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The Global Protection of Traditional Knowledge: Searching for the Minimum Consensus

2017; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

Aman Gebru,

International Maritime Law Issues

Traditional Knowledge (TK) is defined in the paper as the 'know-how, skills, innovations and practices of indigenous peoples and local communities.The paper examines the status quo in terms of relevant international fora that have implications for TK protection with an emphasis on the World Intellectual Property Organization (WIPO), the Convention on Biological Diversity (CBD) and the World Trade Organizations (WTO). The paper also examines the most advanced instrument on TK protection – the Draft Articles of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). Although international TK protection has been discussed for over a decade, a clear and enforceable regime of protection has yet to be achieved. International deliberations at the WIPO IGC are stalled because of the failure of delegates to agree on several key issues. These issues include the definition/scope of TK, the legal nature of the proposed instrument, the tension between providing flexibilities for domestic policy space and crafting an effective/enforceable system of protection, and the relationship between the proposed instrument and other international agreements. Negotiations are ongoing at the WIPO IGC despite these differences in negotiating positions. The feasible way forward for international TK protection seems to lie in striking the right balance between providing flexibilities for domestic jurisdictions to craft domestic laws based on a country’s needs and capabilities, and ensuring that there is sufficient international obligation that would encourage TK protection. Such a framework should begin with the minimum consensus among key stakeholders in the global bioprospecting field.The paper provides key issues over which major stakeholders could establish the required minimum consensus to begin an international framework for TK protection. In order to guide the development of such consensus and to strike a balance between flexibility and enforceability, it is proposed that the Draft Articles include five provisions on the following issues: A provision defining TK and the general subject matter that should be subject to protection (currently included in Article 1 of the Draft Articles); a new article requiring the establishment of domestic frameworks that would encourage the documentation and disclosure of TK through databases/registries; an article setting out enforcement measures (Article 4); provisions on national treatment and MFN treatment (Article 11); and a provision on the relationship of the instrument to other international agreements (Article 10). The international instrument should be limited to these few provisions and it should leave the details of the system for domestic laws. While diplomatic negotiations are painfully slow, scholars have advanced several proposals that seek to provide innovative legal tools to protect TK. The paper examines the feasibility of some of the most promising proposals and their implications for the codification and disclosure of TMK. The establishment of a mandatory disclosure of origin requirement that includes obligations to disclose PIC and enforceable benefit sharing agreements will be a key legal tool to provide effective international TK protection. Additionally, the recognition of national legislation under international agreements seems to have potential for establishing an effective form of international protection if the relevant international agreements such as TRIPs are amended to include such provisions. The basic principles of national treatment and most favored nation treatment borrowed from international IP law are also needed in order to supplement minimum substantive protection. Because of the lack of progress in multilateral regimes including that at the WIPO IGC, some demandeurs of international TK protection have begun using Free Trade Agreements (FTAs) to further the international dialogue on TK protection. As highlighted by Susy Frankel, although FTAs are not the ideal tool for establishing global norms, given that they are proliferating, countries advocating for TK protection should begin to use them strategically to establish global norms of TK protection. Although most demandeurs of TK protection do not have the bargaining power to influence more powerful countries, they could begin by inserting TK protection provisions into FTAs between two or more like-minded countries. In all of these efforts, it is suggested that the need to encourage the codification and disclosure of TK should be the organizing principle. Since this need has been endorsed in many instruments, including the WIPO Draft Articles, it should be possible to develop a global norm around such principles.