The definition of TK, TCEs, and examples examples under various legal regimes will be investigated. Available Intellectual Property tools to protect TK and TCEs. The rationale, objectives and methodology of the negotiations under the Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (IGC) under the World Intellectual Property Organization (WIPO) will also be examined.

1. Protecting TK and TCEs of Indigenous
Peoples and Local Communities
Community Intellectual Property Rights Webinar Series –
Webinar 2

2. Objectives of Webinar 2
• Review what traditional knowledge (TK) and traditional cultural expressions
(TCEs) are, their definitions and examples under various legal regimes.
• Identify available Intellectual Property tools to protect TK and TCEs and
provide actual examples.
• Examine the rationale, objectives and methodology of the negotiations
under the WIPO Inter-governmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Traditional Cultural
Expressions (IGC).

3. Outline of the Session
1. Review of the Intellectual Property (IP) System and IP Tools.
2. What are Traditional Knowledge (TK) and Traditional Cultural Expressions
(TCEs)?
3. Does the IP system protect TK and TCEs?
4. If it doesn't, should the IP system protect TK and TCEs? And if so, how?
• Why should TK and TCEs be protected?
• What do we mean by protected? Legal protection? National or international protection?

4. Intellectual Property Rights:
An Exchange
Protection of the moral and
economic rights of creators
Public access to the fruits of
creativity

5. Intellectual Property Tools
Time Limited
Territorial
Exclusive
Industrial
Property
- patents
- trademarks
- industrial
designs
- geographical
indications
Copyright &
Related Rights
- literary, artistic,
musical works
- actors, music
distributors, etc.

6. Intellectual Property – What for?
Provides recognition for and
commercial reward from
creations and inventions:
• Patents
• Industrial designs
• Copyright
Helps to differentiate goods
and services and to make
them more attractive to
consumers:
• Trademarks
• Geographical indications

7. Review: What IP tool was used here?

8. Review: What IP tool was used here?

9. Review: What IP tool was used here?

10. Review: What IP tool was used here?

11. Review: What IP tool was used here?

12. Review: What IP tool was used here?

13. Summary of IP Tools
Patents Copyright Trademarks Geographical
indications
Industrial
designs
Trade secrets …

14. What is Traditional Knowledge
• Includes know-how, practices,
skills, and innovations
• resulting from intellectual activity
• in a traditional context
• passed from generation to
generation
• that forms part of the traditional
lifestyle of indigenous peoples and
local communities

15. Exercise: Are these TK?
• The use of Ayahuasca in the
western Amazon to prepare
various medicines
• The recipe of vegetable soup
which Emma’s Grandma told her
• The use of the Hoodia cactus by
Kung Bushmen in Africa to stave
off hunger

16. Exercise: are these TK?
• The use of plao noi in Thai
communities to treat peptic ulcer
• The use of parts of the neem tree to
cure many ailments
• Bedtime rituals used by many families
in a community
• Production of a variety of red rice
called “Balatinao” by farmers in an
upland community

17. What are Traditional Cultural Expressions?
• Forms in which traditional culture
is expressed
• Form part of the identity and
heritage of a traditional or
indigenous community / nation
• Are passed down from generation
to generation

18. Shavante Indians
using Buriti sticks to
make a fire (UN
Photo/Joseane
Daher)
A woman from the
Ndebele tribe carries
a traditional beer
container (UN
Photo/P Mugubane)
Timorese in traditional dress take
part in a ceremony (UN
Photo/Martine Perret)
Traditional dancers perform during
the pre-independence march and
rally of the Sudan People's
Liberation Movement (UN
Photo/Paul Banks )
Examples of TCEs

19. Examples of TCEs
“Phu Cam” – vietnamese
conical hat
Toraja Carving
from Sulawesi,
Indonesia
Bunong traditional
dress from Mondulkiri,
Cambodia Traditional Kachin
Dance, Myanmar

20. What do these have in common?

21. However, gaps remain.
• Public domain
• Copying vs. inspiration
• Offensive marks
• While innovations based on
TK and creations based on
TCEs can be protected, the
‘underlying’ TK and/or
TCEs are NOT protected,
despite the fact that it is
valuable and important

22. Some key questions
1. Should underlying TK and
TCEs be “protected” in the
intellectual property sense?
2. If so, what does “protected”
mean?
• Safeguarding or preservation?
• National vs. international level
protection?
• Non-legal forms of protection?
Trade
WTO
Biodiversity
CBD, Nagoya
Food and agriculture
FAO International Treaty
Human rights
UNDRIP
Universal Declaration
Cultural heritage
and cultural diversity
UNESCO 2003 and 2005
Innovation and
creativity
Intellectual Property Conventions
WIPO IGC

23. What does “protection” mean?
1. Legal protection
2. Treating TK as intellectual property: Holders have a say over access and
use of TK by third parties
3. Using intellectual property principles and values to prevent unauthorized or
inappropriate uses of TK by third parties (misuse and misappropriation)
4. Sui generis protection: Intellectual property adapted to respond to the
particular features of TK

24. How to “protect”?
• Legal measures?
• Practical measures?
• National level?
• Regional level?
• International level?

25. Legal Measures:
Positive Protection

26. Adapted national law – New Zealand Trade
Marks Act 2002
• Mark cannot be registered if
offensive, including to Maori: s
17(1)(c)
• Establishes a Maori Advisory
Committee, which advises on
whether the mark is offensive or
not: s 178

27. Adapted national law – New Zealand Trade
Marks Act 2002
• Mark cannot be registered if
offensive, including to Maori: s
17(1)(c)
• Establishes a Maori Advisory
Committee, which advises on
whether the mark is offensive or
not: s 178

28. Sui generis national laws: Cook Islands
Traditional Knowledge Act 2013
• Provides IP legal protection to “traditional knowledge”
• Key features:
• TK defined: knowledge, passed down from generation to generation, and includes:
stories, carvings, music, ceremonies, transport, medicines etc.: s 4
• Rights holders: entitled to use, licence, generate commercial income from their TK
(unless sacred knowledge) among other things: s 7
• But the TK must be registered for rights to be triggered: s 7
• Once registered, you can prevent others from using the TK – only with your express
authorization: s 8

29. Sui generis national laws: Cook Islands
Traditional Knowledge Act 2013
• Cannot use registered TK in a derogatory way: s 10
• Cannot use sacred TK in any way, without permission of rights-holders: s 12
• Rights are not limited in time, but exist in perpetuity: s 13(1)(b)
• Detailed registration process: Parts 3 and 5
• Purpose: record TK and notify those of who owns certain TK to prevent unintended use
• Detailed enforcement proceedings: Part 4
• Damages; injunctive relief: s 35
• Fines up to $500,000 NZD for use of sacred knowledge: s 45
• Delivery up; disposal of infringing works: ss 48 and 49

30. Peru - Law No. 27811 of 24 July 2002
Protection regime for the collective knowledge of indigenous
peoples derived from biological resources
• Collective knowledge connected with biological resources
• Prior informed consent
• License contracts for the use of collective knowledge
• Benefit-sharing / Fund for the Development of
Indigenous Peoples
• Public register / Confidential register / Local registers
• Role of the State
• References to customary laws
• Different rules for collective knowledge in the public
domain

31. Peru - Law No. 27811 of 24 July 2002
Protection regime for the collective knowledge of indigenous
peoples derived from biological resources
IP
Industrial
property
Patents Designs Brands
Copyright
Sui generis
protection
for TK

32. Other laws?
http://www.wipo.int/tk/en/databases/tklaws/

33. Defensive Protection

34. The Indian Traditional Knowledge Digital
Library (TKDL)
• Objective: Prevent misappropriation of Indian TK
• Break language and format barriers
• Input: Ayurvedic, Unani, Siddha and Yoga systems of
medicine in local languages
• Output: Multilingual database (English, French,
Spanish, German and Japanese)
• For use of International Patent Offices, in the framework
of access and non disclosure agreements:
• For search and examination only … can give print outs to
patent applicants for citation purposes
• The content should not be disclosed to third parties

35. National Commission against Biopiracy (Peru)
• Task: Developing actions to identify, prevent and avoid acts of biopiracy with the aim of
protecting the interests of the Peruvian State.
• Main functions:
• provide protection against acts of biopiracy;
• identify and follow up patent applications made or patents granted abroad that relate
to Peruvian biological resources or collective knowledge of the indigenous peoples
of Peru;
• make technical evaluations of the above-mentioned applications and patent grants;
• issue reports on the cases studied;
• lodge objections or institute actions for annulment concerning the above-mentioned
patent applications or patent grants;

36. Plant PATENT OR PATENT APPLICATION IP OFFICE STATUS
Maca A preparation for fertility treatment (WO2008012628) EPO Rejected
Yacón “Method for recovering and ameliorating diabetes” (2011-079806) Japan Abandoned
Maca “Agent for preventing on treating osteoporosis” (2010-235533) Japan Abandoned
Maca Compositions and methods for their preparation from Lepidium (WO 0051548 ) EPO Rejected
Maca Functional Food Product Containing Maca (Publicación N° 2004-000171) Japan Rejected
Maca Ameliorant for sleep disturbance (JP2007031371) Japan Rejected
Maca The manufacturing method and composition of a maca extract
(Kr20070073663)
Rejected
Maca Testosterona increasing composition (jp2005306754) Japan Rejected
Sacha inchi An extract of a plant belonging to the genus Plukenetia volubilis and its
cosmetic use. (WO/2006/048158 )
PCT Withdrawn
Sacha inchi Utilisation d’huile et de protéines extraites de graines de Plukenetia volubilis
linneo dans des préparations cosmétiques, dermatologiques et nutraceutiques.
(FR 2880278)
France Rejected
Camu camu Preserves of fruit of Myrciaria dubia (Publicación N° 09 – 215475) Japan Abandoned
Pasuchaca Inhibidor de α-glycosidase (P2005-200389A) Japan Abandoned

37. Practical Measures

38. The British Library
Archival Sound Recordings
• Non-legal measure
• In collaboration with
WIPO, it developed the
following statement
regarding the ethical and
permitted use of all
recordings from their
archive:

40. The British Library Archival Sound Recordings
• “… These recordings should not be altered… in ways that might be
derogatory to the indigenous and local communities who are the traditional
custodians…”
• “While the British Library… may be the owner of the intellectual property in
the digitization of the sound recordings… broader rights may… reside with
the traditional custodians. Therefore, the prior information consent of the
Library … as well as the traditional custodians is required for the
republication and commercial use… of these materials…”

41. Best practice guides –
Festivals
• Three stage approach:
• Developing a “Respect Strategy”
• Preparing signs, notices and warnings
• Monitoring infringements
• Signs to appear at:
• Ticket sales; site / venue; information leaflet; programs and tickets; website
• Options:
• (1) No filming at all
• (2) Some filming, but for personal use / permission of
custodians

43. Community Protocols
• Community decides protocols for third parties accessing their traditional
knowledge
• Community determining their own rules
• They will be unique to each community; dynamic and will change and evolve
• No one size fits all
• Example: The Ara Irititja Project (Australia) – community protocol that
researchers must follow certain guidelines to access certain materials. Includes
things like:
• Confidentiality
• Ownership rights and copyright resides with community (even for new materials generated)

44. International Level Protection

46. Normative Development at WIPO: the IGC
• WIPO Intergovernmental Committee – 2000
• Forum where negotiations take place on
international legal instruments
• Member States, indigenous and local
communities, business, civil society and other
NGOs
• In a way, this is a Forum where dialogues could
take place between scientists and TK holders,
but not in a systematic way

47. The current draft on TK protection includes:
•Free, prior and informed consent
•Collective rights, for Indigenous Peoples
•Indefinite term of protection
•Customary law
•Disclosure of origin in patent applications

48. Homework for Webinar 3
• Three case studies will be distributed to the participants by email
• There are sets of questions in the case studies that participants
will need to answer in preparation for the nest webinar
• All the questions can be answered using what we have learned
from webinars 1 and 2

49. Iyaman!
Maraming Salamat!
Thank You!