Tiered or Differentiated Approach to Traditional Knowledge and Traditional Cultural Expressions: The Evolution of a Concept

Abstract

For nearly two decades, the World Intellectual Property Organization’s (WIPO’s) expert committee, known as the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has been navigating its assigned task, i.e., to negotiate text-based legal instrument(s) for effective protection of the subject matters of genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs), and their intersection with the intellectual property (IP) system. So far, the IGC experience reflects the intensity of the international process, geopolitical undercurrents and the power dynamics that characterize that process, especially as it relates to the subject of IP. Despite mixed responses across North-South geopolitical interests regarding the elongation of the IGC’s deliberations and the continuing delay in the expected outcome from the forum, the latter has made substantive contributions to international IP law and policy making in relation to matters under its mandate. This paper identifies and explores the rationale for one of the major evolving contributions of the IGC, namely the notion of a tiered or differentiated approach to the protection of TK and TCEs. The paper provides the context for the evolution of the approach. Using various forms of TK/TCEs in select regional and national contexts, the paper discusses the empirical ramifications and challenges of the tiered and differentiated approach. The paper concludes that the approach provides a broad policy framework, although its details are contingent on many considerations, which are better addressed at national and local levels.