Traditional Knowledge and Geographical Indications: Foundations, Interests and Negotiating Positions

Abstract

The Doha Development Agenda (DDA) introduced the idea of protecting Traditional Knowledge (TK) into multilateral trade negotiations. In parallel, it discusses enhanced protection of Geographical Indications (GIs) for agricultural products, beyond the current levels of protection based upon unfair competition. Both TK and GIs bear the potential to enhance diversification of products based upon sustainable agriculture. Both concepts are specifically addressed in the Doha Ministerial Declaration (DMD) of 14 November 2001 in paragraphs 18 and 19, respectively, relating to the TRIPs Agreement.1 The DMD provides that WTO members extend protection of GIs to wines and spirits and address the inclusion of other products. It mandates the TRIPs Council to address Traditional Knowledge in reviewing the agreement under Article 71.1 of the TRIPs Agreement. Under the DDA, any reform must take into account the development dimension. The purpose of this paper is to describe i) the legal, economic, ecological and societal precepts shaping TK and GIs, ii) the legal framework for TK and GIs in the context of international trade regulation, iii) the work undertaken in international organisations, iv) positive norms of the WTO Agreements treating of TK and GIs, and v) the diverging negotiating positions of WTO members towards complementing the system of legal protection for TK and GIs. It provides a survey of the state of play in different fora and the difficulties to bring about coherence in this new and complex field located at the intersections of agriculture, intellectual property and development.