge (TK) and
Intellectual Property
Agreements
WIPO Secretariat
TK and IP Agreements
1. Concept of TK
- elements of TK: a) TK in a strict sense; b) expressions of
TK; c) handicrafts
- the holistic nature of TK
2. International Agreements and TK
- Agreements that generally cover TK (that is, as
manifestations of human creativity and/or as differentiating
intangible assets)
- Agreements that specially aim at protecting TK
3. The work of WIPO as regards the establishment of
an international framework for the protection of TK
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TK and IP Agreements
1. Concept of TK
TK has been defined as “ideas and expressions thereof
developed by traditional communities and
Indigenous peoples, in a traditional and informal
way, as a response to the needs imposed by their
physical and cultural environments and that serve
as means for their cultural identification”
(WIPO/GRTKF/IC/5/8)
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TK and IP Agreements
1. Concept of TK (cont.)
a) TK is “ideas”, that is, TK is knowledge. This
corresponds to the industrial
property aspect
of TK (or TK in
a strict sense).
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TK and IP Agreements
1. Concept of TK (cont.)
b) TK is “expressions of those ideas”, that is, TK is also
folklore. This corresponds to the copyright and
related rights aspect of TK.
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TK and IP Agreements
1. Concept of TK (cont.)
c) TK is also an intertwined, symbiotic combination of
ideas and of expressions: handicrafts. Handicrafts
are useful objects (at least, so were they originally)
which conform to popular esthetic values.
Basket weaving with leaves of date
palm trees. They preserve the flavor of
dates and permit the flowing of their
juice.
The khanjar. Originally a
weapon, currently a
ceremonial accessory and
an Omani national symbol.
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TK and IP Agreements
1. Concept of TK (cont.)
a) TK is tradition-based and is a means of cultural
identification; TK cannot be separated from the
community that has developed it
b) TK is traditional but it is not necessarily old
c) TK is holistic, that is, its many components are
conceptually unitary and only by resorting to an
exercise of abstraction can they be separated and
isolated
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TK and IP Agreements
1. Concept of TK (cont.)
An illustration of TK:
Let us imagine that a member of an Amazon tribe does not feel well and
requests the shaman’s medical services. The shaman, after
examining the patient, will go to his garden and collect some leaves,
seeds and fruits from different plants. Mixing those materials
according to a method only he knows, he prepares a potion
according to a recipe of which he is the sole holder. While preparing
the potion and, afterwards, while administering it to the patient
(according to a dosage he will likewise prescribe), the shaman prays
to the gods of the forest and performs a religious dance. He may
also inhale the smoke of the leaves of a magical plant ...
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TK and IP Agreements
1. Concept of TK (cont.)
... (the “vine of the soul”). He may blow
the smoke onto his patient’s body.
The potion will be served and saved
in a vase with symbolic designs and
the shaman will wear his ceremonial
garments (and/or body paintings)
for the healing.
© National Geographic Society
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TK and IP Agreements
1. Concept of TK (cont.)
The TK of the Amazon shaman is a combination of all those elements. If
taken separately, existing intellectual property mechanisms could
protect most of, if not all, those elements. For example:
- the different plants used in the potion: plant variety protection
- the potion (or the formula thereof): patent and/or trade secret
- the use and the dosage of the potion: patent (in some countries)
- the prayer, once fixed: copyright
- the performance, once fixed: related rights
- the vase containing the potion: patent or utility model certificate if
it has new and inventive functional features; if not, it can be
protected under an industrial design system
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TK and IP Agreements
1. Concept of TK (cont.)
- the designs on the vase and on the garments, as well as the body
paintings: copyright or industrial design systems
- the several tangible elements above, if commercialized, can be
designated by a trade mark (individual or collective), a certification mark,
and/or a geographical indication
- the shaman and/or his tribe can be designated by a trade name
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TK and IP Agreements
1. Concept of TK (cont.)
However, to the shaman, it is not possible to
separate the several components of his
knowledge. All components are equally
important. The cure results from the
combination of all components, and not from
one or another isolated element. All elements
induce equally the intervention of the spirits of
the forest. TK is holistic.
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TK and IP Agreements
1. Concept of TK (cont.)
Another example of
holistic TK:
VALHRONA
Harvest
1999
Rare Chocolate
With the People of
Chuao
Origin: venezuela
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TK and IP Agreements
1. Concept of TK (cont.)
Another example:
Valrhona - (French registered) trademark
Chuao - (Venezuelan registered) geographical indication designating a
rare cocoa variety (Reg. Nr. 00-14373, of August 10, 2000,
belonging to Empresa Campesina de Chuao y MPC Aragua)
Design of handicrafts - industrial design, copyright
Colors of the Venezuelan flag - protected as a State emblem
Contract of commercial distribution of Chuao cocoa - it contains a
clause of benefit sharing and technology transfer from the French
importer to the Venezuelan indigineous producers
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TK and IP Agreements
1. Concept of TK (cont.)
However, to the indigenous peoples of Chuao,
the cocoa nuts that they have planted, bred
and selected for more than 300 years cannot
be separated from their land, their culture,
their language. Chuao is a geographical name,
or a brand of cocoa, an agricultural commodity,
but to the peoples of Chuao it is much more
than that: it is their life, it is their identity, it is
their dignity. Simple certificates of registration
do not express or address this holistic concept.
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TK and IP Agreements
2. TK and international agreements
Agreements that generally cover TK (as any other
element of intellectual property):
in fact, in almost all the agreements concerning substantive aspects of IP
tools can be found for protecting several (or all) of the components
of TK; however, even though many of TK components could be
protected separately
- not all TK elements meet the conditions for protection under “traditional”
IP law;
- a good number of IP mechanisms impose complex and costly formalities,
which do not correspond to the intrinsicly dinamic nature of TK;
- the separation of TK components is incompatible with its holistic nature.
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TK and IP Agreements
2. TK and international agreements
Agreements that specially aim at protecting TK (in a broad sense):
a) Berne Convention, Article 15.4 (folklore)
(a) In the case of unpublished works where the identity of the
author is unknown, but where there is every ground to
presume that he is a national of a country of the Union, it
shall be a matter for legislation in that country to designate
the competent authority which shall represent the author and
shall be entitled to protect and enforce his rights in the
countries of the Union.
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TK and IP Agreements
2. TK and international agreements
b) WIPO Performances and Phonograms Treaty (WPPT), Article 2
(folklore)
For the purposes of this Treaty:
(a) “performers” are actors, singers, musicians, dancers,
and other persons who act, sing, deliver, declaim, play
in, interpret, or otherwise perform literary or artistic
works or expressions of folklore;
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TK and IP Agreements
2. TK and international agreements
c) Convention on Biological Diversity (CBD), Article 8(j) (TK in a
strict sense)
Each Contracting Party shall, as far as possible and as appropriate:
“(j) Subject to its national legislation, respect, preserve and maintain
knowledge, innovations and practice of indigenous and local
communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity and promote
their wider application with the approval and involvement of the
holders of such knowledge, innovations and practices and encourage
the equitable sharing of the benefits arising from the utilization of
such knowledge, innovations and practices.”
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TK and IP Agreements
2. TK and international agreements
c) The United Nations Convention to Combat Desertification
(UNCCD), Art. 16.2 (TK in a strict sense):
“2. The parties shall, according to their respective capabilities, and subject
to their respective national legislation and/or policies, protect,
promote and use in particular relevant traditional and local
technology, knowledge, know-how and practices and, to that end,
they undertake to:
“(a) make inventories of such knowledge, know-how and practices and
their potential uses with the participation of local populations, and
disseminate such information, where appropriate, in cooperation with
relevant intergovernmental and non-governmental organizations;
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TK and IP Agreements
2. TK and international agreements
c) The United Nations Convention to Combat Desertification
(UNCCD), Art. 16.2 (cont.):
“...(b) ensure that such technology, knowledge, know-how and practices are
adequately protected and that local populations benefit directly, on an
equitable basis and as mutually agreed, from any commercial
utilization of them or from any technological development derived
therefrom;
“(c) encourage and actively support the improvement and dissemination of
such technology, knowledge, know-how and practices or of the
development of new technology based on them; and
“(d) facilitate, as appropriate, the adaptation of such technology,
knowledge, know-how and practices to wide use and integrate them
with modern technology, as appropriate.”
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TK and IP Agreements
3. The work of WIPO as regards the establishment of an
international framework for the protection of TK
First initiative: The WIPO/UNESCO Model Provisions for National Laws on
the Protection of Expressions of Folklore against Illicit Exploitation and
other Prejudicial Actions, of 1982
Second initiative: the new WIPO approach after 1997 – to bring the
benefits of IP to segments of society so far unable to use it
(indigenous peoples, SMEs); international discussions (CBD, FAO,
WTO)
1st phase – from 1998-2000 – exploratory phase (9 FFMs; 4 regional
consultations on folklore; TK integrates WIPO’s cooperation for
development program)
2nd phase - 2001-current – the Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore
first mandate 2001-2003 (discussions, studies, surveys)
second mandate 2003-2005 (continuation of the debates taking into
account the international dimension of TK)
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TK and IP Agreements
Thank you!
If you have any questions as regards this
presentation, please do not hesitate to contact
[email protected]
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WIPO/IP/MCT/05/2