Towards a Tiered or Differentiated Approach to Protection of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) in Relation to the Intellectual Property System

Chidi Oguamanam Chidi Oguamanam

doi:10.23962/10539/27533

Abstract

The World Intellectual Property Organisation (WIPO) has, for nearly two decades, engaged in formulating the nature and content of a text-based legal instrument or instruments for the effective protection of genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs, also known as folklore) within or relating to the international intellectual property (IP) system. This task has been the job of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), established in 2000. In this article, I explore the context and rationales for, and evolution of, one of the IGC’s evolving contributions: development of a tiered or differentiated approach to the protection of TK and TCEs. The article discusses and analyses the empirical ramifications and challenges of the tiered approach — alternatively referred to as differentiated approach — with reference to examples of forms of TK and TCE in Africa, North America and Australia. I conclude that the approach is a work in progress, still evolving, which provides a useful broad policy framework at the international level while, at the same time, its details are contingent on many considerations better addressed at national and local levels.

Highlights

The World Intellectual Property Organisation’s (WIPO’s) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions has an extremely difficult mandate: to negotiate a text-based instrument or instruments for the effective protection of genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs, i.e., folklore) within or relating to the intellectual property system.WIPO’s jurisdictional status as the host of the IGC is, in part, fallout from the World Trade Organisation’s (WTO’s) failure to include TK and TCEs in the text of its adjunct Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)
Acknowledgements The author acknowledges funding support for this study provided by the Centre for International Governance Innovation (CIGI) through its International Law Research Program (ILRP)
WIPO Member States and experts are required to ensure and respect synergies between the IPoriented and non-IP-oriented aspects of TK and TCEs as they feature in other regimes

Summary

Introduction

The World Intellectual Property Organisation’s (WIPO’s) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions (hereafter the “IGC”) has an extremely difficult mandate: to negotiate a text-based instrument or instruments for the effective protection of genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs, i.e., folklore) within or relating to the intellectual property system (see WIPO, 2015). The interfaces between TK and innovations in the realms of pharmaceuticals, cosmetics, agriculture, chemicals and environmental conservation, which constitute the core of the “biopiracy” phenomenon, provide pivotal sites in which IP, the patent regime, directly engages TK in contestation over the applications of GRs across different knowledge frameworks Notwithstanding these examples, the interfaces between IP and TK/TCEs generally tend to be difficult to pin down. The study The study on which this article is based explored development, in the IGC, of the tiered approach— referred to as the differentiated approach—to the protection of TK and TCEs pursuant to the IGC’s mandate It is an approach which is subject to ongoing debate and continuing elaborations at the IGC. (While the mandate of the IGC is to negotiate a text-based instrument or instruments for effective protection of three (often overlapping) sets of phenomena—GRs, TK, and TCEs—the tiered or differentiated approach relates to only two of the phenomena: TK and TCEs— which, it must at the same time be noted, are sites in which IPLCs often deploy GRs.). In regard to custody, production, and practices in relation to the manifestation of TK or TCE; and the evidentiary threshold in respect of determining the level of diffusion of a specific manifestation of TK or TCE

Marginalisation of TK and TCEs from the Conventional IP system

Emergence of the tiered or differentiated approach to TK and TCEs

Examples relevant to a tiered or differentiated approach

Findings

Analysis and conclusions