Traditional Cultural Expressions (TCEs). Genetic Resources (GR). Traditional Knowledge (TK). Organization Efforts.

1. June 27, 20181
Is the World Ready for a New Form of IP Protection?
Jay Erstling, Heath Hoglund
August 5, 2011
Traditional Cultural Expressions (TCEs)
Genetic Resources (GR)
Traditional Knowledge (TK)
Organization Efforts

2. SM
© 2011 Patterson Thuente Christensen Pedersen, P.A., some rights reserved - www.ptslaw.com
DISCLAIMER: This presentation and any information contained herein is intended for informational purposes only and should not be construed as legal
advice. Seek competent legal counsel for advice on any legal matter.
Is the World Ready for a
New Form of IP Protection?
Jay Erstling
Heath Hoglund
ABA 2011 Annual Meeting – August 5, 2011

3. Agenda
What do we mean by traditional cultural expressions, traditional knowledge, and
genetic resources? What are some examples of traditional cultural expressions,
traditional knowledge, and genetic resources?
What international efforts have been taken to protect traditional knowledge and genetic
resources?
Should these resources be protected at all?
Is a new system required to protect these resources, or can traditional IP systems
provide the necessary protection?
June 27, 20183

4. Traditional Cultural Expressions (TCEs)
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Indonesian Batik art Flamenco Dancing

5. Traditional Cultural Expressions (TCEs)
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Djanda at the Sacred Waterhole,
Banduk Marika
‘Mola’ from Panama

6. Traditional Cultural Expressions (TCEs)
Consist mostly of artistic works, including:
Music, art, designs, names, signs and symbols, performances, architectural forms,
handicrafts and narrative
Often associated with the same types of things that would be protected through
copyright
Includes works that are not fixed in a tangible medium
Like-minded countries proposal defined TCEs as:
…any form of expressions, tangible or intangible, or a combination thereof, which
are indicative of traditional culture and knowledge and have been passed on from
generation to generation …
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7. Traditional Cultural Expressions (TCEs)
TCEs are integral to the cultural and social identities of indigenous and local
communities, they embody know-how and skills, and they transmit core values and
beliefs. Their protection is related to the promotion of creativity, enhanced cultural
diversity and the preservation of cultural heritage.
Scope of Subject Matter for TCEs, WIPO, http://www.wipo.int/tk/en/folklore/
“Traditional” means that the cultural expressions derive from or are based upon
tradition, identify or are associated with an indigenous or traditional people, and may
be practiced in traditional ways.
WIPO IGC, Glossary Of Key Terms Related To Intellectual Property And
Traditional Cultural Expressions
June 27, 20187

8. Genetic Resources (GR)
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Neem Tree
Banisteriopsis caapi,
AKA Ayahuasca

9. Genetic Resources (GR)
Generally living organisms, such as:
Plants
Microbes
The organisms have either been developed, discovered, or first used by indigenous
peoples
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10. Traditional Knowledge
June 27, 201810
Turmeric
Jeevani, sports
supplement made from
Arogyapacha
Arogyapacha

11. Traditional Knowledge (TK)
Terminology is imprecise and there is no standard definition of TK
Simply stated, refers to the knowledge or processes that have been developed by
indigenous peoples
If TCEs are the expression of an idea, TK is the idea behind the expression
With relation to GRs, TK is the knowledge of what a plant does, and GR is the plant
itself
June 27, 201811

12. Traditional Knowledge (TK)
WIPO suggested defining TK as referring:
… to the content or substance of knowledge that is the result of intellectual activity
and insight in a traditional context, and includes the know-how, skills, innovations,
practices and learning that form part of traditional knowledge systems, and
knowledge that is embodied in the traditional lifestyle of a community or people, or
is contained in codified knowledge systems passed between generations. It is not
limited to any technical field, and may include agricultural, environmental and
medicinal knowledge, and knowledge associated with genetic resources.
June 27, 201812

13. Traditional Knowledge (TK) Definition from Like-Minded
Countries
Traditional Knowledge is knowledge that is dynamic and evolving, which is generated
in a traditional context, collectively preserved and transmitted from generation to
generation and includes but is not limited to know-how, skills, innovations, practices
and learning, that subsist in a codified, oral/verbal or other forms of knowledge
systems. Traditional knowledge also includes knowledge that is associated with
biodiversity and natural resources. Traditional knowledge may be sacred or secretly
held by beneficiaries, or widely available.
Further, protection is limited to TK that is associated or linked with the cultural identity
of the beneficiaries.
June 27, 201813

14. The Issue
Should protection be provided for TCEs, GRs, and TK? If so, should there be a
separate legal regime or are the existing intellectual property laws sufficient to absorb
this type of knowledge?
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15. Protecting Traditional Knowledge
TCE, GR, and TK protection has been on the international agenda for more than ten
years
In 2000, WIPO established the Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)
In 1999 the World Trade Organization (WTO) began examining how to deal with
the commercial use of TK and GR when that knowledge is the subject of patent
applications
The IGC held its Nineteenth Session from July 18-22, 2011
June 27, 201815

16. Rationale Behind Protection
Two distinct objectives:
National governments of developing countries:
• Protection is a matter of national pride or cultural heritage
• Also a matter of economics – benefit sharing
The indigenous peoples themselves:
• Prevent others from appropriating and diluting their culture
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17. Other Rationales
Moral Rationale
Communities should have the right to make use of their own TK free from
misappropriation or misuse by others
Environmental Benefits
Fostering conservation and global biodiversity
Economic Rationale
Some indigenous communities depend on TK for livelihood
Value-added for developing countries
Prevent unauthorized appropriation (bio-piracy)
June 27, 201817

18. Opposition to Protection
Indigenous groups are concerned that too much focus is placed on IP systems in order
to protect TK and GRs
Use of the patent system requires disclosure of secrets to the public, and is only
applicable for 20 years.
The duration is an issue for knowledge that has belonged to the indigenous
peoples for hundreds of years
Industrialized Countries’ concern:
A treaty could have detrimental effects on creative industries, technology innovation
and on the public domain.
June 27, 201818

19. WIPO’s Efforts
WIPO created the Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore (IGC) in the year 2000
IGC’s Mandate:
• … undertake text-based negotiations with the objective of reaching
agreement on a text of an international legal instrument (or instruments)
which will ensure the effective protection of GRs, TK and TCEs.
June 27, 201819

20. Background on IGC
WIPO began its work on TK in 1998
WIPO’s Member States requested that it undertake exploratory groundwork and
facilitate discussions for a better understanding of the IP issues regarding GR, TK, and
TCE.
Efforts by the IGC are still underway, with the most recent session taking place from
July 18-22, 2011
IGC’s mandate is scheduled to end this year
June 27, 201820

21. Current Status of the IGC
The IGC held its Nineteenth Session from July 18-22, 2011
Draft texts of proposed treaties are still incomplete
• The draft texts contain several different approaches reflecting different policy
objectives behind protecting TK.
• No draft text exists for GRs, at this point the IGC is still drafting the
principles and objectives for protection.
Like-minded countries proposed texts were considered when editing the draft texts
Indigenous peoples are concerned their voices are not being sufficiently heard
June 27, 201821

22. Current Focus Issues for the IGC
1. Subject Matter
1. Definition of TK that should be protected
2. Beneficiaries
1. Who should benefit from any such protection or hold the rights to protectable TK?
3. Scope of Protection
4. Exceptions or Limitations
1. Should there be any exceptions or limitations to rights attaching to protectable
TK?
June 27, 201822

23. Efforts in Other Organizations
Patent Cooperation Treaty (PCT)
In 2003, the Government of Switzerland proposed an amendment to the PCT
regulations
• Would have enabled national patent laws to require declaration of the
source of TK
• Never garnered a consensus among PCT member countries and has not
been adopted
Convention on Biological Diversity (CBD)
Traditional Knowledge Information Portal
• …developed in order to promote awareness and enhance access by
indigenous and local communities to information on traditional knowledge,
innovations and practices relevant for the conservation and sustainable use
of biological diversity.
June 27, 201823

24. Are traditional IP concepts sufficient?
[A] significant number of patent applications concern inventions which are in some way
related to traditional knowledge. – WIPO IGC
In order to fully leverage the patent system, a system needs to have mechanisms in
place to provide for:
Defensive protection of TK,
Disclosure of TK and benefit sharing,
Affirmative protection of TK through granting patent rights.
June 27, 201824

25. Defensive Protection of TK
Goal: prevent anyone other than the holders of TK from acquiring patent rights over
their knowledge.
Several countries have created online databases storing TK so that it is available to
the public
China Traditional Chinese Medicine Patents Database
Traditional Knowledge Digital Library (TKDL) of Ayurveda (India)
• In 2009, USPTO examiners were granted access to the TKDL to prevent the
misappropriation of TK
Korean Traditional Knowledge Portal
June 27, 201825

26. Disclosure of TK
Requiring the disclosure of the source of TK in patent applications
Benefits:
Raises question of whether the TK holders have claims of inventorship or
ownership
Signals need to include TK within scope of the prior art search
Valid mechanism to assure that TK is not misappropriated
June 27, 201826

27. Offensive Protection of TK
Granting patents to TK holders may not always be appropriate
Can work in some circumstances though
• The Chinese Government encourages patenting to protect Traditional
Chinese Medicine
Issues:
TK is typically owned by a community as a whole, not an individual
Utility
Term of protection
• Since the term is only 20 years, the TK may be something that the holder
will not want to patent
June 27, 201827

28. Questions?
What should the US position be?
Should WIPO renew the IGC and continue its efforts? Or should WIPO try
something different?
What industries are affected by the proposed protections?
How would protection for TCEs, TK, and GRs affect your practice?
June 27, 201828

29. Additional Resources
WIPO Publications
TCE
• http://www.wipo.int/freepublications/en/tk/913/wipo_pub_913.pdf
TK
• http://www.wipo.int/freepublications/en/tk/920/wipo_pub_920.pdf
IGC Portal
• http://www.wipo.int/tk/en/igc/index.html
June 27, 201829

30. Thank You
Jay Erstling | 612.349.5771 | erstling@ptslaw.com
651.290.7533 | jay.erstling@wmitchell.edu
June 27, 201830
Heath Hoglund | 415.645.5000 | hhogl@dolby.com