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Protecting Shared Traditional Knowledge

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This paper offers some initial suggestions on how to address issues concerning the traditional knowledge (TK) of indigenous peoples, which is shared and distributed widely among communities and beyond. In a scenario where there is growing international and national interest to legally protect TK related to biodiversity, the question of how to achieve this when TK is shared is particularly complicated. Who has rights, who consents to access and use of TK, how are benefits shared and between whom, are just some of the vexing questions that must be addressed to advance and inform policymaking and the development of legal standards. The study reviews some of the legal and policy options that exist for the protection of shared and widely distributed TK.

By Manuel Ruiz Muller
Peruvian Society for Environmental Law


Issue Paper No. 39


ICTSD Programme on Innovation, Technology and Intellectual PropertyOctober 2013


Protecting Shared
Traditional Knowledge
Issues, Challenges and Options




l ICTSD Programme on Innovation, Technology and Intellectual Property


By Manuel Ruiz Muller
Peruvian Society for Environmental Law


Protecting Shared Traditional Knowledge
Issues, Challenges and Options


Issue Paper 39


October 2013




ii M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


Published by
International Centre for Trade and Sustainable Development (ICTSD)
International Environment House 2
7 Chemin de Balexert, 1219 Geneva, Switzerland
Tel: +41 22 917 8492 Fax: +41 22 917 8093
E-mail: ictsd@ictsd.ch Internet: www.ictsd.org


Ricardo Meléndez-Ortiz: Chief Executive
Core Team:
Christophe Bellmann: Programmes Director
Pedro Roffe: Senior Associate, Innovation, Technology and Intellectual Property
Ahmed Abdel Latif: Senior Programme Manager, Innovation, Technology and
Intellectual Property


Acknowledgments
The author would like to thank ICTSD for its support in the completion of this paper and Ahmed
Abdel-Latif, Kiyoshi Adachi, Jorge Cabrera, Graham Dutfield, Pedro Roffe, Christoph Spennemann,
Brendan Tobin and Joseph Vogel for their useful comments and insights. The author is also grateful
to commentators and participants at an ICTSD side event at WIPO’s IGC meeting, in July 2013,
where a draft of the paper was presented and discussed.


ICTSD wishes gratefully to acknowledge the support of its core and thematic donors, including:
the UK Department for International Development (DFID), the Swedish International Development
Cooperation Agency (SIDA); the Ministry of Foreign Affairs of the Netherlands, Directorate-
General of Development Cooperation (DGIS); the Ministry of Foreign Affairs of Denmark, Danida;
the Ministry for Foreign Affairs of Finland; and the Ministry of Foreign Affairs of Norway.


Manuel Ruiz Muller is the Director and Principal Researcher of the International Affairs and
Biodiversity Program at the Peruvian Society for Environmental Law.


The views expressed in this publication are the author’s personal views and do not necessarily
reflect the views of any institution with which he is affiliated or the views of ICTSD’s funding
institutions.


For more information about ICTSD’s Programme on Innovation, Technology and Intellectual
Property visit our website at http://ictsd.org/programmes/ip/


ICTSD welcomes feedback and comments to this document. These can be sent to Ahmed Abdel
Latif (aabdellatif@ictsd.ch).


Citation for the Issue Paper:


Ruiz Muller, Manuel; (2013); Protecting Shared Traditional Knowledge: Issues, Challenges and
Options; ICTSD Programme on Innovation, Technology and Intellectual Property; Issue Paper No.
39; International Centre for Trade and Sustainable Development, Geneva, Switzerland, www.
ictsd.org


Copyright © ICTSD, 2013. Readers are encouraged to quote this material for educational and
non-profit purposes, provided the source is acknowledged. This work is licensed under the
Creative Commons Attribution-Non-commercial-No-Derivative Works 3.0 License. To view a copy
of this license, visit http://creativecommons.org/licenses/bync-nd/3.0/ or send a letter to
Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, US.


ISSN 1684-9825




iiiICTSD Programme on Innovation, Technology and Intellectual Property


TABLE OF CONTENTS


LIST OF ACRONYMS AND ABBREVIATIONS iv
FOREWORD v
EXECUTIVE SUMMARY 1
1. INTRODUCTION 2
2. A BRIEF OVERVIEW OF INTERNATIONAL AND NATIONAL POLICY AND


LEGAL EFFORTS TO PROTECT TRADTIONAL KNOWLEDGE 4
3. THE PREVAILING TRENDS TO PROTECT TRADITIONAL KNOWLEDGE 6
4. THE NATURE AND FEATURES OF TRADITIONAL KNOWLEDGE 8
5. THE CHALLENGE OF IMPLEMENTING PRIOR INFORMED CONSENT


AND CONSULTING PRINCIPLES IN THE CONTEXT OF SHARED AND
WIDELY DISTRIBUTED TRADITIONAL KNOWLEDGE 10


6. THE POLICY AND LEGAL OPTIONS 13
7. RECOMMENDATIONS 17
8. CONCLUSION 19
ENDNOTES 20
REFERENCES 28




iv M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


LIST OF ACRONYMS AND ABBREVIATIONS


ABS Access and benefit sharing


ARIPO African Regional Intellectual Property Organization


CBD Convention on Biodiversity


FAO United Nations Food and Agriculture Organization


GEF Global Environment Facility


GIs Geographical indications


GRs Genetic resources


IGC Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore


IP Intellectual property


IPRs Intellectual property rights


MS Multilateral system


NGOs Nongovernmental organizations


OAPI Organisation Africaine de la Propriété Intellectuelle


PIC Prior informed consent


TK Traditional knowledge


TKDL Traditional Knowledge Digital Library


TRIPS Agreement on Trade Related Aspects of Intellectual Property


UNESCO United Nations Educational, Scientific and Cultural Organization


WIPO World Intellectual Property Organization


WTO World Trade Organization




vICTSD Programme on Innovation, Technology and Intellectual Property


FOREWORD


More than a decade since the inception of the World Intellectual Property Organization (WIPO)
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC), there is increased awareness about the need to protect traditional
knowledge (TK) at the international, regional and national level against misappropriation. There is
also widespread recognition of the value and importance of such protection, and numerous legal
instruments that seek to facilitate and improve it. Since 2009, the IGC has witnessed an acceleration
of its work, as it was given a mandate by the WIPO General Assembly to work speedily towards the
development of an international instrument(s) that would protect genetic resources (GRs), TK and
traditional cultural expression.


During these years, the International Centre for Trade and Sustainable Development (ICTSD) has
actively contributed to the debate on the protection of TK and GRs with timely policy-oriented
research aimed at identifying options and addressing knowledge gaps that could contribute to
discussions on these issues at the international level. Against this background, the present study,
by Manuel Ruiz Muller, seeks to shed light on widely shared TK, an issue that has been overlooked
in international discussions, but that has significant implications for the design and effectiveness of
any international regime for TK protection that emerges from the IGC deliberations.


Traditional knowledge that is widely shared and dispersed within communities and across national
boundaries seems to be the rule rather than the exception and presents many challenges to the
establishment and implementation of policy and legal frameworks that would facilitate and improve
TK protection. Most notably, situations where this is the case render the identification of right
holders a difficult task, complicate the establishment of access and benefit-sharing agreements and
make it virtually impossible to ensure that prior informed consent conditions are met.


While there have been growing concerns about the policy implications of these situations, the issue
has largely been treated in international discussions as an exceptional circumstance, which seems
to be premised on the notion that TK is held within one single community or country. Yet, TK,
like GRs, is seldom confined to one single indigenous group or community. Instead, the prevailing
evidence suggests that TK is often transboundary in nature.


The present study offers a comprehensive overview of current policy and legal mechanisms that
have sought to protect TK, noting their merits and shortcomings. In this regard, it contributes to
a better understanding of the progress that has been made in policy developments regarding TK
protection, building on previous ICTSD work in this area.


Moving beyond this, the main merit of the study lies in identifying and reviewing the legal and
policy options for the protection of shared and widely distributed TK. Among these options, the
paper argues for the establishment of national and international compensatory funds and dwells
on this proposal at length. It contends that this approach is especially advantageous in instances
where TK is shared and widely disseminated and invites IGC negotiators to consider incorporating
this proposal, in particular, in the IGC’s draft legal text on the protection of TK.


By shedding light on the prevalence of widely shared and disseminated TK and offering
recommendations that may present the means to overcome some of the challenges it presents, this
paper is both timely and instructive.


In a knowledge-based economy, a better understanding of intellectual property rights (IPRs) is
imperative for informed policymaking in virtually all areas of development. This has been the
central objective of the ICTSD Programme on Innovation, Technology and Sustainable Development.
The programme focuses on ensuring a proper balance between the different interests at stake in
designing appropriate IP regimes that are supportive of development objectives. An additional central




vi M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


objective has been to facilitate the emergence of a critical mass of well-informed stakeholders in
developing countries – including decision-makers and negotiators as well as actors in the private
sector and civil society - able to define their own sustainable human development objectives in the
field of IP and effectively advance them at the national and global levels.


We sincerely hope that you will find this issue paper a useful contribution to current efforts and
international discussions on the protection of TK.


Ricardo Meléndez-Ortiz
Chief Executive, ICTSD




1ICTSD Programme on Innovation, Technology and Intellectual Property


EXECUTIVE SUMMARY
This paper offers some initial suggestions on how to address issues concerning the traditional
knowledge (TK) of indigenous peoples, which is shared and distributed widely among communities
and beyond. In a scenario where there is growing international and national interest to legally
protect TK related to biodiversity, the question of how to achieve this when TK is shared is
particularly complicated. Who has rights, who consents to access and use of TK, how are benefits
shared and between whom, are just some of the vexing questions that must be addressed to
advance and inform policymaking and the development of legal standards.


The Convention on Biological Diversity (CBD) and the World Intellectual Property Organization
(WIPO) have been the key drivers of international initiatives to protect TK – but they are hardly
the only ones. National and regional processes are also underway. The paper focuses on TK as it
relates to biodiversity and does not address – given time, resources and scope limitations - other
critically important dimensions, such as traditional cultural expressions of indigenous peoples.


The study reviews some of the legal and policy options that exist for the protection of shared and
widely distributed TK. The author notes that a trade secret approach may be suitable in situations
where TK is shared among communities, but maintains some level of confidentiality. Conversely,
in situations where TK has been more widely disseminated and has entered the public domain,
protection could be obtained through the establishment of registries, by employing the “domain
public payant” approach that has been used in the copyright system, or through bio-cultural
community protocols, which stipulate the conditions that must be met for the access and use of TK
and genetic resources (GRs). ‘Soft’ IP tools, such as geographical indications (GIs) and collective
marks, are presented as further instruments that can be marshalled to offer protection to TK when
it is embodied in goods and services.


Finally, the paper notes that across the board, TK could benefit from the establishment of national
and international compensatory funds. This approach is especially advantageous in instances where
TK is shared and widely disseminated. The author concludes by asserting that it would be beneficial
to incorporate these critical recommendations in the World Intellectual Property Organization
(WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC) draft legal text on the protection of TK.




2 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


1. INTRODUCTION


Since the Convention on Biological Diversity
(CBD) entered into force in 1993, countries
and multilateral and regional organizations
have been developing a wide range of
conceptual proposals, policies and legislation
to protect the TK and collective intellectual
rights of indigenous peoples, as they relate
to biodiversity. The issue is not whether, but
rather, how TK can be legally protected in an
effective manner in the absence (often) of
tailored legal tools and instruments.


Many initiatives to date suggest the use of
classic intellectual property (IP) tools adapted
to respond to TK features, in combination with
non-IP tools, such as contracts, registers and
funds. Within this context, sui generis proposals
for TK protection are in the making.1


Classic IP instruments – especially patents,
breeder´s rights, and copyrights - are consid-
ered unsuitable to protect indigenous peoples’
intellectual interests, both for technical reasons
and often ideological reasons. It is argued that
these IP instruments promote individual recog-
nition (in contrast to collective aspects of in-
digenous peoples’ livelihoods); grant monopoly,
exclusionary rights, which affect the interests
of other indigenous individuals and especially,
groups; require specific identification of a cre-
ator or innovator (then again, impacting collec-
tive interests); result in high transaction costs
(i.e. administrative processes, negotiation of
licenses, legal fees, maintenance of right fees,
etc.); and grant rights over creations and inno-
vations, which need to have a pre-defined de-
gree of creativeness and innovation. This is just
to mention a few reasons TK does not, naturally
at least, ‘fit’ into IP protection frameworks and
templates.


As part of these developments, growing
evidence demonstrates that shared and widely
disseminated TK is the prevailing rule, rather
than the exception, in the context of indigenous
peoples’ cultures and livelihoods. Though
certain TK is still secretly guarded by specific
leaders and figures in communities (i.e. the


shaman, the elder, the healer, and specific men
and women), it is not surprising that a portion
of this special knowledge is also kept by other
leaders and figures in neighbouring communities,
is often distributed across jurisdictions and is
transboundary in nature. There is also evidence
that a broader set of knowledge that is neither
secret nor confidential, but that can still be
considered part of the cultural heritage and
livelihood of communities, is even more broadly
shared among and within communities and has
furthermore been disseminated among non-
indigenous individuals, sometimes even codified
in research papers and books. For some, this
latter TK would fall under the public domain.2


Traditional knowledge is not only shared, but
also often develops and evolves simultaneously
and in parallel in various indigenous contexts.
Similar and shared biodiversity and eco-systems
inhabited by indigenous peoples imply similar
responses and adaptation methods, which
explains (to some extent) why TK is, more often
than not, shared and widely distributed.


In addressing the protection of TK, progress has
been made at the conceptual and legal levels
through numerous proposals and instruments –
i.e. the Nagoya Protocol on Access and Benefit
Sharing, Andean Community legislation, the
African Union Model Law and the African
Regional Intellectual Property Organization
(ARIPO) instrument. However, discussions
regarding existing legal instruments, including
the draft international regime on TK protection
under the aegis of the WIPO IGC, acknowledge
that the issue of shared TK among communities
and across national borders remains an area for
which policy and legal solutions are still to be
thought through and devised.


The debate on shared TK echoes some
elements of the discussions on shared and
widely disseminated GRs. The Nagoya Protocol
on Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits Arising from
their Utilization (2010), expressly mentions
shared TK and hints at the possibility for future




3ICTSD Programme on Innovation, Technology and Intellectual Property


negotiations on specific multilateral approaches
and options for transboundary situations
(Articles 10 and 11).


It is quite a paradox that in the context of the
Nagoya Protocol and other texts, an exceptional


measure is suggested for a situation that is,
in fact the general rule or norm, i.e. that
biodiversity, TK and GRs know no borders and
are widely shared, especially among ecoregions
(the Amazon, the Andes, Mesoamerica, etc.)
and between indigenous peoples.3




4 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


2. A BRIEF OVERVIEW OF INTERNATIONAL AND NATIONAL POLICY
AND LEGAL EFFORTS TO PROTECT TRADITIONAL KNOWLEDGE


In broad terms, international interest and efforts
to protect TK can be traced to the 1960s, when
the WIPO and the United Nations Educational,
Scientific and Cultural Organization (UNESCO)
recognised the need to develop measures to
protect expressions of folklore, mostly linked
to national, cultural and artistic heritage and
patrimony, and joined efforts to do so. This
phase ended in 1985, with the adoption of
the Model Provisions for National Laws on the
Protection of Expressions of Folklore Against
Illicit Exploitation and other Prejudicial Actions.4


A second wave of interest in TK began in
the 1980s in the United Nations Food and
Agriculture Organization (FAO) as part of
discussions on farmers’ rights and the efforts
and intellectual contribution of small farmers -
especially in centres of origin and diversification
- to the conservation and development of
agrobiodiversity and native seeds.5 The FAO
International Treaty on Plant Genetic Resources
for Food and Agriculture (2001) later included
protection as one of the dimensions in the area
of farmers’ rights.6


The third phase or period when TK was once
again part of international debates began
in the late 1980s and culminated with the
adoption of the CBD in 1992. The CBD expressly
recognises the importance of TK (knowledge,
innovations and practices) in the conservation,
management and development of biodiversity
and its components. The CBD also calls for
prior informed consent (PIC), participation of
indigenous and local communities and benefit
sharing as conditions for the use of TK and
falls just short of specifically and expressly
demanding the legal protection of TK.


The CBD and its discussions on access and
benefit sharing (ABS) also triggered many of
the existing TK protection processes, initiatives
and frameworks.7 Most notably, the Nagoya
Protocol, which was a direct result of the
ongoing and evolving CBD process, incorporates
a series of provisions addressing TK. While the


Nagoya Protocol does not specifically call for
the protection of TK, its general provisions
offer in practice, tools and mechanisms that are
driven by this underlying objective. The Nagoya
Protocol provides, inter alia, that access to
and use of TK should be subject to the PIC of
indigenous peoples and that indigenous peoples
should participate in the benefits derived
thereof.8 The right to determine access to TK
is one of the dimensions that TK protection
regimes generally regulate.


Early on, the CBD also permeated World Trade
Organization (WTO) debates and discussions
regarding the review of article 27.3 of the
Agreement on Trade Related Aspects of
Intellectual Property (TRIPS). The protection
of TK was an initial starting point of these
debates. Discussions then moved on to address
the disclosure of origin and legal provenance,
as part of defensive protection mechanisms.9
This can be attributed to the effects and spin-
offs of the CBD dynamic during the late 1990s
and from 2000 onward.


In 2001, and as a result of the WIPO’s interest
and institutional competence in IP as well as
its mandate to protect intellectual rights, an
international process was launched to explore
how to legally protect TK (basically related to
biodiversity) and folklore. The IGC was created
for this specific purpose. After ten years of
work and very difficult negotiations, there is
now a draft (albeit very bracketed) text for the
protection of TK.10


Finally, though much broader in its scope and
goals, the United Nations Declaration on the
Rights of Indigenous Peoples (2007) is arguably
the most important international non-binding
instrument addressing indigenous peoples’
rights, including the protection of their IP,
collective creations and innovations.11


International initiatives for TK protection have
been rapidly followed, and almost surpassed, by
a series of regional and national policy and legal
initiatives. Their coverage, status, impacts and




5ICTSD Programme on Innovation, Technology and Intellectual Property


overall effectiveness vary considerably. However,
they do reflect a dynamic policy and legal trend
explained in part by the international drive and
in part by the role and influence of national
actors and indigenous peoples’ representative
organizations in particular.


Important milestone-setting regional and na-
tional examples in this regard include: the Af-
rican Union Model Legislation for the Protection
of the Rights of Local Communities, Farmers
and Breeders, and for the Regulation of Access
to Biological Resources (adopted by the African


Union in 2000); The Swakopmund Protocol for
the Protection of Traditional Knowledge adopt-
ed by the African Regional Intellectual Property
Organization (ARIPO) in 2010 and a similar in-
strument adopted by the Organisation Africaine
de la Propriété Intellectuelle (OAPI) in 2007;12
Law 21 of Panama for the protection of TK and
folklore expressions (adopted in 1998) and its
regulation, and Law 27811 for the protection of
biodiversity-related TK in Peru (adopted by the
Peruvian Congress in 2001), respectively.13 A few
other policy processes are also underway in the
Pacific Region and other countries.




6 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


3. THE PREVAILING TRENDS TO PROTECT TRADITIONAL
KNOWLEDGE


From 1992 onwards, much has been written and
done in the field of TK protection. Literature
and conceptual analyses have multiplied,
and awareness about the importance of TK
protection has been raised substantially
among a wide range of stakeholders – not the
least indigenous peoples. More important,
as mentioned previously, policy and legal
measures have been developed both at the
international and national levels. Participation
and informed involvement of indigenous
peoples in policy and legal processes has also
intensified, though maybe not at the rate
and in the quality and degree that may be
desired.14


The term ‘protection’ was initially used very
loosely, meaning different things to different
people. Only recently has analysis focused on
the different facets of protection and a more
systematic approach developed to understand
what exactly it may mean.15 In a classic
IP context, protection refers to granting
exclusionary rights to inventors and creators
through IP tools – patents, breeders’ rights,
copyrights, etc. In the IP realm, protection may
also mean compensation, social recognition
through moral rights, benefit sharing and
maintaining, preserving and controlling access
and uses of TK through unfair competition
principles.16 Defensive protection is yet
another form of safeguarding rights pertaining
to TK and GRs (see endnote 9).


Though TK protection initiatives vary consi-
derably in form and substance, there are some
common features that stand out. First, most
policy and legal instruments (i.e. Peruvian law
for TK protection, Costa Rica Law 7788, Panama
Law 21) recognise PIC as a critical condition
that must be met as a prerequisite for accessing
and using TK for any purpose (in general terms).
This involves some kind of bilateral approach or
negotiation between a user and an indigenous
peoples´ representative.


Second, almost invariably, TK-related policies
and instruments include registers as a tool
to support protection measures, whether
defensively or to positively help in assigning
rights to indigenous peoples. This is the case of
existing laws in Costa Rica, Panama, Peru and
the Traditional Knowledge Digital Library (TKDL)
initiative in India, among others. This is not to
say that registers are free from controversy,
especially with respect to the fact that they
systematize TK under certain pre-established
criteria and provide an informational platform
that is often alien to indigenous peoples and
communities – in content and process. Registers
and their role have been strongly contested over
time by some indigenous peoples´ organizations
and nongovernmental organizations (NGOs).


Third, when discussing and developing these
policies and laws, it is often suggested that
classic IP tools – mainly patents, breeders’ rights
and copyrights - are intrinsically unsuitable to
protect indigenous peoples’ intellectual efforts
and creations. This has been explained above
(see Introduction). This assertion, however,
must be qualified, given that there may be
alternatives in ‘soft’ IP tools, such as collective
marks or geographical indications, or even in the
use of unfair competition law principles, which
could, under certain circumstances, provide
some forms of protection to these efforts and
creations (further reflection is provided below).


Finally, and one of the most critical but often
overlooked aspects in the development of
policies and legal frameworks, are the very
general references to ‘traditional knowledge’
without a precise definition of the concept.


This last issue – together with unclear scope
- is one potential limitation that could affect
the implementation of legal and regulatory
frameworks. Do these policies and norms
refer to TK as an intangible per se, or in its
more tangible expression (i.e. a technique, a




7ICTSD Programme on Innovation, Technology and Intellectual Property


process, a product)? Do they cover only TK that
is publicly accessible or do they mostly refer
to TK that is still maintained as confidential by
communities or specific community members?


Without exception, broad definitions and scope
facilitate legal drafting,17 but often complicate
practical implementation, as is currently being
experienced in many countries and regions.18




8 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


4. THE NATURE AND FEATURES OF TRADITIONAL KNOWLEDGE


What is TK? Even though there is no universally
accepted definition of TK, some progress has
been made to elaborate on its substantial
content. In the text on draft articles for TK
protection (2013), the WIPO IGC defines TK
as including“…know-how, skills, innovations,
practices, teachings and learnings of
indigenous [peoples] and [local communities]
that are dynamic and evolving, and that are
intergenerational/and that are passed on
from generation to generation, and which may
subsist in codified, oral or other forms.” It
further proposes that TK “[…may be associated,
in particular, with fields such as agricultural,
environmental, healthcare and indigenous and
traditional medical knowledge and medical
knowledge, biodiversity, traditional lifestyles
and natural resources and genetic resources,
and know-how of traditional architecture and
construction technologies].”


The IGC elaborates a little more in conceptual
terms. It describes TK as


…referring in general to the content or
substance of knowledge resulting from
intellectual activity in a traditional
context, and includes the know-how, skills,
innovations, practices and learning that form
part of traditional knowledge systems, and
knowledge embodying traditional lifestyles
of indigenous and local communities, or
contained in codified knowledge system
passed between generations. It is not
limited to any specific technical field, and
may include agricultural, environmental
and medicinal knowledge, and knowledge
associated to genetic resources.19


Traditional knowledge can, therefore, mean
many things at the same time.


The CBD approach to TK is to consider it entailing
“knowledge, innovations and practices.”20 It is
actually quite useful to separate the elements
of TK into three distinct, albeit related,
categories: an intangible (knowledge per se);
a tangible (material products or material
innovations themselves), and processes or


procedures (expressed in the form of techniques
or more sophisticated technologies that can
be expressed in some form – orally, in writing,
through representations or exemplification).
Such an approach helps to focus protection
efforts on more specific and somewhat better
defined categories, rather than relying on
interpretation of broad and general concepts.


Of course, these different categories are
often closely interrelated and can overlap. For
example, a material product or innovation is
the result of developing and using knowledge.
It is the material support that expresses a
knowledge application. The same is true in
the case of a technique or technology that is
based on knowledge and sometimes results also
in a material product or innovation. Depending
on the specific dimension or category of TK, a
particular form of protection may be required
or applicable.


A second feature of TK relates to its development
and how it responds and dynamically adapts to
environmental, social, cultural and economic
pressures and demands. Traditional knowledge
is all but static. It is continuously subjected
to social and environmental tests to prove its
effectiveness and relevance over time. This
feature contrasts with the commonly held belief
that TK is ‘traditional’ simply because of the
passing of time and its limited variations. There
are indeed some very old, often religiously
based expressions of TK, that have not suffered
major changes over time, but these are mostly
linked to cultural, spiritual and social traditions
and ceremonies. Day-to-day adaptation by
indigenous peoples to continuously changing
environments requires rapid responses and
adjustments of TK – especially in its applications.


A third feature of TK is who participates
(and how) in this dynamic, evolving process.
Traditional knowledge is generally the result
of a collective, intergenerational effort in the
sense that it evolves in a social context (i.e.
communal) where social actors play different
roles in creating, maintaining, applying, and
adapting TK over time according to needs and




9ICTSD Programme on Innovation, Technology and Intellectual Property


circumstances. Often, TK is part of a defined
cultural, environmental, religious and social
context in which different actors play different
roles. They each understand their roles as
part of tradition and rigorously respect the
established order. Traditional knowledge is
managed through a complex social system of
customs and rules. Outside of this context,
TK simply dissipates and loses its special
connotations. The ‘holistic’ nature of TK is its
most distinct feature. Having said this, it is
especially difficult for policymaking and legal
constructions to capture and reflect, translate
(appropriately) and incorporate these features
in an IP tool, framework or legal mechanism.


A fourth defining feature of TK is that only
in very exceptional cases is TK confined to a
single indigenous peoples group or community.
The rule is that TK is mostly shared between
communities (in many cases across countries),
which is not to say that there is no distinct
and geographically confined TK. Many
shamans, healers and certain farmers in rural
communities have developed and hold TK that
has not been passed to younger generations
or community members at all, and thus is
maintained in secrecy.21


But, confined, confidential, very unique TK is
the exception rather than the rule. Though hard


to quantify, there is agreement among experts
that most TK is shared between communities
in countries and even across geographical
borders.22 Sometimes it is shared consciously;
sometimes it inadvertently passes and flows
to neighbouring communities, and sometimes
even foreigners play a role in disseminating it
more widely.23


Traditional knowledge manifests itself in many
different forms and ‘packages’ – sometimes
as knowledge per se, but often as part of a
process or in a product. With a very broad set of
indigenous peoples and communities dispersed
all over the world, with extremely diverse
conceptions, traditions, practices and cultural
frameworks, it is not surprising that efforts to
conceptualize TK protection faces very complex
challenges, not the least in determining the
subject matter and potential right holders.
Furthermore, applying western legal concepts
to a very distinct reality has often been
deemed inappropriate, in as much as these
concepts and approaches are very utilitarian
and anthropocentric – excluding variables and
elements, which in the view of indigenous
peoples and communities have to be part of
the whole and clearly reflected in whatever
framework is devised. Most policy and legal
frameworks recognise this, but seldom do they
effectively reflect this in content and form.




10 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


Traditional knowledge in its more classic form
(as an intangible), is information. Information-
related policy, management and institutional
and regulatory frameworks have long been
studied, and abundant literature has been
produced regarding its socio-economic role
and implications, particularly in the context
of markets, decision-making and intellectual
property.24


The economics of information theories is a
good starting point to understand the best
policy and legal options available, especially
in the context of TK as information that is
shared by and widely distributed among
communities or indigenous peoples.25


Very simply, and in the context of indigenous
peoples, certain types of goods (i.e. a
medicinal potage, a food recipe, a cultivating
technique or knowledge about the venomous
feature of a plant) take considerable time to be
produced and developed. These ‘intellectual
investments’ often involve physical effort,
passage of time, continued observation,
repeated trial-and-error processes, further
testing and validation and the existence
of cultural contexts under which they can
effectively evolve.


At the same time, these categories of goods
follow principles that are applicable to other
informational goods. On one hand, they are
cheap to replicate. Any member of a community
or a stranger can, with some observation,
replicate the good at a very low marginal cost
or effort. In very exceptional cases, certain
information or TK is maintained, closely guarded
and known only by a particular member of the
community. These goods are also non-rival and
non-exclusionary in the sense that a person´s
consumption or use does not deprive another
from potentially exactly the same consumption
or use opportunity.


Furthermore, these goods (and more specifically
the TK embedded in them) once released by
the creator – whether a single individual or
a collective - cannot be easily controlled or
managed. Information and TK in this case flow
freely, unimpeded and easily.26 It is almost
impossible to keep TK confined to a community
or cultural context. In practice, TK can become
part of the public domain and/or, at the very
least, freely accessible to many.27 This applies to
TK that effectively ‘escapes’ a single person´s
control and becomes part of the collective
knowledge assets that indigenous peoples and
communities hold and claim to have rights over
(often collective rights).


If this holds true, basic underlying economics
and IP principles concerning access to and use
of informational goods may be applicable.
However, classic IP tools may not be fully
suitable or effective in the case of TK, given
some additional variables, including difficulties
in determining a right holder or singling out
an inventor or creator, cultural resistance to
assigning monopoly-like property rights, plus
the collective nature of the innovation process
within communities and trans-generational
passing on of specific TK, among others.


Indigenous peoples and their communities
generally share TK and are faced with its
wide dissemination and distribution outside
community contexts. This includes broad
dissemination within and also across national
borders, with growing concerns regarding
the policy and legal implications of this
‘transboundary’ situation. Only recently has
the issue, and related problems, of shared and
widely distributed TK (and GRs) been placed on
the international agenda – albeit timidly.28


What makes TK different from other forms
of shared and disseminated information and
knowledge may lie in the cultural context under


5. THE CHALLENGE OF IMPLEMENTING PRIOR INFORMED CONSENT
AND CONSULTING PRINCIPLES IN THE CONTEXT OF SHARED
AND WIDELY DISTRIBUTED TRADITIONAL KNOWLEDGE




11ICTSD Programme on Innovation, Technology and Intellectual Property


which TK develops and the fact that classic
IP tools seem unable to offer appropriate
protection responses.


The Nagoya Protocol on ABS is a good starting
point to address shared TK. Article 10 (Global
Multilateral Benefit Sharing Mechanism) of the
Protocol establishes that:29


Parties shall consider the need for and
modalities of a global multilateral benefit-
sharing mechanism to address the fair
and equitable sharing of benefits derived
from the utilization of genetic resources
and traditional knowledge associated
with genetic resources that occur in
transboundary situations or for which it
is not possible to grant or obtain prior
informed consent. The benefits shared by
users of genetic resources and traditional
knowledge associated with genetic
resources through this mechanism shall
be used to support the conservation of
biological diversity and the sustainable use
of its components globally.


These may be situations where TK is so
disseminated and shared so extensively that
it is, in practice, impossible to celebrate
a contractual agreement and ensure PIC
conditions of any sort. For these situations,
which here again may be the prevailing rule,
a potential protection policy option may be to
develop a multilateral funding mechanism (or
use existing mechanisms, such as the Global
Environment Facility (GEF), a global trust fund
recommended under the FAO International
Treaty)– that ensures some form of benefit
sharing for accessing and using GRs and TK.


A funding option does not curtail the possibility
of other regulatory alternatives, but offers –
arguably - a low-transaction-cost mechanism if
designed adequately.30


The Nagoya Protocol, furthermore, recognises
in Article 11 (Transboundary Cooperation) that:


1. In instances where the same genetic resources
are found in situ within the territory of
more than one Party, those Parties shall
endeavour to cooperate, as appropriate,
with the involvement of indigenous and local
communities concerned, where applicable,
with a view to implementing this Protocol.


2. Where the same traditional knowledge
associated with genetic resources is shared
by one or more indigenous and local
communities in several Parties, those Parties
shall endeavour to cooperate, as appropriate,
with the involvement of the indigenous and
local communities concerned, with a view to
implementing the objective of this Protocol.


This provision leaves it to parties to develop a
cooperation scheme to ensure benefit sharing
is realized in situations of shared, similar TK.
Some national legal frameworks (including
Andean Decision 391, the African Union Model
Law, etc.) have also acknowledged the issue
of shared resources and TK but have not really
overcome a key challenge at the implementation
level: how to technically and efficiently
guarantee optimum solutions in situations
where subject matter (TK) is disseminated and
widely distributed. Furthermore, engaging a
legitimate and valid identifiable right holder
remains a major challenge.31




12 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


Box No. 1 Examples of the treatment of shared or widely disseminated TK in some existing legal
instruments


Legal instrument Provision
Law 27811, for the
protection of collective
knowledge in Peru
(2001)


Article 6. The indigenous representative organization, whose prior
informed consent is sought [representative organization are deemed
the legitimate TK negotiating body on behalf of communities],
must inform the widest possible number of communities holders of
the same knowledge that it is entering into negotiations, and take
into account their interests .


Decision 391 of the
Andean Community on
ABS (1996)


First, Final Provision. In the negotiation of the terms of access
contracts, in cases where more than one Member States is country
of origin of genetic resources or derived products, as well as in
regards to access activities, the National Competent Authority
will take into account the interests of the other countries sharing
these resources …


Nagoya Protocol on ABS
(2010)


Article 10. Parties shall consider the need for and modalities of
a global multilateral benefit-sharing mechanism to address the
fair and equitable sharing of benefits derived from the utilization
of genetic resources and traditional knowledge associated with
genetic resources that occur in transboundary situations or for
which it is not possible to grant or obtain prior informed consent.
The benefits shared by users of genetic resources and traditional
knowledge associated with genetic resources through this
mechanism shall be used to support the conservation of biological
diversity and the sustainable use of its components globally.


Nagoya Protocol on ABS
(2010)


Article 11.2 Where the same traditional knowledge associated with
genetic resources is shared by one or more indigenous and local
communities in several Parties, those Parties shall endeavour to
cooperate, as appropriate, with the involvement of the indigenous
and local communities concerned, with a view to implementing
the objective of this Protocol.


The main limitations affecting bilateral,
contractual negotiations when TK is shared
are: a) how can a contract be negotiated
(or PIC obtained) when there is no single,
clearly defined right holder? b) even if this
is possible, assuming TK is in the public
domain or publicly available, is it feasible
and economically viable to negotiate an
advantageous contract? and c) what are the


effects of economic pressures (impacting
benefit potential) when TK is in practice
found and accessible from various sources?


One additional dimension affecting bilateral
contracts related to shared TK –and any TK, for
that matter - are the information asymmetries
that indigenous peoples and their representatives
may face in these particular circumstances.




13ICTSD Programme on Innovation, Technology and Intellectual Property


6. THE POLICY AND LEGAL OPTIONS


The issue of shared and widely distributed TK
has become part of international agendas rather
recently. The IGC early in its process recognised
that obtaining PIC in cases where right holders
are not defined could be a problem and, more
importantly, could affect and create tensions
between communities sharing similar resources
and TK but with different views about what to
do with them. This includes situations where TK
might even be in the public domain and publicly
available. These two well-established principles
in the IP realm have been strongly contested by
indigenous peoples who claim their rights over
TK extend beyond whether or not they have lost
control over their TK or whether their TK is now
disseminated in the public domain or readily
available and accessible.


To define the best and most effective policy
and legal option regarding the protection of
shared and widely disseminated or distributed
TK, decisions could bear in mind the following
situations:


TK that is maintained confidential among
different communities (and is ‘shared’)


Many communities may possess the same or share
very similar confidential and/or sacred TK.32 In
this case, there are unlimited options to obtain
and access this TK from multiple sources – or at
least as many options as there are communities
with this TK. The almost certain scenario is
that only one or a few selected communities
involved in a specific bioprospecting or
ethnobotany project will directly participate in
the benefits derived from it. Project proponents
will enter into negotiations with one, two or a
group of well-represented communities willing
to participate. Negotiating with each and all
communities may be, in practice, impossible.33


At least in cases of indigenous peoples in the
Andes and Amazon and other remote areas of the
world, it is very hard to imagine any possibility
for a fair, informed and balanced engagement in
bilateral negotiations – even if good, pro bono
legal advice is available and provided, as often
occurs. Isolation, remoteness and limited, if


any, understanding of western-inspired legal
and economic principles are just a few of the
complex challenges indigenous peoples need to
overcome.


If TK is restricted to one or just very few, closely
related and integrated communities, applying
a trade secret-based approach may be one
option to secure a certain level of exclusivity
and control in this category of TK.34 This would
require a certain level of agreement and
coordination between communities to ensure
the trade secret is kept confidentialover time.


The advantage of this approach is that trade
secrets are universally recognised and are
present in almost all national legislations. One
disadvantage is that there is a certain level
of expertise and capacity required to enter
into contractual negotiations that define the
conditions upon which this TK will be shared
and used, apart from a legal framework that
facilitates trade secret protection.


These capacities are almost certainly not
available in communities today, or at least not
in most. An unfair competition framework may
also be required, which is flexible enough to
incorporate and consider indigenous peoples’
TK as trade secrets. Finally, in the case of
shared and confidential TK, there is a potential
downside to seeking trade secret protection,
especially if there is the real possibility that
the knowledge will eventually ‘escape’ or be
removed – by chance or on purpose - from a
confidential context. This may happen when
many communities share the TK and are not
that closely integrated in a nation, tribe, group
or whatever category is used.


The holder of the trade secret may be a
representative member of a community(ies)
or the specific individual holding the TK, on
behalf of the community(ies). In this latter
case, it would be expected that some form of
internal benefit sharing is foreseen to ensure
there is no single, individual beneficiary. But,
this will depend on customs and practices
that socially organize the community(ies). It




14 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


should be recognised a priori that there may
be inevitable exclusions of communities or
individuals who hold similar TK but who – given
the specific circumstance - will be unable to
engage and participate directly in the project
and its benefits .


Apart from trade secrets as a protection tool,
national law may develop ad hoc tools to support
registration of confidential TK and ensure its use
only for defensive purposes – through specific
action by IP authorities or bodies responsible
for preventing misappropriation or misuse of
natural resources and TK.35


The advantage of this approach is that all
indigenous people and communities that
possess this category of TK may be protected
and defended (provided they register their
knowledge or are all recognised by the register
as holders of TK) against misuse or ‘biopiracy.’
The protection measure becomes immediately
effective (potentially at least) and benefits
a general group of indigenous people and
communities. The potential shortcoming of this
option is whether or not the registered TK –
which is confidential - can validly be presented
to IP (patent) authorities to challenge novelty
and inventiveness based on action from national
authorities or entities managing this register or
database.36


Shared TK that has passed and is already in
the public domain


As mentioned earlier, the most common
situation is that TK is broadly and widely
shared between communities and has entered
the public domain in its more classic form
(i.e. it has been described in publications or is
widely used by and documented outside rural,
community contexts, for broader society).


In this particular case, and based on IP-related
principles, TK cannot be strictly protected,
although certain limitations could be imposed
on its use. Three possibilities that may offer a
certain degree of ‘protection’ come into mind.
In this context, protection is defined broadly,
as indicated in point two above – mainly as


exclusive rights, control, compensation and
defensive protection.


First, defensive protection measures could be
implemented. The registration of TK may support
the prevention of misappropriation of TK, even
if it is in the public domain or rather because
of this factor.37 With respect to either specific,
individual TK or a broad set of systematized TK
entries and registrations, national authorities
may be in a position to use these registers to
challenge novelty and inventiveness related to
patents.38 This approach has the advantage that
it benefits a broad and general set of indigenous
peoples and communities, even though it does
not secure benefit sharing. Defensive protection
only defends against wrongful or openly illegal
patents over biodiversity innovations and
related TK. It does not secure monetary or any
other type of benefit.


Second, though this has not been explored
in detail in this paper, the copyright derived
principle of ‘domaine public payant’ may
also be potentially useful, in this case in a
compensatory context. In simple terms, this
principle applies to works, crafts and arts that
have lost copyright protection and are in the
public domain but for some specific reason
are deemed important enough to receive
special policy attention that is expressed in
the obligation to pay the state (for subsequent
distribution) a fee for the use of these works,
crafts and arts.39


Third, a relatively new tool that is being
explored as a means to ensure protection
of TK (and other indigenous people values
and resources) is ‘biocultural or community
protocols.’40 These are basically management
and planning tools elaborated by specific
communities that determine the conditions
upon which their resources and TK may be
accessed and utilized.41


Protocols are not binding on third parties, but
do provide with ex ante guidance regarding
what to expect if projects and activities are
planned in the lands or territories of indigenous
peoples and communities. To some extent, they




15ICTSD Programme on Innovation, Technology and Intellectual Property


contribute to legal certainty. The most notable
advantage of these tools is that, regardless of
the category or condition of TK, rules are freely
set (including PIC principles in some cases) to
offer guidance for researchers or entrepreneurs
who are interested in accessing and using TK.


Finally, even if TK is clearly in the public
domain, widely shared, available and known
by broader sectors of society, recognition of
TK holders and indigenous peoples in general
in publications, audio and visual media
materials, official campaigns and other means,
can serve an important goal in the revaluation
of TK and social inclusion processes.42 This is
another variant of the ‘protection’ concept
that has little to do with substantial rights,
compensation or control, but rather focuses
on the distinct nature and socially valuable
feature of TK, which has, almost as a historic
trend, been overlooked – until recently.


All forms of TK


The FAO International Undertaking process of
the 1980s offers an important, albeit often
overlooked, lesson regarding policy options for
addressing widely distributed resources.43 The
FAO Undertaking recognised early on that given
the interdependence between countries with
respect to plant GRs for food and agriculture
and the fact that these resources have become
widely distributed among countries, the most
practical and effective international measure
to implement farmers’ rights44 was to establish
an international (compensatory) fund.45 Though
the fund never materialized, it is an interesting
example of a multilateral mechanism that sought
to overcome operational and management
complexities concerning farmers’ rights .


At the same time, the FAO International
Treaty on Plant Genetic Resources for Food
and Agriculture (2001) also created a funding
mechanism that seeks to ensure that benefits
derived from seeds or materials accessed from
a multilateral system (MS) for commercial
purposes are distributed to farmers in the
countries of origin.46 The MS is applied to a
defined and agreed pool of common GRs.


In the case of TK, there is already relatively
good and precise data and information on
where indigenous people and communities are
located worldwide. This coincides and overlaps
almost perfectly with centres of megadiversity.
This data gives a good idea of the identity
of potential TK holders and, thus possible
beneficiaries of a multilateral fund-like TK
benefit-sharing scheme.47


If in the context of shared or widely disseminated
TK, PIC is too complicated to achieve. More
important, frictions and tensions begin to appear
when certain indigenous groups are excluded
from negotiations over TK that they claim is
theirs. Thus, there may be a need to revisit
contractual options and look at alternative
possibilities. However, compensatory funds are
one of these possibilities.48


Paradoxically, funds offer – in comparison - an
easier and more practical approach to address
situations of shared and widely disseminated
TK, at least more so than seeking PIC and
agreeing to contracts where no defined right
holders can be identified. Such arrangement risk
inequity if all communities or groups who share
the TK do not participate in the benefits being
negotiated.49 Transaction costs are reduced to
the operational costs of the system.


Rather than create new taxes or impose additional
burdens on the private sector, or seek additional
resources from already stretched international
cooperation and funding agencies, under an
international agreement or decision, a small,
fixed percentage (i.e. 1-2 percent)50 of existing
taxes on sales of a certain category of products
(i.e. natural products, biotrade products,
natural cosmetics and pharmaceuticals), could
contribute to an international compensatory
fund, which would then direct monies to
conservation and sustainable use projects in
selected areas of the world (pre-defined and
identified by countries in an official list).51


Ideally, a binding international agreement
would provide the basis for implementing this
obligation and ensuring companies and profit-
making institutions commit to it.




16 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


This approach does not run counter to existing
options, including those under consideration by
the draft text in IGC – which leaves considerable
leeway for action at the national level.
However, agreeing and developing a list of such
products or goods may not be simple. If there
is a lesson to be learned from international
processes, the FAO International Treaty
managed to develop a closed (for the moment)
list of plant GRs for food and agriculture for
which very specific rules and a MS on ABS
applies. Even this agreement was considered by
many to be a “nightmarish process,” especially
in the definition of resources covered by the
MS. Under the MS rules, it is almost irrelevant
where genetic resources come from or originate
as long as they are designated as part of this
pool of resources for which all contributing
countries receive a portion of benefits (both
monetary and non-monetary).


The main advantages of a fund/compensatory
approach include the following. First, there
is de facto recognition that access and use of
TK will be compensated (regardless of its form
or status). Second, all indigenous people and
communities are entitled to participate in the
benefits derived from the fund, because they
are recognised as indigenous and communities.
Third, there is no need for a negotiation
between indigenous peoples and communities
and a specific company, project or enterprise;
thus, there are no transaction costs involved
– at the negotiating level. Fourth, indigenous
people and communities are not selling their
TK, but merely receiving compensation due to
a legal recognition of its value. Finally, TK can
continue to flow and develop and benefit the
broader society and still be protected by other
non-compensatory schemes. Indigenous peoples
should have an informed participation and


involvement in discussions and debate regarding
the formal and substantial operational features
of such a mechanism, whether at a national or
international level.


A comment on ‘soft’ intellectual property tools


Geographical indications and collective marks
are often cited as IP tools that may, under
certain circumstances, offer protection to
indigenous people’s intellectual interests. They
do not protect TK per se, but could protect
its use in goods and services of a collective or
grouping. What are the circumstances under
which these interests may be protected? First,
GIs and collective marks are intrinsically related
to markets and imply interactions with it. This
is important, because it means that indigenous
people using these tools will probably be
groups that have a close (or closer) relation to
relatively well developed markets and rely on
TK as a source of income.


Second, GIs and collective marks provide
an option under which products developed
through the use of shared TK, technologies
and practices can be protected. Furthermore,
they guarantee a regulated system under
which whoever (indigenous peoples groups or
associations) seeks to use the GI or collective
mark does so under a common, and freely
accepted, framework.


Finally, GIs and collective marks require certain
levels of formalization on behalf of indigenous
peoples. Whether through an association, a
cooperative or a company, there is the need
for a process under which a tribe, a community
or a group of communitiescan be recognised
administratively by the state as an entity that
can be granted exclusionary rights and benefit
from this protection.




17ICTSD Programme on Innovation, Technology and Intellectual Property


7. RECOMMENDATIONS


Options and text-based language for IGC
discussions


The IGC process in the WIPO and the existing
draft text for an international regime for TK
protection offers nations a broad range of tools
that may serve to protect TK and indigenous
peoples’ intellectual interests.


In the case of shared knowledge and widely
disseminated TK, there seems to be no perfectly
equitable or fair technical solution to protect
this category of TK. Control or exclusive rights
are impossible to exercise; or certain indigenous
peoples or communities will be excluded from
the benefits that could be generated from
use of the TK; or PIC is impossible to obtain
(because there is no defined right holder, or
representative group); or tensions and frictions
may be created among and between indigenous
peoples and communities – some of which
participate in benefits and some of which are
excluded from them.


If this is the case – and it should so be
recognised - there is the need to acknowledge
the potential for a set of measures and tools
that may include: defensive protection,
“domaine public payant”-based schemes,
biocultural or community protocols or a funding,
compensatory mechanism. The advantage of
the latter option is that it is inclusive rather
than exclusive and may have the potential
to effectively implement practical measures
that generate direct benefits to a broad set of
indigenous people, groups and communities.
These funds – whether at the international level
or at the national level - at the very least secure
social recognition of TK, place an economic
value on TK, ensure benefits accrue directly
to indigenous people and communities and are
targeted toward conservation and sustainable
use projects.


One recommendation for the ongoing IGC
process may be to consider incorporating a
draft article that refers to widely disseminated
and distributed TK and the need to explore


policy and regulatory options thatreduce
transaction costs, prevent tension and frictions
among indigenous people and communities and
ensure that monetary benefits from the use of
TK (even if in the public domain) are equitably
shared with these groups.


A suggested draft article for the IGC text on TK
protection may read,


In cases where traditional knowledge is
shared across borders, between two or
more indigenous peoples or communities,
in two or more countries, Member States/
Contracting Parties, will collaborate to
identify, develop and implement, with
participation of indigenous peoples and
communities, appropriate, feasible, fair
and equitable protection and compensatory
mechanisms.


A fund or permanent financial mechanism
that engages private sector and commercial
actors that directly or indirectly use TK and
promotes mandatory contributions according
to sales of natural or biodiversity products,
could offer a cost-effective way for an ‘across-
the-board’ solution to compensate indigenous
peoples and communities for their intellectual
contributions.


As a pilot phase for this type of scheme, a list
of potential endeavours or businesses that
use biodiversity and its components and to a
lesser or greater extent benefit from TK (past
or present) could include, for a start: biotrade
activities; natural products development
and cosmetics (that use natural products).
Their contributions to a fund would not be an
additional tax or cost, but could be designed
as part of express state incentives (reflected
in taxes, for example) directed specifically
at promoting, preserving and developing
biodiversity and TK in particular.


This alternative should not be seen as
replacing other potentially useful national




18 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


or international approaches, but could be
prioritized as a practical multilateral option,
which reduces transaction costs and overcomes
classic problems related to identifying a right
holder, implementing a valid and legitimate PIC


procedure and potentially excluding indigenous
peoples and communities from direct benefit-
sharing arrangements, etc. It is, as in other
cases, a second-best solution to an otherwise
(almost) technically insurmountable problem.




19ICTSD Programme on Innovation, Technology and Intellectual Property


8. CONCLUSION


In the context of TK protection discussions,
there is a widespread belief that TK (in its
intangible form) can, in fact, be controlled
and subjected to effective use restrictions.
Information is one of the most complicated
goods to control and protect, especially once
it becomes shared and spreads among social
structures. Traditional knowledge is mostly
shared, dispersed and disseminated among
communities and indigenous peoples. This is not
to say that there may be very valuable TK that
is still maintained and kept confidential within
community structures – but, for this category
of TK, other alternatives should be kept open.


Except in very few cases where TK is still
unique, maintained by single individuals or for
some reason has not escaped very confined
communal contexts, control and restrictions
are difficult (and extremely costly) to put into
practice. When TK is – or becomes – part of the
public domain or is freely accessible, protection
possibilities are more limited still.


Intellectual property was designed to protect
informational goods. A highly complex, albeit


effective, IP system governs creation and
dissemination of ideas and innovation in its
many forms. Though the use of certain IP
tools for the protection of TK, in particular, is
very difficult in the best of cases, there may
be instances where certain IP tools (i.e. trade
secrets or copyright) could serve the purpose
of protecting certain intellectual interests of
indigenous peoples and communities. However,
the actual use and application of these tools
requires careful definition of the element of TK
for which protection is sought: knowledge, a
product or a process.


As in the case of GRs, TK is almost invariably
shared – to some extent or degree. This is not
the exception but, rather, the rule. As a result,
the complete text of the draft “Protection of
TK” should be understood in a broad sense
(i.e. exclusive rights, control, compensation,
maintenance of TK, etc.), more like a strategic
goal, than as an IP-exclusive type of right.
Depending on the emphasis placed on each
element of protection, a specific tool or
mechanism might be applied, including in the
case where TK is shared.




20 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


ENDNOTES


1 This sui generis option should not be confused with the sui generis alternative proposed by
article 27.3.b of the Trade Related Aspects of Intellectual Property Agreement (TRIPS), which
refers to a combination of UPOV-type and patent protection for new varieties of plants. The
draft text for an international regime for the protection of TK under the Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
(IGC) of the World Intellectual Property Organization (WIPO) is one recent example of a sui
generis approach to the protection of TK, which combines a wide set of IP and non IP tools and
instruments.


2 Not all widely distributed and disseminated TK is part of the public domain. This will depend
on the extent that the TK has been documented, is described in literature (i.e. academic
journals and books) and is available from sources such as libraries, internet, publications,
etc. For a detailed analysis of the issue of “public domain,” see http://www.wipo.int/edocs/
mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_inf_8.pdf Note on the Meanings of the Term
“Public Domain” in the Intellectual Property System, with Special Reference to the Protection
of Traditional Knowledge and Traditional Cultural Expressions.


3 For a description of the CBD and Nagoya Protocol and arguments on why ongoing policy and
regulatory approaches regarding access to GRs – based on bilateral contracts regarding shared
resources- may be flawed and misguided, see Zamudio, Teodora, Vogel, Joseph, Ruiz, Muller.
Logic Should Prevail: a New Conceptual and Operational Framework for an International Regime
of Access to Genetic Resources. Research Document. Initiative for the Prevention of Biopiracy.
SPDA, Year V, No. 13, March, 2010. Lima, Peru. The main argument of the paper is that existing
access and benefit-sharing (ABS) policy and legal frameworks have lost sight of a fundamental
characteristic of GRs: their informational nature. Genetic resources are not tangible material,
but intangible, coded information, regardless of the legal definitions of the CBD. This fact –
understood well by scientists but less so by politicians- substantially alters the policy, economic
and legal approach which should be given to ABS, as this information is widely shared and
disseminated across national borders.


4 See http://unesdoc.unesco.org/images/0006/000684/068457mb.pdf for the full text of the
Model Provisions.


5 Under FAO Resolution 5/89, farmers’ rights are defined as “…rights arising from the past, present
and future contribution of farmers in conserving, improving and making available plant genetic
resources … These rights are vested in the International Community, as trustee for present and
future generation of farmers, for the purpose of ensuring full benefits for all farmers …” http://
data.iucn.org/dbtw-wpd/htm/EPL057-expguide-international-treaty/Article9.html


6 According to Article 9.9.2(a), the responsibility to realize farmers’ rights rests with national
governments, and measures to protect these rights may include:[…] (a) Protection of traditional
knowledge relevant to plant genetic resources for food and agriculture. […]


7 See Chapter 2, The Current Law on Plant Genetic Resources and Traditional Knowledge, In:
Biber-Klemm, Susette and Cottier, Thomas (Editors) 2006. Rights to Plant Genetic Resources and
Traditional Knowledge: Basic Issues and Perspectives. CABI. United Kingdom. pp. 56-110


8 Article 7 establishes that “In accordance with domestic law, each Party shall take measures,
as appropriate, with the aim of ensuring that traditional knowledge associated with genetic
resources that is held by indigenous and local communities is accessed with the prior and




21ICTSD Programme on Innovation, Technology and Intellectual Property


informed consent or approval and involvement of these indigenous and local communities, and
that mutually agreed terms have been established “.


Article 12 of the Nagoya Protocol establishes that:


1. In implementing their obligations under this Protocol, Parties shall in accordance with
domestic law take into consideration indigenous and local communities’ customary laws,
community protocols and procedures, as applicable, with respect to traditional knowledge
associated with genetic resources.


2. Parties, with the effective participation of the indigenous and local communities concerned,
shall establish mechanisms to inform potential users of traditional knowledge associated with
genetic resources about their obligations, including measures as made available through the
Access and Benefit-sharing Clearing-House for access to and fair and equitable sharing of
benefits arising from the utilization of such knowledge.


3. Parties shall endeavor to support, as appropriate, the development by indigenous and local
communities, including women within these communities, of:


(a) Community protocols in relation to access to traditional knowledge associated with genetic
resources and the fair and equitable sharing of benefits arising out of the utilization of such
knowledge;


(b) Minimum requirements for mutually agreed terms to secure the fair and equitable sharing
of benefits arising from the utilization of traditional knowledge associated with genetic
resources; and


(c) Model contractual clauses for benefit-sharing arising from the utilization of traditional
knowledge associated with genetic resources.


4. Parties, in their implementation of this Protocol, shall, as far as possible, not restrict
the customary use and exchange of genetic resources and associated traditional knowledge
within and amongst indigenous and local communities in accordance with the objectives of
the Convention.


9 Defensive protection was initially conceived in the early 1990s, during the Andean process for
the development of an ABS regime. In simple terms, defensive protection creates a linkage
between patent regimes and ABS and TK protection regimes. To grant a patent right or process
a patent application in the field of biotechnology or natural products, the applicant is required
to demonstrate the legal origin or provenance of materials or TK utilized –directly or indirectly-
in the innovation. For a review of the origin of the concept see Caillaux, Jorge, Tobin, Brendan,
Ruiz, Manuel. 1999. Acceso a Recursos Genéticos. Lecciones y Experiencias. WRI, SPDA. Lima,
Perú. For a more detailed conceptual analysis of defensive protection see, Henninger, Thomas.
Disclosure requirements in patent law and related measures: a comparative overview of existing
national and regional legislation on IP and biodiversity. In: Werth, Alexander, Reyes, Susanne
(Editors) 2010. Triggering the Synergies between Intellectual Property Rights and Biodiversity.
GIZ, Eschborn, Germany. p. 293-226


10 See The Protection of Traditional Knowledge: Draft Articles at, http://www.wipo.int/meetings/
en/doc_details.jsp?doc_id=238182


11 Article 31 (1) of the United Nations Declaration on the Rights of Indigenous Peoples expressly
determines that “Indigenous peoples have the right to maintain, control, protect and develop
their cultural heritage, traditional knowledge and traditional cultural expressions, as well as




22 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


the manifestations of their sciences, technologies and cultures, including human and genetic
resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions,
literatures, designs, sports and traditional games and visual and performing arts. They also
have the right to maintain, control, protect and develop their intellectual property over such
cultural heritage, traditional knowledge, and traditional cultural expressions.”


12 For a critical assessment of the ARIPO initiative, see Munyi, Peter. Progress or Setback? An
African Regional Instrument for the Protection of Traditional Knowledge and Folklore. See
http://ictsd.org/i/news/bioresreview/12091/


13 For a review of existing legal instruments and tools for TK protection, See http://www.wipo.
int/tk/en/laws/tk.html


14 International Labor Organization (ILO) Convention 169 on Indigenous and Tribal Peoples in
Independent Countries and the UN Declaration on the Rights of Indigenous Peoples, have
been important catalysts and justifications to promote and demand open, transparent and
participatory process.


15 Dutfield has undertaken extensive analysis regarding TK and its special features. See Dutfield,
Graham. Protecting Traditional Knowledge and Folklore. A Review of Progress in Diplomacy and
Policy Formulation. UNCTAD-ICTSD. Intellectual Property Rights and Sustainable Development.
Issue Paper No. 1. June 2003.


16 Most existing policy and legal initiatives are based on a sui generis approach to TK protection
which entails the rational combination of different tools (i.e. registers, contracts), mechanisms
(i.e. PIC), and procedures (i.e. consultation) which “protect” TK. The most notable example of
this may be Law 27811 of Peru which combines: registers, licenses, trade secret and competition
law principles and defensive protection principles, to ensure TK of indigenous people related
to biodiversity is safeguarded and protected. See Venero, Begoña. Mitos y verdades sobre la
biopiratería y la propiedad intelectual. En: Anuario de Derechos Intelectuales. Kresalja, Baldo.
Editor. Palestra, Lima, 2004.


17 The TRIPS Agreement does not define an invention in its text, but establishes criteria upon
which an invention is measured: novelty, inventiveness and industrial application. These are
technical concepts which over time have been described precisely in terms of content and their
specific boundaries.


18 Just as an example of the potential problems of inexistence of definitions, recently in India,
the Supreme Court determined that Novartis would not be awarded a new patent over Gleevec
(a cancer treating drug), basically because the “new” “invention” was not deemed significantly
different from the original version of the drug. See http://www.nytimes.com/2013/04/05/
opinion/the-supreme-court-in-india-clarifies-law-in-novartis-decision.html?_r=0


19 See WIPO IGC, The Protection of Traditional Knowledge: Draft Gap Analysis: Revision 4. WIPO
Doc. WIPO/GRTKF/IC/13/5/(b) Rev. (2008) http://www.wipo.int/edocs/mdocs/tk/en/wipo_
grtkf_ic_13/wipo_grtkf_ic_13_5_b_rev.pdf


20 The Nagoya Protocol refers only to “traditional knowledge”, which begs the question whether
this means an implicit exclusion of innovations and practices from its scope, especially since
in contras, article 8(j) of the CBD refers to knowledge, innovations and practices as a sort of
single, all embracing concept.


21 This poses a continued and complex problem regarding the loss of TK. Increasingly, TK is not
being passed on to younger generations simply because these generations are not interested




23ICTSD Programme on Innovation, Technology and Intellectual Property


and have been influenced by market-based and western type elements (i.e. money, jobs) which
dramatically affect and change social structures and relations within community members. The
“city lights” effect has been extensively documented and is considered a strong foundation for
the erosion and loss of traditional cultures.


22 When referring to shared and widely distributed TK, this paper focuses on specific TK which
relates to medicinal uses and application of plants and natural products, conservation techniques
for seeds, and knowledge regarding specific characteristics of biodiversity. Certainly, if the
religious, spiritual and symbolic variables which surround TK are taken into account, they add
considerable differentiation between communities and cultures. Nevertheless, in trying to set
some boundaries and defined features, it could be argued that the specific TK (as knowledge,
an innovation or a practice) is common to many indigenous peoples and groups.


23 Laird, Sarah (Editor) 2002. Biodiversity and Traditional Knowledge. Equitable Partnerships in
Practice. People and Plants Conservation Series. WWF, UNESCO, Royal Botanic Gardens Kew.
Earthscan Publications Ltd. London. New York.


24 See Boyle, James. The Second Enclosure Movement and the Construction of the Public Domain.
Duke University, 2003, Available at, http://law.duke.edu/pd/papers/boyle.pdf


25 Joseph Vogel, since 1992, has been an active (often lonely) critic of how little information
economics has been considered and assessed in the context of ABS and TK related negotiations,
especially in the CBD. Vogel argues that the most limiting but overlooked flaw in the CBD and
the Nagoya Protocol is, precisely, ignoring the informational nature of GRs and TK and their
effects on sovereignty and contractual approaches to ABS. See Vogel, Joseph. 1994. Genes for
Sale. New York: Oxford University Press.


26 This explanation is taken and adapted from, Vogel, Joseph (Editor). 2000. The Biodiversity
Cartel. Transforming Traditional Knowledge into Trade Secrets. CARE. Quito, Ecuador.


27 WIPO makes a useful distinction between TK in the public domain and freely accessible TK. It is
often assumed that TK is mostly in the public domain and therefore available for free. However,
it cannot be assumed that this TK has no owner or does not belong to an indigenous peoples
group, community or indigenous individual. It may be possible to impose certain conditions and
limitations on access to and use of TK which is in fact in the public domain. Furthermore, being
in the public domain does not mean that it is in practice freely accessible: on the contrary there
may be some very simple situations such as electronic safeguards (in the case of data bases), or
remote and isolated archives, or very limited editions of certain publications, etc. which make
the principle of freely accessible almost impossible to be realized. See http://www.wipo.int/
edocs/mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_inf_8.pdf


28 Vogel argues that even the Nagoya Protocol falls short of adequately addressing the true nature
of genetic resources (coded, natural information) and shared and widely distributed TK. See
Vogel, J., Alvarez-Berríos, N., Quiñones-Vilche, J.L., et.al (2001). The Economics of Information,
Studiously Ignored in the Nagoya Protocol on Access and Benefit Sharing. 7/1 Law Environment
and Development (LEAD) Journal (2011), p. 51-65, available at http://www.lead-journal.org/
content/11052.pdf


29 The rationale for articles 10 and 11 of the Nagoya Protocol is rather fuzzy. What is known is
that very late in the negotiations of the Protocol (during COP 10 in Nagoya), the African Group
insisted on incorporating provisions addressing GRs outside national jurisdictions and shared
and widely disseminated resources and TK, among others. It is suspected than some of the ideas
that Vogel and a few others had been advocating since the early nineties, finally permeated




24 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


part of the policy discussions. Another point of interest is that an initial draft text of the Nagoya
Protocol included a provision –now missing- regarding TK in the public domain.


30 A detailed study on whether and to what extent funding mechanisms effectively lower transaction
costs is yet to be undertaken. Furthermore, resources –other than donor contributions- have
to become sustainable end embedded in the system itself. The funding mechanism under the
FAO IT, where commercial uses of plant GRs have yet to materialize in monetary benefits,
offers a useful albeit relatively new experience. What is certain is that existing regulatory and
institutional frameworks offer few if any advantages in terms of supporting the realization of
benefits and sharing them thereafter.


31 Andean Decision 391 on a Common Regime on Access to Genetic Resources, 1996, and applicable in
Bolivia, Colombia, Ecuador and Peru, includes a specific provision which recognizes that Member
States may share resources and when this is the case, each State should take into consideration
the interests of the other states when negotiating access agreements. The problem has been
over time that countries are struggling to implement the Decision and safeguard their own
interest, with little if any incentive to consider neighboring countries interests. On the other
hand, article 10 of Law 27811 for the protection of collective knowledge in Peru establishes
that collective knowledge may pertain to various indigenous people. More interestingly, article
6 establishes that “…the indigenous representative organization, whose prior informed consent
is sought [representative organization are deemed the legitimate TK negotiating body on behalf
of communities], must inform the widest possible number of communities holders of the same
knowledge that it is entering into negotiations, and take into account their interests … […].” See
http://www.bnp.gob.pe/portalbnp/pdf/ley_27811.pdf


32 Clearly, sharing “the same” TK is ontologically impossible. What is shared is very similar or even
almost identical TK related to biodiversity or GRs uses and applications.


33 The Peruvian International Cooperative Biodiversity Group Project (ICBG) (1994-2002) is an
example of different representative organizations –of the same indigenous peoples nation, with
member communities sharing TK became estranged when the Consejo Aguaruna Huambisa
decided to leave the project and the National Confederation of Amazon Nationalities (CONAP)
decided to replace it and participate in the project – with the logical tensions and frictions
created along the way. See José C. Aponte, Abraham J. Vaisberg, Rosario Rojas, Michel Sauvain,
Walter H. Lewis, Gerardo Lamas, César Sarasara, Robert H. Gilman and Gerald B. Hammond. A
Multipronged Approach to the Study of Peruvian Ethnomedicinal Plants: A Legacy of the ICBG-
Peru Project. In: J. Nat. Prod., 2009, 72 (3), pp. 524–526


34 In classic IP law, and according to the TRIPS Agreement, to be considered a trade secret
information (i.e. secret or confidential TK), must: be secret; have some kind of commercial
or potential value and have been subject to reasonable steps to be kept confidential. There
must be a conscious act of maintaining TK secret – but formally allowed for use in a specific
commercial or industrial endeavor.


35 The Peruvian National Commission for the Prevention of Biopiracy (Law 28216, of 2004), is
formally responsible for identifying and taking action in cases where Peruvian biodiversity or its
communities TK have been accessed illegally or misappropriated through granting of wrongful
IP and patents in particular. See http://www.biopirateria.gob.pe


36 The Traditional Knowledge Digital Library (TKDL) in India for example, only uses the registered
TK for defensive purposes and IP authorities can only access this database for these purposes:
to review novelty and inventiveness. There are no other uses allowed, even for research
purposes. For review of the role, dimensions and functions of TK registers, see Chamudeswaari,




25ICTSD Programme on Innovation, Technology and Intellectual Property


K, Alexander, Merle, Kambu, Alphonse, Tobin, Brendan, Ruiz, Manuel. The Role of Registers and
Databases in the Protection of Traditional Knowledge: A Comparative Analysis. United Nations
University, Institute of Advanced Studies. Japan, January, 2004.


37 The case of the Traditional Knowledge Digital Library in India is a case in point. Traditional Indian
medicinal knowledge (Ayurvedic, Unani and Sidha formulations), widely shared, disseminated
and firmly in the public domain (i.e. it has been documented and published for centuries),
is systematized and organized in a database used for defensive protection and to prevent
‘biopiracy.’ It is used only for this purpose. This entails institutional arrangements between the
Council for Scientific and Industrial Research (CSIR) in India, and the most important IP offices
in the world: the European Patent Office (EPO), the Japanese Patent Office (JPO) and the Unites
States Patent and Trademark Office (USPTO). See http://www.tkdl.res.in/tkdl/langdefault/
common/Home.asp?GL=Eng Another example is action undertaken by the Peruvian IP office
(INDECOPI, which is also responsible for implementing the law for the protection of TK), which
ex officio as well as upon request from indigenous people, is responsible for registering TK in
formal, State recognized databases which may be used for defensive purposes. See Venero,
Begoña. La Protección Jurídica de los Conocimientos Tradicionales en el Perú. En: Kresalja,
Baldo. Editor. Anuario Andino de los Derechos Intelectuales. No. VI, 2009. Lima, Perú. p. 86-102
INDECOPÍ s activities in this regard may be reviewed at http://www.indecopi.gob.pe


38 Interestingly, in 1996 Peru adopted a national regulation on breeders rights (Supreme Decree
008-1996-ITINCI, 1996) which included the obligation of applicants to demonstrate the legal
origin of GRs and TK which may have been used in the development of the new variety as
a pre requisite for processing the plant breeders right application. This extended defensive
protection measures to PBR. However, after adopting UPOV 91, as part of an obligation in the
FTA with the US, the regulation was derogated and these requirements eliminated, in a clear
example of the downside effects of adopting UPOV like regimes – and stricter IP rules in FTAs.


39 See the work of the UNESCO Committee of Non-Governmental experts on the ‘Domaine Public
Payant’, Copyright Bulletin, vol.XVI, no 3, 1982, 49. See also Dietz, Adolf, “A Modern concept
for the right of the community of authors (domaine public payant)”, Copyright Bulletin, 1990,
XXIV, n°4, 13-28 Jerome Reichmann, a notable critic of the “enclosure movement”, has also
contributed to this conceptual debate, see Reichman, Jerome, Maskus, Keith. The Globalization
of Public Knowledge Goods and the Privatization of Global Public Goods. In: Maskus and
Reichman, Editors. Journal of International Economic Law. 7(2)-279-320.


40 For specific examples of biocultural protocols in Africa, South East Asia, Asia and South America,
see http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_inf_8.pdf


41 The Nagoya Protocol recognizes community protocols. Article 12 of the Nagoya Protocol
establishes that: […] 3. Parties shall endeavor to support, as appropriate, the development
by indigenous and local communities, including women within these communities, of: (a)
Community protocols in relation to access to traditional knowledge associated with genetic
resources and the fair and equitable sharing of benefits arising out of the utilization of such
knowledge; […]


42 A notable example of this form of recognition is happening now in Peru. Through an intense
and profoundly inclusive campaign to revalue national gastronomy, a potent side effect has
been for very broad sectors of society to recognize, acknowledge and appreciate the value of
TK and indigenous peoples’ contribution to the conservation, development and maintenance
of native crops which are crucial to the “gastronomic boom” of the country. Peru is one of the
three world preferred gastronomy destinations, a feat which has been achieved over a period




26 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


of a decade or so of close collaboration between the State, the private sector, social actors
(including communities) and a group of visionary cooks and chefs who have placed biodiversity
and agro-biodiversity in particular, on the national agenda. Sustainably using resources and
TK is one way to secure “protection.” For an analysis of this process, see Ruiz, Manuel. 2009.
Agrobiodiversity Zones and the Register of Native Crops: Learning from Ourselves. Genetic
Resources Policy Initiative, SPDA, Lima, Peru. p. 55-86 Available at: http://www.spda.org.pe/
ver-publicacion.php?id=150


43 The International Fund for Plant Genetic Resources was created as the tool to realize farmers’
rights and compensate them for their contribution to the maintenance, conservation,
development and dissemination of plant GRs (FAO Resolution 5/89).


44 At the time, FAO Resolution 5/89 defined farmers’ rights as “rights arising from the past,
present and future contributions of farmers in conserving, improving, and making available
plant genetic resources, particularly those in the centers of origin/diversity. These rights
are vested in the International Community, as trustee for present and future generations of
farmers, for the purpose of ensuring full benefits to farmers, and supporting the continuation
of their contributions, as well as the attainment of the overall purposes of the International
Undertaking) in order to:


a) ensure that the need for conservation is globally recognized and that sufficient funds for
these purposes will be available;


b) assist farmers and farming communities, in all regions of the world, but especially in the
areas of origin/diversity of plant genetic resources, in the protection and conservation of
their plant genetic resources, and of the natural biosphere;


c) allow farmers, their communities, and countries in all regions, to participate fully in the
benefits derived, at present and in the future, from the improved use of plant genetic
resources, through plant breeding and other scientific methods.”


45 FAO Resolution 3/91 established that […] “Farmers’ Rights will be implemented through an
international fund on plant genetic resources which will support plant genetic conservation
and utilization programs, particularly, but not exclusively, in the developing countries.”
This fund was to be operated by the donors of GRs, funds and technology through the Commission
on Plant Genetic Resources.


46 The Multilateral System on Access and Benefit Sharing was designed and developed due to the
recognition that countries are interdependent in regards to plant GRs for food and agriculture
in particular and that efficient mechanisms are required to ensure continued flows of this
special category of resources for breeding, conservation and to sustain agricultural systems
worldwide, including plant breeding. A Standard Material Transfer Agreement adopted in 2001,
is a contractual tool which ensures expeditious access to the resources included in a list of
resources – a common pool. For a detailed review of the International Treaty, see Moore, Gerald,
Tymowski, Wytold. 2005. Explanatory Guide to the FAO International Treaty on Plant genetic
Resources for Food and Agriculture. IUCN Environmental Law Programme. Environmental Law
and Policy Paper No. 57. IUCN, Gland.


47 This multilateral “protection” scheme would focus on the compensatory element (benefit
sharing) and co-exist with parallel specific positive and defensive protection measures to be
implemented at the national level.




27ICTSD Programme on Innovation, Technology and Intellectual Property


48 Graham Dutfield discusses the possibility of establishing and creating national “private collective
management institutions” to monitor use of TK, issue licenses to users, and distribute fees to
right holders in proportion to the extent to which TK is utilized by researchers, industry, etc.
These functions could also be assigned to a public institution, depending on specific national
contexts and to what extent indigenous people place their trust in the State. See Dutfield, Ibid.
at 14, p. 7.


49 This paper does not analyze in depth the economic viability of an international or national fund.
Both may be potential alternatives to promote compensatory measures for access to and use
of shared TK. The author acknowledges that creating and subsequently maintaining a fund may
not be easy nor politically acceptable –at this moment, anyway.


50 This suggested percentage is a general figure. It is not the result of an in depth economic
analysis. The point to be made is that the percentage should be derived from existing taxes and
not impose additional costs. For this to be acceptable, there would need to be an analysis of
this impact on public finances – given political (budgetary) implications for governments.


51 This assumes that States will have the political will to agree on this type of scheme, and in parallel
leave the option open for existing IP based protection schemes, contractual negotiations, etc.




28 M. R. Muller – Protecting Shared Traditional Knowledge: Issues, Challenges and Options


REFERENCES


Aponte, José. C, Vaisberg, Abraham J. , Rojas, Rosario, Sauvain, Michel, Lewis, Walter H., Lamas,
Gerardo, Sarasara, César, Gilman, Robert H., and Hammond., Gerald B. A Multipronged
Approach to the Study of Peruvian Ethnomedicinal Plants: A Legacy of the ICBG-Peru
Project. In: J. Nat. Prod., 2009, 72 (3), pp 524–526


Biber-Klemm, Susette and Cottier, Thomas (Editors). 2006. Rights to Plant Genetic Resources and
Traditional Knowledge: Basic Issues and Perspectives. CABI. United Kingdom. pp. 56-110


Boyle, James. 2003. The Second Enclosure Movement: and the Construction of the Public Domain.
Duke University


Caillaux, Jorge, Tobin, Brendan, Ruiz, Manuel. 1999. Acceso a Recursos Genéticos. Lecciones y
Experiencias. WRI, SPDA. Lima, Perú


Chamudeswaari, K, Alexander, Merle, Kambu, Alphonse, Tobin, Brendan, Ruiz, Manuel. 2004. The
Role of Registers and Databases in the Protection of Traditional Knowledge: A Comparative
Analysis. United Nations University, Institute of Advanced Studies. Japan


Dietz, Adolf. 1990. “A Modern concept for the right of the community of authors (domaine public
payant),” Copyright Bulletin, XXIV, n°4, 13-28.


Dutfield, Graham. 2003. Protecting Traditional Knowledge and Folklore. A Review of Progress
in Diplomacy and Policy Formulation. UNCTAD-ICTSD. Intellectual Property Rights and
Sustainable Development. Issue Paper No. 1.


Henninger, Thomas. 2010. “Disclosure requirements in patent law and related measures: a
comparative overview of existing national and regional legislation on IP and biodiversity,”
in: Werth, Alexander, Reyes, Sussane (Editors) Triggering the Synergies between Intellectual
Property Rights and Biodiversity. GIZ, Eschborn, Germany


Kresalja, Baldo ( Editor). 2009. Anuario Andino de los Derechos Intelectuales. No. VI, Lima Perú


Laird, Sarah (Editor) 2002. Biodiversity and Traditional Knowledge. Equitable Partnerships in
Practice. People and Plants Conservation Series. WWF, UNESCO, Royal Botanic Gardens Kew.
Earthscan Publications Ltd. London. New York.


Moore, Gerald, Tymowski, Wytold. 2005. Explanatory Guide to the FAO International Treaty on
Plant genetic Resources for Food and Agriculture. IUCN Environmental Law Programme.
Environmental Law and Policy Paper No. 57. IUCN, Gland


Munyi, Peter. 2008. “Progress or Setback? An African regional Instrument for the Protection of
Traditional Knowledge and Folklore,” Bridges Trade BioRes Review 2:2 http://ictsd.org/i/
news/bioresreview/12091/


Reichman, Jerome, Maskus, Keith. 2004. “The Globalization of Public Knowledge Goods and
the Privatization of Global Public Goods,” in: Maskus and Reichman, Editors. Journal of
International Economic Law. 7(2)-279-320


Ruiz, Manuel. 2009. Agrobiodiversity Zones and the Register of Native Crops: Learning from
Ourselves. Genetic Resources Policy Initiative, SPDA, Lima, Peru


UNESCO 1982. Committee of Non-Governmental experts on the ‘Domaine Public Payant’, Copyright
Bulletin, vol.XVI, no 3, 49




29ICTSD Programme on Innovation, Technology and Intellectual Property


Venero, Begoña. 2004. « Mitos y verdades sobre la biopiratería y la propiedad intelectual, » in:
Anuario de Derechos Intelectuales. Kresalja, Baldo. Editor. Palestra, Lima


Vogel, Joseph. 1994. Genes for Sale. New York: Oxford University Press.


Vogel, Joseph (Editor). 2000. The Biodiversity Cartel. Transforming Traditional Knowledge into
Trade Secrets. CARE. Quito, Ecuador


Vogel, J., Alvarez-Berríos, N., Quiñones-Vilche, J.L., et.al. 2011. “The Economics of Information,
Studiously Ignored in the Nagoya Protocol on Access and Benefit Sharing,” 7/1 Law
Environment and Development (LEAD) Journal


WIPO IGC. 2002. Traditional Knowledge – Operational Terms and Definitions 11, WIPO Doc. WIPO/
GRTKF/IC/13/9


WIPO IGC. 2008. The Protection of Traditional Knowledge: Draft Gap Analysis: Revision 4. WIPO
Doc. WIPO/GRTKF/IC/13/5/(b) Rev.


Zamudio, Teodora, Vogel, Joseph, Ruiz Muller. 2010. Logic Should Prevail: a New Conceptual and
Operational Framework for an International Regime of Access to Genetic Resources. Research
Document. Initiative for the Prevention of Biopiracy. SPDA, Year V, No. 13, Lima, Peru




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Evaluating Aid for Trade on the Ground: Lessons from Malawi. By Jonathan Said, John McGrath, Catherine Grant and Geoffrey Chapman. Issue Paper
No. 21, 2011.
Evaluating Aid for Trade Effectiveness on the Ground: A Methodological Framework. By Ratnakar Adhikari. Issue Paper No. 20, 2011.
EU Climate Policies and Developing Country Trade Vulnerability: An Overview of Carbon Leakage-Sensitive Trade Flows. By ICTSD. Issue Paper No. 19,
2011.
Dispute Settlement and Legal Aspects of International Trade
Forum Selection in Trade Litigation. By Arthur E. Appleton. Issue Paper No. 12, 2013.
How to successfully manage conflicts and prevent dispute adjudication in international trade. By Roberto Echandi. Issue Paper No. 11, 2013.
Conflicting Rules and Clashing Courts. The Case of Multilateral Environmental Agreements, Free Trade Agreements and the WTO. By Pieter Jan Kuijper. Issue
Paper No.10, 2010.
Burden of Proof in WTO Dispute Settlement: Contemplating Preponderance of the Evidence. By James Headen Pfitzer and Sheila Sabune. Issue Paper No. 9, 2009.
Suspension of Concessions in the Services Sector: Legal, Technical and Economic Problems. By Arthur E. Appleton. Issue Paper No. 7, 2009.
Fisheries, International Trade and Sustainable Development
The Importance of Sanitary and Phytosanitary Measures to Fisheries Negotiations in Economic Partnership Agreements. By Martin Doherty. Issue Paper
No. 7, 2008.
Fisheries, Aspects of ACP-EU Interim Economic Partnership Agreements: Trade and Sustainable Development Implications. By Liam Campling. Issue
Paper No. 6, 2008.
Innovation, Technology and Intellectual Property
Fast-tracking Green Patent Applications: An Empirical Analysis. Issue number 37. By Antoine Dechezleprêtre, February 2013.
Unpacking the International Technology Transfer Debate: Fifty Years and Beyond. Issue Paper No. 36 by Padmashree Gehl Sampath and Pedro Roffe,
2012. Realizing the Potential of the UNFCCC Technology Mechanism. Perspectives on the Way Forward. Issue Paper No. 35 by John Barton, Padmashree
Gehl Sampath and John Mugabe, 2012.
Bridging the Gap on Intellectual Property and Genetic Resources in WIPO’s Intergovernmental Committee (IGC). By David Vivas-Eugui. Issue Paper No.
34, 2012.
The Influence of Preferential Trade Agreements on the Implementation of Intellectual Property Rights in Developing Countries. By Ermias Tekeste
Biadgleng and Jean-Christophe Maur. Issue Paper No. 33, 2011.
Intellectual Property Rights and International Technology Transfer to Address Climate Change: Risks, Opportunities and Policy Options. By K. E.
Maskus and R. L. Okediji. Issue Paper No. 32, 2010.


Trade in Services and Sustainable Development
Facilitating Temporary Labour Mobility in African Least-Developed Countries: Addressing Mode 4 Supply-Side Constraints. By Sabrina Varma. Issue
Paper No.10, 2009.
Advancing Services Export Interests of Least-Developed Countries: Towards GATS Commitments on the Temporary Movement of natural Persons for
the Supply of Low-Skilled and Semi-Skilled Services. By Daniel Crosby, Issue Paper No. 9, 2009.


Environmental Goods and Services Programme
Market Access Opportunities for ACP Countries in Environmental Goods. By David Laborde, Csilla Lakatos. Issue Paper No. 17, 2012
Facilitating Trade in Services Complementary to Climate-friendly Technologies. By Joy Aeree Kim. Issue Paper No. 16, 2011.
Deploying Climate-Related Technologies in the Transport Sector: Exploring Trade Links. By Rene Vosenaar. Issue Paper No. 15, 2010.


Trade and Sustainable Energy
International Transport, Climate Change and Trade: What are the Options for Regulating Emissions from Aviation and Shipping and what will be their
Impact on Trade? By Joachim Monkelbaan. Background Paper, 2010.
Climate Change and Trade on the Road to Copenhagen. Policy Discussion Paper, 2009.
Regionalism and EPAs
Questions Juridiques et Systémiques Dans les Accords de Partenariat économique : Quelle Voie Suivre à Présent ? By Cosmas Milton Obote Ochieng.
Issue Paper No. 8, 2010.
Rules of Origin in EU-ACP Economic Partnership Agreements. By Eckart Naumann. Issue Paper No. 7, 2010
SPS and TBT in the EPAs between the EU and the ACP Countries. By Denise Prévost. Issue Paper No. 6, 2010.
Global Economic Policy and Institutions
Multilateral Negotiations at the Intersection of Trade and Climate Change: An overview of Developing Countries’ Priorities in UNCSD, UNFCCC and WTO
Processes. By Manual A. J. Teehankee, Ingrid Jegou, Rafael Jacques Rodrigues. Issue Paper No. 2, 2012.


These and other ICTSD resources are available at http://www.ictsd.org




ICTSD has been active in the field of intellectual property since 1997, among other things through
its programme on on Innovation, Technology and Intellectual Property (IP), which since 2001 has
been implemented jointly with UNCTAD. One central objective of the programme has been to
facilitate the emergence of a critical mass of well-informed stakeholders in developing countries
that includes decision-makers and negotiators, as well as representatives from the private
sector and civil society, who will be able to define their own sustainable human development
objectives in the field of IP and advance these effectively at the national and international
level. The programme has generated an issue paper series on Intellectual Property Rights and
Sustainable Development with the intention of offering a clear, jargon-free synthesis of the
main issues to help policy makers, stakeholders and the public in developing and developed
countries to understand the varying perspectives surrounding different IPRs, their known or
possible impact on sustainable livelihoods and development, and different policy positions over
the TRIPS Agreement and other relevant international intellectual property arrangements. This
issue paper series is the consequence of a participatory process involving trade negotiators,
national policy makers, as well as eminent experts in the field, the media, NGOs, international
organizations, and institutions in the North and the South dealing with IPRs and development.


Previous publications under this Series include:


• MappingPrevailingIdeasonIntellectualProperty.IssuePaperNo.38,Jean-FrédéricMorin,
2013.


• Fast-tracking Green Patent Applications: An Empirical Analysis. Issue Paper No. 37 by
Antoine Dechezleprêtre, 2013.


• Unpacking the International Technology Transfer Debate: Fifty Years and Beyond. Issue
Paper No. 36 by Padmashree Gehl Sampath and Pedro Roffe, 2012.


• Realizing the Potential of the UNFCCC Technology Mechanism. Perspectives on the Way
Forward. IssuePaperNo.35by JohnBarton,PadmashreeGehl Sampathand JohnMugabe,
2012.


• BridgingtheGaponIntellectualPropertyandGeneticResourcesinWIPO’sIntergovernmental
Committee(IGC).IssuePaperNo.34byDavidVivas-Eugui,2012.


• The Influence of Preferential Trade Agreements on the Implementation of Intellectual
PropertyRights inDevelopingCountries. IssuePaperNo.33byErmiasTekesteBiadgleng
andJean-ChristopheMaur,2011.


• Intellectual Property Rights and International Technology Transfer to Address Climate
Change:Risks,OpportunitiesandPolicyOptions.IssuePaperNo.32byKeithE.Maskusand
Ruth L. Okediji, 2010.


• IntellectualPropertyTrainingandEducation:ADevelopmentPerspective.IssuePaperNo.
31byJeremydeBeerandChidiOguamanam,2010.


• An International Legal Framework for the Sharing of Pathogens: Issues and Challenges.
IssuePaperNo.30byFrederickM.Abbott,2010.


• Sustainable Development in International Intellectual Property Law – New Approaches
FromEUEconomicPartnershipAgreements?IssuePaperNo.29byHenningGrosseRuse–
Khan, 2010.


• TheTechnicalAssistancePrinciplesof theWIPODevelopmentAgendaandtheirPractical
Implementation.IssuePaperNo.28byC.Deere-BirkbeckandR.Marchant,2010.


• FreeTradeofPharmaceuticalProducts:TheLimitsofIntellectualPropertyEnforcementat
theBorder.IssuePaperNo.27byXavierSeuba,2010.


Forfurtherinformation,visitwww.ictsd.org


About the International Centre for Trade and Sustainable Development


Foundedin1996,theInternationalCentreforTradeandSustainableDevelopment(ICTSD)isan
independent think-and-do-tank based in Geneva, Switzerland and with operations throughout
the world, includingout-posted staff in Brazil, Mexico, Chile, Senegal, Canada, Russia, and
China. By enabling stakeholders in trade policy through information, networking, dialogue,
well-targeted research and capacity-building, ICTSD aims to influence the international trade
system so that it advances the goal of sustainable development. ICTSD co-implements all of its
programme through partners and a global network of hundreds of scholars, researchers, NGOs,
policymakers and think-tanks around the world.


www.ictsd.org




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