The current international system for protecting intellectual property was fashioned during the age of

industrialization in the West and developed subsequently in line with the perceived needs of technologically
advanced societies. However, in recent years, indigenous peoples, local communities, and governments,
mainly in developing countries, have demanded equivalent protection for traditional knowledge systems. In
2000, WIPO members established an Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore (IGC), and in 2009 they agreed to develop an international
legal instrument (or instruments) that would give traditional knowledge, genetic resources and traditional
cultural expressions (folklore) effective protection. Such an instrument could range from a recommendation to
WIPO members to a formal treaty that would bind countries choosing to ratify it.
Traditional knowledge is not so-called because of its antiquity. It is a living body of knowledge that is
developed, sustained and passed on from generation to generation within a community, often forming part of
its cultural or spiritual identity. As such, it is not easily protected by the current intellectual property system,
which typically grants protection for a limited period to inventions and original works by named individuals or
companies. Its living nature also means that traditional knowledge is not easy to define.
Recognizing traditional forms of creativity and innovation as protectable intellectual property would be an
historic shift in international law, enabling indigenous and local communities as well as governments to have
a say over the use of their traditional knowledge by others. This would make it possible, for example, to
protect traditional remedies and indigenous art and music against misappropriation, and enable communities
to control and benefit collectively from their commercial exploitation.
Although the negotiations underway in WIPO have been initiated and propelled mainly by developing
countries, the discussions are not neatly divided along North-South lines. Communities and governments
do not necessarily share the same views, and some developed country governments, especially those with
indigenous populations, are also active.
Two types of intellectual property protection are being sought:
Defensive protection aims to stop people outside the community from acquiring intellectual property
rights over traditional knowledge. India, for example, has compiled a searchable database of traditional
medicine that can be used as evidence of prior art by patent examiners when assessing patent
applications. This followed a well-known case in which the US Patent and Trademark Office granted a
patent (later revoked) for the use of turmeric to treat wounds, a property well-known to traditional
communities in India and documented in ancient Sanskrit texts. Defensive strategies might also be used
to protect sacred cultural manifestations, such as sacred symbols or words from being registered as
trademarks.
TRADITIONAL
KNOWLEDGE AND
INTELLECTUAL
PROPERTY
BACKGROUND
BRIEF
N1
Positive protection is the granting of rights that empower communities to promote their traditional
knowledge, control its uses and benefit from its commercial exploitation. Some uses of traditional
knowledge can be protected through the existing intellectual property system, and a number of countries
have also developed specific legislation. However, any specific protection afforded under national law
may not hold for other countries, one reason why many indigenous and local communities as well as
governments are pressing for an international legal instrument.
WIPOs work on traditional knowledge addresses three distinct yet related areas: traditional knowledge in the
strict sense (technical know-how, practices, skills, and innovations related to, say, biodiversity, agriculture or
health); traditional cultural expressions/expressions of folklore (cultural manifestations such as music, art,
designs, symbols and performances); and genetic resources (genetic material of actual or potential value
found in plants, animals and micro-organisms).
Although for many communities traditional knowledge, genetic resources and traditional cultural expressions
form part of a single integrated heritage, from an intellectual property standpoint they raise different issues
and may require different sets of solutions. In all three areas, in addition to work on an international legal
instrument, WIPO is responding to requests from communities and governments for practical assistance and
technical advice to enable communities to make more effective use of existing intellectual property systems
and participate more effectively in the IGCs negotiations. WIPOs work includes assistance to develop and
strengthen national and regional systems for the protection of traditional knowledge (policies, laws,
information systems and practical tools) and the Creative Heritage Project which provides hands-on training
for managing intellectual property rights and interests when documenting cultural heritage.
TRADITIONAL KNOWLEDGE
When community members innovate within the traditional knowledge framework, they may use the patent
system to protect their innovations. However, traditional knowledge as such - knowledge that has ancient
roots and is often informal and oral - is not protected by conventional intellectual property systems. This has
prompted some countries to develop their own sui generis (specific, special) systems for protecting
traditional knowledge.
There are also many initiatives underway to document traditional knowledge. In most cases the motive is to
preserve or disseminate it, or to use it, for example, in environmental management, rather than for the
purpose of legal protection. There are nevertheless concerns that if documentation makes traditional
knowledge more widely available to the general public, especially if it can be accessed on the Internet, this
could lead to misappropriation and use in ways that were not anticipated or intended by traditional
knowledge holders.
At the same time, documentation can help protect traditional knowledge, for example, by providing a
confidential or secret record of traditional knowledge reserved for the relevant community only. Some formal
documentation and registries of traditional knowledge support sui generis protection systems, while
traditional knowledge databases - such as Indias database on traditional medicine - play a role in defensive
protection within the existing IP system. These examples demonstrate the importance of ensuring that
documentation of traditional knowledge is linked to an intellectual property strategy and does not take place
in a policy or legal vacuum.
In the WIPO talks, many argue that use of traditional knowledge ought to be subject to free, prior and
informed consent, especially for sacred and secret materials. However, others fear that granting exclusive
control over traditional cultures could stifle innovation, diminish the public domain and be difficult to
implement in practice.
2
GENETIC RESOURCES
Genetic resources themselves are not intellectual property (they are not creations of the human mind) and
thus cannot be directly protected as intellectual property. However, inventions based on or developed using
genetic resources (associated with traditional knowledge or not) may be patentable or protected by plant
breeders rights. In considering intellectual property aspects of use of genetic resources, WIPOs work
complements the international legal and policy framework defined by the Convention on Biological Diversity
(CBD), and its Nagoya Protocol, and the International Treaty on Genetic Resources for Food and
Agriculture of the United Nations Food and Agriculture Organization. Issues under discussion at WIPO
include:
Defensive protection of genetic resources: This strand of the work aims at preventing patents being
granted over genetic resources (and associated traditional knowledge) which do not fulfil the existing
requirements of novelty and inventiveness. In this context, to help patent examiners find relevant prior art,
proposals have been made that genetic resources and traditional knowledge databases could help
patent examiners avoid erroneous patents and WIPO has improved its own search tools and patent
classification systems. The other, more controversial, strand concerns the possible disqualification of
patent applications that do not comply with CBD obligations on prior informed consent, mutually agreed
terms, fair and equitable benefit-sharing, and disclosure of origin. Biopiracy is a term sometimes used
loosely to describe biodiversity-related patents that do not meet patentability criteria or that do not
comply with the CBDs obligations but this term has no precise or agreed meaning.
Disclosure requirements: A number of countries have enacted domestic legislation putting into effect the
CBD obligations that access to a countrys genetic resources should depend on securing that countrys
prior informed consent and agreeing to fair and equitable benefit-sharing. WIPO members are
considering whether, and to what extent, the intellectual property system should be used to support and
implement these obligations. Many, but not all, WIPO members want to make it mandatory for patent
applications to show the source or origin of genetic resources, as well as evidence of prior informed
consent and a benefit sharing agreement. Parallel discussions are also taking place in the World Trade
Organizations Council on Trade Related Aspects of Intellectual Property (TRIPS).
WIPO also deals with the intellectual property aspects of mutually agreed terms for fair and equitable benefit-
sharing. It has developed, and regularly updates, an online database of relevant contractual practices, and
has prepared draft guidelines on intellectual property clauses in access and benefit-sharing agreements.
TRADITIONAL CULTURAL EXPRESSIONS
Traditional cultural expressions (folklore) are seen as integral to the cultural and social identities of indigenous and
local communities, embodying know-how and skills, and transmitting core values and beliefs. Protecting folklore
contributes to economic development, encourages cultural diversity and helps preserve cultural heritage.
Traditional cultural expressions can sometimes be protected by existing systems, such as copyright and related
rights, geographical indications, appellations of origin, trademarks and certification marks. For example,
contemporary adaptations of folklore are copyrightable, while performances of traditional songs and music may
come under the WIPO Performances and Phonograms Treaty. Trademarks can be used to identify authentic
indigenous arts, as the Maori Arts Board in New Zealand, Te Waka Toi, has done. Some countries also have
special legislation for the protection of folklore. Panama has established a registration system for traditional
cultural expressions, while the Pacific Regional Framework for the Protection of Traditional Knowledge and
Expressions of Culture gives traditional owners the right to authorize or prevent use of protected folklore and
receive a share of the benefits from any commercial exploitation.
3
DEVELOPING AN INTERNATIONAL LEGAL INSTRUMENT
Because the existing international intellectual property system does not fully protect traditional knowledge
and traditional cultural expressions, many communities and governments have called for an international legal
instrument providing sui generis protection.
An international legal instrument would define what is meant by traditional knowledge and traditional cultural
expressions, who the rights holders would be, how competing claims by communities would be resolved,
and what rights and exceptions ought to apply. Working out the details is complex and there are divergent
views on the best ways forward, including whether intellectual property-type rights are appropriate for
protecting traditional forms of innovation and creativity.
To take just one example, communities may wish to control all uses of their traditional cultural expressions,
including works inspired by them, even if they are not direct copies. Copyright law, on the other hand,
permits building on the work of others, provided there is sufficient originality. The text of the legal instrument
will have to define where the line is to be drawn between legitimate borrowing and unauthorized
appropriation.
On genetic resources, countries agree that intellectual property protection and the conservation of
biodiversity should be mutually supportive, but differ on how this should be achieved and whether any
changes to current intellectual property rules are necessary.
Representatives of indigenous and local communities are assisted by the WIPO Voluntary Fund to attend the
WIPO talks, and their active participation will continue to be crucial for a successful outcome. WIPO
members have agreed to expedite their work so as to decide in late 2012 whether to convene a diplomatic
conference for final adoption of one or more international instruments.


4
For more information contact WIPO at www.wipo.int
World Intellectual Property Organization
Traditional Knowledge Division
34, chemin des Colombettes
P.O. Box 18
CH-1211 Geneva 20
Switzerland
Telephone:
+41 22 338 81 41 / +41 22 338 72 15
Fax:
+41 22 338 81 20
Email:
grtkf@wipo.int
Established in September 2000, the WIPO Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore (IGC) serves as a forum where WIPO member states can
discuss the intellectual property issues that arise in the context of access to genetic resources and benefit-
sharing as well as the protection of traditional knowledge and traditional cultural expressions. (The terms
traditional cultural expressions and expressions of folklore are used interchangeably in WIPO discussions.)
In 2009, WIPO members decided that the IGC should begin formal negotiations with the objective of
reaching agreement on one or more international legal instruments that would ensure the effective protection
of genetic resources, traditional knowledge and traditional cultural expressions. Such an instrument or
instruments could range from a recommendation to WIPO members to a formal treaty that would bind
countries choosing to ratify it.
This brief describes the origins and rationale of the IGC, the participation of members and observers
including indigenous and local communities, its achievements to date, and the state of ongoing negotiations
under its current mandate.
ORIGINS AND RATIONALE
Work within the intellectual property (IP) community on the protection of traditional cultural expressions
(TCEs) goes back to the 1960s. The impetus came from a growing sense in developing countries that
folklore embodied creativity and was part of the cultural identity of indigenous and local communities; it was
therefore seen as worthy of IP protection, especially since new technologies were making folklore increasingly
vulnerable to exploitation and misuse.
However, achievements in this direction proved rather limited. The 1967 revision of the copyright regime
under the Berne Convention for the Protection of Literary and Artistic Works, where protection is based on
originality and identifiable authorship, fell short of ensuring adequate protection. The member states of WIPO
and UNESCO (United Nations Educational, Scientific and Cultural Organization) nevertheless kept up the
momentum, with the development in 1982 of a set of Model Provisions for national laws to serve as a source
of inspiration for interested countries. In 1996, the WIPO Performances and Phonograms Treaty succeeded
in providing for the protection of the rights of performers of expressions of folklore.
Work on the relationship between IP, traditional knowledge (TK) and genetic resources (GRs) is more recent,
and stems from growing concerns regarding the role that IP protection should play in achieving global policy
objectives as varied as the conservation of biodiversity (as enshrined in the Convention on Biological
Diversity, 1992), food security, free and fair trade, and development.
These linkages, mainly established by discussions in other international forums, were recognized as having
significant implications for the IP system.
In particular, the spread of new technologies, such as biotechnology, highlighted the potential economic
value of GRs and associated TK, which became an increasingly important component of patentable
inventions. As a result, many people began to argue that the patent regime should help to prevent
THE WIPO INTERGOVERNMENTAL
COMMITTEE ON INTELLECTUAL
PROPERTY AND GENETIC RESOURCES,
TRADITIONAL KNOWLEDGE
AND FOLKLORE
BACKGROUND
BRIEF
N2
misappropriation and promote fair benefit-sharing between holders of those assets (mostly biodiversity-rich
countries) and those with the modern technologies to access and use them. IP issues regarding access to
GRs and associated TK came onto the agenda of the WIPO Standing Committee on Patents in the late
1990s, and were raised in the preparatory work leading up to the WIPO Diplomatic Conference for the
adoption of a new Patent Law Treaty in 2000.
In parallel, the WIPO secretariat conducted fact-finding missions, regional consultations, workshops and
roundtables concerning GRs, TCEs and TK, to ascertain the needs and expectations of indigenous and local
communities as well as government representatives and representatives of industry and civil society around
the world. These activities were undertaken by a new WIPO division, the Global Issues Division
established in 1997 which in 2009 became the Traditional Knowledge Division.
Before and after the Diplomatic Conference for the adoption of the Patent Law Treaty in mid-2000, the
Director General of WIPO held informal consultations on the question of GRs and associated TK. These
ultimately led to a proposal that a distinct body be established within WIPO to facilitate discussions. It was
also proposed that the discussions should include the results of WIPOs previous work in the related fields of
TCEs. Later in the year, this body was established as the IGC.
At roughly the same time, indigenous peoples rights and issues began to command greater attention
internationally. In 2000, the United Nations Permanent Forum on Indigenous Issues was established as an
advisory body to the UN Economic and Social Council. Seven years later, the UN Declaration on the Rights
of Indigenous Peoples was adopted by the UN General Assembly. Longstanding claims by indigenous
peoples for control over their cultural property and IP became more pressing.
In sum, the origins of the IGC and its rationales are varied. First, it was established to address three new
themes that shared certain distinct features: GRs, TK and TCEs were simultaneously regarded as the
common heritage of humanity and as intellectual valuables requiring appropriate forms of IP protection.
Second, GRs, TK and TCEs were seen as the intellectual assets of new key players in IP policy-making,
namely developing countries and indigenous and local communities. Third, and more broadly, the IGC was
conceived as part of a larger and structured endeavor by WIPO to move towards a modern, responsive IP
system that could embrace non-Western forms of creativity and innovation, be comprehensive in terms of
beneficiaries, and be fully consistent with developmental and environmental goals.
PARTICIPATION
Each session of the IGC usually lasts for at least five working days and takes place at WIPO headquarters in
Geneva. Participants comprise IGC members (WIPO member states) and a wide array of observers.
The IGCs intergovernmental character gives it the authority to initiate norm-setting discussions and to
propose international rules for adoption by a Diplomatic Conference or another WIPO body as appropriate.
Although representatives from the IP offices of WIPO member states constitute a substantial part of the
government delegations, the cross-cutting nature of the issues under discussion encourages and calls for a
very diverse spectrum of participation. IP office representatives frequently need to coordinate their views with
government experts specialized in issues related to the environment, agriculture, trade, foreign affairs, food,
health and culture, to mention only a few.
This diversity of participation goes beyond government officials. It also characterizes the observers, which
include relevant intergovernmental organizations (notably the secretariats of the Convention on Biological
Diversity, the World Trade Organization, UNESCO and the United Nations Food and Agriculture Organization)
and numerous accredited non-governmental organizations (NGOs).
Indigenous and local communities in particular need to be able to participate, express their views and have
their voices heard in the IGC decision-making process, in accordance with the 2007 UN Declaration on the
Rights of Indigenous Peoples, as the outcome will affect their rights.
2
In April 2001, a fast-track accreditation procedure was put in place to register almost 300 ad hoc accredited
observers, many of whom were representing indigenous and local communities. The IGC decided in 2004
that its sessions should be preceded by panel presentations chaired by and composed of representatives of
indigenous and local communities, whose participation is funded by WIPO. Among other practical measures
to enhance participation, which include briefings, consultative processes and logistical support, one of the
most important was the creation in 2005 of the WIPO Voluntary Fund for accredited indigenous and local
communities, designed to finance their participation. More than 80 representatives of various indigenous and
local communities have since been funded through this mechanism.
Funding is also available for representatives of developing countries and certain countries in Europe and Asia,
in order to facilitate their participation.
The IGC elects its chair and vice-chairs every two years. The WIPO secretariat plays a facilitating role and
provides administrative support, from preparing documentation to providing briefings, organizing
consultations, producing studies on specific subjects, and generally assisting the chair in the performance of
his or her functions. Working documents and interpretation of the proceedings are available in the six official
United Nations languages.
ACHIEVEMENTS TO DATE
The founding mandate of the IGC in 2000 left open what tangible outcomes might arise from its work. The
issues were largely new to WIPO, and it was perhaps appropriate that, at that stage, the IGC was described
as a forum for discussion. Subsequently, and formalized in 2009, the IGC has been working towards the
adoption of an international legal instrument or instruments. In the meantime, however, it can claim some
important achievements.
For example, the IGC process stimulated increased recognition of TK within the patent system. In 2002,
certain TK journals were included in the minimum documentation for applications under WIPOs Patent
Cooperation Treaty, and TK classification tools were integrated within the International Patent Classification in
2003. In 2002, the IGC accepted technical standards for the documentation of TK developed at a WIPO
meeting in Cochin, India.
In order to provide guidance on the IP aspects of mutually-agreed terms for fair and equitable benefit-sharing
related to GRs, WIPO has developed, and regularly updates, an online database of relevant contractual
practices. It has also prepared draft guidelines on IP clauses in access and benefit-sharing agreements.
Under the auspices of the IGC, WIPO has carried out numerous studies and developed other resources
(such as glossaries, surveys of national experiences, a laws database and training programmes), which have
proved useful for member states and others. They are the result of a wide exchange of data and views
between member states based on questionnaires and surveys of relevant national experiences and practices,
from existing sui generis (special, specific) national or regional protection systems for TK and TCEs to IP-
related clauses in contracts framing the access and use of GRs.
These resources amply illustrate the very rich and living cultural traditions that are the subject of the IGCs
negotiations and help to better identify the different policy and legal options available.
Since its first session in 2001, the IGCs achievements also include certain intangibles such as:
Inclusion and consultation: the IGC has established new benchmarks for inclusion and consultation;
Clarity and understanding: age-old IP terms, such as protection, originality, novelty and the public
domain, are being re-thought;
Content and context: the IGC is considering innovative and sui generis (special, specific) approaches.
Through coordinating closely with other relevant forums, its work has re-energized WIPOs engagement
with the rest of the United Nations system and other intergovernmental bodies.
In parallel, an international treaty on the protection of audiovisual performances, adopted in June 2012 in
Beijing, includes the performers of expressions of folklore among its beneficiaries, thereby extending the
rights already granted to them by the WIPO Performances and Phonograms Treaty of 1996.
3
PROGRESS IN ONGOING NEGOTIATIONS
By providing a specialized forum for the structured exchange of information and views within WIPO, the IGC
process has succeeded in building up a robust international understanding of the issues. Its discussions have
taken place with the firm and, since 2009, explicit objective of reaching agreement on an international legal
instrument (or instruments) that will ensure the effective protection of GRs, TK and TCEs. The exploratory forum
has evolved into a true negotiating body, framed by clear and tight schedules and sound working methods.
The current negotiating texts on TK and TCEs owe their origins to draft objectives and principles first
published by the WIPO secretariat in 2005. The latest drafts reflect the many views and comments of member
states and observers who have participated in the IGC over several years. Gap analyses prepared in 2008
have also contributed to clarifying the issues and options. On GRs, an initial options paper prepared by the
WIPO secretariat was complemented by several member state proposals, all of which are now consolidated
into a single text for further negotiation.
In 2011, WIPO members agreed to expedite the IGCs work. Negotiations on the texts continue, and WIPO
member states may in due course decide to convene a diplomatic conference for final adoption of one or
more international instruments.
FURTHER INFORMATION
For the fact-finding report on the needs and expectations of indigenous and local communities as well as government
representatives and representatives of industry and civil society, see www.wipo.int/tk/en/tk/ffm/report/index.html.
On the creation of the IGC, see document WO/GA/26/6 at www.wipo.int/edocs/mdocs/govbody/en/wo_ga_26/wo_ga_26_6.doc.
For the gap analyses, see www.wipo.int/tk/en/igc/gap-analyses.html.
For the texts which are being negotiated at the IGC as well as further information regarding the IGC and its mandate, see
www.wipo.int/tk/en/igc/index.html.
For the United Nations Declaration on the Rights of Indigenous Peoples, see
http://social.un.org/index/IndigenousPeoples/DeclarationontheRightsofIndigenousPeoples.aspx.
On the WIPO Voluntary Fund, see www.wipo.int/tk/en/ngoparticipation/voluntary_fund/index.html.
On the PCT Minimum Documentation, see document PCT/MIA/9/4 at
www.wipo.int/edocs/mdocs/pct/en/pct_mia_9/pct_mia_9_4.pdf.
On technical standards for the documentation of TK developed in 2002 at Cochin, India, see document WIPO/GRTKF/IC/4/14 at
http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_4/wipo_grtkf_ic_4_14.doc and the report of the fourth session of the
Committee, document WIPO/GRTKF/IC/4/15 at www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_4/wipo_grtkf_ic_4_15.doc.
For guidance on the IP aspects of mutually-agreed terms for fair and equitable benefit-sharing related to GRs, see
www.wipo.int/tk/en/databases/contracts/index.html.
On draft guidelines on IP clauses in access and benefit-sharing agreements, see document WIPO/GRTKF/IC/17/INF/12 at
www.wipo.int/meetings/en/doc_details.jsp?doc_id=146457.
For a glossary of terms regarding GRs, TK and TCEs, see
www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_21/wipo_grtkf_ic_21_inf_8.doc.
For the law database, see www.wipo.int/tk/en/legal_texts/.
4
For more information contact WIPO at www.wipo.int
World Intellectual Property Organization
Traditional Knowledge Division
34, chemin des Colombettes
P.O. Box 18
CH-1211 Geneva 20
Switzerland
Telephone:
+41 22 338 81 41 / +41 22 338 72 15
Fax:
+41 22 338 81 20
Email:
grtkf@wipo.int
This brief summarizes the legal, policy and operational issues that need to be considered in developing a
national strategy for the intellectual property protection of traditional knowledge and traditional cultural
expressions, also known as folklore. It also outlines the intellectual property issues related to genetic resources.
At present, intellectual property protection of traditional knowledge and traditional cultural expressions, and
rules concerning intellectual property aspects of the use of genetic resources, are matters primarily for
national governments. Negotiations are currently underway in the World Intellectual Property Organization
(WIPO) to develop an international legal instrument (or instruments) for the effective protection of traditional
knowledge and traditional cultural expressions, and to address the intellectual property aspects of the access
to and the sharing of benefits arising from the use of genetic resources. These negotiations are taking place
in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC), established by the WIPO General Assembly in 2000.
TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSIONS
The meaning of protection
This brief is concerned with a very specific understanding of the term protection, to mean the use of
intellectual property (IP) laws, values and principles to prevent unauthorized or inappropriate uses, by third
parties, of traditional knowledge (TK) and traditional cultural expressions (TCEs). The objective of IP
protection is to make sure that the intellectual innovation and creativity embodied in TK or TCEs are not
wrongly used.
IP protection can take two forms - positive and defensive protection. Positive protection grants IP rights in
the subject matter of TK and TCEs. This may help communities prevent third parties from gaining illegitimate
access to TK and TCEs, or from using them for commercial gain without equitably sharing the benefits. It
may also enable active exploitation of TK and TCEs by the originating community itself, for example, to build
up its own handicraft enterprises. Defensive protection, on the other hand, does not grant IP rights over the
subject matter of TK and TCEs but aims to stop such rights from being acquired by third parties. Defensive
strategies include the use of documented TK to preclude or oppose patent rights on claimed inventions that
make direct use of TK.
Protection in the IP sense is different from preservation and safeguarding, which involve the identification,
documentation, transmission, revitalization and promotion of cultural heritage. The objective in that case is to
ensure that TK and TCEs do not disappear and are maintained and promoted.
Protection, preservation and safeguarding are not mutually exclusive. Although their objectives are
different, implementing them together may be mutually supportive, for example, through documentation and
the compilation of inventories. However, these different forms of protection may also conflict. Preservation
efforts that document TK or TCEs, particularly in electronic (digitized) form, can make them more accessible
and vulnerable to uses that are against the wishes of their holders, thereby undermining the effort to protect
them in an IP sense. It is therefore advisable to have policies in place for the strategic management of IP
during the recording, digitization and dissemination of TK and TCEs.
DEVELOPING A NATIONAL STRATEGY
ON INTELLECTUAL PROPERTY AND
TRADITIONAL KNOWLEDGE,
TRADITIONAL CULTURAL EXPRESSIONS
AND GENETIC RESOURCES
BACKGROUND
BRIEF
N3
Throughout this brief, the issues discussed concern IP-type protection of traditional innovation and creativity,
and not the safeguarding or preserving of traditions, life-styles and cultures.
Developing a national strategy
National laws are currently the prime mechanism for achieving protection of TK and TCEs. While there may
be several approaches to protection, reflecting the diversity of TK and TCEs and their social context,
developing a strategy for IP protection usually involves the following key components:
Policy initiatives, including political decisions to give greater attention and value to TK and TCEs and their
protection, as well as policy statements that set overall directions on key issues;
Legislative initiatives, including strengthening existing legal tools and creating new ones;
Infrastructure, especially inventories, databases and other information systems, which can complement
and support the implementation of legal systems;
Practical tools, including the use of contracts, guidelines and protocols, as well as capacity-building and
awareness-raising, if and when appropriate.
These four components provide the basis for developing a comprehensive protection strategy that integrates
policy, legal, infrastructural and practical steps. Developing a strategy would also need to consider
implementation at the community, national and possibly regional and international levels. It would involve a
review of the TK and TCEs held in the country, a decision on overall goals, and a survey of the options
available to provide the desired level of protection.
Policy initiatives
A first step towards policy development is to have a clear understanding of the IP interests of the holders of
TK and TCEs. It is important to determine what forms of TK and TCEs exist, and which TK and TCEs are
considered to be in need of legal protection. The next step is to set out general objectives for their
protection. For example, is protection to be aimed at preserving TK and/or TCEs, preventing their misuse, or
using them as a basis of community economic development? A decision on objectives will assist in the
design of legal mechanisms and in assessing needs for capacity building.
Legislative initiatives
When considering legislative options for the IP protection of TK and TCEs, it is first necessary to examine the
available legal and policy options under conventional IP systems. Existing IP rights can indeed be useful for
the protection of TK and TCEs; for example, rights granted by trademarks and geographical indications, as
well as the protection afforded by unfair competition laws, can be very helpful in protecting reputations
associated with TK and TCEs and related goods and services. If there are gaps in existing national
legislation, it may be possible to fill them by adapting the existing IP framework.
However, in some cases, adapting existing IP rights may not be considered sufficient to cater for the holistic
and unique character of TK and TCEs. A decision may then be taken to protect TK and TCEs through sui
generis systems. sui generis systems are specialized measures or laws aimed exclusively at addressing the
characteristics of specific subject matter, such as TK and TCEs.
When considering a sui generis system for the protection of TK and TCEs, key questions include defining the
objectives of protection and identifying the subject matter to be protected. It is also important to clarify what
the TK and TCEs are to be protected against, and what forms of behavior should be considered
unacceptable or illegal. Other issues to consider include the formalities to be required (such as registration),
the sanctions and penalties that should apply, the exceptions and limitations attached to the rights (for
example, the use of TCEs in archives, libraries or museums for non-commercial cultural heritage purposes),
the duration of protection, the application in time of legal protection (retroactive or prospective), the
enforcement of rights and dispute resolution mechanisms, and the protection of foreign beneficiaries.
Finally, non-IP legislative and policy measures (for example, those concerning cultural diversity and cultural
heritage, regional development, the conservation of biodiversity, the promotion of the use of traditional medicine,
and the collection of ecological TK) should also be taken into account and coordinated with as necessary.
2
Infrastructure
Inventories, databases and other information systems can form part of the infrastructure that complements and
supports policies and legal systems. Over the past decades, initiatives to document TK and TCEs have taken
place all over the world, sometimes in conjunction with the legal protection of TK and TCEs, sometimes simply
for preservation or safeguarding purposes. While documentation does not in itself ensure legal protection of TK
or TCEs, inventories and databases may nevertheless create rights, whether these are to restrain use by third
parties or to be used by the holders themselves to derive economic benefits from their TK or TCEs.
Practical tools and steps
Practical tools, such as contracts, guidelines and protocols, and practical steps, such as community
consultations, capacity-building and awareness-raising activities, are also valuable if not necessary to support
the overall policy objectives and complement the development and implementation of legal measures.
Key questions to be considered on traditional knowledge and traditional cultural expressions
What TK/TCEs should be protected? What form and characteristics do TK/TCEs have in your country?
Which forms of TK/TCEs are especially vulnerable to misappropriation? What actual examples are there?
What are the desired objectives of IP protection for TK/TCEs?
Who should benefit from any such protection or hold the rights to protectable TK/TCEs?
What forms of behavior or acts in relation to the protectable TK/TCEs should be considered
unacceptable or illegal?
How can the existing IP system be used to its full extent to protect interests related to TK/TCEs?
Are there gaps in the protection already available and, if so, could those gaps be filled by adapting the
existing IP framework, or would TK/TCEs be better protected by a distinct sui generis system?
For how long should protection be accorded?
Should there be any formalities (such as examination and registration)?
Should there be any exceptions or limitations to rights attaching to protectable TK/TCEs?
What sanctions or penalties should apply to behavior or acts considered unacceptable or illegal?
Should newly recognized rights in TK/TCEs have retrospective effect?
How should foreign rights holders/beneficiaries be treated?
GENETIC RESOURCES
Genetic resources (GRs) are defined in the Convention on Biological Diversity, 1992 (CBD) as genetic material
of plant, animal, microbial or other origin containing functional units of heredity that has actual or potential
value. Some GRs are linked to TK and traditional practices through their use and conservation by indigenous
and local communities, often over generations, and through their widespread use in modern scientific
research. For example, TK often provides researchers with leads to isolate valuable active compounds for
medicines and other products.
GRs themselves, as encountered in nature, are not IP. They are not creations of the human mind and thus
cannot be directly protected as IP. However, inventions based on or developed using GRs (associated with
TK or not) may be patentable or protected by plant breeders rights.
Moreover, GRs are subject to access and benefit-sharing regulations, in particular within the international
legal and policy framework defined by the CBD and the Nagoya Protocol on Access to Genetic Resources
and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological
Diversity, as well as by the International Treaty on Plant Genetic Resources for Food and Agriculture of the
United Nations Food and Agriculture Organization.
Some IP issues associated with GRs that are currently under discussion in WIPO include:
The defensive protection of GRs: A number of WIPO member states have adopted policies aimed at the
defensive protection of GRs, to prevent patents being granted over GRs (and associated TK) that do not
fulfill patentability requirements such as novelty and inventiveness. Defensive protection includes, for
example, the creation of databases on GRs and TK to help patent examiners find relevant prior art and
3
avoid the granting of erroneous patents, and, even in some cases, the disqualification of patent
applications that do not comply with CBD obligations on prior informed consent, mutually agreed terms,
fair and equitable benefit-sharing, and disclosure of origin.
Disclosure requirements and the consistency and synergy between the IP system and the CBD:
WIPO member states are considering whether, and to what extent, the IP system should be used to
support implementation of CBD obligations. One of the options under discussion in this regard is to
develop mandatory disclosure requirements that would oblige patent applicants to show the source or
origin of GRs, as well as evidence of prior informed consent and a benefit-sharing agreement.
In order to develop effective access and benefit-sharing systems, WIPO has prepared a set of case-studies
related to IP and GRs, Intellectual Property Guidelines for Access and Equitable Benefit-Sharing and a
database of Biodiversity-related Access and Benefit-sharing Agreements.
Key questions to be considered on genetic resources
What are the desired objectives regarding IP issues associated with GRs?
What forms of behavior or acts in relation to IP and GRs should be considered unacceptable or illegal?
Are there any mechanisms preventing patents from being granted on inventions based on or developed
using GRs (such as disclosure requirements)?
What information related to GRs do patent examiners have available (such as periodicals, databases or
other information resources) when examining patent applications regarding inventions based on or
developed using GRs?
What sanctions or penalties should apply to behavior or acts considered unacceptable or illegal?
FURTHER INFORMATION
Background Brief 1, Traditional Knowledge and Intellectual Property, www.wipo.int/tk/en/briefs.html.
Database of legislative texts on the protection of protection of traditional knowledge and traditional cultural expressions and
legislative texts relevant to genetic resources, www.wipo.int/tk/en/legal_texts/.
Genetic Resources: Draft Intellectual Property Guidelines for Access and Equitable Benefit-Sharing, document
WIPO/GRTKF/IC/17/INF/12, www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_inf_12.doc.
Glossary of Key Terms Related to Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural
Expressions, document WIPO/GRTKF/IC/21/INF/8,
www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_21/wipo_grtkf_ic_21_inf_8.doc.
Intellectual Property Needs and Expectations of Traditional Knowledge Holders, WIPO Report on Fact-Finding Missions on Intellectual
Property and Traditional Knowledge (1998-1999) (WIPO Publication No. 768), www.wipo.int/tk/en/tk/ffm/report/final/.
The Protection of Traditional Cultural Expressions: Draft Gap Analysis, document WIPO/GRTKF/IC/13/4(B) Rev.,
www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_13/wipo_grtkf_ic_13_4_b_rev.doc.
The Protection of Traditional Knowledge: Draft Gap Analysis, document WIPO/GRTKF/IC/13/5(B) Rev.,
www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_13/wipo_grtkf_ic_13_5_b_rev.doc.
WIPO-UNEP Study on the Role of Intellectual Property Rights in the Sharing of Benefits Arising from the Use of Biological
Resources and Associated Traditional Knowledge (WIPO Publication No. 769), www.wipo.int/tk/en/publications/769e_unep_tk.pdf.
4
For more information contact WIPO at www.wipo.int
World Intellectual Property Organization
34, chemin des Colombettes
P.O. Box 18
CH-1211 Geneva 20
Switzerland
Telephone:
+41 22 338 91 11
Fax:
+41 22 733 54 28
INTRODUCTION
Arts festivals celebrate the worlds rich and diverse cultures, bringing together time-honored traditions and
modern creativity in the form of dance, music, theater, film, photography, visual arts, crafts, and much else.
Culturally, arts festivals offer a unique snapshot of a communitys identity, providing an opportunity to revitalize
and preserve cultural practices, and serving as a creative laboratory for contemporary performers. Socially, they
are a means of strengthening intercultural dialogue, promoting deeper understanding through shared
experience. Economically, they can generate sizeable long-term financial benefits and significant business and
employment opportunities.
Effective intellectual property management is an important consideration for arts festival organizers, to
safeguard and promote their own interests and those of festival participants. WIPO is working with those
involved in the organization of cultural events to develop and apply appropriate management strategies to deal
with the various intellectual property issues that can arise before, during and after such events.
WIPOs Traditional Knowledge Division is particularly concerned with the protection of traditional knowledge and
traditional cultural expressions, which are frequently represented and shared at festivals around the globe. This
brief identifies the main intellectual property challenges faced by organizers of arts festivals and outlines some
practical elements of an effective intellectual property management strategy.
INTELLECTUAL PROPERTY RISKS
Artists, performers and artisans are the lifeblood of any arts festival. Their cultural expressions draw public
interest and build the festivals reputation. Yet without appropriate intellectual property (IP) measures, the
festivals various artistic manifestations which may contain culturally sensitive material can become
vulnerable to unauthorized or inappropriate exploitation by others. Examples of unauthorized acts may include:
the sale of postcards reproducing images of a sacred dance;
use of a video clip of a traditional performance in a tourism promotion campaign;
a CD of illegally recorded original songs inspired by traditional music;
replicas of traditional dance costumes made using ancestral weaving methods;
ritual face painting used out of context and in an offensive way.
Moreover, in the absence of a carefully considered IP strategy, festival audiences risk being duped into buying
fake arts and crafts and other merchandise, and the interests of the event itself are undermined by
opportunistic businesses that free-ride on the festivals reputation and popularity.
INTELLECTUAL
PROPERTY &
ARTS
FESTIVALS
BACKGROUND
BRIEF
N4
HANDS-ON INTELLECTUAL PROPERTY MANAGEMENT
A positive, forward-looking IP strategy enables organizers to exercise greater control over a festivals IP and
cultural interests. A mix of IP tools, particularly copyright and trademark rights used in association with
contracts, protocols, guidelines, notices, accreditation and access conditions (see below) can provide a
comprehensive framework to protect IP and guard against the misuse of traditional knowledge (TK) and
traditional cultural expressions (TCEs).
Furthermore, used strategically, IP can help generate significant revenues, for example, from the sale of
broadcasting rights and the conclusion of sponsorship and merchandizing deals.
KEY INTELLECTUAL PROPERTY AREAS
Copyright and related rights
Copyright law offers a number of exclusive rights to creators of original works. These include the rights of
reproduction, distribution, public performance, communication to the public, broadcasting on radio and
television, and making the work available on the internet, among others. Rights owners alone can authorize or
prevent such acts. However, while copyright confers the exclusive right of adaptation of a protected work, it
does not stop others from being inspired by it. Drawing a line between copying and inspiration is often difficult.
In many jurisdictions, creators of original works also enjoy the moral rights of attribution and integrity. For
example, if a work is manipulated in a way that is deemed prejudicial to the creators reputation, he or she can
obtain legal relief.
Likewise, performers have so-called related rights in their performances of works or expressions of folklore.
They can control the recording and dissemination of their performances, as well as their commercial
exploitation, among other rights.
A balanced copyright law also includes certain exceptions and limitations in the public interest (for example, fair
use in some jurisdictions). These would usually allow, for instance, a member of the audience to take pictures
of a festival performance for personal, private use.
Brands and trademarks
Abusive use of a festivals logo and the sale of fake arts and crafts are serious threats that can be tackled in
large part by registering a trademark and/or certification mark. Trademark registration generally confers the
exclusive right to prevent others from producing or marketing identical or similar products under the same or a
confusingly similar mark.
Trademark registration opens the way for arts festival organizers to develop an effective marketing strategy and
to conclude potentially profitable deals to secure the long-term financial viability of their event. As owners of
registered trademarks, organizers are better placed to promote the sale of authentic products generating
revenues for artists and the festival alike, both onsite and online. They are also better equipped to defend
themselves against cybersquatting (the abusive registration of their mark as a domain name), thereby
safeguarding their web presence, a powerful means of marketing the festival.
Trademarks associated with arts festivals can be registered in a variety of classes, in each country where a
festival takes place. For example, a mark can be registered for festivals (class 41), recordings (class 9), and
publications and merchandise such as visual arts, crafts, books and other products (classes 18, 20, 25, 43,
etc.) see the International Classification of Goods and Services for the Purposes of the Registration of Marks
(Nice Classification).
2
Measures to safeguard the festivals brand
Register a trademark
Secure a domain name
Develop a merchandizing program that defines the festivals product portfolio
Establish a sponsorship program and define levels of sponsorship and associated rights
Establish official retail outlets onsite and online
Monitor the online market for infringing products.
Traditional cultural expressions and traditional knowledge
Festival organizers may also need to take complementary steps, going beyond existing IP law, to protect the
cultural interests of participants whose artistic expressions do not qualify for IP protection because of their
traditional character. For example, traditional crafts and designs, as well as many rituals and ceremonies, are
unlikely to qualify for IP protection in many jurisdictions.
There is, as yet, no international protection of TK and TCEs, save for the protection of performances of
expressions of folklore under the WIPO Performances and Phonograms Treaty, 1996. However, festival
organizers can take several measures to prevent the unauthorized uses of TCEs. Examples include:
Cautionary notices, such as no filming, photography or recording devices allowed. Usually placed onsite,
or published on festival tickets, websites and official programs, these notices can help protect the TK and
TCE interests of performers and restrict unauthorized uses. Oral warnings may also be given prior to a
performance.
Guidelines and protocols advising visitors and members of the media about the need to respect the TK
and TCEs of festival participants. Protocols can be used to ensure proper attribution to custodians of TK
and TCEs or to promote respect for the sacred character of a performance. Such protocols might request
the audience to please exercise courtesy and sensitivity when taking photographs: seek the permission of
the subjects or may state no use, adaptation or commercialization of TK/TCEs without the prior informed
consent of traditional custodians.
A media accreditation system outlining the terms and conditions of festival recordings and ensuring that
representatives of the media register their interest and provide details of the proposed use of festival
recordings.
Measures to monitor use of official broadcasts and to clamp down on infringement. Broadcasters pay large
amounts for exclusive coverage of an event. If organizers are to fully leverage the sale of broadcast rights,
they need to guarantee this exclusivity.
MAKING IT ALL HAPPEN
To ensure that an events IP policy is effectively applied, organizers are advised to establish a (written) contract
with all concerned parties, including members of the public, media (photographers as well as print, TV and
radio journalists) and festival performers and exhibitors. Licenses, accreditation agreements and performers
release forms are commonly used for this purpose. Release forms are used to advise performers of the use of
the recording, seek written consent for its use, and outline its long-term use in terms of storage and use in
other contexts. Such arrangements can cover matters relating to both IP rights (including trademarks, copyright
and related rights), and TK and TCE-related rights and interests (recognition, protection and respect for the
interests of their holders). Contracts are also a means to concretize financial deals. For example, they can
provide for: sharing with their holders of benefits derived from the exploitation of TK/TCEs; use of a commercial
photograph on a poster to promote the festival; donation of copies of recordings to the festival archive for
cultural maintenance purposes, and so on.
3
In sum, organizing an arts festival is a complex undertaking encompassing many marketing and managerial
elements. An effective strategy designed to uphold the IP and cultural interests of all parties is central to this
endeavor. Where TK and TCEs are concerned, while conventional IP tools offer some degree of protection,
complementary measures, such as cultural protocols, guidelines and notices, are required. An effective IP
management strategy helps foster cultural respect and generates economic opportunities for these vibrant
celebrations of the variety and diversity of cultures around the world.
WIPO is assisting the Secretariat of the Pacific Community, the Council of Pacific Arts and Culture, and
Solomon Islands on the range of IP issues that arise when organizing the Festival of Pacific Arts. This event,
held every four years in a different country, highlights the regions rich diversity of arts, culture and
knowledge.
WIPOs support includes advice on the use and application of conventional IP law, as well as other measures
to safeguard TK and TCE interests in line with the Pacific Regional Framework for the Protection of
Traditional Knowledge and Expressions of Culture (2002) and the work of the WIPO Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).
The WIPO publication Intellectual Property and the 11th Festival of Pacific Arts, Solomon Islands, 2012,
prepared by Terri Janke, is available online (www.wipo.int/tk/en/).
4
For more information contact WIPO at www.wipo.int
World Intellectual Property Organization
Traditional Knowledge Division
34, chemin des Colombettes
P.O. Box 18
CH-1211 Geneva 20
Switzerland
Telephone:
+41 22 338 81 41 / +41 22 338 72 15
Fax:
+41 22 338 81 20
Email:
grtkf@wipo.int
INTRODUCTION
Traditional craftsmanship requires specialized and traditional techniques, skills and knowledge that are often of
considerable antiquity and transmitted from generation to generation. Handicrafts can be traditional cultural
expressions (TCEs) in their design, appearance and style, and can also embody traditional knowledge (TK) in
the form of the skills and know-how used to produce them.
TK and TCEs, including handicrafts, are valuable cultural, social and historical assets of the communities who
maintain, practice and develop them; they are also economic assets that can be used, traded or licensed for
income generation and economic development. Unfortunately, however, traditional techniques - and the
design, reputation and style associated with handicrafts - are vulnerable to imitation and misappropriation. All
too often cheap imitations undermine sales of traditional handicrafts as well as the quality reputation of the
genuine products.
Proposals and solutions are being identified for the legal protection of TK and TCEs to prevent their misuse,
misappropriation, or other kind of illicit exploitation. These can also be useful for the protection of traditional
handicrafts. Negotiations on a sui generis international legal instrument for the protection of TK and TCEs are
currently taking place in the WIPO Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore (IGC). These negotiations aim to address the linkages between
the intellectual property (IP) system and the concerns of TK and TCE holders. A number of countries and
regions have also developed their own sui generis systems for protecting TK and TCEs.
In the meantime, existing IP rights, such as trademarks, geographical indications, copyright, industrial designs
or patents can also be used by artisans and handicraft organizations to promote their interests. In particular,
they can be used to protect traditional handicrafts against unauthorized reproduction and adaptation, and
against misleading use of their style and reputation.
This brief identifies practical, accessible and often community-based means of using the existing IP system for
the effective recognition, protection, management, marketing and commercialization of traditional handicrafts as
cultural and economic assets.
WHAT ARE HANDICRAFTS?
Handicrafts are sometimes referred to as artisanal products, craft products, traditional creative crafts or works
of artistic or traditional craftsmanship. There is no universally agreed definition of handicrafts, but the following
common characteristics can be identified:
they are produced by artisans, completely by hand or with the help of hand-tools or even using machinery,
provided the artisans direct manual contribution remains the most substantial component of the finished
product;
they are representations or expressions that are symbolic of the artisans culture;
they encompass a wide variety of goods made of raw materials;
INTELLECTUAL PROPERTY &
TRADITIONAL HANDICRAFTS
BACKGROUND
BRIEF
N5
their distinctive features can be utilitarian, aesthetic, artistic, creative, culturally attached, decorative,
functional, traditional, or religiously and socially symbolic and significant;
there are no particular restrictions on production quantity, and no two pieces are exactly alike.
Additional characteristics that may apply to traditional handicrafts include the fact that they are transmitted
from generation to generation and that they are linked to an indigenous or local community. The following
paragraphs apply to both handicrafts and traditional handicrafts.
HANDICRAFTS AND INTELLECTUAL PROPERTY
From an IP perspective, handicrafts can have three distinct components:
reputation derived from their style, origin or quality;
external appearance their shape and design; and
know-how the skills and knowledge used to create and make them.
Each component can potentially be protected by a distinct form of IP. Know-how, for example, could be
protected by patents or as a trade secret, external appearance could be protected by copyright or industrial
designs, while reputation could be protected by trademarks, collective or certification marks, geographical
indications or unfair competition law. These forms of IP will be examined in turn.
Protecting the reputation and distinctiveness of handicrafts
Trademarks
A trademark is a sign used to identify and distinguish the goods or services of a particular firm or undertaking,
in the course of trade. Trademarks may be composed of distinctive words, letters, numerals, drawings,
pictures, shapes, colors or advertising slogans, among others. They serve to indicate the origin of goods or
services, so as to distinguish them from identical or similar products produced by competitors.
Registering and using a trademark can increase consumer recognition of authentic handicrafts and add to their
commercial value. Registration gives the trademark owner the exclusive right to prevent others from using an
identical or confusingly similar mark on identical or similar goods or services. Trademark law also provides
protection against the registration of deceptive marks by others, for example, if someone applies for a
trademark that falsely implies that a good or service has an indigenous origin, so as to induce people to
purchase the good or service, the registrar must reject the application.
Collective marks and certification marks
Collective and certification marks can be used to inform the public of certain characteristics of the products or
services marketed under such marks.
A collective mark distinguishes the goods and services of members of an association, which is the owner of
the mark, from those of other undertakings. There is no requirement for certification; any member of the
association is entitled to use the mark. For example, the MGLASS collective mark was registered by the
Regional Commission of the Crystal Industry in Portugal, and is used on mouth-blown glass and crystal works
of art created by artisans in the Marinha Grande region.
A certification mark indicates that the goods or services are certified by the owner of the mark to conform to
certain standards or characteristics, such as geographical origin, material, mode of manufacture or quality. For
example, in Panama, authenticity labels are used on molas (distinctive textile panels produced by Kuna
craftswomen) to guarantee their authenticity and combat the widespread sale of cheap mola imitations.
Registering and using a collective or certification mark can help indigenous communities to distinguish their
crafts from others, and promote them and the artists who made them nationally and internationally. It can help
improve their economic position and ensure that they get fair and equitable returns. Collective and certification
marks can also raise public awareness and provide reassurance to consumers as to the authenticity of the
2
goods they are buying. While certification marks or authenticity labels cannot prevent the sale of imitations, they
can discourage them by distinguishing the genuine traditional handicrafts.
Geographical indications
A geographical indication is a sign that can be used on goods with a specific geographical origin and
possessing qualities, reputation or characteristics that are essentially attributable to that place of origin. These
products are often the result of traditional processes and knowledge, carried forward by a community from
generation to generation in a given region. Handicrafts made using natural resources, with qualities derived from
their geographical origin, may qualify for registration as geographical indications. For example, the appellation of
origin Olinal refers to craft products made by the Olinal people of Mexico in accordance with special
techniques and skills, using wood from the aloe tree which is native to the region.
Geographical indications do not directly protect the actual knowledge or know-how associated with
handicrafts. Instead, knowledge often remains in the public domain under conventional IP systems, and is open
to misappropriation by third parties. However, they can contribute to their indirect protection in several ways.
They can protect handicrafts against misleading and deceptive trading practices, protect the reputation or
goodwill accumulated over time, and safeguard a niche market. In addition, they can prevent others from using
a protected geographical indication on goods that do not come from the defined area or do not possess the
requisite quality or characteristics.
Unfair competition
Unfair competition law is used to restrain dishonest practices in the marketplace, and can be a useful
means of combating false and misleading claims as to authenticity or origin - for example, where a cheaply
made souvenir item carries a label falsely indicating that it is authentic, indigenous made, or originates
from a particular community, measures can be taken by those producing the authentic products to prevent
those claims.
Protecting the external appearance of handicrafts
Copyright
Artisans often produce creative works that can be protected by copyright law. Copyright, which arises
automatically upon a works creation, protects the products of creativity. It provides copyright owners with
exclusive rights that allow them to benefit financially for a long but fixed period of time, usually the life of the
author plus 50 years. These rights, also called economic rights, protect copyright owners against unauthorized
reproduction and adaptation. Copyright protection also comprises moral rights, such as the right to claim
authorship of the work and the right to object to demeaning or degrading uses of the work. Handicrafts may be
protected by copyright if they are original and possess artistic qualities. Examples can include enamel works,
jewelry, sculptures, ceramics, tapestries, woven goods and leather ornaments.
Designs
A design refers to the aesthetic aspect or outward appearance of a product, such as its shape, patterns, lines
or colors, and may be embodied in a wide range of handicraft products. For example, the shape of a basket,
the design of a necklace or the ornamentation of a vase may be protected as designs.
In most countries, a design must be registered in order to be protected. In addition, it must be new, original and
have individual character. Protection lasts for a limited period, usually up to 25 years. An artisan who owns the
rights over a design embodied in a handicraft may prevent others from producing, importing, selling, or
distributing products that look like or are very similar to the protected design. However, a design essentially or
entirely dictated by the technical features of a product may not be protected. In addition, some countries
exclude handicrafts from design protection, which only applies to products made by industrial means.
3
Protecting the know-how associated with handicrafts
Patents
Patents protect inventions that are new, involve an inventive step and are capable of industrial application. They
allow the patent owner to prevent others from commercially using the invention for a fixed period of time,
usually 20 years.
Patents can provide indirect protection to handicrafts by protecting the tools or the process used to make
them, where an artisan has substantially improved an earlier process or invented a new one capable of
industrial application. For example, new functional features of items such as woodworking tools, hand-tools,
brushes, paints, and musical instruments could be protected by patents, as could significant functional
improvements to machines, looms, kilns or furnaces used to make handicrafts.
Trade secrets
Any confidential information that provides artisans with a competitive edge may qualify as a trade secret. Trade
secrets may relate to the composition or conception of a product, a method of manufacture or the know-how
necessary to perform a particular operation. Artisans may hold information that they want to keep hidden from
their competitors because of its commercial value and the likelihood that competitors would use it. For
example, a carpet weaver may know a faster and more cost-effective weaving technique than the ones
competitors are using.
In order to qualify as a trade secret, the information must be confidential or secret, it must have commercial
value because it is secret, and reasonable steps must have been taken to keep it confidential or secret. Unlike
patents, which have to be applied for, trade secrets are automatically protected as long as the information is
kept confidential. Artisans who possess trade secrets can prevent others from improperly acquiring, disclosing
or using them. For example, if a textile enterprise finds that an employee has revealed a secret weaving
technique to a competitor, it may obtain a court order to prevent the competitor from using that technique.
However, trade secrets law cannot stop people who acquire or use the information in a legitimate way.
WIPO provides technical assistance on developing effective IP management strategies and on practical tools to
enable TK and TCEs holders to manage IP issues, including those related to handicrafts. WIPO also offers
advice, on request, on the range of IP issues related to TK and TCEs, in the light of regional and international
legal developments.
FURTHER INFORMATION
Craft Revival Trust/Artesanas de Colombia S.A./UNESCO, Designers Meet Artisans, A Practical Guide (New Delhi, 2005)
International Trade Centre UNCTAD/WTO (ITC)/WIPO, Marketing Crafts and Visual Arts: The Role of Intellectual Property: A
Practical Guide (Geneva, 2003)
WIPO Magazine, Panama: Empowering Women Through a Better Protection and Marketing of Handicrafts, Issue 6/2005
WIPO Intellectual Property Handbook (2008) (WIPO Publication No. 489)
4
For more information contact WIPO at www.wipo.int
World Intellectual Property Organization
Traditional Knowledge Division
34, chemin des Colombettes
P.O. Box 18
CH-1211 Geneva 20
Switzerland
Telephone:
+41 22 338 81 41 / +41 22 338 72 15
Fax:
+41 22 338 81 20
Email:
grtkf@wipo.int
1
BACKGROUND
BRIEF
N6
INTELLECTUAL PROPERTY
AND TRADITIONAL
MEDICAL KNOWLEDGE
INTRODUCTION
Traditional medicine is popular throughout the world. In some Asian and African countries, 80 percent of the
population depend on traditional medicine, including for primary healthcare. In many developed countries, 70 to 80
percent of the population have used some forms of alternative or complementary medicine such as acupuncture.
1

Many modern drugs and vaccines are based on natural resources and associated traditional knowledge.
Traditional medical knowledge has social, cultural and scientifc value and is important for many indigenous
peoples and local communities. Growing commercial and scientifc interest in traditional medicine systems has
led to calls for traditional medical knowledge to be better recognized, respected, preserved and protected.
Traditional medical knowledge, such as the medicinal use of herbs, is often associated with genetic resources. For
instance, calanolides, compounds derived from the latex of Calophyllum trees found in the Malaysian rainforest,
are a potential treatment for HIV and certain types of cancer. Because genetic resources exist in nature and are
not creations of the human mind, they cannot be directly protected as intellectual property (IP). They are, however,
subject to access and beneft-sharing regulations under international agreements.
2
This brief focuses on IP
protection of traditional medical knowledge and does not deal specifcally with associated genetic resources.
WHAT IS TRADITIONAL MEDICAL KNOWLEDGE?
The World Health Organization (WHO) defnes traditional medicine as the sum total of the knowledge, skills and
practices based on the theories, beliefs and experiences indigenous to different cultures, whether explicable
or not, used in the maintenance of health, as well as in the prevention, diagnosis, improvement or treatment of
physical and mental illnesses.
Traditional means that the knowledge is created in a manner that refects community traditions; it is often inter-
generational and created and held collectively. Traditional, therefore, does not necessarily mean old but is
rather related to the way in which the knowledge is created, preserved and transmitted.
Traditional knowledge is generally considered the collective heritage of a particular indigenous people or local
community. While individuals, such as a shaman in Bolivia or a sangoma in South Africa, may themselves
innovate, what makes their innovations traditional is that they are based on the communitys collective heritage
and the innovations are regarded as community-held.
PROTECTION OF TRADITIONAL MEDICAL KNOWLEDGE
Different aspects of traditional medical knowledge are under discussion in several international forums, including
WHO
3
and the World Trade Organization (WTO).
4

1 See WHO Fact Sheet N134 Traditional Medicine (December 2008).
2 In particular, the Convention on Biological Diversity, the Nagoya Protocol on Access to Genetic Resources
and the Fair and Equitable Sharing of Benefts Arising from their Utilization, and the International Treaty on
Plant Genetic Resources for Food and Agriculture.
3 WHO promotes the use of traditional medical knowledge for health care. See WHO Fact sheet No. 134
Traditional Medicine, www.who.int/mediacentre/factsheets/fs134/en/.
4 The WTOs work on access to medicines and IP issues relating to public health is guided by the Doha Declaration
on the TRIPS Agreement and Public Health; this clarifes the fexibilities in IP rules available to governments under
the WTOs Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).
See www.wto.org/english/tratop_e/trips_e/who_wipo_wto_e.htm.
2
The World Intellectual Property Organization (WIPO) is primarily concerned with protection of traditional
medical knowledge in the IP sense protection against unauthorized use by third parties. Negotiations currently
underway in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore (IGC) seek to develop an international legal instrument that would provide
effective protection of traditional cultural expressions/folklore and traditional knowledge (including traditional
medical knowledge), and address the IP aspects of access to and beneft-sharing of genetic resources.
Calls for the protection of traditional medical knowledge are often based on a number of cases involving
misappropriation by unauthorized third parties, who have patented compounds derived from traditional
medicines without the prior consent of traditional medical knowledge holders and without fair compensation.
Examples of patents based on traditional Indian medicine have included the use of turmeric for healing wounds,
the anti-fungal properties of neem, and a diabetes medicine made from extract of jamun. All three patents were
subsequently revoked.
In the case of captopril, a drug used to treat hypertension and heart failure, no benefts have fowed back to the
indigenous Brazilian tribe that frst used pit viper venom as an arrowhead poison. By contrast, the San people
of the Kalahari Desert have a beneft-sharing agreement with South Africas Council for Scientifc and Industrial
Research, which is working with pharmaceutical companies to develop dietary supplements based on hoodia, a
succulent plant well-known to the San for its appetite-suppressant qualities.
IP protection can take two forms positive and defensive protection:
Positive protection grants IP rights over the subject matter of traditional medical knowledge. This may
help communities to prevent others from gaining illegitimate access to traditional medical knowledge or
using it for commercial gain without equitably sharing the benefts. It may also enable active exploitation
of traditional medical knowledge by the originating community itself, for example, to build up its own
enterprises based on that knowledge.
Defensive protection does not grant IP rights over traditional medical knowledge but aims to stop such
rights from being acquired by third parties. Defensive strategies include the use of documented traditional
medical knowledge to preclude, oppose or invalidate patents on claimed inventions that are directly based
on such knowledge.
Defensive measures undertaken by WIPO include changes to the Patent Cooperation Treatys Minimum
Documentation and the International Patent Classifcation so as to improve searches for prior art and
prevent patents from being granted in error. In 2003, it was agreed that certain traditional knowledge
documentation, such as the Indian Journal of Traditional Knowledge and the Korean Journal of Traditional
Knowledge, should be included in the Patent Cooperation Treatys Minimum Documentation. In 2006, the
International Patent Classifcation was amended to include a traditional knowledge category, which covers
traditional herbal medicines.
LEGISLATIVE AND PRACTICAL OPTIONS FOR PROTECTING TRADITIONAL MEDICAL
KNOWLEDGE
Conventional intellectual property rights
IP rights convey legal ownership over certain intangible assets, such as artistic works, commercial designs
and pharmaceutical technologies. Common types of IP include patents, copyright, trademarks, geographical
indications and trade secrets.
Generally speaking, patents are the most important type of IP protection for medicines. To obtain a patent, an
invention must be novel, inventive and industrially applicable. A patent grants a set of exclusive rights for a
limited time, usually 20 years, that allows the inventor to prevent others from making, using, selling, offering for
sale or importing the patented invention without permission. Patents based on traditional medical knowledge
include patents based on maca, a traditional Peruvian food and medicine frst cultivated by the Incas, and
a patent based on kava, a medicinal plant frst domesticated in Vanuatu. In China, patent law protects new
traditional medicine-based products, methods of process and new uses of traditional medicine, including herbal
3
preparations, extracts from herbal medicines, foods containing herbal medicines and methods for preparing
herbal formulas.
Holders of traditional medical knowledge can nevertheless face signifcant obstacles in satisfying the conditions
required to obtain a patent, especially the requirements of novelty and inventiveness. Because many traditional
medicines have been used for generations, disseminated in local communities and documented in publicly
available sources, these medicines may fail to qualify for patent protection for lack of novelty.
Moreover, because herbal medicines typically comprise natural products in their raw form, it can be diffcult to
claim that a remedy involves an inventive step. Identifying how the claimed invention differs from prior art can
also be problematic. That said, pharmaceutical drugs derived from natural products usually involve some form
of alteration or purifcation, which may be considered a novel and inventive step making the drugs eligible for
patent protection.
A trade secret is information not generally known or reasonably discoverable, through which an IP holder
can obtain some economic advantage. Once trade secrets become known, they generally cease to provide
protection. Traditional medical knowledge holders may choose not to disclose their knowledge and keep it
secret. In some communities, traditional medical knowledge is known and transmitted only to individual healers
and not to the community at large.
Other forms of IP may also have a role to play. Trademarks protect distinctive signs, such as words, phrases,
symbols and designs that identify the source of a product. This helps consumers identify products with
preferred characteristics, such as a specifc brand of herbal medicine. Trademark rights are established through
either registration or use in commerce. Trademarks have been used to market products based on traditional
medical knowledge, such as Truong Son Balsam, a traditional balm of medical plants from Viet Nam. However,
while trademarks can help distinguish authentic goods, they do not prohibit third parties from using traditional
knowledge without the trademark or under a different mark. Trademarks cannot be used to protect traditional
medical knowledge itself.
A geographical indication is another sort of IP right that can help to identify the source of goods. Geographical
indications identify products as having characteristics associated with their place of origin. However, although
geographical indications can be used to distinguish products based on traditional medical knowledge specifc to
a location, they cannot protect against the same use of traditional medical knowledge that is not associated with
a place. The way in which geographical indications are protected varies by country, and may require registration
or use in commerce. As with trademarks, geographical indications can be used only for the protection of
products based on traditional medical knowledge, not the knowledge itself.
Sui generis systems
Some countries have adopted special sui generis laws and measures, specifcally to protect traditional medical
knowledge. For example, Thailands Act on Protection and Promotion of Traditional Thai Medicinal Intelligence
protects formulas of traditional Thai drugs and texts on traditional Thai medicine. Only those who have
registered their IP rights can research, develop and produce drugs using traditional medical knowledge. At the
international level, the international legal instrument on the protection of traditional knowledge negotiated by the
WIPO IGC would embody a sui generis approach.
Documentation
Documenting traditional knowledge includes recording it, writing it down, taking pictures of it or flming it
anything that preserves it in an accessible form. It is different from the traditional ways of preserving and
passing on knowledge within a community, and can promote or damage a communitys interests, depending
on how the documentation is carried out. Important IP rights may be strengthened or lost when traditional
knowledge is documented.
Documenting traditional medical knowledge may be useful for the defensive protection of traditional medicine,
for example, by providing information for prior art searches to preclude illegitimate patents (see above under
Defensive Protection). However, documentation does not ensure legal protection for the underlying traditional
4
knowledge; it does not prevent this knowledge from being used by third parties. In some cases it can destroy
rights and options if it is undertaken without an IP strategy in place. The consultation draft of the WIPO
Traditional Knowledge Documentation Toolkit provides useful practical guidance on how to address critical
IP-related issues and questions before, during and after documentation exercises.
The Traditional Knowledge Digital Library
The Traditional Knowledge Digital Library (TKDL), established under the auspices of Indias Council of Scientifc
and Industrial Research (CSIR) and Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and
Homeopathy (AYUSH), documents existing literature related to four Indian traditional medical knowledge
systems Ayurveda, Unani, Siddha and Yoga. The TKDL provides patent examiners with prior art information,
in digitized format, in fve international languages (English, German, French, Japanese and Spanish), so as to
prevent the erroneous grant of patents.
The TKDL is not open to the public, and patent offces must not reveal the contents of the TKDL to any third
party, in order to protect Indias interest against possible misuse.
Other options
Other options can form part of the overall menu to protect traditional medical knowledge.
Customary laws and practices may defne custodial rights and obligations over traditional medical knowledge,
including obligations to guard it against misuse or improper disclosure. They may determine how traditional
medical knowledge is to be used, how benefts should be shared and how disputes are to be settled, as well
as many other aspects of the preservation, use and exercise of knowledge. For example, in North America, the
inheritance and transfer of medicine bundles within or between families is accompanied by the transmission of
traditional medical knowledge and certain rights to practice, transmit and apply that knowledge.
Contracts are another tool that can be used to protect traditional medical knowledge. Contractual agreements,
such as the San peoples agreement on hoodia mentioned earlier, can ensure that the grant of IP rights and
access to traditional medical knowledge is based on prior informed consent and beneft-sharing. In another
example, traditional healers of Samoa are acknowledged in a beneft-sharing agreement concerning the
development of prostratin, an anti-AIDS compound derived from the Samoan native mamala tree.
FURTHER INFORMATION
Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions: An Overview (WIPO
Publication No. 933), www.wipo.int/export/sites/www/tk/en/publications/933e_booklet_1.pdf.
Promoting Access to Medical Technologies and Innovation: Intersections between Public Health, Intellectual Property and Trade
(WIPO Publication No. 628), www.wipo.int/export/sites/www/freepublications/en/global_challenges/628/wipo_pub_628.pdf
A series of briefs, www.wipo.int/tk/en/briefs.html.
Consultation draft of the WIPO Traditional Knowledge Documentation Toolkit, www.wipo.int/tk/en/tk/TKToolkit.html.
Database of legislative texts on the protection of traditional knowledge and traditional cultural expressions and legislative texts
relevant to genetic resources, www.wipo.int/tk/en/legal_texts/.
The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC),
www.wipo.int/tk/en/igc/index.html.
For more information contact WIPO at www.wipo.int
World Intellectual Property Organization
Traditional Knowledge Division
34, chemin des Colombettes
P.O. Box 18
CH-1211 Geneva 20
Switzerland
Telephone:
+4122 338 81 41 / +4122 338 72 15
Fax:
+4122 338 81 20
E-mail:
grtk@wipo.int
1
BACKGROUND
BRIEF
N7
CUSTOMARY LAW
AND TRADITIONAL
KNOWLEDGE
Customary laws are central to the very identity of indigenous peoples and local communities, defning rights,
obligations and responsibilities of members relating to important aspects of their lives, cultures and world views.
Customary law can relate to use of and access to natural resources, rights and obligations relating to land,
inheritance and property, conduct of spiritual life, maintenance of cultural heritage and knowledge systems, and
many other matters.
Maintaining customary laws can be crucial for the continuing vitality of the intellectual, cultural and spiritual life
and heritage of indigenous peoples and local communities, who have also called for various forms of respect for
and recognition of customary laws beyond the scope of their own communities, for example, in claims over land
and natural resources. This can raise complex issues in national constitutional law.
Similar issues can arise in considering the interface between customary laws and practices and conventional
intellectual property laws, and in deciding on appropriate forms of protection of traditional knowledge against
misuse and misappropriation.
This brief will explore the issues concerning customary law, traditional knowledge and intellectual property.
Traditional knowledge is used in a general sense in this brief, embracing the content of knowledge itself as well
as traditional cultural expressions.
WHAT IS CUSTOMARY LAW?
Customary law is a set of customs, practices and beliefs that are accepted as obligatory rules of conduct by
indigenous peoples and local communities. Customary law forms an intrinsic part of their social and economic
systems and way of life.
What characterizes customary law is precisely that it consists of a group of customs that are recognized
and shared collectively by a community, people, tribe, ethnic or religious group. This contrasts with written
law emanating from a constituted political authority, the application of which is in the hands of that authority,
generally the State.
HOW DOES CUSTOMARY LAW PROTECT
TRADITIONAL KNOWLEDGE?
What makes knowledge traditional may be the very fact that it is developed, maintained and disseminated in a
customary, intergenerational context, and often that context will be defned and shaped by customary law. So
even the basic question in discussing protection of traditional knowledge what does this term refer to? may
require an understanding of customary law. This is one reason why indigenous peoples and local communities
have consistently argued that measures for the protection of traditional knowledge against misuse and
misappropriation should be based upon and support enforcement of their customary laws.
Customary law is thus one potential element of a holistic approach that may include customary and indigenous
laws and protocols as part of a wider set of tools for protecting traditional knowledge. These tools may
* This Background Brief draws on previous published materials, notably an issues
paper prepared by the WIPO Secretariat and studies by Dr. Brendan Tobin and
Mr. Rodrigo de la Cruz (see Further Reading below).
2
encompass existing intellectual property systems, adapted intellectual property systems with sui generis
elements, and new stand-alone sui generis systems, as well as non-intellectual property options such as trade
practices and labeling laws, liability rules, use of contracts, regulation of access to genetic resources, and
remedies based on such torts (delicts) as unjust enrichment, rights of publicity and blasphemy.
Amongst the principal attributes of customary law may, depending on context, be its legitimacy, fexibility and
adaptability. In some countries it is recognized as a source of law, in others its role is limited to the exercise of
internal autonomy or self-government by indigenous peoples and local communities, while many countries have
yet to give formal recognition to customary law.
Generally speaking, customary law can serve as:
the fundamental legal basis or source of law for a communitys legal rights over traditional knowledge;
a factual element in establishing a communitys collective rights over traditional knowledge;
one element of the defnition of traditional knowledge, or can otherwise establish the relationship between
the knowledge and a community that is central to the concept of traditional knowledge;
a means of determining or guiding the procedures to be followed in securing a communitys free prior
informed consent for access to and/or use of traditional knowledge;
the basis of specifc user rights or exceptions, exempting a communitys continuing customary uses and
practices from legal restrictions on the use of traditional knowledge;
a guide for the assessment of cultural or spiritual offence or damage caused by inappropriate use of
traditional knowledge;
a determinant of or guide to how benefts from the use of traditional knowledge should be shared equitably
within a community;
a means of determining appropriate remedies, sanctions or restitution following a breach of rights over
traditional knowledge;
an avenue for resolving disputes over ownership or other forms of custodianship over traditional knowledge; and
a guide for the transmission of rights over traditional knowledge from generation to generation.
CUSTOMARY LAW AND INTELLECTUAL PROPERTY
PROTECTION OF TRADITIONAL KNOWLEDGE
The interplay between customary law and intellectual property protection of traditional knowledge is complex.
Indigenous peoples and local communities, as distinctive societies, have often evolved diverse governance
norms that, among other things, may regulate fows of knowledge and innovation, in a way that refects the
knowledge related values of that indigenous people and local community. Though different from intellectual
property systems, these regulations are considered just as effective in protecting the local innovator.
Traditional knowledge holders, where they have desired to do so, have often had diffculties in accessing
the formal intellectual property system, which is based on document-intensive, codifed and governmentally
administered structures and procedures. Many indigenous peoples and local communities have lacked the
resources, written records and externally recognized representative governance structures that would facilitate
control over their traditional knowledge, preventing knowledge holders from effectively protecting against
misappropriation, or seeking positive intellectual property protection.
Moreover, customary law and practice may, for example, require traditional knowledge to be kept secret, whereas
disclosure is part of the core rationale of patent law. Unless an invention is fully disclosed, a patent on that
invention is invalid. In addition, a patent based on traditional knowledge, even if granted, provides only time-limited
protection, which may be an inadequate safeguard for knowledge that is transmitted down the generations.
However, customary law can be used in conjunction with formal intellectual property systems to fll some of the
gaps in protection of traditional knowledge. For example, customary laws concerning inheritance may determine
ownership of intellectual property or the legal identity of a community as a right-holder; customary laws
imposing an obligation of confdentiality may be effectively extended to prevent disclosure beyond the traditional
circle; and customary laws governing use of a sacred symbol may be drawn upon to deny registration of the
symbol as a trademark by a third party.
3
From a procedural point of view, customary law may govern how consultations should be undertaken, how
disputes should be settled, how competing claims should be reconciled, and what penalties or remedies
should be applied. In principle, such procedural aspects could be applied to subject matter that is not within
the traditional scope of customary law for example, in determining the equitable sharing of benefts from the
commercial exploitation of traditional knowledge, or in determining the distribution of damages in the case of
infringement of intellectual property rights.
The much richer experience of recognition of customary law in areas other than intellectual property may shed
light on untapped possibilities for intellectual property law. Examples include resources and environmental law,
property law and the law of inheritance or succession; the application of customary law in dispute settlement
and in criminal law; the law of contracts, trusts and equity; and general civil and family law.
Sui generis laws and customary law
Representatives of indigenous peoples and local communities have been actively participating in both the
WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore (IGC) and the meetings on the Convention on Biological Diversity (CBD) (such as the Ad Hoc
Open-Ended Working Group on Article8(j) and Related Provisions, the meetings on access and beneft-sharing
prior to the Nagoya Protocol, and the meetings relating to Nagoya Protocol), where they have called for the
development of mechanisms relating to traditional knowledge in tune with their realities, values and customary
laws. In both fora, work has focused on proposals for sui generis mechanisms to protect traditional knowledge,
in particular against misappropriation. Indigenous peoples and local communities have frequently made
the case that their customary laws and practices are in essence sui generis regimes specifcally crafted for
protection of their traditional knowledge.
At the national or regional level, existing sui generis laws for protection of traditional knowledge have taken a
variety of positive approaches towards recognizing customary law.
Recognition of customary law in sui generis laws on protection of traditional knowledge
at the national and regional level
The Philippines Indigenous Peoples Rights Act, 1997 establishes a right to the restitution of cultural,
intellectual, religious and spiritual property taken inter alia in violation of [indigenous peoples ] laws,
traditions and customs . Access to indigenous knowledge is subject to prior informed consent obtained
in accordance with customary laws. When disputes arise, customary laws and practices shall be used to
resolve the dispute.
One objective of the Peruvian Law No. 27811 of July 24, 2002, introducing a Protection Regime for
the Collective Knowledge of Indigenous Peoples derived from Biological Resources, is to promote the
fair and equitable distribution of the benefts derived from the use of [...] collective knowledge. The law
recognizes customary laws and protocols in the context of beneft-sharing, stating that indigenous
peoples [...] may have recourse to their traditional systems for the purposes of the distribution of benefts.
The law also provides that the traditional exchange between indigenous peoples of the collective
knowledge shall not be affected.
The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore within
the Framework of the African Regional Intellectual Property Organization (ARIPO) recognizes the role of
customary laws and practices in several articles. There is also a defnition of customary laws and practices.
At the international level, negotiations are currently underway in the IGC towards development of an international
legal instrument or instruments for the effective protection of traditional knowledge. Many participants in
the work of the IGC, including WIPO Member States and representatives of indigenous peoples and local
communities, have emphasized the role of customary laws in this area.
4
CONCLUSION
Effective protection of traditional knowledge cannot be ensured only at international level. The commitment of
national decision-makers to promoting such protection at the international level needs to be mirrored by adoption
of relevant national traditional knowledge law and policy. Regional law and policy will be important to protect the
rights over shared traditional knowledge held by indigenous peoples and local communities in more than one
State. Continuing use of traditional knowledge by indigenous peoples and local communities, development of
policies for traditional knowledge management, and establishment of community-managed traditional knowledge
databases are needed for the long-term protection of traditional knowledge. Adoption of legislation and
development policies which empower indigenous peoples and local communities to exercise control over their
traditional knowledge in accordance with customary law is crucial to traditional knowledge protection.
Issues for consideration concerning customary law and intellectual property law
What forms of relationship between customary law and intellectual property law have been encountered in
practice? What models could be explored?
What lessons can be drawn from recognition of customary law in relation to other (but potentially related)
areas of law, such as family law, the law of succession, the law of land tenure and natural resources,
constitutional law, human rights law and criminal law, as well as dispute resolution in general?
What experiences have been reported concerning the role of customary law in relation to intangible
property, and rights and obligations relating to traditional knowledge?
What role for customary law has been recognized in existing and proposed sui generis laws for the
protection of traditional knowledge?
For the holders of traditional knowledge, what is the preferred role or roles of customary laws and protocols:
- As a basis for sustainable community-based development, strengthened community identity, and
promotion of cultural diversity?
- As a distinct source of law, legally binding in itself on members of the original community, and on
individuals outside the community circle, including in foreign jurisdictions?
- As a means of factually guiding the interpretation of laws and principles that apply beyond the
traditional reach of customary law and protocols?
- As a component of culturally appropriate forms of alternative dispute resolution?
- As a condition of access to traditional knowledge?
- As the basis for continuing use rights, recognized as exceptions or limitations to any other rights
granted over traditional knowledge or related and derivative subject matter?
FURTHER READING
WIPO Report on Fact-fnding Missions on Intellectual Property and Traditional Knowledge (1998-1999), www.wipo.int/export/sites/
www/freepublications/en/tk/768/wipo_pub_768.pdf.
Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions: An Overview (WIPO
Publication No. 933), www.wipo.int/export/sites/www/freepublications/en/tk/933/wipo_pub_933.pdf.
A series of Background Briefs prepared by WIPO, www.wipo.int/tk/en/resources/publications.html.
Customary Law, Traditional Knowledge and Intellectual Property: An Outline of the Issues, WIPO Secretariat, 2013, www.wipo.int/
export/sites/www/tk/en/resources/pdf/overview_customary_law.pdf.
The Role of Customary Law in Access and Beneft-Sharing and Traditional Knowledge Governance: Perspectives from Andean
and Pacifc Island Countries, jointly produced by UNU and WIPO, Dr. Brendan Tobin, 2008, www.wipo.int/export/sites/www/tk/en/
resources/pdf/customary_law_abs_tk.pdf.
WIPO study on customary law in the Andean region, Rodrigo de la Cruz, 2006, www.wipo.int/export/sites/www/tk/en/resources/pdf/
study_cruz.pdf.
Database of legislative texts on the protection of traditional knowledge and traditional cultural expressions and legislative texts
relevant to genetic resources, www.wipo.int/tk/en/legal_texts/.
The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC),
www.wipo.int/tk/en/igc/index.html.
For more information contact WIPO at www.wipo.int
World Intellectual Property Organization
34, chemin des Colombettes
P.O. Box 18
CH-1211 Geneva 20
Switzerland
Telephone:
+4122 338 91 11
Fax:
+4122 733 54 28
1
BACKGROUND
BRIEF
N8
ALTERNATIVE DISPUTE RESOLUTION FOR
DISPUTES RELATED TO INTELLECTUAL
PROPERTY AND TRADITIONAL
KNOWLEDGE, TRADITIONAL CULTURAL
EXPRESSIONS AND GENETIC RESOURCES*
Alternative dispute resolution (ADR) offers an alternative to formal court-based systems for tackling intellectual
property (IP) disputes that may arise in relation to traditional knowledge (TK), traditional cultural expressions
(TCEs) and genetic resources (GRs). These disputes are often sensitive and involve parties that can be very
diverse from a cultural and economic perspective. With ADR, the parties themselves assume responsibility for
solving the confict and can take into account issues other than legal norms. This is particularly important given
the complex legal, social, political, cultural and historical dimensions of disputes over TK, TCEs and GRs.
Indigenous peoples and traditional and local communities have unique needs and expectations in relation to
IP. Issues related to TK, TCEs and GRs are often intricately interwoven with cultural values about knowledge,
its circulation and use. Many disagreements involve questions of culturally appropriate usage, sharing of
knowledge and proper attribution. Court-based processes may not be able to resolve issues of this nature,
which often have no recognized legal basis. Indeed, such processes can generally only address questions of
law. Litigation may further disadvantage indigenous peoples and traditional and local communities who may
face diffculties in accessing the legal system, either fnancially or materially and in making a legal case for their
claim. Further, the adversarial nature of the judicial process can be a barrier to constructive dialogue.
For these reasons, ADR is an important element of the range of options available to indigenous peoples,
traditional and local communities, and third-party users for resolving disputes. It also complements current
efforts aimed at developing an international legal instrument for the protection of TK and TCEs and for regulating
the interface between IP and access and beneft-sharing of GRs. This brief summarizes the key issues related to
the use of ADR in the context of disputes relating to IP and TK, TCEs and GRs.
WHAT IS ALTERNATIVE DISPUTE RESOLUTION ?
ADR seeks to resolve disputes in non-adversarial ways in order to reach outcomes of mutual beneft for all
parties. ADR can be sensitive to the unique issues that underpin each dispute, and can therefore establish
appropriate processes to address them.
ADR is an alternative to litigation. It is available as a means to resolve conficts between a range of parties with
varying levels of access to legal advice. ADR is characterized by having both formal and informal procedures,
offering options beyond those of litigation, and granting parties more control in determining the parameters of
the dispute and the most appropriate way to reach resolution.
ADRs four key methods are negotiation, mediation, arbitration and collaborative law (mediation and arbitration
are examined in more detail below). While there are differences between these methods, all four provide fexible
processes that aim to enhance the parties understanding of the issues involved in a dispute, such as history
and politics. This can help to identify the key elements at the center of the dispute, and thereby contribute to
their resolution in sensitive ways.
Parties to ADR can include individuals, communities, collectivities, organizations, businesses and/or states.
Because it is not necessarily linked to any specifc national court system, ADR is particularly appropriate if the
dispute involves parties from different countries and in multiple legal jurisdictions. ADR can also be a useful
strategy for disputes between indigenous, traditional and local communities themselves.
* This background brief was prepared for WIPO by Dr. Jane E. Anderson, Assistant Professor, Centre for Heritage and Society,
Department of Anthropology, University of Massachusetts and Adjunct Professor of Law, New York University School of Law.
2
For example, ADR could have been an option for the 2013 dispute around the auction of seventy Hopi and Zuni
masks in Paris, France. These masks, made in the late nineteenth and early twentieth century in North America,
are extremely sought after by collectors. From an indigenous perspective, they are sacred objects and contain
cultural and spiritual elements that remain active and meaningful within contemporary Zuni and Hopi cultural
practice. The dispute was around who the legitimate owners of these masks should be. It raised legal and non-
legal questions about the conditions of initial acquisition and therefore the right to resale, authenticity, ongoing
private property rights as well as underlying IP rights regarding reproduction of images of the masks and access
and control of cultural knowledge embodied within them. With multiple areas of law, and differing cultural
positions, ADR could have enabled the non-legal components, particularly the cultural signifcance of the works,
to be included for consideration.
Mediation
Mediation is a non-binding procedure with few formalities where parties voluntarily submit a dispute for
resolution. A neutral intermediary, the mediator, helps the parties reach a mutually satisfactory, interest-based
settlement. In contrast to court-based processes, mediation enables the parties themselves to determine the
structure and conditions for a settlement. The mediator works with the parties to determine the best framework
for the mediation to take place and how it will be conducted, including identifying the important issues that
need to be discussed. Mediation is a confdential process, unless the parties agree otherwise, and parties can
withdraw from the procedure at any point. Mediation can also address non-legal issues. It encourages the
parties to engage in a dialogue about what each understands the dispute to be about, and to work together to
develop a resolution that takes into account each partys issues. There is no third party that imposes resolution
or remedy. Mediation is non-binding and a party to mediation cannot be forced to accept an outcome that it
does not like.
Arbitration
Arbitration is a more formal process than mediation. While it shares some principles with mediation, it differs in
several ways. By agreement of the parties, a dispute is submitted to one or more arbitrators who make a fnal and
binding decision. Arbitration functions like a tribunal and parties cannot unilaterally withdraw from the process
once they have submitted to it. Unlike a court-based process, however, arbitration allows the parties to choose
an appropriate arbitrator, and for the process to be confdential. A tribunal or panel of arbitrators renders the fnal
judgment, called award. Arbitration also focuses on the parties legal positions and makes decisions based on
the applicable substantial law. Any fnal decision is binding on the parties and is internationally enforceable under
the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958).
ADVANTAGES OF MEDIATION AND ARBITRATION FOR DISPUTES INVOLVING TK,
TCES AND GRS
ADR, especially mediation and arbitration, has many advantages for disputes involving TK, TCEs and GRs.
Such processes can explore grievances in ways that recognize the different cultural value systems of the
parties. They are also more likely to address direct needs and
foster new relationships between the parties. A further advantage
is that they can provide a single neutral procedure that can deal
with multiple jurisdictions. Hence parties are able to develop
solutions beyond those allowed by court-based processes.
Importantly, ADR also encourages the choice of neutral
mediators or arbitrators with direct experience and expertise
in the issues at hand, drawn from indigenous communities or
with knowledge of indigenous legal issues. Another advantage
of ADR includes enabling a dispute to be completed within a
reasonable timeframe. The following paragraphs highlight specifc
advantages for indigenous peoples and traditional and local
communities, as well as third-party users.
Indigenous peoples have the right to
access and prompt decision through just
and fair procedures for the resolution of
conficts and disputes with States or other
parties, as well as to effective remedies
for all infringements of their individual and
collective rights. Such a decision shall
give due consideration to the customs,
traditions, rules and legal systems of
the indigenous peoples concerned and
international human rights.
United Nations Declaration on the Rights
of Indigenous Peoples, Article 40
3
Advantages for indigenous peoples and traditional and local communities
For indigenous peoples and traditional and local communities, ADR provides a context for resolving disputes
that recognizes the cultural, ethical and historical concerns that exist in relation to IP and the use of TK, TCEs
and GRs by third parties.
ADR offers an opportunity to:
Recognize different value systems;
Enable the incorporation of customary law processes;
Recognize the legal and non-legal components of a dispute;
Provide remedies that are culturally appropriate.
A further advantage is that communities themselves can be a party and indigenous peoples and traditional
communities can represent themselves and do not have to rely on expensive or inaccessible legal counsel.
Proceedings may even be conducted in the language of their choice.
Advantages for third-party users
For third-party users, including museums, archives, libraries, research institutes, universities, individuals
and industry, ADR provides a means to recognize and resolve the inter-related social, cultural and political
dimensions of the claim.
ADR offers an opportunity to:
Establish relationships between communities and institutions;
Reduce animosity and misunderstandings;
Explain motivations and intentions in a less formal and less confrontational way;
Engage in dialogue and create conditions for understanding cultural differences;
Add value to potential products derived from TK, TCEs and GRs.
POTENTIAL CHALLENGES OF ADR
ADR processes can help unravel misunderstandings about the complicated elements of IP law, and the ways in
which it is interpreted, understood and realized in commercial and non-commercial settings. However, ADR is
not an alternative to the legal protection of TK, TCEs and GRs and should be understood as a complementary
strategy or additional resource for dispute settlement. Any ADR process that addresses TK, TCEs and GRs
should be attuned to the possibility of inter-cultural differences from its inception, enabling customary law
processes and protocols to be incorporated when needed.
CONCLUSION
ADR offers an alternative to litigation for resolving conficts involving IP and TK, TCEs and GRs. This is because
the issues that arise do not only involve the resolution of competing legal claims, but also a complex layering
of interests and responsibilities, developed through historical and contemporary engagements with indigenous
peoples and that exist within traditional and local communities. ADR can therefore allow for a fuller and more
comprehensive understanding of what is at stake and for whom.
ADR is thus an important element of the range of options available to indigenous peoples, traditional and
local communities and third-party users. It does not replace current efforts to develop an international legal
instrument. Rather, it is a complementary tool, which could enhance the applicability and effectiveness of any
future international instruments.
4
WIPO Services in Arbitration and Mediation
The WIPO Arbitration and Mediation Center was established in 1994 to offer ADR options for the resolution
of international commercial disputes between private parties. Developed by leading experts in cross-border
dispute settlement, the mediation, arbitration and expert determination procedures offered by the Center are
widely recognized as appropriate for intellectual property disputes.
As part of the WIPO ADR Services for Specifc Sectors, the Center provides dispute resolution, advice and
case administration services to help parties resolve disputes arising in the area of art and cultural heritage.
WIPO ADR procedures in this area have involved various parties, including artists, art galleries, museums
and indigenous and local communities. For example, the Center has carried out its good offces in a matter
between a museum and an indigenous community concerning the restitution of a cultural object, as well as
related IP issues. In addition, the Center, in conjunction with the International Council of Museums, now also
offers mediation for art and cultural heritage disputes.
In the area of biodiversity, the Center has provided technical assistance to the International Treaty on Plant
Genetic Resources for Food and Agriculture (ITPGRFA) Secretariat in developing the Rules for Mediation of a
Dispute in relation to a Standard Material Transfer Agreement.
More information about the Center can be found at: www.wipo.int/amc/en/; about its dispute resolution
services in the area of art and cultural heritage at: www.wipo.int/amc/en/center/specifc-sectors/art/, and about
its dispute resolution services in the area of biodiversity at: www.wipo.int/amc/en/center/specifc-sectors/
biodiversity/.
FURTHER INFORMATION
ANDERSON, Jane, On Resolution, Intellectual Property and Indigenous Knowledge Disputes Prologue Landscapes of Violence,
2(1), 2012.
BAUMAN, Toni and POPE, Juanita, Solid Work you Mob are Doing: Case Studies in Indigenous Dispute Resolution and Confict
Management in Australia, 2009.
BELL, Catherine and KAHANE, David, (eds.) Intercultural Dispute Resolution in Aboriginal Contexts, 2004.
OSI, Carlo, Understanding Indigenous Dispute Resolution Processes and Western Alternative Dispute Resolution: Cultivating
Appropriate Methods in Lieu of Litigation Cardozo Journal of Confict Resolution 10: 163, 2008.
SARFATY, Galit, International Norm Diffusion in the Pimicikamak Cree Nation: A Model of Legal Mediation Harvard International
Law Journal 48, 2007.
THEURICH, Sarah, Art and Cultural Heritage Dispute Resolution, WIPO Magazine, 2009, Issue 4.
WICHARD, J. Christian and WENDLAND, Wend B., Mediation as an Option for Resolving Disputes between Indigenous/Traditional
Communities and Industry Concerning Traditional Knowledge, in Art and Cultural Heritage: Law, Policy, and Practice,
Barbara T. Hoffman (ed.), 2006.
WIPO Arbitration and Mediation Center, Bibliography on Intellectual Property Arbitration and Mediation, www.wipo.int/amc/en/
center/bibliography/general.html.
For more information contact WIPO at www.wipo.int
World Intellectual Property Organization
34, chemin des Colombettes
P.O. Box 18
CH-1211 Geneva 20
Switzerland
Telephone:
+4122 338 91 11
Fax:
+4122 733 54 28
1
BACKGROUND
BRIEF
N9
DOCUMENTATION OF
TRADITIONAL KNOWLEDGE
AND TRADITIONAL
CULTURAL EXPRESSIONS
INTRODUCTION
Documentation of traditional knowledge (TK) and traditional cultural expressions (TCEs) has attracted increasing
attention in recent years from governments and cultural institutions as well as from indigenous peoples and local
communities (IPLCs), in parallel with the growing recognition of the cultural and economic value of TK and TCEs.
New information technologies, such as electronic digitization and the internet, have also made documentation
easier and facilitated access and dissemination.
However, documenting TK and TCEs should not be regarded as an end in itself. It needs to be undertaken
within a framework of sound objectives and principles, and guided by a clear assessment of the risks and
potential benefts, particularly for the traditional holders.
The World Intellectual Property Organization (WIPO) does not promote documentation of TK and TCEs as such,
but rather advises governments, cultural institutions and traditional custodians wishing to document TK and
TCEs on related intellectual property (IP) issues. This brief describes the main objectives of documenting TK and
TCEs, the IP issues that may arise and options for addressing them.
DEFINITION AND OBJECTIVES OF DOCUMENTING TK AND TCES
For the purposes of this brief, documentation of TK and TCEs refers to all activities of identifcation, fxation and
classifcation aimed at facilitating retrieval from an organized data set, such as paper fles, digital databases,
archives or libraries. In this brief, registration refers to a specifc form of documentation that grants legal
protection to its content through its inclusion in a register.
Documenting TK and TCEs may serve fve valuable purposes, separately or in combination.
Safeguarding and preservation
The 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage obliges Parties to
document TK and TCEs as a means to safeguard cultural heritage. In this context, the aim of documentation is
to ensure the maintenance, use and development of TK and TCEs by present and future generations of peoples
and communities in a traditional context. Safeguarding appears to be the underlying purpose of most of the
documentation undertakings initiated so far. Documentation in this sense may also extend to disseminating,
promoting, revitalizing and repatriating TK and TCEs and, thereby, saving them from extinction.
Protection of secret and sacred TK and TCEs
Confdential or secret records or registers of TK and TCEs safeguard particularly sensitive cultural materials,
access to which and use of which are exclusively reserved for the relevant traditional holders in accordance with
their customary laws and practices. Restricted access contributes to the protection of TK and TCEs from an IP
perspective, as it prevents disclosure and third-party uses prohibited by those customary laws.
2
Research and development
Databases of TK and TCEs can be used for research and development (e.g. based on traditional medical
knowledge) and can help to enhance awareness, knowledge, innovation and creativity among IPLCs, as well as
third parties such as research centers and industry.
Defensive protection of TK
It is an important principle of the international patent regime that public disclosure of an unprotected invention
means it is no longer novel, a condition for granting a patent. Documenting TK, and making it available to
patent offces, facilitates the search for TK as prior art, and may thus help to prevent its misappropriation
through the erroneous granting of patents that do not involve a genuinely inventive step. The confdential
access for patent offces to Indias Traditional Knowledge Digital Library, and the inclusion in 2002 of certain
TK journals in the Patent Cooperation Treatys minimum documentation, as well as the 2011 United States
Patent and Trademark Offce Database of Offcial Insignia of Native American Tribes are important examples of
documentation initiatives that aim at defensive protection of TK and TCEs.
Positive protection of TK and TCEs
Documentation and registration of TK and TCEs may help provide positive protection, enabling customary
holders to beneft from their TK and TCEs in dealings with third parties. As such, they can act as regulated
platforms or gateways by which traditional custodians can grant access to particular TK and TCEs to third-
party users under certain conditions, such as prior informed consent (PIC) and fair access and beneft-sharing
(ABS) mechanisms. These conditions can be set to accord with the IP rights, needs and aspirations of the
holders of TK and TCEs, as well as any applicable international or national regime, including the Convention on
Biological Diversity.
IP ISSUES ARISING FROM DOCUMENTATION OF TK AND TCES
Despite the foregoing benefts, documenting TK and TCEs remains a controversial endeavor, particularly from
the perspective of indigenous peoples and local communities.
Documentation may lead to misuse or unwanted disclosure of TK and TCEs
Documentation of TK and TCEs that has not involved PIC from their traditional holders may be seen by them
as misuse of their heritage. Loss of secrecy or confdentiality that may result from documentation could harm
the interests of traditional holders, while subsequent use of documented TK and TCES may infringe the moral
rights of their custodians and/or lead to misappropriation. On the other hand, confdential dissemination of
documented TK among patent offces may provide defensive protection of TK against misappropriation. The
effect of documentation under conventional IP law thus depends on how dissemination of and access to its
content is undertaken and regulated.
The IP rights belong to those who document or record TK and TCEs and not necessarily to their
traditional holders
Under conventional IP law, the copyright vested in the documented content belongs to those entities and
individuals who authored that content, generally those who undertook the documentation or made the
recordings (such as ethnologists and museums). This may create a legal situation where the traditional holders
of the documented TK and TCEs do not own the rights to the content and may be deprived of their ability
and right to exercise control over, for example, the use of recordings by third parties and incidentally over the
underlying TK and TCEs.
The protection granted to the documented content under the copyright regime has a limited scope
Under the conventional IP regime, documentation of TK or TCEs provides protection only for the form in which
the TK and TCEs have been expressed. But, in the absence of a specifc (sui generis) protection regime or
a contractual commitment of similar scope, third parties could still use the documented TK and TCEs freely
as long as they did not infringe the IP rights vested in the particular way the TK and TCEs were expressed.
Documentation in itself thus cannot substitute for positive protection of TK and TCEs.
3
OPTIONS AND RESOURCES TO ADDRESS IP ISSUES
Several technical and legal options are available to help manage the IP rights involved in documentation in the
best interests of the parties, including by ensuring implementation of the PIC and fair ABS principles at all steps
of the documentation process. These options should be adopted within the framework of a consistent and
balanced IP strategy that refects the applicable IP legal regimes, customary laws and best practices in the feld
of TK and TCEs.
WIPO offers a set of resources to facilitate implementation of those options before, during and after documentation
takes place. The WIPO Creative Heritage Training Program includes most of the available resources and program
activities that relate to TCEs and cultural heritage documentation see Further reading below.
Digitization and software tools can support protection
Digital Rights Management (DRM) refers to technological measures that ensure that access to and use of
digitized content accord with the conditions set by the relevant right-holders. These could include digital
watermarks on digital images, identifcation and application forms for users, tracking devices that allow control
on the use of the content, and so on.
Access to and use of documented content can be regulated by licenses and other contracts
IPLCs can manage access to and use of their documented TK and TCEs through licenses and other contractual
arrangements.
As an example of technical assistance initiative, the Traditional Knowledge License and Label Platform, being
developed with support from WIPO, aims to provide TCE holders, particularly IPLCs, and those collaborating
with them on the development of digital archives, with tailored licenses for copyrighted material derived from
TCEs and educative labels for unprotected TCEs.
Existing protocols and guidelines can be used as models of best practice
Many cultural institutions have developed codes, guidelines and protocols that relate to the recording and
dissemination of documented intangible cultural heritage, with an emphasis on best practices in dealing
with traditional communities under customary law as well as other IP right-holders before, during and after
documentation.
WIPO has established a searchable database of existing guidelines for cultural documentation, and has also
commissioned surveys and case studies in this feld. A guide, Intellectual Property and the Safeguarding of
Traditional Cultures: Legal Issues and Practical Options for Museums, Libraries and Archives, is also available.
Community-led documentation initiatives
The documentation process may create rights in the recorded material that are not necessarily vested in
their traditional holders but in the person or entity responsible for the documented content. By recording and
documenting their own cultural heritage, traditional holders can ensure they retain exclusive IP rights on the use
of that content. They can also ensure that recording and documentation occur in a way that accords with their
customary laws and practices and responds to their needs and expectations.
The WIPO Creative Heritage Training Program helps IPLCs acquire the technical skills to undertake
documentation as well as the technical and legal skills to manage their own IP rights. The WIPO TK
Documentation Toolkit similarly aims to assist holders of TK to identify and defend their IP-related interests when
their TK is documented or otherwise recorded
Sui generis protection of TK and TCEs and the role of documentation
Examples of sui generis legal regimes for the positive protection of TK and TCEs have already been adopted at
the national and regional level. These may include provisions requiring documentation of TK and TCEs as well
as the use of documented content to have the PIC of their traditional custodians, and providing mechanisms to
ensure fairness in sharing the benefts accruing from documentation between traditional custodians, IP rights-
holders and third-party users.
4
As mentioned above, documentation can be used to facilitate management of the rights associated with TK and
TCEs under sui generis protection regimes, providing platforms or gateways through which third parties can
gain access under stipulated conditions.
Policymakers may also use documentation to support positive protection of TK and TCEs, as a means to
register TK and TCEs as a condition for their protection or as evidence of their protection.
In 2009, WIPOs Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC) initiated negotiations with the objective of reaching agreement on one or more
international legal instruments that would ensure the effective protection of genetic resources, TK and TCEs.
The role of documentation forms an important question in those negotiations.
CONCLUSION
Documentation of TK and TCEs should not be regarded as an end in itself, but as part of a broader IP strategy
that aims at the preservation and protection be it defensive or positive- of TK and TCEs. Measures that give
traditional holders a sense of ownership, appropriately regulate access to content, and offer protection to TK
and TCEs that extends beyond the particular ways in which they have been documented, are the main elements
of a pro-active documentation approach that contributes to the protection of TK and TCEs.
The well-being of the peoples mostly concerned by documentation of TK and TCEs should be the guiding
principle of any course of action. In that context, the rights, needs and expectations of indigenous peoples and
local communities, as traditional holders of living TK and TCEs, should be placed front and center, by ensuring
either that documentation is community-led or, at least, that the holders are consulted at each step.
FURTHER READING
For key issues and terms, see Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural
Expressions. An Overview, www.wipo.int/freepublications/en/tk/933/wipo_pub_933.pdf
The WIPO Creative Heritage Project provides a set of resources to traditional holders and cultural institutions for developing best
practices, notably in documenting TCEs and managing related IP rights. See its home page, www.wipo.int/tk/en/resources/training.html
and a WIPO Magazine article: www.wipo.int/wipo_magazine/en/2008/03/article_0009.html
The WIPO Guide on Intellectual Property and the Safeguarding of Traditional Cultures: Legal and Practical Options for Museums,
Libraries and Archives, is available on www.wipo.int/freepublications/en/tk/1023/wipo_pub_1023.pdf
Surveys of existing practices, protocols and policies regarding the digitization of cultural heritage: www.wipo.int/tk/en/databases/
creative_heritage/
A WIPO International Workshop was held in Muscat (Oman) in June 2011, on Documentation and Registration of TK and TCEs. For
information, see: www.wipo.int/meetings/en/details.jsp?meeting_id=22484
The WIPO TK Documentation Toolkit: www.wipo.int/tk/en/resources/tkdocumentation.html.
Documentation and disclosure of genetic resources in patent systems raises specifc issues. See, for example, Technical Study on
disclosure requirement in patent systems related to genetic resources and traditional Knowledge www.wipo.int/export/sites/www/
freepublications/en/tk/786/wipo_pub_786.pdf and www.wipo.int/tk/en/genetic/
For more information contact WIPO at www.wipo.int
World Intellectual Property Organization
34, chemin des Colombettes
P.O. Box 18
CH-1211 Geneva 20
Switzerland
Telephone:
+4122 338 91 11
Fax:
+4122 733 54 28