Intellectual Property Protection of Bio-Cultural Property and Expression of Folklore in International Legal Regime

Abstract

The emergence of a “global information society” in recent years, characterized by the advent of modern information technologies, has also given rise to increasing awareness of traditional knowledge (TK). TK is thus receiving increased attention in numerous policy debates, ranging from food and agriculture, the environment, health, human rights, and cultural policy, to trade and economic development. The role of intellectual property (IP) in the protection of TK is currently being considered in several of these policy contexts, in addition to discussions taking place in intellectual property circles. As the specialized United Nations agency responsible for the promotion of intellectual property worldwide, WIPO was mandated in its 1998-99 Program to undertake exploratory groundwork in order to provide an informed and realistic analysis of the IP-aspects of TK.Another new concept which is emphasized is that of Bio-Cultural property, which is defined as follows: “knowledge, innovation, practices and cultural expressions of Indigenous Peoples and local communities which are often shared and are intrinsically linked to traditional territories and natural resources, including the diversity of genes, varieties, species and ecosystems, cultural and spiritual values and customary laws originated within the socio-ecologic context of these communities”. For several reasons, traditional knowledge has been a critical issue during the early years of this century. Since the enactment of intellectual property laws, the traditional system has never considered indigenous knowledge as a part of it. Now after hundreds of years of enforcement under the western traditional system, this concept is becoming obsolete. The fact that a large percentage of the worlds population depend on traditional knowledge for survival, that is to say, to satisfy the need for health care or food security, traditional knowledge is gradually being acknowledged. However, indigenous communities are still waiting to receive the benefits or royalties for their traditional and ancient knowledge.With great concern, we also note the large number of applications for patents based on traditional Knowledge or biological materials which have been illegally extracted from indigenous lands. This is why it is so important to protect the resources of biological diversity as well as those of traditional knowledge; the autonomy and self-determination we defend so strongly depends on this protection.Faced with this threat, we are reviewing the different regulations in force to see if any of them are useful to protect our rights. While carrying out this study, we have come to the conclusion that there is very little we can use, almost nothing. Instead, new regulations like the sui generis model have been developed to satisfy our demands.