Intellectual Property Rights & Indigenous Knowledge
Belay Abebe EIPO April 19, 2007 Addis Ababa
Background Recently, international attention has turned to intellectual property laws to preserve, protect, and promote traditional knowledge. The reasons for this are complex. In 1992, the Convention on Biological Diversity (CBD) recognized the value of traditional knowledge in protecting species, ecosystems and landscapes, and incorporated language regulating access to it and its use. This became even more pressing with the adoption of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which established rules for creating and protecting intellectual property that could be interpreted to contradict the agreements made under the CBD. In response, the states who had ratified the CBD requested the World Intellectual Property Organization (WIPO) to investigate the relationship between intellectual property rights, biodiversity and traditional knowledge. Indigenous peoples and local communities have sought to prevent the patenting of traditional knowledge and resources where they have not given express consent. They have sought for greater protection and control over traditional knowledge and resources. Certain communities have also sought to ensure that their traditional knowledge is used equitably - according to restrictions set by their traditions, or requiring benefit sharing for its use according to benefits which they define. A preliminary diagnostic survey conducted to identify the customary practices and expectations of traditional healers in Addis Ababa and bale areas indicated that the majority of them would like to share benefits accruing to the utilization of their knowledge. This paper there fore, on one hand, attempts to address the philosophy of intellectual property rights their scope and suitability to protect IK. The experience of selected countries in the protection of IK is also touched by example. The challenges encountered (to be encountered) at both the national and the way for ward [both at national and international levels] are discussed at length.
Contents 1. Intellectual Property Rights 2. Indigenous Knowledge 3. Models of Protection & Intellectual Property trends in IK 3.1 Models of Protection 3.1.1 Non-IPR Forms 3.1.2. IPR Forms 3.1.2.1 Defensive Forms 3.1.2.2 Offensive [Positive Protection] 3.2 Misappropriation, Biopiracy, and Commercial value of IK 3.3 Intellectual trends in Indigenous Knowledge 3.4 Global Efforts for the Protection of Indigenous Knowledge 4 Country and Regional Cases 4.1 India 4.1.1 Traditional Knowledge Digital Library 4.1.2 Registration and Innovation Patent System-an IPR-like Protection Model 4.1.3 Patents for Defensive Protection 4.1.4 Biodiversity Bill 2000 4.2 Thailand 4.3 China 4.4 Ethiopia 5 Regional cases 5.1 The African model legislation 5.2 The Andean Community Law-CAN 6 Challenges 7 The Way Forward 7.1 National Actions 7.2 International Actions
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Intellectual Property and Indigenous knowledge
1. Intellectual Property Rights Intellectual property rights confer protection to the intangible creation of the human mind, namely, inventions, artistic and literary works, and trademarks among others. The basic public policy rationale for the protection of intellectual property is that IP laws facilitate and encourage the pursuit of innovation and the disclosure of knowledge into the public domain for the common good, by granting authors and inventor's exclusive rights to exploit their works and invention for a limited period. IPRs confer ownership and exclusive rights to use, manufacture, reproduce, or promote a unique creation or idea. In this way, it is perhaps the most valuable asset a person or small business can own. In effect, IPRs give the creator or owner of a new and unique product or idea a temporary monopoly on its use This monopoly is granted in order to incentivize the production of such works and discoveries, purportedly for the public's benefit. "An intellectual property regime rewards innovators by creating a temporary monopoly power, allowing them to charge far higher prices than they could if there were competition ... faster innovation offsets the enormous costs of such inefficiencies." [Joseph Stiglitz, 2005] Remarks: IPRs are trade-offs between the inventor and the users. the making of derivative works is forbidden for the interim;
The perpetuation and expansion of such exclusive rights is
not cost-effective; it benefits a few (esp. large organizations in the content industry) at the expense of the public, and the public domain. faster innovation offsets the enormous costs born by IPRs Checking IPRs For the sake of mitigating abuse of IPRs (eg.excessive pricing of protected mater, national emergency) countries can put instruments in their national legislation. compulsory licensing 3
parallel importation
Inventions, artistic and literary works, trademarks and other creations can be protected by either of the following common IPR regimes. Copy Right: may subsist in creative and artistic works (e.g. books, movies, music, paintings, photographs, and software) and give a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time. The domain of protectable subject matter under copy right is non- exhaustive and increases with advancement.
Patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder an exclusive right to commercially exploit the invention for a certain period of time (typically 20 years from the filing date of a patent application).
Trademark is a distinctive sign which is used to distinguish the products or services of different businesses. Industrial design right protects the form of appearance, style or design of an industrial object (e.g. spare parts, furniture, or textiles). Trade secret (which is sometimes either equated with, or a subset of, "confidential information") is secret, non-public information concerning the commercial practices or proprietary knowledge of a business, public disclosure of which may sometimes be illegal. Geographical indications (Appellations of Origin): are important instruments of protection for goods/products whose quality/characteristics is attributable to a specific geographic area or origin.
Patents, trademarks, and designs rights are sometimes collectively known as industrial property, as they are typically created and used for industrial or commercial purposes.
2. Indigenous Knowledge: There is no an agreed and unanimous definition of indigenous knowledge. In most instances indigenous knowledge (IK) is used interchangeably with traditional knowledge (TK). Most thinkers and conventions however assert that Indigenous knowledge is the knowledge that people in a given community have developed over time, and continues to develop.
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It is based on experience, often tested over centuries of use, adapted to local culture and environment, dynamic and changing Traditional knowledge is thus the totality of all knowledge and practices, whether explicit or implicit, used in the management of socio-economic and ecological facets of life. This knowledge is established on past experiences and observation. It is usually a collective property of a society. Many members of the particular society contribute to it over time, and it is modified and enlarged as it is used over time. This knowledge is transmitted from generation to generation. According to the United Nations Environment Program (UNEP), this knowledge “can be contrasted with cosmopolitan knowledge, which is drawn from global experience and combines „western‟ scientific discoveries, economic preferences and philosophies with those of other widespread cultures.” Proponents of IK argue that there is no single way /system of knowledge to understand nature; IK and MK are thus knowledge systems of their own. "The Knowledge Politics" Without loss of generality, the salient features of IK could be summarized in the following way: Locally bound, indigenous to a specific area. Culture- and context-specific. Non-formal knowledge. Generally not documented and orally transmitted. Dynamic and adaptive. Holistic in nature. closely related to survival and subsistence for many people worldwide
3. Models of Protection & Intellectual Property trends in IK 3.1 Models of Protection The protection regime to be designed for IK has to emanate from the policy objective sought to be achieved. Deepening on the objective envisaged therefore a Non-IP ,defensive and /or an Offensive model of protection may be designed.
3.1.1 Non-IPR Forms: Are usually nonbinding and legally less/impractical tools. Many international conventions like the CBD fall in this category. Access and Benefit Sharing schedules [like that of Proclamation NO.482/2006] are also no0n IP forms of IK protection.
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3.1.2 IPR Forms This category of protection involves the application of existing or sui generis laws for protecting IK. Fundamentally the IPR models of protection (both defensive and offensive) are more effective and legally binding than the Non-IPR forms of protection. 3.1.2.1 Defensive Forms: Are designed for the mere purpose of preventing intellectual property rights over indigenous knowledge. This model does not protect the knowledge per se. Defensive forms of protection normally call for the presence/establishment of proper documentation and codification of IK to serve effectively and efficiently. Some countries do apply IPR-like mechanisms of protection. India, for example, has the registration and innovation patent system for some novel and useful innovations. The Honeybees Database is a result of such a system of registration. 3.1.2.2 Offensive [Positive Protection] This regime of protection aims at the use of effective intellectual property rights (existing, sui generis or combination) offensively. Quite a few countries have sui generis legislations for protecting IK due to the conceptual and practical complexity of designing and putting them in place.
3.2 Misappropriation, Bio piracy and Potential value of IK The following living examples of misappropriation and biopiracy; and may magnify the need for the protection of IK Turmeric – US For wound healing- Revoked in 1997 Neem – EPO Fungicide for crops- Revoked in 2000 Kava – A traditional food of pacific- L‟Oreal Patented it in France to reduce hair loss Hoodia – Used by African Tribes to ward off hunger & thirst. CSIR SA patented an appetite suppressing element( As anti obesity agent) Ethiopian Specialty coffees (Harar,Yirgachefie,Sidamo)-Starbucks
The expanding commercial value of IK based resources is another factor behind the urgent legislation of protection of IK.According some reports the Commercial value of IK-related resources is increasing geometrically. [5 trillion$ by2020, estimated market for Herbal Products.], Four out of ten people in the US use Alternative Drugs derived from IK.
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85 % of the population of developing countries relies on traditional medicine. In Germany 60% of drugs are based on active ingredients /derivatives of herbal drugs known for their efficacy by traditional medicinal parishioners. 3.3 Intellectual Property trends in IK Initial concern was over the territorial rights and traditional resource rights of these communities. Indigenous peoples soon showed concern for the misappropriation and misuse of their "intangible" knowledge and cultural heritage. Indigenous peoples and local communities have resisted, among other things: the use of traditional symbols and designs as mascots, derivative arts and crafts; the use or modification of traditional songs; the patenting of traditional uses of medicinal plants; and the copyrighting and distribution of traditional stories. The need for the protection of IK for economic causes became high on the agenda by many activists and international fora and a large number of developing countries mainly due to the rapid and massive rise of intellectual property activity in the past two decades. The United States receives over 350,000 patent applications a year, while China grows at a rate of 34% per year in applications. Part of this activity has been in the natural products bioprospecting sector in tropical countries where bioprospectors often harvest biological samples of traditional cultural resources. Indigenous peoples and local communities have sought to prevent the patenting of traditional knowledge and resources where they have not given express consent. They have sought for greater protection and control over traditional knowledge and resources. Certain communities have also sought to ensure that their traditional knowledge is used equitably - according to restrictions set by their traditions, or requiring benefit sharing for its use according to benefits which they define. A preliminary diagnostic survey conducted to identify the customary practices and expectations of traditional healers in Addis Ababa and Bale areas in Ethiopia indicated that the majority of them would like to share benefits accruing to the utilization of their knowledge. A more comprehensive diagnostic survey in other regions of the country must however be conducted to obtain a more representative and conclusive indication of the needs and expectations of the custodians and practitioners of traditional knowledge in Ethiopia. Generally the suitabilty of conventional IPRs for the protection of indigenous knowledge is yet an on going debate at several fora (national, regional, international). Despite such wide ranging discussions and concerns on the need for the protection of traditional knowledge, a binding instrument that could be unanimously used is yet not realized.
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This phenomenon owes much to the specific nature of traditional knowledge touching various policy and legal dimensions that need to be reconciled to international agreements and instruments. Nonetheless Efforts to come up with a working instrument are gaining momentum these days at international, National and regional and interregional levels.
Some countries and regional organizations have already put in place laws (conventional IPRs or sui generis) for the protection of traditional knowledge and/or genetic resources. Such national and regional legislations are however enforceable only in their territory of jurisdiction; which in effect encourages the misappropriation of TK-related inventions by the western multinational giants out side the territory of a given TK holder.
3.4 Global Efforts to Protect IK Several regional, international and national and civil society fora have considered protection of IK high on the agenda. The high-level Brundtland Report (1987) (also known as Our Common Future) recommended a change in development policy that allowed for direct community participation and respected local rights and aspirations. The Rio Declaration (1992), endorsed by the presidents and ministers of the majority of the countries of the world, recognized indigenous and local communities as distinct groups with special concerns that should be addressed by states. Article 8(j) of the CBD holds "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 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" A non-exhaustive list of other international and regional initiatives includes:
Agenda 21: Principle 22 of the main document that came out of the 1992
Earth Summit in Rio de Janeiro recognizes that indigenous peoples have a vital role to play in environmental management and development because of their traditional knowledge and practices;
The International Labour Organization's Convention 169 on Indigenous and
Tribal Peoples: This Convention calls for action to protect the rights of indigenous peoples;
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United Nations Declaration on the Rights of the Indigenous Peoples. The Inter-American Draft Declaration on the Rights of Indigenous Peoples:
An Indigenous Peoples and Community Development Unit has been established under this Declaration and is currently drafting a strategy on indigenous peoples;
The European Bank for Reconstruction and Development, the Asian
Development Bank and the African Development Bank: These Banks are committed to ensuring that the development process promotes indigenous peoples' participation;
The United Nations Development Programme (UNDP) and the World Bank:
Both organizations have launched programmes to promote indigenous peoples' development and to ensure that the development process fosters the full respect for the dignity, human rights and uniqueness of indigenous peoples.
United Nations Conference on
Trade and Development (UNCTAD): Protecting and Promoting Traditional Knowledge: Systems, National Experiences and International Dimensions The World Trade Organization (WTO): In the TRIPs-related Doha Declaration of 2001, Paragraph 19 expanded the review of Article 27 and the rest of the TRIPs agreement to include the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD) and the protection of traditional knowledge and folklore. This is an issue of intensive on-going international debate. It adds that the TRIPS Council‟s work on these topics is to be guided by the TRIPs Agreement‟s objectives (Article 7) and principles (Article 8), and must take development issues fully into account. WIPO: traditional knowledge and IPRs are being brought together at the World Intellectual Property Organization (WIPO) under the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore. Another WIPO-sponsored activity is the creation of a Task Force under the Committee of Experts of the International Patent Classification (IPC) Union, to study the relation and possible integration into the IPC of a Traditional Knowledge Resource Classification. In Asia, a joint statement adopted by the WIPO Asian Regional Forum on Intellectual Property Policy Development emphasized the urgent need for “developing countries to modernize their intellectual property systems and to bring their national legislative and administrative structures into conformity with international treaties and agreements, including the TRIPS Agreement”.
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African Model Legislation - for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological resources. Several developing countries and international organizations including WIPO are incessantly demanding and working on ways and methods of developing a protection regime ( conventional,sui generis or combination of the two) that can be harmonized with provisions in the TRIPS Agreement so as to make it applicable and enforceable in member states. The legislation of laws for the protection of traditional knowledge in a large number of countries across the globe is also believed to exert greater momentum to facilitate on going efforts of harmonizing the provisions and objectives of international conventions like the Convention on Bio diversity (CBD) and the TRIPS Agreement at international fora. In line with these international scenario and pressing national interests, the Ethiopian Intellectual Property Office is thence revitalizing/initiating a Project for the Protection of Traditional Knowledge. 4 Country and Regional Cases 4.1 India India is one of those countries which have utilized IK optimally. India mainly uses defensive protection regimes through various methods which interalia include the patent act, digitization of TK (TKDL), documentation and registration of valuable innovations (the Honeybee Database).
4.1.1 Traditional Knowledge Digital Library -TKDL For preventing the rampant biopiracy by big corporates India, has initiated developing digital databases of prior art related to herbs already in the public domain. Following patents on brinjal, etc., in India, an exercise has been initiated to prepare easily navigable computerized database of documented TK relating to use of medicinal and other plants (which is already under public domain) known as TK Digital Library (TKDL). Such digital database would enable Patent Offices all over the world to search and examine any prevalent use/prior art, and thereby prevent grant of such patents and bio-piracy. Documentation of TK is one means of giving recognition to knowledge holders. But mere documentation may not enable sharing of benefits arising out of the use of such knowledge, unless it is backed by some kind of mechanism for protecting the knowledge. This necessitates the need for extending some kind of protection to TK.
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Documentation of TK may only serve a defensive purpose, namely that of preventing the patenting of this knowledge in the form in which it exists. Documentation per se, however, will not facilitate benefit sharing with the holders of TK. Work on such libraries is also being pursued in WIPO where a specialized Task Force including representatives from China, India, the USPTO, and the EPO are examining how such libraries can be integrated into the existing search tools used by patent offices. 4.1.2 Registration and innovation patent system-an IPR-like model
This involves creating a system for registration of innovations by inventors. Such registration will be tantamount to giving right to the inventor to challenge any use of the innovation without prior permission. For novel and useful innovations, some kind of petty patent giving protection for a limited duration may be worked out. For example, the HoneyBee database, established ten years ago in India, is a facility for registration of innovations by innovators. The database can be accessed for adding value to these innovations and sharing benefits with the knowledge providers and innovators. Thus, the HoneyBee Network involves documentation, experimentation and dissemination of indigenous knowledge. The network has probably the world's largest database on grassroot innovations, having now about 10,000 innovations, with names and addresses of the innovators (individuals or communities). For example, this database has entries on traditional use of fish and fish products, improving crop productivity, etc. 4.1.3 Patents India applies Defensive Protection through patents. In the Patent (Second Amendment) Bill 1999, the grounds for rejection of the patent application, as well as revocation of the patent, include non-disclosure or wrongful disclosure of the source of origin of biological resource or knowledge in the patent application, and anticipation of knowledge, oral or otherwise. It has also been made incumbent upon patent applicants to disclose the source of origin of the biological material used in the invention in their patent applications. 4.1.4 Biodiversity Bill 2000
Section 36(iv) provides for protection of knowledge of local people relating to biodiversity through measures such as registration of such knowledge, and development of a sui generis system. For ensuring equitable sharing of benefits arising from the use of biological resources and associated knowledge, Sections 19 and 21 stipulate prior approval of the National Biodiversity Authority (NBA) before their access. While granting approval, NBA will impose terms and conditions, which secure equitable sharing of benefits.
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Section 6 provides that anybody seeking any kind of intellectual property rights on a research based upon biological resource or knowledge obtained from India; need to obtain prior approval of the NBA. The NBA will impose benefit-sharing conditions. Section 18(iv) stipulates that one of the functions of NBA is to take measures to oppose the grant of IPRs in any country outside India on any biological resource obtained from India or knowledge associated with such biological resource. India ha also initiated village- wise Community Biodiversity Registers (CBRs) for documenting all knowledge, innovations and practices in a few States. 4.2 Thailand-a sui generis example Thailand has developed a comprehensive sui generis regime for traditional medicines. The “Thai Traditional Medicinal Intelligence Act” distinguishes different categories of “traditional Formulation”: “National Formulae” are formulations given to the Nation which are crucial for human health. The Act stipulates that the ministry of Public health has authority to announce a certain formula of traditional Thai medicine as a “national formula”. In this case, the traditional formula must be of significant benefit or have special medical value. After the announcement, the rights of such a formula belong to the state. The commercial use of a national formula for the production of drugs or for research and development is subject to permission from the government (criminal sanctions are provided for under the Act for infringement). "Private Formulae" can be freely used by the owner. Third parties must obtain permission from the owner to use the formula. The request for the registration of a "private formula" can be submitted by an inventor or developer of the formula; or an inheritor of the inventor or developer of such a formula. The Act grants exclusive rights by allowing the owner of the registered personal formula to use the formula for research and to sell and distribute any product developed or manufactured by using the formula. However, there are certain limitations to the exclusive rights. The rights over a registered personal formula subsist throughout the life of the owner and shall subsist for a further period of fifty years from the date the applicant dies. One of the main objectives of the sui generis protection is that the exclusive monopoly granted by the State should enable the owners of traditional knowledge to be adequately compensated for their contribution. "General formulae are well known traditional formula that remains free to use by anybody. One important feature of the referred law is that all three types of formula can continue to be used free domestically by traditional healers or Thai communities in a limited quantity.
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The law also provides for measures aimed at the conservation and sustainable utilization of the medicinal plants, especially those at high risk of extinction. 4.3 China: Traditional Chinese Medicine (TCM) Patent Database China provides patent protection for traditional Chinese Medicinal Formulations (TCM) and has compiled the China TCM Patent Database by the State Intellectual Property Office (SIPO) of the People‟s Republic of China. The “China Traditional Chinese Medicine (TCM) Patent Database” exists in two language versions. The Chinese language version contains more than 12,124 deeply indexed records of TCM patent literature with 32,603 TCM formulas. The English language version is a Demo version, contained 1,761 records of TCM patent literature in English with 4,177 TCM formulas. Since the establishment of the Demo version, the English language sample has been available on the The database focused on bibliographic type data related to TCM. 4.4 Ethiopia: Ethiopia, as of yet, has no an enforceable, effective, and binding protection regime. Coupled with an effective instrument of protection (IPRs generis, or combination), the existing (favorable) legal and policy legislations of relevant sectors and authorities could potentially be harnessed for an optimal IK protection. National authorities but a few envisaging protection at least as policy objective(s) of IK include: Environmental Policy, EPA FDRE; Section IV ,4.7(b) Proclamation NO.482/2006; Article: 19(6)…..Joint ownership of IP.[Institute of Biodiversity] Proclamation NO.481/2006; Preamble…..where as (3) [Ministry of Agriculture] In addition to such national opportunities, Ethiopia has also the discretion to provide protection for indigenous knowledge without contradiction to major international agreements like the TRIPS agreement. The Ethiopian Intellectual Property Office has thus recently revitalized the need for the protection of IK and is undertaking various measures. 5. Regional cases: 5.1 African Model Legislation The main aim of legislation is to ensure conservation, evaluation and sustainable use of biological resources and knowledge and technologies in order to maintain their diversity. The model legislation asserts several specific objectives inter alia, is to:
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Recognize, protect and support the inalienable rights of local communities including farming communities over their knowledge and technologies. Recognize and protect the rights of breeders. Promote fair and equitable sharing of benefits arising from the use of knowledge and technologies. Provide an appropriate for access to community knowledge and technologies. Ensure effective participation of concerned communities in deciding the distribution of benefits deriving from their knowledge and technologies. encourage national and grassroots scientific and technological capacity ,and Provide mechanisms for the implementation and enforcement of rights of local communities and conditions of access to biological resources, community knowledge and technologies. The African model Legislation seems to incorporate the most comprehensive and novel set of objectives for the protection of traditional knowledge and the biological resources on which they are based. The legislation addresses important elements 5.2 CAN- the Andean Community)
Decision 345 of the CAN establishes a Common Regime on Plant Varieties Breeders Rights which allows for the granting of Breeders Certificates which provide for exclusive rights over a variety. Article 24, of the Decision entitles the holder of a certificate to exclude third parties from certain activities related to the reproduction, propagation or multiplication of the protected variety, including the production, offer on sale, sale, exportation and importation. The regime allows for a researchers exemption and a farmer‟s exemption, subject to national legislation. By Decision 486, adopted in 2000, the Andean Community established a Common Industrial Property Regime with some very interesting provisions regarding ABS and traditional knowledge. Article 3 sets out from the beginning the intention to ensure that the grant of intellectual property rights shall be done in a manner which safeguards the heritage of the regions, indigenous, local and afro-American communities. Article 26 establishes what may be seen as the first comprehensive system requiring the disclosure of the legal provenance of genetic resources and/or traditional knowledge as a precondition for the granting of any property rights. The result is the establishment of the first regional disclosure of origin system. Disclosure of origin has been championed by the countries of the Andean community at the international level as a means to make IPR regimes support the CBD‟s ABS provisions. Article 26 also provides for relevant patent authorities to declare the nullity of patents in the event that the information required is insufficient of incorrect.
6. Challenges: The protection of IK has, as a matter of fact, continued to be a subject of international debate largely as a result of the challenges that surround the subject owing to its specific nature. inadequacy/inapplicability of existing IPR regimes in respects of
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legal grounds like novelty, inventive step ,ownership,inventorship duration of protection high maintenance and litigation costs the disparity of countries in the TRIPs council to come up with a binding legal international instrument .In this aspect the developed countries like the US and Japan do usually oppose any moves by the developing ones like Brazil and India on IK issues . sluggish progress on Implementation of the TRIPs-related Doha Declaration of 2001, Paragraph 19 Reviewing /broadening of Article 29 of TRIPs Agreement to encompass the inclusion of 'disclosure of origin' in applications of IK-based inventions as a mandatory requirement. Reviewing of TRIPs Article 27.3(b) -to broaden scope to protection of traditional knowledge. Mismatching (at times contradicting) of cross-sectoral policies and objectives at all levels (national, regional, international). Identifying synergies and trade-offs Lack/low level of the potential economic value of IK by the custodians and practioners. the non-binding or practical effect of many international conventions(CBD,ILO,WIPO)
7. The way forward Proactive measures need to be undertaken at all levels (national, regional, International) for the enhanced utilization of indigenous knowledge and meet MDGs (sustainable development). 7.1 National Actions Action is needed at the national level, in policy and legislation, to protect indigenous knowledge. Some features that should be included in national legislation are included below. Identification of the needs and expectations of custodians, holders or owners of IK A comprehensive survey and identification of IKs Identification of customary laws of regulating IK. further assessment of suitability of existing IPRs for the protection of TK Inter/intra sectoral coordination and networking: identifying synergies and tradeoffs. Proactive policy measures by governments.
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Development of a well-thought binding IP-like /Sui generis law in preference to nonenforceable and nonbinding regulations and contractual procedures. Documentation and codification of IKs to pursue Defensive Protection Compilation of searchable and retrievable IK/TK databases. Review national patent law to address IK: demanding mandatory disclosure of Origin in regards to IK-based inventions. For example, the use of a farmer variety in breeding a new variety; use of a medicinal or aromatic plant to make products or extracting vegetable dyes from certain minerals and plants.
7.2 International Action Required Even more than the national level efforts, action is required at an international level to honor the contribution of Indigenous People and play fair with them. Some suggestions for action at the international level to protect IK: Implement sincerely the relevant provisions of the international commitments like the ILO Convention, the UNESCO/WIPO Guidelines for Protection of Folklore, the UN Draft Declaration on the Rights of Indigenous Peoples, and the CBD. Support and the African Group Proposal (and other developing country efforts) for the revision of crucial provisions in the TRIPS Agreement inter alia : o Article 27.3.b (to retract the demand for patents on life forms) o Article 23: to expand the geographical indication protection of wines and spirits to other products and goods. o Article 29: to demand 'disclosure of Origin' as a mandatory requirement in IK-based patent applications Maintain the flexibility of countries to draft their own sui generis legislation for plant varieties by now insisting on compliance with UPOV. . Support and work for the inclusion of the objectives of the CBD in the TRIPS Agreement. Use all possible national measures to strengthen the Biosafety Protocol to prevent contamination of genetic resources, till science can demonstrate safety of GM foods.
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