Inventory of Traditional Knowledge-related Periodicals, Gazettes and Newsletters (WIPO/GRTKF/IC/3/5)
82. The Chair identified two distinct aspects of the discussions on TK: defensive protection, concerning prior art for patent purposes (documents WIPO/GRTKF/IC/3/5 and WIPO/GRTKF/IC/3/6); and the active protection of TK, which contained three sub-topics, namely the application of existing mechanisms and to what extent could they protect TK, the elements of sui generis systems, and the matter of definitions. The Chair emphasized that the Committee needed to have time to thoroughly discuss all the elements of those sub-topics, which were described in documents WIPO/GRTKF/IC/3/7, WIPO/GRTKF/IC/3/8 and WIPO/GRTKF/IC/3/9. The third pillar of the Committee's work, protection of folklore, also needed to be accorded enough time for a full debate.
83. At the Chair's invitation, the Secretariat introduced document WIPO/GRTKF/IC/3/5 and the five tasks it proposed.
84. In-principle support for the implementation of all five tasks was expressed by the delegations of Bolivia, Brazil, Cameroon, Canada, China, Côte d'Ivoire, the Democratic People's Republic of Korea, Egypt, India, Indonesia, Malaysia, Mali, Malta, New Zealand, Norway, Panama, Peru, the Republic of Korea, the Russian Federation, Spain (on behalf of the European Community and its Member States), Sudan, and the
United States of America.
85. The Delegation of Thailand supported the implementation of all five activities, with the emphasis on activity three, and urged WIPO to encourage patent authorities of Member States to collaborate on sharing the database, since it was a way to help each other trace the use of TK by comparing patent applications with documented TK. The Delegation noted that these activities should not prejudice future work on the protection of TK.
Comments on possible Activity 1 (PCT minimum documentation)
86. Concerning Activity 1, the Delegation of the Republic of Korea indicated that the Inventory of Periodicals should be continually updated and the inclusion of new periodicals should be subject to an appropriate examination and verification. The Delegation of Mali suggested a longer Inventory which would include TK documentation collected at various universities in developing countries. The Delegation of Morocco felt that before establishing TK documentation which would form part of the PCT Minimum Documentation List, the Committee should decide upon criteria for the admission of documents to this List. It also wished to have a clear definition of the classification of TK documentation, which might differ from the classification currently adopted in the field of patents. The Delegation of Canada said that further work was necessary to ensure that the list of periodicals was useful and relevant and was in a format that could be used by patent authorities in undertaking searches of prior art. This basic information should be supplemented where possible with a detailed description of the contents of the publication in order to determine the relevance of the periodical to TK. The Delegation of Japan agreed with Activity 1, yet noted that the PCT Union, not the PCT-CTC, had the mandate to decide on the scope of the minimum documentation list. The Delegation of Venezuela understood that this task would contribute a mechanism for defensive protection of TK, but this should not prejudice the issue as to whether disclosure of TK made it fall into the public domain. The Delegation of the Russian Federation considered it too soon to embark on this activity, since Members needed first to work further on Activities 3 and 4 and to assess the results of those activities.
Comments on possible Activity 2 (uploading inventory to WIPO website)
87. Concerning Activity 2, the Delegation of Peru proposed that access to the Inventory should be limited to patent examiners for patent examination purposes only. It added that this should go along with an obligation of confidentiality for those who had access to the information. Bolivia, Brazil, Panama, and Venezuela, and the representatives of the Saami Council and UNCTAD supported this view, voicing concerns as to how the information in these periodicals had been obtained, particularly whether it had been obtained with the prior informed consent (PIC) of the TK-holders and proposing that access to the Inventory should be limited to patent examiners. This should go along with an obligation of confidentiality for those who had access to the information.
88. The Delegation of Peru also explained that although it referred to TK that is already in the public domain, nevertheless Peru, like other delegations, was concerned that in the end biopiracy might be favored. To avoid this, access should be limited to patent examiners. It is very different to have TK in the public domain, yet still in a restricted publication, than to disseminate that knowledge at a much larger scale through a database.
89. The Delegation of Venezuela added that the characterization of TK as prior art was a modality of negative protection, the purpose of which was to prevent those who had not a legitimate right from obtaining patents. But negative protection was just a partial one. It should be accompanied by positive protection, which was the appropriate mechanism for benefit sharing. The representative of ARIPO suggested that it might be necessary to provide a glossary of terms, in order to provide clarification of certain terms used in the Inventory. The representative of FICPI cautioned that if only patent examiners were given access to a database of disclosed TK, several problems may arise: (1) parties may spend time, effort and money filing patent applications for subject matter which is prior art and therefore not protectable; (2) under most existing patent systems patent examiners would not be able to use the information to reject the patent application if it was not publicly available; (3) if the information could be used to reject the application, but could not be given to the patent applicant, then the patent applicant would have no way of responding to the rejection of the application. The representative supported the development of a database of disclosed TK and the principle that only information which had entered the public domain lawfully should be included in the database. He urged, however, that the database should be freely available to any interested party.
90. Responding to the statement made by the representative of FICPI, the Delegation of Peru indicated that the Committee should prioritize the interests of TK holders, rather than those of patent applicants. It underscored that if the Inventory were made available to patent examiners only, patent agents conducting state-of-the-art searches before filing patent applications would still have access to the information in the periodicals through the normal channels, since the TK had already been disclosed and was therefore included in the Inventory. In closing, it insisted that the Inventory should be made available only to patent examiners and the relevant judicial authorities, where appropriate.
91. The Delegation of Canada supported this activity: making this list available and accessible to patent examiners and other interested parties around the world would help ensure that patents were not granted in subject matters that were already in the public domain. If the list were to be put on-line, the Delegation suggested the development of a search engine and an evaluation mechanism to measure the list's usefulness. The Delegation of New Zealand expressed concerns about the implications for third party access following publication of the inventory online at the WIPO website as a source of documented, disclosed TK for use by patent examiners and other interested parties. The information in the periodicals may be in the public domain, but in some cases the TK holders concerned might not have consented to its publication and might still wish to prevent its wider dissemination. Placing the inventory on the WIPO website, and providing access by third parties, might facilitate even easier access to and exploitation of TK by third parties. The Delegation of Japan had no objection to making the inventory available on the WIPO website, in order to encourage its use by the examiners and other interested parties, because of its usefulness for the actual, substantial examination, although technical and budgetary implications should be weighed. Access to the on-line inventory should be free of charge.
92. The Delegation of Switzerland noted that the inventory contained many periodicals, a number of which were already available on-line, observing that it would be helpful to make this inventory available on-line at the WIPO web site. Yet the specific contents of the
TK-related periodicals listed in the inventory and their potential usefulness for patent granting authorities required additional analysis.
Comments on possible Activity 3 (patent authorities sharing resources)
93. The Delegation of Thailand emphasized the importance of possible Activity 3 and the need for WIPO to encourage patent offices to use and share contents of the Inventory.
94. The Delegation of China suggested that priority be given to the collection of documentation and information as prior art for patent examination. Activity 3 merited the special attention of the Committee. Patent classification issues and evaluation of TK documentation should be taken into consideration together by patent granting authorities. This matter could be of importance to future patent granting at the national level.
Comments on possible Activity 4 (passing document to IPC Task Force)
95. The Delegation of Venezuela was pleased with the work conducted by the International Patent Classification (IPC) Task Force on Classification of Traditional Knowledge, but it wished to see a presentation on what was being done. The Delegation reiterated that the process mentioned in paragraph 15 (b) should continue to be guided by Members. It supported this activity but requested that the Committee be informed about the classification process.
96. The Delegation of Canada noted that the Task Force had already recommended collaborating with the Committee and that increased searchability could be achieved through the establishment of a classification system under the IPC. The Delegation of China commented that the Task Force had already done very good work and could be strengthened so as to give the Committee a stronger basis for future work.
97. The Delegation of Japan understood that the Task Force had been making progress in the investigation of the classification of the materials related to TK under the present IPC system and supported this activity since the present document would assist the Task Force.
98. The Delegation of the Democratic People's Republic of Korea observed that the most efficient way of developing classification tools for TK would be the integration of TK into the IPC. The Democratic People's Republic of Korea was facing problems with TK classification particularly in the field of traditional medicine because only few entries were currently available under the IPC. A new subclass covering Korean traditional medicine was being developed and an IPC revision proposal for a new subclass A 61 K 35/78 was being prepared. The Delegation indicated its intention to submit this revision proposal to the IPC Union in the near future. The Delegation of the Islamic Republic of Iran suggested that proper attention should be paid to the distinction between TK which forms part of the common human heritage and TK which does not. It felt that it was essential to create databases for the registration of TK which is being used by the public so that the competent authorities may grant licenses to interested parties. Other elements of TK, which had not been disclosed to the public, should be kept confidential until relevant standards of protection had been adopted at the international level.
Comments on possible Activity 5 (preparation of IP Documentation Toolkit)
99. The Delegation of Venezuela welcomed the reference in paragraphs 17 and 18 to issues that should be taken into account in inventorying of periodicals. It was worried that many of those periodicals may have been elaborated without the consent of the knowledge holders. The publication of the inventory should not preempt the holders' rights, in particular those of challenging the misappropriation and claiming compensation. The Delegation estimated the toolkit would be convenient, but it did not wish it to deal with some implications in an unbalanced manner, which could undermine other implications. Moreover, that should not be the only activity to be undertaken. Capacity building was of utmost importance. A part of the toolkit should be dedicated to the importance of TK, including folklore, associated or not with genetic resources. In other words, the Delegation wished that both the negative and the positive implications of knowledge disclosure be emphasized. In the same vein, the toolkit should not encourage in any way indigenous peoples and Afro-American communities to disclose their knowledge. In the Delegation's view, that was a decision to be taken exclusively by the communities involved, in contact with national authorities.
100. The Delegation of Canada strongly supported Activity 5, noting that this kind of proposal dated back to the WIPO fact-finding missions on the needs and expectations of TK holders in 1998-1999. These missions illustrated that many needs and expectations of TK holders related to operational problems or issues, such as the need for improved legal awareness, access to the legal system, TK documentation and assistance in negotiating contracts for TK protection. Activity 5 would help serve these needs.
101. The Delegation of New Zealand, in supporting Activity 5, recommended that the Toolkit be progressed as a matter of priority. This work was particularly important in the context of the discussions of the Committee concerning the documentation of TK in databases and registries. The Toolkit would assist TK holders to assess, in an informed way, the risks or benefits of documenting and recording TK where that knowledge was not already in the public domain.
102. The Delegation of Peru laid emphasis on Activity 5 and expressed its wish to cooperate with the Secretariat in preparation of the Toolkit. Simple language should be used so that the Toolkit was accessible to all users, in particular indigenous peoples. The final inventory of periodicals should be broader in scope and contain publications from different geographical regions.
103. The Delegation of Norway noted that given the uncertainties whether sui generis protection systems would be developed, the so called "defensive measures" would be all the more important. It was essential to introduce the analysis being done in the Committee into the regular patent system. As shown in other documents before the Committee, documentation of TK could be a two-edged sword, underlining the need for the effective participation of indigenous peoples and communities in all documentation efforts, thus underscoring the importance of Activity 5.
104. The Delegation of Japan supported Activity 5, but stressed the need for the Toolkit to be based on the presently existing situation, so that it did not prejudice the Committee's future work.
105. The Delegation of Switzerland fully supported proposed Activity 5, considering that the toolkit would be of great practical and legal assistance to the holders of TK. The toolkit should be prepared in close cooperation with its primary addressees, namely, indigenous and local communities and their representatives. Only close cooperation would ensure that it served their needs and expectations. This cooperation could, for example, include the dissemination of a questionnaire covering the usefulness of and demand for such a Toolkit, and the needs and expectations of indigenous and local communities and their representatives.
106. The Delegations of Bolivia, Cameroon, Côte d'Ivoire, Egypt, and Panama emphasized the importance of Possible Activity 5.
107. The Delegations of Bolivia, Cameroon, Côte d'Ivoire and Egypt further specified that the Toolkit should be developed in a simple language accessible to TK holders and in the original language of the countries.
108. The Delegation of Panama added that it had requested the assistance of WIPO in the establishment of a national inventory of TK, which was closely related to Activity 5.
109. The representative of the Saami Council added that the Toolkit should not be limited to IP implications of TK documentation and that it should supplement other capacity building activities, such as workshops and seminars. He added that the toolkit should be prepared in close cooperation with representatives of indigenous and local communities and other relevant organizations, such as the Secretariat of the CBD. The representative of IPA called attention to the implications for the Toolkit of assuming a definition of TK that would need to be more carefully defined if additional international TK protection were developed in the future. He offered the assistance of IPA in developing a subject-sensitive classification.
110. The representative of the Inuit Circumpolar Conference (ICC) supported Activity 5 and recommended that an advisory body, including indigenous representatives, be established to develop the Toolkit.
General comments on proposed activities
111. The Delegation of Venezuela called for greater recognition of the various concerns expressed by Members as to the reliance on negative protection, aimed at preventing the illegitimate patenting of TK, and the need for positive protection which would determine benefit sharing. During the compilation of the inventory, as in Annex I, contribution of TK should be voluntary. TK holders could determine that some elements of their knowledge would not be publicly disclosed, and access only granted to patent authorities, an issue that the Committee should address in its future work. Based on these considerations, the Delegation supported Activities 1, 2 and 3 of paragraph 13.
112. The Delegation of Indonesia supported the non-exhaustive inventory and noted it was still compiling relevant information. The Delegation considered all the activities in
paragraph 13 of document WIPO/GRTKF/IC/3/5 to be important in reinforcing the character of TK as prior art, and favored further work by WIPO on those activities.
113. The Delegation of the Russian Federation said that Activity 5 would help the holders of TK to decide whether it should be published and under which format. On Activities 3 and 4, the Delegation understood it would bring expertise on the use of TK and the patent rights based on that knowledge, and would help in establishing prior art in many countries.
Activity 2 would help the implementation of Activities 3 and 4.
114. The Delegation of the United States of America noted that dissemination of existing TK-related information could only make patent examination more effective and help avoid the granting of patents that did not meet the requirements of patentability, provided the documentation was well-indexed and sufficiently detailed to allow an examiner to evaluate patent claims. The Delegation suggested that the Committee needed to establish a definition of TK, to determine whether the inclusion of folklore periodicals might be useful in this context. When considering periodicals and other non-patent literature, copyright in this material, including rights of reproduction and distribution, should be respected. An enormous amount of data was available and further work was needed to associate those periodicals and non-patent literature databases with particular technologies, as has been done in the United States Patent and Trademark Office's "Search Guidelines." The Delegation suggested that the Secretariat should maintain the databases, subject to budgetary considerations.
115. The Delegation of India recalled the international seminar held at New Delhi in April 2002, mentioned earlier by the representative of UNCTAD and attended by Brazil, Cambodia, Chile, China, Colombia, Cuba, Egypt, Kenya, Peru, Philippines, Sri Lanka, Thailand, Venezuela, India, as well as several international experts and IGOs. The seminar focused on the process of identifying essential components of a framework for international recognition of various sui generis systems, customary law and others for protection of TK. Some of the possible components identified included (i) local protection to the rights of TK holders through national level sui generis regimes including customary laws as well as others and its effective enforcement inter alia through systems such as positive comity of protection systems for TK; (ii) protection of TK through registers of TK databases in order to avoid misappropriation; (iii) a procedure whereby the use of TK from one country was allowed particularly for seeking IP protection on commercialization, only after the competent national authority of the country of origin certified the disclosure of source of origin and the obtain prior informed consent, including acceptance of benefit sharing conditions, obtained; (iv) an internationally agreed instrument that recognized such national level protection. This would not only prevent misappropriation but also ensure that national benefit sharing mechanisms and laws were respected worldwide. The Delegation agreed with the concerns expressed by the Delegation of the United States regarding the maintenance of databases. That matter would need special attention.
116. The Delegation of Brazil confirmed its willingness to contribute to future work. Concerns of TK holders on disclosure of TK should be fully addressed, and any activity undertaken under the auspices of the Committee should seek be consistent with the principles of the CBD, and not facilitate biopiracy. The Delegation noted with appreciation the reference to copyright made by the United States Delegation, and said that no activity should prejudice or preempt traditional communities' ownership of TK.
117. The Delegations of Panama and Indonesia, and the representative of the International Publishers' Association (IPA), offered to make further contributions to the Inventory.
118. The Delegations of Cameroon, Côte d'Ivoire, the Islamic Republic of Iran and Panama underscored the importance of close collaboration between governmental organizations and TK holders, including indigenous peoples, in undertaking these activities.
119. The Delegations of Bolivia, Brazil and Venezuela and the representative of the Saami Council underlined the fact that the publication of the TK should not affect the recognition that the TK holders were still and would always remain the custodians of their knowledge, while the Delegation of Peru cautioned that when speaking of defensive protection one had to be careful not to favor biopiracy.
120. The Delegations of Malaysia, Panama, Peru, Thailand and Venezuela emphasized that the work on the Inventory of TK-related periodicals should not prejudice in any way the work of WIPO on the positive legal protection of TK.
121. The Delegation of Algeria, speaking on behalf of the African Group, Egypt, Panama, Peru, Thailand and Venezuela emphasized that the defensive protection of TK was not a sufficient measure for the protection of TK. They emphasized that it should be supplemented by the positive legal protection of TK through a sui generis system of protection.
122. The Delegations of Egypt, Peru and Venezuela raised issues about whether the PIC of the TK holders had been obtained when the periodicals listed in the Inventory had been published.
123. The representative of UNCTAD suggested that the periodicals and databases in the inventories could be categorized into those entries where the PIC of TK holders had been obtained and those where this was not the case. Access to the latter category via the WIPO portal should be limited to patent examiners and, in cases like Switzerland, relevant judicial authorities.
124. The representative of the Saami Council opposed Possible Activities 1, 2 and 3 until WIPO could guarantee that all the TK contained in the periodicals listed in the Inventory had been disclosed with the full prior informed consent of the TK holders.
125. The Delegation of Senegal referred to the existing lack of national laws. The Delegation maintained that under Article 15(4) of the Berne Convention protection was not adequate and interpreted this fact as an indication that the State should legislate on this matter at the national level.
126. The Delegation of Algeria, on behalf of the African Group, supported the development of a TK database and its making available to ensure defensive protection of TK. It stressed that positive protection was an important part of the establishment of a database of TK which was already in the public domain. It added that the establishment of a TK database should take into account the specificity of the TK in the African continent. It explained that African systems of TK were essentially oral and therefore the African countries needed a database which would protect oral TK and its secrecy. The Delegation suggested that this should be taken into account in the Committee's exercise on TK databases. In order to establish TK databases, the Group would ask WIPO to provide support on the IP-aspects of TK documentation. There was a particular need for capacity building for database development in the African region.
127. The representative of the African Regional Industrial Property Organization (ARIPO) supported the African position regarding the substantive issues raised in document WIPO/GRTK/IC/3/5 and highlighted the need for WIPO to create public awareness on the rights and obligations of the custodians of TK. He added that the issues contained in paragraph 17 of the document should be critically examined prior to the preparation of the proposed toolkit. He also referred to Section 3(9) of the Protocol on Patent and Industrial Designs within the Framework of ARIPO (the Harare Protocol), which defines the state of the art as constituting "everything made available to the public anywhere in the world by means of written disclosure or by use." He pointed out that this definition did not take into account orally disclosed information that had not been used and ARIPO therefore gave preference to Activities 1 and 2. He urged the Committee not to disregard the cultures and societies that had produced this knowledge over millennia and reminded the Committee that various individuals continued to innovate, based on this knowledge.
128. The representative of the International Publishers' Association (IPA) stated that, through its work with the International Digital Object Identifier Foundation (IDF), the publishing industry had gained valuable experience in devising a basis that provides a searchable classification of periodicals and publications and that could also allow identification through a description of such periodicals. He offered that IPA could assist the Committee and the IPC Task Force.
129. The Secretariat, in responding to two issues raised in the debate, provided background information about the IPC, the work of the IPC Committee of Experts, and its Task Force on the Classification of TK. The Secretariat also addressed the balance between establishing tools for defensive protection of TK and ensuring that any basis for the positive protection of TK was not destroyed. In achieving that balance, the Secretariat pointed out, the Inventory had been limited to published periodicals containing only disclosed TK. Regarding the questions about prior informed consent, he indicated that it was not clear how WIPO could go behind the publishers of the periodicals and determine whether they had obtained the PIC of the TK holders in every instance.
130. The Chair concluded that all government delegations and representatives of intergovernmental organizations had either explicitly supported all the five proposed Activities or they had not opposed them. Specific observations that should be taken into account included: (1) the proposed Toolkit should be simple, balanced and developed with an advisory body; (2) concerns that dissemination of the Inventory on the WIPO website should not have negative implications for TK holders; (3) concerns about technical and financial aspects of the website, its maintenance and the copyright implications of putting lists of publications on the website; (4) special mention of the oral characteristics of TK and the need to have a proper definition of TK. The Chair proposed that, subject to these observations the Committee adopt the five activities proposed in paragraph 22. It was so decided by the Committee.
Report of the Thirty-First Session of the Committee of Experts of the Special Union for the International Patent Classification (WIPO/GRTKF/IC/3/13)
131. The Secretariat introduced document WIPO/GRTKF/IC/3/13 and highlighted certain activities carried out by the IPC Union that were relevant to the Committee's work.
132. In 2001, the Government of India had been invited to give a presentation to the Committee of Experts on their work on a Traditional Knowledge Digital Library (TKDL), relating to traditional Indian Medicine. The Committee of Experts agreed the system of classification used in the TKDL and its relationship to the IPC should be further studied and created a Special Task Force on the classification of TK, co-ordinated by WIPO. This Task Force currently comprised the People's Republic of China, India, Japan, the United States of America and the European Patent Office and has considered, inter alia, TK database initiatives by India and the People's Republic of China. The Task Force concluded that the integration of TK documentation into searchable prior art requires the revision of the IPC, in particular in the area of traditional medicine, and recommended that the work of the IPC Committee of Experts and of this Committee should be closely linked. The report of the Task Force was presented to the Committee of Experts in February, 2002, which adopted its conclusions and noted that substantial revision of the IPC could be required in order to facilitate searches of TK as prior art. The Committee of Experts instructed the Task Force to continue its work and to start preparation of a revision proposal of the IPC with regard to classification of TK documentation. The Committee of Experts indicated that, in view of the urgency of the matter, it would recommend that the necessary revision should be carried out in time for the incorporation of the results of this revision into the next edition of the IPC, which will enter into force on January 1, 2005.
133. The Chair concluded that paragraph 5 of document WIPO/GRTKF/IC/3/13, invited the Committee to take note of the Report of the Task Force and the relevant part of the Report of the Committee of Experts to and to decide upon the means of continuing the cooperation between the Committee of Experts and the Committee. Committee Members agreed that the contents of WIPO/GRTKF/IC/3/13 be noted and that the result of the third session of the Committee be communicated to the Committee of Experts.
Inventory of Existing Databases of Disclosed Traditional Knowledge (WIPO/GRTKF/IC/3/6)
134. The Secretariat introduced document WIPO/GRTKF/IC/3/6. The Chair noted that this document addressed several interlinked issues and requested the Committee to consider the document as a whole, with specific attention to: (1) decision paragraph 24 concerning the inventory of TK databases; (2) decision paragraph 78 on the future of the WIPO portal of databases;
(3) decision paragraph 100 on the development of a toolkit on IP aspects of TK databases;
(4) decision paragraph 112 on the preparation and dissemination of a questionnaire on the policy objectives, functional requirements and technical specifications of existing TK-related databases.
135. The Delegation of Spain, on behalf of the European Community and its Member States, supported decision paragraphs 100 and 112. As to the task in decision paragraph 24, the Delegation noted that it would be regrettable not to use the inventory at all.
136. The Delegation of Venezuela supported work on defensive TK protection. The Delegation voiced concern about the creation of an on-line database, since it might include TK which has been placed on-line without the agreement of the knowledge holders. Any subsequent use of such a database should guarantee compliance with the prior informed consent requirement, as provided for in the relevant legislation of each State. Further, access to any on-line database should be limited to patent examiners. The Delegation respected the decisions of countries which had elected to place their TK databases on-line for patent search authorities, but that different countries may have different regulations concerning such databases and these should be complied with. Venezuela was not interested in making its own national TK database available on-line. The database was an important protection mechanism, but the discussion on the protection of TK should not be limited to databases only. Databases can be a risk, so it is necessary to keep the information on TK confidential for the purposes of its protection with the IP machinery. The Delegation supported proposal 2 in decision paragraph 78, observing that proposal 3 would require an in-depth examination before it could be supported. The Delegation supported the questionnaire proposed in paragraph 112, provided that it included a reference to the potential negative impact of database, and that issues of confidentiality and IP were properly examined. The Delegation foreshadowed a presentation by Venezuela which would refer to these last two points.
137. The Delegation of Canada stated that further time was needed to study the inventory, its scope and structure, to identify any additional references, to identify which references should be removed and to further prioritize the references before the inventory could be used in a more systemic fashion. The Delegation noted that options 3 and 4 (decision paragraph 78) seemed premature, but supported option 2, subject to budgetary limitations. For on-line databases to be useful to patent search authorities, information must be searchable, retrievable, and identifiable, and provide a sufficient basis for the establishment of a disclosure date. The application of classification tools, such as those set out in document WIPO/GRTKF/IC/3/13, should be further explored. The Delegation invited the Committee to consider further the development and integration of a possible search engine to undertake keyword searches across different databases. Other issues such as language and terminology should also be considered. The Delegation supported the proposals in decision paragraphs 100 and 112.
138. The Delegation of Peru stated that the inventory should only be made available to patent examiners. The Secretariat should also consider the issue of how to determine when the information included in the database was made available to the public. It explained that it was necessary to determine not only when the database itself was placed on-line, but also when the specific information was put on-line for patent examination purposes. The Delegation raised questions about the implications of footnote 24 in the document.
139. The Delegation of India stated that it was not desirable to have restrictions on the end users of the inventory of databases at Annex II to document WIPO/GRTKF/IC/3/6, since the purpose of such an inventory would be to improve the availability of disclosed TK as prior art. In relation to decision paragraph 78, the Delegation stated that option 2 should be the immediate option, as it would ensure that work on TK was driven by developments and consultation at the national level. The Delegation recommended that the Committee should also consider option 3 and should pass this option on to the WIPO Program and Budget Committee. The Delegation supported the work outlined in decision paragraphs 100 and 112 and stated that WIPO should help national governments in capacity building in rural areas.
140. The Delegation of Côte d'Ivoire stated that, in relation to option 3 of decision
paragraph 24, it was vital to study co-ordinated approaches between countries and thereby to benefit from the specific experiences of these countries. The Delegation noted that the validity of a toolkit would depend on its operational nature for end users, such as TK holders and confirmed that it was extremely important to help TK holders in this area.
141. The Delegation of the Russian Federation stated that, in relation to decision paragraph 22, experts should be permitted to use all information that is publicly available and that the Committee should be more technically efficient in the use of such databases. The Delegation noted that such databases should be placed on the world wide web as a matter of priority and that the Committee should work closely with the Standing Committee on Information Technologies. On decision paragraph 78, the Delegation agreed that the Portal be maintained for future work and that the goal of the TK database should be defined so that it was possible to conduct searches. The Delegation finished by stating that, its present form, the database was very labor intensive and that it needed to be further developed by WIPO and national experts, to include inter alia consideration of general standards and links between databases.
142. The Delegation of Australia supported option 22 (b)(i) (decision paragraph 24), since the current inventory provided very practical experience for the Committee and should be used to clarify the issue of TK databases further. The Delegation supported option 2 (decision paragraph 78) and decision paragraph 100 since it was necessary to clarify the current IP position regarding documentation of TK and databases, and a toolkit would address the need for capacity building that was emphasized throughout the meeting. The Delegation voiced support for decision paragraph 112, so that the Committee could extend its understanding of TK databases that had already been developed.
143. The Delegation of the United States of America clarified that the objective of the inventory should be to assist researchers and examiners in their work. The Delegation lent its support to the first three options presented in paragraph 22. In relation to decision paragraph 78, the Delegation supported option 2, and also option 3, subject to budgetary considerations. The Delegation looked forward to continued co-operation between the Committee and the SCIT. The Delegation supported decision paragraph 100 and stated that such a toolkit should not be too technical. It hoped that other countries would use either the Chinese or the Indian TK databases as their model and suggested that the Chinese database be used as a model for a classified database for TK, whilst the Indian TK database be used as a model for a text searchable database. The Delegation commented that it strongly supported a co-ordinated approach on the issue of TK databases, since it would be very difficult to search a proliferation of different types of database. It supported decision paragraph 112.
144. The Delegation of Switzerland stated, concerning decision paragraph 24, that the contents of the databases should be further assessed as to their usefulness for the determination of prior art. The Delegation supported option 2 under decision paragraph 78, and said that the portal should be kept open. As to options 3 and 4, the Delegation stated that it was extremely important that a minimum standard of documentation existed amongst TK databases, especially if such databases were to be effectively used by patent granting authorities when determining prior art. Accordingly, the Delegation supported these options, so long as they promoted standardization and addressed issues such as access to the databases and the legal consequences of the storing of TK in the databases. The Delegation said that it was also prepared to examine options 3 and 4 in the WIPO Program and Budget Committee in the context of the biannual budget exercise for 2004-2006. The Delegation supported decision paragraphs 100 and 112.
145. The Delegation of Japan supported option 2 under decision paragraph 78, as it would fully utilize the experiences gained to date, and respect budgetary considerations, and it fully supported the proposal in decision paragraph 112.
146. The Delegation of Panama stated that Panama was in the process of developing a TK databases with the benefit of finance from the World Bank and that it would continue to study document WIPO/GRTKF/IC/3/6 and listen to the debate with interest. The Delegation supported the reference made by the Delegation of India regarding the need to promote capacity building in rural areas and stated that it looked forward to receiving help from WIPO in the development of its TK database.
147. The Secretariat observed that WIPO/IC/GRTKF/3/6 contained a long list of activities and that, given the clear support of the Committee in relation to this document, there was much work to be done. The present debate would be helpful in drafting the budget for the 2004-2005 biennium. It further commented that footnote 24 sought to clarify that even if an on-line database contained information that had been obtained without the prior informed consent of the original holder(s) of that knowledge, it was still published information and therefore could be relevant prior art in patent examination and could be used as the basis for refusing a patent claim. It was extremely difficult for WIPO to determine the consent procedures used by a particular on-line database manager and that the purpose of this exercise was, in essence, to enhance our capacity to ensure that patents and other IP rights are not granted in an authorized manner to unauthorized third parties. The Secretariat noted, however, that the issue of prior informed consent in this context was a challenging question that needed to be answered.
148. The Delegation of Peru commented that it now had a better understanding of
footnote 24. The Delegation commented that, as yet, no delegation had raised the issue of whether databases that had not been prepared with the prior informed consent of the original TK holders should be excluded from the inventory. The Delegation further stated that the inventory should only be available to patent examiners and that a search tool should be developed.
149. The Delegation of Thailand approved the use of inventory for the implementation of Task B.3 by submitting that prior informed consent should always be ensured before placing any TK in the inventory. In relation to decision paragraph 78, the Delegation supported option 2 as a first priority and stated that WIPO should facilitate all collaboration of this issue between Member States. The Delegation supported decision paragraph 100, with the involvement of TK holders, and supported decision paragraph 112.The Delegation of Thailand approved the use of inventory but stated that prior informed consent should always be obtained before publication. In relation to decision paragraph 78,
150. The Delegation of Spain, on behalf of the Members of the European Union, indicated a preference for option 2 concerning the portal. On options 3 and 4, the Delegation understood that preparatory activities could be undertaken as from now, provided there were no immediate budgetary implications.
151. The Delegation of Brazil underlined the need for ensuring that the prior informed consent of TK holders would be adequately addressed. Paragraph 22 of document WIPO/GRTKF/IC/3/6 contained some critical elements that constituted the core issue of the establishment of databases.
152. The Delegation of Egypt said that, firstly, it was necessary to safeguard databases against the illicit use of data and its entry into public domain. Secondly, Paragraph 22 correctly acknowledged the concern of TK holders with the need for informed consent prior to any use of their knowledge. In the Delegation's view, no TK should be put to use without such consent.
153. The representative of the FAO said that databases organized with the aim of classifying species or varieties of animals and plants contained references to uses and denominations that might be of interest for patent examiners. The representative noted that EcoPort was an example of a vast database, in which the owners submitted TK and decided upon how it could be used. That was an example of a bottom-to-the-top decision, as opposed to databases that contained information without the intervention and the consent of its owners. Communities should be always given the opportunity to decide on the use of their own knowledge. The representative said that this could be a point for the Committee to analyze carefully.
154. The representative of the CBD emphasized that the activities under document WIPO/GRTKF/IC/6 were supportive of the decisions of the Conference of the Parties to the CBD on the implementation of Article 8(j) as well as on the clearing-house mechanism. The Secretariat of the CBD was open to discuss the way forward in those areas of collaboration.
155. The representative of UNCTAD supported the various statements addressing concerns on the need for prior informed consent and supported Switzerland's view that some standards, including the identification of a minimum set of data fields, should be adopted to allow eventual interoperability of databases developed and controlled at the national or community level. She had been impressed by the demonstration of the Tulalip Tribe's database, which allowed the community to control access at the individual data field level, by defining different categories of user groups. She added that the scientific naming of plants, animals and microorganisms used by local communities had not been fully examined.
156. The representative of the Saami Council reiterated his organization's concern with the risk that databases might contain TK obtained without the prior informed consent of its owners. His organization opposed the publication and dissemination of TK obtained without such consent.
157. The Chair concluded that the Committee had not identified any priority as regards the activities proposed under Paragraph 22 of document WIPO/GRTKF/IC/3/6. It was clear, however, that the Secretariat needed to work further in the topics contained in points (i) to (iii) of subparagraphs (a) and (b). The Secretariat should report on the results of such work to the next session of the Committee. Concerning the options set out in paragraph 78, the Committee had confirmed the Portal should be kept open as proposed in Option 2. Options 3 and 4 needed further analysis and budgetary consideration. The proposal for a Toolkit, as set in paragraph 100, had found support, but the Committee had clearly expressed its view that such a Toolkit must be operative and functional, and should take account of the needs of the target groups. The Committee had supported the preparation and dissemination of a questionnaire, as proposed in paragraph 112.
Demonstration of TK databases
158. The Delegations of China, India and Venezuela provided demonstrations of national TK databases, in order to facilitate the study of IP issues related to TK databases. Several of these national databases were linked to the portal of TK databases at https://www.wipo.int/globalissues/tk/tkportal/index.html. A representative of the Tulalip Tribes of Washington Governmental Affairs Department provided a demonstration of a community-based database developed by indigenous peoples for both the defensive disclosure and positive protection of their TK.
159. The Delegation of South Africa commended the countries that had worked on the databases and stated that this helped the Committee with its deliberations. The Delegation further inquired what the costs were of such a system, and how long it took to compile such databases. These questions were relevant to determining whether establishing such databases would overburden developing countries' resources.
160. The presentation by the Delegation of China indicated that the China Traditional Chinese Medicine (TCM) Patents Database has Chinese and English versions. The Chinese version contains patent applications published between April 1985 and March 2002, whereas the English version contains those published from 1993 to 1994. It has 29 search fields which fall into four categories: bibliographic information; subject index terms; uses/effects; and TCM formulas. The search features of the database which allowed the user to conduct a Quick Search, an Advanced Search, a TCM Formula Logic Search, a TCM Formula Similarity Search, and a Search History.
161. The presentation by the Delegation of India indicated that the Health Heritage Test Database (India) was established to put TK, already in the public domain, into a modern electronic format which would be available in the English language as well as link TK to modern scientific and patent literature. The Database would be used for defensive and positive legal protection, address patentability issues, increase international recognition of Traditional Knowledge Systems, and catalyze scientific collaboration. The Database had achieved the integration of widely scattered and distributed references into a retrievable form as well as increase awareness at both national and international levels. The Traditional Knowledge Digital Library (TKDL) of Ayurveda was established to prevent the granting of patents for unpatentable inventions on Indian TK, to break the language as well as the format barriers, and to establish modern classification, search and retrieval tools on TK.
162. The demonstration by the Delegation of Venezuela of the Biozulua Database reviewed the relationships between documentation, biological diversity and TK. The Biozulua Database was intended to record, with a software database application, food and agricultural information based on ancestral technology, and native medicine from indigenous peoples which are at risk of being lost due to the impacts of western civilization. Both the database and the software are the property of the Venezuelan State. All the information contained in the database has been categorized as confidential, which is why at present, until such time as sui generis protection mechanism are defined as proposed by Venezuela as well as other countries, the information contained in the database was considered a trade secret, which made access, disclosure and use subject to express authorization by FONACIT. Further any person who had or had access to it was under the obligation to sign a confidentiality letter. The representative of the Indigenous Peoples of Venezuela stated that the database was a tool that, if properly used, could be a significant factor in the preservation and classification of indigenous knowledge threatened with extinction. The representative stated that they considered the information on agro-food, medicine and handicraft viable for the well-being of their peoples, provided that there was fair and equitable benefit-sharing and that the continued participation of indigenous peoples was ensured.
Review of Existing Intellectual Property Protection of Traditional Knowledge (WIPO/GRTKF/IC/3/7);
Elements of a Sui Generis System for the Protection of Traditional Knowledge (WIPO/GRTKF/IC/3/8);
Traditional Knowledge - Operational Terms and Definitions (WIPO/GRTKF/IC/3/9)
163. The Secretariat introduced documents WIPO/GRTKF/IC/3/7, WIPO/GRTKF/IC/3/8 and WIPO/GRTKF/IC/3/9. The Chair stated that, while the documents had been introduced together in view of the close linkages between them, discussions would proceed on each document separately as had been requested by certain delegations.
Review of Existing Intellectual Property Protection of Traditional Knowledge (WIPO/GRTKF/IC/3/7)
164. The Chair noted that the document proposed no tasks as such. Yet, it was suggested in the document, and by the Secretariat in presenting it, that the Committee may wish to approve, first, the Secretariat undertaking fact-finding missions to certain Committee Members to study actual experiences with the use of existing IPRs, and, second, the leaving open of the document to enable States that had not yet done so to submit information for inclusion in further versions of the document, or to update information already provided, as the case may be.
165. In this regard, the Secretariat had suggested issuing a streamlined set of questions to facilitate the provision of further information by Member States.
166. A number of delegations, including those of Argentina, Australia, Bolivia, Brazil Cameroon Canada Colombia, Cote d'Ivoire the Dominican Republic, Egypt, Mexico, Morocco, New Zealand, Norway, Panama, the Russian Federation, Sudan, Switzerland, Thailand, the United States of America, Venezuela and Zambia, as well as the representatives of OAPI, the Secretariat of the CBD and of UNCTAD, supported the proposal that this document remain open for further input and should be updated for future sessions of the Committee.
167. The Delegations of Bolivia, Colombia and the Dominican Republic proposed that the questions contained in the document should be further simplified and streamlined so as to facilitate the preparation of further responses from a wider range of sources, so as to ensure the Committee has a wider information base for its future work.
168. The Delegations of Colombia and Venezuela suggested that the document should more clearly reflect that the majority of Member States had expressed views in favor of the development of a sui generis system for TK. They suggested that the document should not privilege an analysis of existing systems in its conclusions, since it was in contradiction with the responses from the majority of countries.
169. The Delegations of Bolivia, Canada, the Dominican Republic, India, New Zealand, Norway, Switzerland, the United States of America supported the proposal that understanding of existing forms of IP protection for TK be enhanced by undertaking fact-finding missions (FFMs) to countries and communities which have used IP tools for TK protection, with the Delegations of Canada, New Zealand and the United States noting their support was subject to consideration of budgetary implications.
170. The Delegation of India expressed interest in India hosting such a mission.
171. The Delegation of Norway added that the missions should examine how TK protection and benefit sharing worked in practice.
172. The representative of UNCTAD stressed that FFMs should gather information on the costs of using IP systems for TK protection, to put this in perspective via- à-vis the per capital income level of the country, and where possible, the communities concerned.
173. The Delegations of Brazil, Colombia and the Dominican Republic emphasized the need that the Committee cooperate in its work with the CBD and FAO, in particular the CBD Working Group on Article 8(j) and Related Provisions and the FAO Commission on Genetic Resources for Food and Agriculture.
174. The Delegations of New Zealand and Nigeria stressed the need for capacity building in the field of TK, such as the `Toolkit' referred to in document WIPO/GRTKF/IC/3/6.
175. The Delegation of Spain, on behalf of the European Community and its Member States, introduced a document on "Traditional Knowledge and Intellectual Property Rights" which was circulated to the Committee as document WIPO/GRTKF/IC/3/16.
176. The Delegation of Venezuela stated that at the second session of the Committee many delegations had supported the development of sui generis systems and that this should be reflected in paragraph 2 of document WIPO/GRTKF/IC/3/7. The Delegation noted that only a few countries, mainly developed countries, had sui generis systems and applied existing forms of protection. Further details of the experiences in Canada were requested, and the experiences in Kazakhstan and the Russian Federation were also noted with interest. Particular attention should be paid to the recognized rights of indigenous peoples, as well the intentions of protection systems. In Venezuela, collective IP was recognized and possible models were being studied. The Delegation requested the Secretariat to provide studies on the experiences of Panama, Australia and New Zealand. The Delegation stated it would wish to have further information on the limitations inherent in the current IP system as they relate to TK. The Delegation agreed with paragraph 33 of document WIPO/GRTKF/IC/3/7 that TK is not necessarily old, and that, therefore, protection should not be limited to that which is provided by current systems. The Delegation added that the recommendations in paragraph 36 should be seen in the light of the circumstances described in paragraph 33, as they believed that the tasks were not exclusive. They stated further that the Committee should see the opportunities for, and above all ways of, protecting TK with what already exists, but at the same time suggest sui generis options when it is not possible to implement present systems. Those options would constitute the basis for a possible sui generis model, the Delegation added, and that there should be no imbalance when the forms of protection are considered. The Delegation stated further that the Committee should avoid referring only to one form of protection as stated in paragraph 40. The Delegation stated that a distinction now had to be made that was not in the survey: this related firstly to the general protection accorded to the rights of indigenous peoples, secondly to the protection of rights, and thirdly to the aims of protection. The Delegation added that the question should be made more specific in future studies, so that there may be a common model for comparison.
177. The Delegation of Argentina supported paragraphs 37 to 39 of document WIPO/GRTKF/IC/3/7as they were an accurate reflection of the situation concerning the treatment of the subject. The Delegation commented that although paragraph 37 referred to the need to achieve a more comprehensive understanding of how current IP law mechanisms may be used, paragraph 40 referred to and described in detail only one category of rights, which was mentioned by only five of the 48 responses to the survey. The Delegation considered that paragraph 40 did not provide a balanced reflection of the opinions of the Member States and that it appeared to prejudge the positions of both those who had responded and those who had not. The Delegation recommended that the Secretariat revise the document, taking into account all the IP categories mentioned by Members, in order to provide an appropriate balance of opinions. It added that should there be no agreement on revising the document then paragraph 40 should be deleted and the document concluded as such.
178. The Delegation of Brazil stated, in relation to documents WIPO/GRTKF/IC/3/7, WIPO/GRTKF/IC/3/8 and WIPO/GRTKF/IC/3/9, that work by the Committee in the area of TK would be relevant for discussions in other intergovernmental organizations, such as the CBD and the WTO in carrying out their respective mandates to discuss the protection of TK. In particular, Decision VI/10 on Article 8 (j) and related provisions, approved by the Sixth Conference of the Parties of the CBD was recalled, which requested the Ad Hoc Open-ended Inter-Sessional Working Group on Article 8(j) and Related Provisions of the CBD "to address the issue of sui generis systems for the protection of traditional knowledge." The Delegation believed the inputs by the Secretariat and Members would be useful for the CBD Working Group. In addition, the Delegation stated that it saw the documents prepared by the Secretariat as an initial basis for discussion, and that, therefore, its comments amounted to a preliminary reaction to their content, within the understanding that the elements contained in the three documents were not exhaustive. Addressing directly document WIPO/GRTKF/IC/3/7, the Delegation noted that most countries which relied on the conventional IP system were developed, which seemed to support the need for the development of a sui generis system, in light of the difficulties of traditional communities in developing countries to adjust their knowledge to the rules of the IP system. The Delegation requested that subsequent versions of the document reflect that the Brazilian sui generis system established by Provisional Measure 2.186, of August 23, 2001 on genetic resources, associated TK and transfer of technology (described in paragraph 16 of the document), provides for positive rights which cannot be altered or diminished by bilateral contractual arrangements. This correction would also be consistent with the position of Brazil in favor of protection of TK through legislation, rather than merely bilateral contracts. In the view of the Delegation, bilateral contractual arrangements alone were an insufficient means of protection of TK, as the parties involved were most often in unequal situations. On the other hand, protection through legislation, with active participation and supervision Government, was a safer way of ensuring that protection of TK was in the best interest of their communities. The Delegation agreed with the first group of responses identified in paragraph 32, but had reservations on the first indented
sub-paragraph, as it did not agree that all TK was necessarily public domain. Finally, the Delegation agreed with those Members which had expressed concerns about geographical indications having been singled out in paragraph 40 of the document, as they had considerable limitations as a means of protection of TK and were not effective in preventing biopiracy.
179. The Delegation of Australia stated that in relation to the reference to a "divide" in paragraph 38 of document WIPO/GRTKF/IC/3/7, the position of Australia was not as unequivocal as that term may suggest. Australia supported further work towards the development of an international model for the legal protection of TK. Such a model should be built upon the full exploration of the ability of the existing IP systems to meet some of the needs for TK protection. Increasing understanding of domestic practices to protect TK would greatly assist the Committee's progress. The Delegation suggested the Committee should seek to identify areas where the existing system could be improved to assist with TK protection, and that such improvements were likely to require consideration of areas where existing systems could be improved, which could include sui generis responses.
180. The Delegation of Egypt advised that it had not yet provided information on its national experiences with TK protection as it has been involved with the preparation and enactment, in June 2002, of legislation on this matter. The divergence of views referred to in paragraph 38 of document WIPO/GRTKF/IC/3/7 was, in its view, natural given the differences between countries in terms of their laws, cultures and traditions.
181. The Delegation of Algeria, speaking on behalf of the African Group, supported the undertaking of additional work to further understand how existing IPRs can be better used. This would be an opportunity to help States and encourage their broader participation in such work. The African Group stressed the need for working documents to be available in languages other than English. The Delegation stated that it supported the Secretariat undertaking the task in paragraph 19. Regarding sui generis systems, the African Group believed that there was a need to identify the objectives of protection, the type of protection desired, the contents of the rights and the identity of the holders of the rights, and that it would be useful to draft efficient sui generis systems at the national, regional and international levels. Customary laws and practices should also be taken into account. In respect of the holders of rights, they were generally individuals, families or communities; however, where they could not be identified, the State should act for them. The Delegation reaffirmed its call for the establishment of an international binding instrument for the protection of TK. The Committee should draft a definition of TK which was open and allowed for a high level of protection. The support of WIPO was called upon for capacity building, the raising of awareness and the establishment of the necessary institutions at the national level. Legislative texts should be translated into local languages. Finally, the Delegation stated that it was convinced of the role that traditional communities could play, with the assistance of national Governments, in the preservation, promotion and protection of their TK.
182. The Delegation of the Russian Federation stated that Members of the Committee should continue to use existing mechanisms and find sui generis mechanisms to provide for the efficient protection of TK and IP. There was a need to analyze the information in document WIPO/GRTKF/IC/3/7 further.
183. The Delegation of Zambia noted that the position of the African Group, which it supported, regarding the need for a sui generis system had the blessing of the African Heads of State and Government, as illustrated by the adoption of the African Model Law on the Protection of the Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources. The Delegation was of the view that current IPRs do not promote or reward TK, TK systems and innovations. Current IPRs also raise problems with the identification of beneficiaries. Attempting to mould TK to fit current IPRs would destroy the very essence of TK. Therefore, sui generis systems were needed at national and international levels.
184. The Delegation of India underscored the need for a deeper understanding and analysis of existing mechanisms and their effectiveness or limitations in protecting TK and endorsed paragraph 39 of document WIPO/GRTKF/IC/3/7.
185. The Islamic Republic of Iran stated that in the field of protection of TK, the common factors of TK and folklore must be taken into consideration, while all countries in principle accept to protect TK as an independent category. The Delegation noted that there was no common view neededon how to protect this independent category: some countries believed that existing IP standards in general or specific areas were available for the protection of TK, while others recommended codifying a sui generis system for the protection of TK in any way. The Delegation stated further that the first step should be to adopt a uniform legal approach for the protection of TK and that a future survey should be better formulated to obtain harmonised answers.
186. The Delegation of Guatemala referred to the Cultural Heritage Protection National Law in its country, and stated it was interested in learning more about systems in other countries. The Delegation stated that it supported the statements of Argentina and Brazil concerning the need to consider other options beyond geographical indications, and requested the Secretariat to provide more detail on the use of geographical indications to protect TK.
187. The Delegation of Thailand expressed the view that there should be a parallel study of how to use the existing IP system to protect TK, through, for example, the use of trade secrets or geographical indications to protect TK and genetic resources respectively, together with the exploration of a sui generis system with the aim of eventually developing a sui generis system. The Delegation stated that the document should be open-ended, to provide more examples to find how existing IP could be used to protect TK in a holistic approach to cover not only the knowledge itself, but also the culture and all heritage related to it.
188. The Delegation of Switzerland stated that the use of existing mechanisms for TK protection has not been thoroughly analyzed. More detailed and extensive analysis should be carried out.
189. The Delegation of Canada stated it was desirable to better understand how Members were using existing domestic IP mechanisms to protect TK. The Delegation offered four conclusions on the document. First, existing mechanisms have much to offer, and further reports on actual experiences would be useful. Second, it would be helpful to hear the experiences of those Members who have implemented or are contemplating specific forms of protection. Third, TK holders should be made aware of how to acquire, exercise, manage and enforce their rights under the existing systems, and it was suggested that the Committee might benefit from reports on the experiences of Members on the success of capacity-building efforts to assist TK holders in using existing systems. Finally, an identification of the scope of any limitations in the existing system which render it unable to fully meet the needs of TK holders would be possible only after these activities had been thoroughly analyzed.
190. The Delegation of Panama referred to its sui generis system established by Law 20 of 2000 and offered to make a presentation on it and its experiences so far in its application in practice. Panama was continuing to review and study the system.
191. The Delegation of the United States of America suggested that a thorough analysis of how existing IP rights could be used by TK holders had not yet been completed. It hoped that such an analysis could deepen the understanding of how current standards concerning availability, maintenance and enforcement of rights may be used for TK protection. TK holders might wish to use several forms of IP protection in an overlapping way. As an example, it referred to the overlapping use of copyright, trademark, trade secret and patent protection by software designers and suggested that TK holders could take a similar approach. It suggested that the example of a shaman's TK quoted in the document could refer to the usefulness of various forms of IPR currently in use. With this approach, it suggested, one may not need to prove infringement of all the elements of the TK. Rather, unauthorized making of a part of the TK, such as the use of the formula without the use of the chant, may, in its view, be sufficient for a finding of infringement. While conceding that existing forms of IP protection and other forms of protection, such as contracts or tort law, may not provide perfect protection, it suggested that wider use of the IP system may prove useful to those seeking to protect their TK. It therefore suggested that WIPO assist Member States in its regional programming to better adapt existing IP laws to their concerns about TK. The Delegation observed that a greater emphasis on the acquisition and enforcement of IP rights could afford economic and non-economic benefits.
192. The Delegation of New Zealand suggested that the examination of how existing IP mechanisms might be used for TK protection should have both a practical and a theoretical focus. It felt that a practical approach was important since existing IP mechanisms might be applicable to TK technically, but TK holders in practice might not use them. The Delegation observed that only through a more thorough examination of existing forms of IP, could the Committee determine what deficiencies existed and what gaps needed to be filled. That might take place, the Delegation suggested, in the form of modifications to existing IP mechanisms or the development of new IP-type approaches. It also suggested that some answers might lie outside IP, particularly where positive protection was concerned. It suggested that the Secretariat should collect further information on the actual exploitation of TK and the downstream granting of IPRs, since this would enhance an understanding of the problem under discussion.
193. The Delegation of Morocco believed that it was still early to address objectively the scope of IPRs for TK. It stated its wish to learn more about the experiences of Member States in applying existing IP mechanisms, such as Kazakhstan's experience in the application of industrial designs and Japan's experience in the application of patents. It mentioned geographical indications, appellations of origin, patents and industrial designs as IPRs which might apply to the protection of TK. It proposed to place the definition of TK in the framework of IP. It also emphasized that current IP tools could not protect TK sufficiently, and the Committee would therefore have to create new tools.
194. The Delegations of the Dominican Republic and Mexico stated that paragraph 40 of document WIPO/GRTKF/IC/3/7 was not balanced because it only stressed geographical indications. While the Delegation of Mexico agreed that geographical indications could contribute to the protection of TK associated with biological diversity and should be further explored, it noted that they would not stop biopiracy. It suggested that the Committee should evaluate existing forms of IP protection, but creating a sui generis system would provide a heightened dvantage. The Delegation of Mexico suggested that the Committee explore the possibility of double protection, because the use of current IPRs and a sui generis system of protection were not necessarily mutually exclusive.
195. The Delegation of China noted with appreciation that in the document on expressions of folklore submitted by the European Community and its Member States (document WIPO/GRTKF/IC/3/11), in which many views worthy of considerations were proposed. On the definition of TK and the establishment of a sui generis mechanism of TK protection, the Delegation commented that existing IP mechanisms, such as patents, trademarks and geographical indications, could to some extent provide IP protection to TK and the Committee should further study appropriate measures in this regard. Some TK was of a special nature, so that it was hard to know who the TK holders were and whether the TK was already in public domain. Therefore, it is of the opinion that, the existing IP systems could not provide adequate protection to TK. While using existing IP systems for TK protection, consideration could be given to sui generis protection for TK.
196. The Delegation of Colombia observed that despite the analogies drawn by the document with existing IP mechanisms, it did not include other mechanisms which could be included in protection systems. It suggested that the Committee should pay more attention to the issue of PIC as it explores existing protection systems and the design of sui generis systems. The Delegation reminded the Committee that work on genetic resources and TK was also ongoing in other UN fora and that WIPO should have permanent relationships with those bodies in order to take into account their work. It highlighted the decisions of the Conference of the Parties to the CBD and the Working Group on Article 8(j) and Related Provisions of the CBD. It also mentioned the work of the Commission on Genetic Resources for Food and Agriculture (CGRFA) in the FAO. It stated that the Committee should take into account Article 9 of the FAO Treaty, which related to farmers' rights and thus dealt, inter alia, with TK. It noted the usefulness of the experiences with databases which had been presented to the Committee by China, India and Venezuela, but noted that different database approaches might be appropriate for different countries and advised to move cautiously in making general decisions on database use. It stressed the importance of protecting the rights of communities and exercising the appropriate care in the use of databases.
197. The Delegation of Kenya expressed its concern that TK was quickly disappearing and the Committee's work was therefore urgent. It informed that while Kenya was considering a sui generis system, it was already exploring ways of using existing IP systems for the protection of its TK and genetic resources, such as the protection of TK as utility models. It noted that Kenya was encouraging its traditional healers to add value to their concoctions and noted that this would facilitate data collection and compilation. Having learned from the presentations of India and Venezuela, the Delegation emphasized the importance of data compilation. It stated that Kenya hoped to do what India and Venezuela had done in respect of the use of databases. The Delegation noted that TK documentation was crucial and urged WIPO to include this item in its budget for cooperation for development.
198. The Delegation of Sudan supported the statements made by the Delegation of Algeria on behalf of the African Group and other delegations that made similar statements. The Delegation also supported the proposal in paragraph 39 of document WIPO/GRTKF/IC/3/7, calling upon the Committee to further study existing protection systems and consider, at the same time, the possibility and aof a sui generis system of protection. It noted that ripeit was too early to conclude clearly whether it was appropriate to establish a comprehensive system for the protection of TK, be it within the present traditional IP systems or in the form of a new sui generis system. The Delegation stated that further consideration would allow countries which have not yet responded, to express some useful opinions, especially since only 48 countries (or 30% of the membership) had made such contributions. The Delegation stated that as indicated by the Secretariat in document WIPO/GRTKF/IC/3/7, paragraph 38, there was a clear divergence in opinions. In view of the fact that Member states have usually worked by consensus on minimum concepts and provisions to be later integrated in international conventions that harmonize their practices, the Delegation stated that there was a need to allow the Committee additional, yet reasonable, time for further studies and analyses, provided that Member states would be free to apply their own legislation for the protection of TK and genetic resources. In that respect, the Delegation mentioned a Committee for the Revision and Reform of National Legislation, including IP legislation, formed by the Minister of Justice and chaired by a former Chief of Justice of Sudan.
199. The representative of UNCTAD noted that information on national systems of TK protection was available at the UNCTAD website. She reminded the Committee that TK-holders tend to be very poor. She said that, if a survey were done, for example, of per capita income levels of indigenous peoples, the results would probably be quite similar to those of the Least Developed Countries. For these communities, devoting resources to obtaining IPR protection may involve very high opportunity costs in terms of meeting their basic food, health and educational needs.
200. The representative of OAPI supported paragraphs 31 to 36 of the document, but had reservations on paragraph 40 since he felt that geographical indications could better protect tangible expressions of folklore or agricultural products. Any instrument protecting TK should address the possibility of designating regional bodies such as OAPI to administer TK.
201. The representative of the Secretariat of the CBD welcomed the ongoing review and assessment of IP instruments under the present document since it would support the work of the Working Group on Article 8(j) and Related Provisions and would assist in the preparation for the next meeting of the Working Group. Referring to the relevant paragraphs of COP Decision VI/10, she stated that the CBD Secretariat would be grateful to receive information collected by WIPO on the protection of TK through national IP legislation.
202. Responding to a question posed by the representative of OAPI, the Delegation of Australia referred the Committee to their response submitted on document WIPO/GRTKF/IC/2/7 and stated that the listed four cases were to illustrate how the Australian legal system was able to accommodate some elements of protection for traditional, cultural and customary law. The case referred to by the representative of OAPI was one of the first to address the protection of works drawing on Aboriginal culture under copyright law. It demonstrated the ability of the existing Australian legal system to deal, in a culturally sensitive way, with the award of damages. The case confirmed that copyright protection could be granted to an artistic work which essentially drew on traditional motifs and forms. Any artist who produced works based upon indigenous forms was nevertheless producing something which had sufficient originality for copyright protection. During the actual conduct of the case, a number of artists involved had died before the proceedings were completed. Under Aboriginal law of that particular group, it was not appropriate to use the names of the deceased artists, and the court proceeded with the action without specific reference to the Aboriginal names of those particular artists so as to respect that sensitivity. On the question of the harm that suffered by the artists and the damages to which they may be entitled for the unauthorized reproduction of their material, the judge considered the damage also concerned the reputation of the artists within their own community and their responsibilities within that community to protect and safeguard the images. The particular loss of reputation within their own community on that community's terms was not necessarily a sense of damage that would be understood within the broader Australian community, but was nonetheless taken into account in assessing the level of damage resulting from the reproductions. A further consideration was that the reproduction of this particular material caused damage to a number of people within the community other than the artists themselves. Instead of awarding a specific level of monetary compensation to each individual artist, the court provided a single overall award of monetary compensation which could then be distributed to and within the Aboriginal community involved in accordance with their customs and their traditions, having regard to those persons who had suffered harm from the perspective of their customary understanding and responsibilities. The Delegation concluded that the case illustrated flexibility in terms of copyright law and the common law system to accommodate customary understanding of damage and of harm, and the customary responsibilities of persons within their community.
203. Responding to a request by the representative of OAPI for further information, the Delegation of Australia advised that community rights were not specifically recognized under Australian law, except to the extent that people may be joint authors or have jointly created the particular work that is the subject of copyright action. Collective interests had been recognized, however, in the determination and distribution of damages. Australia was examining the prospect of creating a community right in relation to moral rights under copyright for indigenous communities and that proposal was at the policy level, but it was certainly something that had been indicated by the present government as an objective for its current term of office.
204. Responding to a question by the representative of OAPI, the Delegation of Peru described the Peruvian process which began in February 1996 following the on the realizationwhen realizationing of the need to set up a sui generis system to protect TK. The draft bill, concerning a sui generis system for the protection of TK, was published for comment in the Official Journal on October 21, 1999. A second version was published in August 2000, and a final draft bill was prepared. However, since indigenous communities had not been fully consulted, the proposal was not sent to Congress at that time for approval. Since then it has been held pending, mostly due to the lack of sufficient funding to carry out the necessary consultations. The new government under President Toledo had expressed great interest for all matters pertaining to indigenous communities and indigenous issues. The latest version of the Bill, completed June 10, 2002, had been overseen by the first lady of Peru, Chair of the National Commission for the Andean, Amazonian and Afro-American peoples. This proposal served as a basis for discussions of this Committee and of those to be carried out within indigenous communities and with society at large. A consultation process would be initiated in coming months. The Delegation stated that it firmly believed in the need to engage in consultations with indigenous peoples and communities in each country, respecting the provision of Convention 169 of the ILO. One of the fundamental elements of the proposal was prior informed consent and equitable benefit sharing. Another was the intention to set up a special fund, which would be managed by the indigenous peoples themselves. It added that substantial changes had been made in the latest version of the Bill concerning the registration and in the further development of such registry of TK. In the previous draft, the registry was essentially confidential and its objective was to preserve TK. At the request of indigenous representatives who participated in the work done under the new proposal, new objectives were incorporated and three types of registries were included. Two will be managed by INDECOPI, the national office for IP. One will be public and the other will be confidential. The National Public Registry would provide INDECOPI information needed to defend the interests of the indigenous peoples and to protect their collective TK. INDECOPI would send information to other patent offices, so that patents would no longer be issued based on TK without taking account of the TK of indigenous peoples. The confidential registry would preserve the TK and keep it from disappearing. The third registry would be a local registry to be managed by the indigenous peoples and communities themselves. For all three registries, the rights of indigenous communities to register their TK would be kept in mind. TK entered in the confidential registry or the local registries would remain confidential and would be part of prior art. The registries were not mandatory , as it was recognized that it was an inherent right of indigenous peoples' to develop and preserve their own knowledge. Furthermore, the indigenous peoples had rights over their TK because they have developed and preserved it, and that these rights could not be subject to any obligation. In conclusion, the Delegation stated that up-dated answers to the questionnaire would be sent to the Secretariat and further information will be provided on the new proposal for distribution to the Members of the Committee. A French translation of the proposal would be sent to OAPI.
205. The representative of the Indian Movement Tupaj Amaru stated that after over 500 years of exploitation and appropriation of TK, including the plunder of artistic and cultural goods belonging to the indigenous peoples, there was an urgent need to protect and to save collective heritage from the transnational corporations. The representative felt that the Committee should examine the legal protection of TK in the process of globalization of markets, capital and enterprises whose impact was fatal to the survival of indigenous peoples. He further stated that historic communities have disappeared with their knowledge, their secrets, and their laws on protection of their TK. Many Members, in response to document WIPO/GRTKF/IC/3/7, reported that the existing mechanism for IP protection would be effective in protecting TK. While mechanisms for protection exist, there was no political will to put them into practice and to apply them, just as was the case with international instruments on human rights. In relation to question number 2, the representative stated that other Members stated that they would prefer a sui generis system as a new mechanism to protect TK. This would seem to demonstrate that IPRs and other instruments, specifically the Berne Convention and its article 15, are neither sufficient nor effective in protecting TK which has its source in ancestral civilizations. The representative further stated that Indigenous peoples in the United States of America have been bringing to the fora of the United Nations the issue of drawing up a binding international legal framework, one that would protect, safeguard and restore genetic resources, TK and folklore. In response to the allegations that drawing up new standards at a national and at an international level would be a difficult, long, complex and premature exercise the representative recalled that efforts to create an international mechanism were not new. A process had begun twenty years ago by UNESCO and WIPO which resulted in the 1982 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Actions. In conclusion, the representative invited the Committee to continue examining the two options proposed in documents 7 and 8, which specifically included proposals from indigenous peoples.
206. The representative of the Institute for Agriculture on Trade Policy (IATP) outlined the role of the Institute and briefly elaborated on IATP's partnership with certain organizations from civil society. The representative stated that the IATP and many organizations from civil society were concerned that access to TK and genetic resources really meant easier access to such resources by corporations because the legal grounds were laid to extract those resources. Experience showed that access to genetic resources by corporations eventually could lead to claims of IPRs on living organisms that had been obtained through the manipulation of the original genetic resources. The representative further stated that legal agreements between governments and corporations could open the doors for corporations to eventually claim ownership of genetic resources and the genes therein. In other words it would mean the legalization of biopiracy which was precisely what sessions like this one intended to prevent. The representative stated that while they welcomed the protection of genetic resources and their sustainable use for profit by the communities who hold these resources, further measures were needed to prevent claims of ownership of DNA, the blueprint of life. IATP called upon governments to support a ban on patents on life, which would protect indigenous knowledge and to take measures to prevent the ownership of genes by private companies and to declare genes a patrimony of humanity.
207. The representative of the Health and Environment Programme briefly outlined the Programme's cooperation with other organizations. The representative referred the Committee to the signed framework cooperation agreement between WIPO and the Government of the People's Republic of China. This far-reaching agreement covered all fields of IP. The representative was of the opinion that such an approach could also benefit the African countries and queried whether WIPO, OAPI and ARIPO could assist in such endeavors. The representative observed that no African country had spoken on national experiences and felt this to be rather alarming. The representative questioned whether this lacuna was a reflection of lack of political commitment or rather a lack of competence. The representative suggested that would be appropriate to train IP experts who could then assist indigenous communities. The representative called on greater efforts in raising awareness of the issues and appealed to WIPO to further cooperate with civil society from the African region so as not to repeat the experiences of other nations.
208. The Delegation of Algeria, speaking on behalf of the African Group, stated that the political will of the African group was steadfast and committed. The Delegation stressed the importance the African Group placed on the protection of TK and genetic resources and its past stress on the link of genetic resources and IP. The Delegation noted that the African group had produced a paper for this Committee and it underscored the position of the African group vis-a-vis local communities at the national level to better handle TK and in the provision of protection.
209. The representative of the Aboriginal and Torres Strait Islander Commission (ATSIC) stated that it was in favor in keeping the document open and welcomed comments made by the delegations of New Zealand and Kenya, particularly in relation to the identification of gaps and information, and adding this to the survey so as to look towards the practical implementation which should be included for the protection of TK. With regards to document WIPO/GRTKF/IC/3/7, paragraphs 25 to 28 and paragraphs 29 to 36, the Delegation was concerned that the document provided a global picture were no special measures were in place to assist TK holders handling their IP matters. The representative felt that special measures had to be a large part of the protection of TK. An expert legal opinion on the Convention of Elimination of Racial Discrimination indicated that the term "special measures shall be implemented" meant that special measures must be implemented to overcome racial discrimination and disadvantage. ATSIC was convinced that special measures were needed in the area of TK. The representative recalled an earlier presentation noting in some research that only half of TK had survived transmission between generations. There was a great risk of the loss of TK that had mainly been carried on through oral tradition and other forms of tradition. The protection of TK should include special measures to ensure that there was no further loss of TK within indigenous peoples and their communities. More attention should be given to question 26 and that document should continue to develop the issue. The representative quoted paragraph 4 of document WIPO/GRTKF/IC/3/8 and emphasized that the more that was done at the domestic levels to protect TK through special measures, the less difficult it would be to then deal with international sui generis protection. Finally, the representative commented on the contribution of indigenous peoples and NGO groups and cited the recent establishment of the Permanent Forum on Indigenous Issues, where the Secretary General welcomed the indigenous peoples to the family of the United Nations. However, the representative stated that it was difficult to make contributions from such a small group of representatives attending the meeting and raised the issue for States to consider greater involvement of indigenous representatives in their delegations.
210. The representative of the Indian Movement Tupaj Amaru gave a statement with regard to document WIPO/GRTKF/IC/3/4. The representative quoted paragraph 2 of the preamble of the CBD which was ratified by 160 states. The representative stated that for Indigenous peoples' genetic and biological resources were comprised of an infinite number of living organisms which were in constant change and constituted the collective heritage of indigenous communities and world heritage and that therefore the Committee should examine this matter further and not only in terms of markets, profits and investments. The representative further added that the structure of the proposal on the database and contractual clauses for access to genetic resources and showing of the benefits in document WIPO/GRTKF/IC/3/4 sets out a simple, technical and legal methodology for a wide consensus of the Committee. He stated, however, that the indigenous communities and peoples felt that the technical mechanisms set out in the document were much too complex for them to interpret and implement and that they were inaccessible to the holders of the TK in indigenous communities and the holders of genetic resources. The representative added that the document may appear to be simplistic in its approach to genetic heritage in that it focused mainly on mercantile issues and that these were very complicated issues for indigenous communities. The representative stated that it was necessary to regulate access to these resources and clearly establish rights for equitable benefit sharing. The representative referred to the special working group of the Convention on Biological Diversity on access and benefit-sharing which recommended standard frameworks to govern the use of genetic resources, and to paragraph 3 of the WIPO document which set out options for guide contractual practices and non-binding practices and voluntary initiatives in the IP realm. He added that the Model Provisions had never functioned as effectively as they might have in the past in generating an effective framework mainly because developing countries had lost their negotiating power. He stated that developing countries were unable to lay claim to certain undertakings and fight certain activities of companies because their structures had been dismantled. The representative stated that there were no clear definitions on genetic resources. In Annex I paragraph 4.1, on conditions for use which would apply to the database, the right to manipulate genetic material was recognized and this was also the case for genetically modified foods including maize. The WIPO Secretariat, the Member States of WIPO, and providers of information should assume responsibilities when it came to the use and abuse of databases, and information protected in databases should be transparent. The representative stated that a major threat was biopiracy of genetic resources and this had always been a problem. With regards to paragraph 4.2(b), the representative urged the Committee to include the originators of TK as full right holders which have a full right to negotiate access to genetic and biological resources of which they had been deprived. The representative added that the Committee should take a further step to ensure full informed prior consent of indigenous peoples in the negotiating process which could lead to any possible agreements. He stated that indigenous peoples should be involved the devising of legal instruments designed to protect genetic resources as well as share in the benefits thereof. The representative stated that the procedure for application of intellectual protection should require the applicant to provide proof that the holders of indigenous communities had given them the permission for use of the resources. With reference to point (iv) on the scope of the contract, the representative stated that the indigenous peoples were opposed to the inclusion of human genetic resources in the database for reasons of ethics and respect for human dignity. In regards to the draft contract the representative requested the Secretariat to provide a clear explanation when it came to the use of genetic materials in the database and national security issues, the ultimate objective of this initiative in today's world. The representative added that WIPO should lead workshops and educational activities targeting indigenous peoples in explaining the structure and scope of instruments such as the database all of which are contained in WIPO's website.
211. The Chair concluded that document WIPO/GRTKF/IC/3/7 be left open for further input, and that the questionnaire on national experience with TK (WIPO/GRTKF/IC/2/5) would be revised and circulated in simplified form, based on any comments received by the Secretariat by the end of June 2002.
Elements of a sui generis System for the Protection of Traditional Knowledge (WIPO/GRTKF/IC/3/8).
212. Recalling that document WIPO/GRTKF/IC/3/8 concerned elements of a possible sui generis system for the protection of TK, the Chair stressed that the Committee was not discussing whether such a system should be set up, nor its nature, but the possible building blocks of a system; in other words it should be a purely technical discussion. He referred to paragraphs 29 to 57 which contained several important elements, and in particular paragraph 34, which listed the elements of a sui generis system.
213. The Delegation of Venezuela stated that the development of a sui generis system should occur in tandem with a study on how to optimize existing structures to promote the protection of TK. It agreed with the Secretariat that TK had unique features that should be seen in a holistic light, but expressed uncertainty as to the suggestion in the document that all traditional forms of knowledge were generated by communities in reaction to environmental change. These features need to be reflected in a sui generis protection system. The Committee needs to decide whether or not to deal with this nationally or internationally. Member States needed to discuss what kind or protection was needed, whether or not to opt for a defensive or protective protection, and then determine what instruments to use and which institutions should be involved. The Delegation believed that all forms of TK should be included, and expressed preference for part B and the focus on genetic resources and biodiversity. This was a major risk area for biopiracy. With regard to additional criteria for protection, the Delegation agreed that the information disclosed should be seen as part of the public domain. The Delegation stated that many forms of TK may be lost through normal IP systems and that databases could merely heighten this risk. The the Committee needed to define the object of protection and think about commercial novelty and expressions of cultural identity. Some concepts were restrictive. These criteria should serve to protect knowledge which requires protection and not be used for ulterior motives. Ownership of rights of TK should be given to the communities rather than individuals and that the Committee should recognize consensual rights. A mechanism was needed to provide geographical information and that the Committee should focus on the needs and rights of the holders of TK particularly in situations where TK is shared amongst numerous communities. Laws and rules which govern indigenous societies in terms of how TK is used should also be taken into account. The Delegation stated that sui generis system might include accommodating existing IP mechanisms that may be adapted or entirely new mechanisms. With regard to access to right and acquiring of rights, the Delegation preferred an indefinite protection of TK and that this should apply to specific products in particular expressions which might be put to industrial and commercial use. A sui generis system should not be seen as conferring new rights for TK, as these knowledge rights already belong to the indigenous communities, but merely to take account of theise rights. The Delegation stated that an effective mechanism for enforcing rights was needed to make sure that the rights are effective in all stages and that the communities are fully involved in the process. The Delegation hoped to see a defensive system for TK protection consolidated and that the Committee should work to influence the work carried out by the IPC, patents and other IPRs. It was too early to decide whether or not they should be applied nationally or internationally but this could be decided at a later stage. As previously mentioned at earlier meetings, a sui generis system should be unique and adaptable, and this should be constantly kept in mind. The Delegation stated that the Committee should make sure that countries importing TK did not use patents to misappropriate TK. The Delegation believed that the Secretariat should take in account of work being done in other fora on this issue and examine how IP relates to TK protection at the current time.
214. A representative speaking on behalf of the indigenous peoples in Venezuela reiterated the concept of territoriality which was intimately linked to TK in Venezuela and that legal recognition was a starting point for true recognition for the protection of TK. He stated that TK of indigenous peoples did not just concern medicinal plants - it had a vast domain in which the magic and the sacred dimension were never lost. He believed that to try to break down their knowledge and market it would have a serious impact on their culture and was something that would have to be discussed with them, so that they could decide what contribution they might be able to make to medicine and biodiversity. The representative stressed that full prior consent and equitable benefit sharing and had to form the basis of any future discussions. He added that indigenous peoples should be involved in all stages in the promotion and protection of TK and would like o see the promotion and implementation of a fund which would allow indigenous peoples to attend and participate at the meetings of the Committee.
215. The Delegation of the Dominican Republic believed that the document was an excellent basis to develop a sui generis system of protection for TK. The Delegation said that the main characteristic of TK which would define the type of protection under a sui generis system was that it was generated by communities as a response to environmental changes and was therefore constantly evolving. The Delegation repeated that TK did not mean old knowledge; on the contrary, it was constantly evolving and changing and that constant change was that which made it pertinent. The Delegation stated that this character trait was important to take into account especially when the other defined elements and criteria were looked at. With regard to commercial novelty, through which TK could be protected, the Delegation felt that this notion although useful was a limiting one when speaking of the protection of TK under a sui generis system mainly because this only gave protection to that knowledge which had not been commercially exploited. The Delegation felt that the Committee should go further on this issue and take into account specifically that TK already existing in the public domain and already exploited commercially. This should be a guiding principle of any sui generis system of protection for TK because protection can only be granted if the rights were already recognized. The Delegation believed that the protection of TK should not be limited to registers and documentation, as they were not the only proof of the existence of TK. The Committee should study the viability of protection without formalities, as there was TK that had not been documented and was under constant and permanent change and was created as part of cultural identity. The Delegation referred to paragraph 43 of the document which refers to TK shared between two differentcommunities and the fact that those communities would like to commercialize the knowledge is disclosed, the documents states that this is a restriction on commerce. The Delegation noted that there is no right given to the disclosure of the information, and the use of this information would not be an infraction of anti-monopoly rights. The Delegation stated that the paragraph should be corrected where it indicates this type of cooperation could have incidents on anti-trust law as the Delegation felt that when discussing sui generis systems it would be inappropriate to discuss anti-trust legislation in the same way other IPRs are applied in the discussions. The Delegation believed that the objective was not to compete with TK holders but to recommend that the Committee foster cooperation with TK holders in order to avoid competition. With regard to future work on this issue the Delegation supported the proposal made by the Secretariat in having non-binding guidelines and recommendations. The Delegation pointed out that a sui generis system does not mean that the Delegation did not want a defensive or preventive protection but the Delegation stated that they were referring to one type of protection as there can be many types and that defensive and preventive protection already exists. The Delegation stated that the Committee should look at the work in other committees of WIPO especially the positions taken by the developing countries, as these positions need to be taken into account when discussing these issues. The Delegation stated that they fully supported the document and that they would like to have this document included in the next session of the Intergovernmental Committee.
216. The Delegation of Thailand proposed that a sui generis TK system should include the elements: (i) definition of TK; (ii) classification of each type of TK; (iii) subject matters of protection under each type of TK; (iv) the way in which the right holders should be identified; (v) the rights granted to the owner of TK, which should base on the existing utilization of the said TK by the right holders; (vi) exemptions of the rights; and (vii) exhaustion of the rights. Protection of TK under a sui generis system should be continued perpetually, in other words, there should be no time period of the protection or if there was any it should be renewable as long as the said TK remained inexhaustible. The development of a sui generis system with knowledge of existing IP systems would always lead the Committee to borrow parts of each forms of those protections and adapt them to build up a particular protection for TK. The Delegation stated that this was how new systems had always been developed, and the thorough study of the combination of each type of existing IP would help form a sui generis system for the protection of TK. The Delegation considered that any TK protection, sui generis or using the existing system, must encourage TK holders to continue using, keeping, and protecting their valuable knowledge. The Committee should not let the system become an indirect form of destruction of the accumulated knowledge. The Delegation said that TK, especially medical knowledge, should flow from industrialized countries to developing countries as well, and not only from developing countries to industrialized countries. The Delegation observed that the conclusion in document WIPO/GRTKF/IC/ 3/8 was premature and could prejudice future work of the Committee. It was too soon to conclude that the protection of TK already occurred in the existing IP system and that more work had to be done to accomplish the appropriate protection for TK.
217. The Delegation of Australia stated that it seemed from the interventions particularly on document WIPO/GRTKF/IC/3/7 that there were many views on this issue and that the Committee needed to determine what is taking place within domestic jurisdictions. It would be difficult for the Committee to go too far towards a theoretical framework for sui generis protection without being informed of what was taking place in different jurisdictions and how this was working. The Delegation suggested this document was an excellent framework within which to analyze the work that was going on in individual countries, so as to see how individual sui generis approaches were being used and developed. This would clarify the elements of sui generis protection of TK. The Delegation believed that the Committee needed to analyze these domestic experiences and consider the advantages and the disadvantages of the particular approaches that particular jurisdictions had undertaken. The Delegation stated that the Committee also needed to add another dimension to the analysis of sui generis implementations within domestic jurisdictions and that this would be a perspective on those implementations which document WIPO/GRTKF/IC/3/8 did not clarify. One critical question was how any of these sui generis implementations in various jurisdictions had dealt with lining up the protection of TK with the other forms of IP of protection that were available within that jurisdiction. The Delegation stated that one of the concerns was to clearly understand how protection under a sui generis TK approach would work with the existing copyright system in such a jurisdiction or within the existing patent system where overlaps were present, why they were there, or where there were deliberate attempts to avoid overlaps and why that sort of information was there. The documentation put forward by the Secretariat was an excellent theoretical framework for the key elements of a sui generis system, but the Committee needed to take that framework as not another theoretical step but as an analytical tool to look at laws in a range of jurisdictions.
218. The Delegation of Spain, on behalf of the European Union and its Member States, stated that the document sets out an appropriate first step in analysis. With regard to paragraphs 33 to 38, the Committee should continue to work to establish a dividing line between TK and folklore. The Delegation recommend that the different legal tracks be explored which may be complementary in analyzing these two facets. In relation to paragraph 37, it was necessary to define the scope of traditional TK with regard to biodiversity and leave folklore and handicrafts to be covered by other measures.
219. Referring to document WIPO/GRTKF/IC/3/8, the Delegation of Argentina observed that the debate had not ended within WIPO on the need to devise a sui generis system for the protection of TK, and therefore endorsed the statement in paragraph 4 to the effect that it was still premature to identify the characteristics of a legal framework for TK. With reference to paragraph 6, the Delegation reiterated the need to keep clear the distinction between access to genetic resources and the intellectual property rights that might arise from the protection of inventions based on such genetic resources. It was up to the CBD to regulate access to genetic resources and also benefit-sharing for the States party to it on the basis of the work done by the Working Group on Access and Benefit-Sharing. Referring to Section II of the document, where the concept of TK was discussed, the Delegation acknowledged that the characteristic of the "cultural dimension" of TK was closely linked to the identity and essential dignity of each community. Therefore, with specific reference to what was said in paragraph 14, the Delegation considered that aspects relating to the cultural dimension went beyond the subject matter of intellectual property protection, which were economic in content. It was therefore not right to attempt to find answers to such "cultural" questions within WIPO. The foregoing was borne out by paragraph 18, in which it was clearly stated that intellectual property was a set of principles and rules that discipline the acquisition of rights in intangible assets susceptible of being used in commerce. Regarding the questions posed in Section V, paragraph 34, the Delegation considered that the reply to the first question on policy objectives should be considered the prerequisite for defining the other questions asked in subparagraphs (ii) to (vii). The Delegation said that it understood that a useful and effective system could be developed on the basis of a definition of the policy objectives to be achieved, which should themselves be defined at a national level in each of the Member States, but that many of the questions asked in paragraph 35 were beyond the competence and terms of reference of WIPO. For example, conservation of biological diversity, sustainable use of its components and systems established in response to Article 8(j) of the CBD, equitable sharing of the benefits arising out of the utilization of genetic resources, and preservation of the cultural context. With regard to paragraph 49, on databases, the Delegation pointed out that Argentina regarded the protection provided for at the international level as relating to the original or creative selection made, but not to the actual content (data or material) of the database. Finally, the Delegation felt that the contents of the document should be revised in the light of the discussions held during the course of the session of the Committee, and given the fact that the document had been drafted in response to a request by four WIPO countries.
220. The Delegation of Brazil stated that they believe that progress in WIPO on this issue should not be detached from developments in other international fora, in particular the CBD, the WTO and the FAO. The Delegation believed that the Secretariat had adopted a correct approach for the preliminary discussions on this issue, as it allowed the Committee to gather relevant inputs from Members for consideration of the possible structure of an international sui generis system. The Delegation agreed with the affirmation by the Secretariat in paragraph 16 that "(t)he identification of additional characteristics so as to identify more precisely the scope of protectable subject matter is, of course, a question to be addressed by national laws". Regarding the reference to Article 7 of the Brazilian Provisional Measure on Access to Genetic Resources, the Delegation requested the Secretariat to issue a corrigendum so as to clarify that such provision did not limit the scope of protection to indigenous communities, but also to local communities, including of those of African descent. Article 7 (ii) defined a "local community" as a "human group, including remnants of Quilombo communities, distinguished by its cultural conditions, that traditionally organizes itself throughout successive generations and through its own customs and preserves its social and economic institutions." The Delegation expressed some reservations as to paragraphs 22 and 23 of the document. The Delegation stated that the paragraphs illustrated how TK could be partially protected by existing IPRs. The Brazilian position differed from the suggested approach in paragraphs 22 and 23, as protection of TK should be based on a holistic approach, given that the very essence of TK would be missed if a "piecemeal" model of protection were adopted. With regard to the sui generis elements suggested in Part V of document WIPO/GRTKF/IC/3/8, the Delegation of Brazil believed that the Secretariat introduced a useful basis for discussion. On paragraph 35 (i), the adoption of such a policy objective should always be in strict compliance with Article 8(j) of the CBD, according to which the envisaged protection should not detach the knowledge from its cultural context, therefore, the Delegation did not necessarily see the questions asked in item (i) as mutually exclusive. The Delegation stated that item (ii) was still being considered by the stakeholders in Brazil, particularly the possibility in paragraph 37 of addressing biodiversity-related knowledge as a separate subject-matter from folklore. Concerning item (iii) regarding additional criteria for protection, the Delegation believed that the Intergovernmental Committee should attach particular importance to avoid that the preparation of databases or inventory with the purpose of documenting TK for the purposes of barring its misappropriation by third parties' patent applications ended up contributing to aggravation of the problem. The Delegation was of the view that documentation did not represent a condition in itself for the protection of TK, given that such protection could be given independently from the existence of databases. This clarification was particularly important in light of footnote 37 of document WIPO/GRTKF/IC/3/8, which contained a reference to a statement by Brazil on the use of databases as a means of protection of TK. Databases could be potentially useful for preventing unauthorized use, provided that the burden of proof was not on the holders of TK and that the registry in such databases was not a requisite for the protection of TK. Within the issues included in paragraph 38, the Delegation agreed with the affirmation by the Secretariat regarding the need for defining public domain in connection with TK. In this respect, the Committee should take into account different approaches by countries in handling information on TK, based on their national experiences. The Delegation referred to the presentations by the Delegations of China, India and Venezuela and found them to be extremely useful to demonstrate that the situation of TK regarding the public domain was approached differently amongst countries. The Delegation requested the document to be kept under discussion for the next session of the meeting.
221. The Delegation of Peru supported the proposal made by the Delegation of the Dominican Republic on the need to closely coordinate the work of this Committee with work being carried out in other committees, especially the SCP. Document WIPO/GRTKF/IC/3/8 was a good basis for discussion on the effective protection of TK. It stressed that such protection could not take place at the national level if there was no commitment at the international level. With regard to paragraph 7, the Delegation reiterated its belief that non-binding guidelines at the international level would not be sufficient for such protection. With regard to paragraph 8, it stated that the Committee should focus on an international framework for the protection of TK. The Delegation stated that the Committee should work with a view to establish a system of protection of TK, and did therefore not agree to prioritize the establishment of a system for the sui generis protection of databases. It added that the reason for this was that protection of TK went beyond databases and did not have to be linked to the protection of databases. The Delegation supported the statement made by the Delegation of Colombia with regard to prior informed consent. With regard to paragraph 34, it was indispensable to incorporate the concept of equitable benefit sharing derived from the profits which may be gained from the commercialization of TK. The Delegation of Peru supported paragraph 37 although it was not the only option or decision which was to be taken by indigenous communities. A consultative process should take place within each country. With regard to paragraph 38, concerning TK and the public domain, the Delegation stated that consideration should be given to the fact that a great deal of TK in the public domain had been disclosed without the authorization of indigenous communities. The Delegation fully supported paragraph 42 with regard to the customary law of indigenous communities and how they were vital to those communities. With regard to paragraph 43, which dealt with thefundamental issue of development, a concept that should be developed further, the Delegation felt that caution should be taken not to create conflicts between and among communities. The Delegation did not agree with paragraph 44, but agreed with paragraph 46 as indigenous communities have moral rights as TK was part of their cultural heritage. With regard to paragraph 48, the Delegation stated that prior informed consent should be given by the indigenous communities whether it be for academic or scientific purposes and for industrial or commercial use. However, it added that in the Peruvian draft Bill, there was also the need for a licensing contract with regards to the latter form of use. With regard to the conclusions of the document the Delegation agreed with the Secretariat that IP mechanisms are indeed important and could be incorporated in the design of a sui generis system for the protection of TK.
222. The Delegation of Colombia supported the main thrust of the document but stated that the discussion should be broadened to include other elements which are necessary to better place TK systems not necessarily coming out of the IP system. The Delegation supported other delegations in that the system should not be granting or establishing rights but rather that a system should recognize the existence of rights of communities over their TK. The system should dispose in a positive and negative way of the rights to use the TK by third parties. The Delegation felt that in order to design a sui generis system to protect TK it was important to have an holistic and integrated approach, as stated by the delegations of the Dominican Republic, Brazil and Venezuela. The Delegation stated that indigenous communities had developed TK out of a way of life and that there was no thought in commercializing such TK. Thus protection would have to include the way in which indigenous communities use the TK rather than having them adapt to a new system. With regard to issues such as prior informed consent and contracting systems, the Delegation of Colombia felt that there was a need to establish a more logical and coherent relationship between these issues, systems regulating access to the TK with other international instruments. The Delegation stated that paragraph 18 was too dependent on IP and there was the need to revise and add other elements. With regard to paragraph 35 the Delegation supported those comments made by the delegations of Brazil and Thailand. Finally, the Delegation of Colombia stated the their comments were only an initial reaction to the document and were not definitive.
223. The Delegation of the United States of America supported the conclusions presented in document WIPO/GRTKF/IC/3/8, namely that it was premature to begin work on an international sui generis system for the protection of TK. The Delegation shared the views of the delegations of Australia and Brazil, and wished to learn more about the experiences in implementing the various domestic solutions that had been developed thus far. The Delegation stated that the United States responded to concerns of native America tribes when drafting a number of laws; many of these were discussed in previous interventions. The Delegation believed that in the development of domestic policies, the examination of the issues outlined in paragraph 34 of the document would be a productive work program for this Committee. The Delegation suggested that interested Member States should provide submissions of their views on paragraph 34 for the next Committee meeting. In order to consider any possible new legal system to protect TK, the Delegation stated that there was a need to define the scope of the subject matter as well as the parameters for protection. The Delegation stated that they needed to fully understand what actual economic and non-economic damages had resulted and what future damages were realistically anticipated, to determine what kind of protection was needed. The Delegation stated that that there was a need to know what current laws already protected. While other documents discussed other IP laws, other laws such as those of contract and tort law, including misappropriation, unfair competition and more rights could also be appropriate. The Delegation stated that an holistic approach, as discussed in the document, might not be effective where individual elements were subject to an authorized use or misappropriation. The Delegation further stated that limitations of any rights granted should consider the inclusion of the concept of fair use or fair dealing, an important element balancing the rights of the right-holder with those of the public, particularly for non-commercial or educational purposes. The Delegation maintained that an international sui generis TK legal regime might not be necessary. For example, traditional communities were already receiving benefits from the TK even in the absence of such protection, including through the use of contracts. An example was the U.S. National Institutes of Health (NIH) work on a protein Kinase C Activator known as Prostratin as an HIV treatment. Prostratin was isolated from the stems of the small Samoan Tree Homalanthusnutans. Traditionally, this tree played an important role in Samoan ethnopharmacology, with the leaves being used to treat back pain, the root to treat diarrhoea and stem wood to treat yellow fever. Studies that led to the discovery of Protstratin as a treatment for HIV were developed through a collaboration between an American scientist and healers from the village of Falealupo under terms of a covenant negotiated with the village chiefs and orators, and with the concurrence of the Samoan Prime Minister and members of parliament. Under the covenant, over $480,000 had been supplied to the village for schools, medical clinics, water supplies, trails, an aerial rain forest canopy walkway, and an endowment for the rain forest. In addition, if Prostratin is approved for marketing, the non-profit research organization working on the drug would pay the following royalties based on net revenues: 12.5% to the Samoan government, 6.7% to the Falealupo Village, 0.4% each to the descendents of the two healers associated with the identification and formulation and use of the original genetic resource. Once the drug is approved and marketed, it would be distributed at minimal profit in developing countries. In the light of this example, the Delegation would like to better understand the realistic practical need for sui generis norm setting at the international level.
224. The Delegation of Switzerland stated the document provided a good overview of the many and complex issues that arise when identifying general features of a potential sui generis system. It clearly showed that the establishment of a sui generis system is a very complex task as many issues needed to be addressed for the system to be practical and workable allowing for the effective protection of TK. The Delegation felt that any discussion on a sui generis system needed to be closely linked to the further analyses of the usefulness and applicability of existing IP mechanisms. This exercise would show where existing mechanisms were suitable and where a sui generis approach might be necessary. The Delegation further stated that clarification was needed on the purpose of protecting TK and terminology before the issues raised in paragraphs 34 to 57 could addressed in a fruitful and constructive way. Finally, the Delegation invited the Committee to take into account other work of relevant international fora, in particular the CBD.
225. The Delegation of South Africa, with regard to document WIPO/GRTKF/IC/3/9, agreed with the Secretariat that a particular definition may not be necessary, but that a broader definition can suffice. In so doing the Delegation stated that consideration must be given to the intentions and policies of national governments which inform legislation, as well as to instruments or international treaties which such governments adhered to, or intended to adhere to. Thus the Delegation felt that an holistic approach should be taken. The Delegation highlighted certain elements to be taken into consideration. In the first instance, national governments should move very fast in legislating for the protection of TK. The Delegation believed that an international arrangement would not be informed by domestic arrangements. South Africa did not dissent with the identified activities but rather felt that national governments should have target dates to legislate in the matter which would then enable the international community to take further action. The Delegation stated that traditional narration was done so orally thus TK which derives from that aspect should be protected, whether written or unwritten. The Delegation stated that Roman/Dutch Law was used in South Africa and it recognized unwritten issues. The Delegation discussed the issue of customary law and its recognition of oral traditions, stressing the need to distinguish what customary law meant and in addition to distinguish the customary law that came before colonization and that which came after colonization. The Delegation stated that certain customs came into being during both dispensations. Thus the TK that mushroomed during those periods should be catered. The Delegation stated that they agreed to both individual and collective ownership. If an individual used a traditional means he should be protected; if it was a community, they must be protected. With regard to the issue of databases and copyright, the Delegation appreciated both dispensations but the two were not necessarily the same. While the Delegation appreciated the interventions made by the delegations of India, Venezuela, and China on the work undertaken, it noted that their work was informed by the policy directions of their governments. With regard to the law of patents the Committee should liaise with the Standing Committee on the Law of Patents. The Delegation believed that the issue of public domain was difficult and should be further explored. The Delegation further discussed issues already raised by other delegations such as benefit sharing, the law of contract, licensing, franchising, and access to genetic resources. With regards to access, the Delegation considered the need for the establishment of a recognized authority, within national boundaries, to regulate access to genetic resources. The Delegation further stated that while certain communities wished to negotiate directly with companies, the Delegation was of the view that governments should set up agencies which could act and assist those communities that did not wish or have the capacity to do so. The Delegation stressed the issue of biopiracy and invited the Secretariat to consider this issue. The Delegation stated that the Committee should not forget regional customary law when discussing the issue of international customary law. For example, when several nations or different communities share similar TK customary international law should not be forgotten. The Delegation supported the document as a discussion document but maintained that work on the issues had already begun to inform their policy directions and legislation, which cover many disciplines and many government departments.
226. The Delegation of Panama stated that the special IP system on collective rights of indigenous peoples was developed to protect and defend the cultural identity and TK of the indigenous peoples of Panama. The law, an initiative of the indigenous peoples, was supported by the government. It was slightly different from the Peruvian example as outlined earlier by the Delegation of Peru. In the case of Panama, the Delegation stated that it was the indigenous peoples themselves that actually submitted the bill. The Delegation agreed with the Delegation of Colombia in that the protection of collective rights was a way to avoid losing TK and it dealt more with the recognition of ancestral rights. The Delegation stated that the current framework of the sui generis law system was a combination of the traditional IP system and the use of innovative elements. The IP components were adapted to the particular nature of TK. The Delegation of Panama stated that TK comprised both of tangible and intangible expressions of culture; inventions that included genetic resources, medicinal plants and seeds; knowledge of features of flora and fauna; oral traditions, designs, visual arts, and performances. It also stated that Panama took an holistic view of the universal aspects and dimensions of TK. The government also extended protection from the misuse of TK, inventions based on TK and expressions of folklore by third parties, and use was governed and limited by the law. The law provides for TK authorities and they are given powers to govern use and access. The law also encompasses other vital areas. It sets out who may have access to the database, on what terms, how the database is structured, what authorities regulate it, and what the requirements are for entering information in the database. The Delegation stated that emphasis was placed on prior informed consent and fair benefit-sharing. All forms of IP as per law 35 which governs IP, require power of attorney but in this instance, power of attorney was not required and the registry was free of charge for indigenous peoples and that there was no expiration date. TK was protected in so far as it protects cultural identity and where commercial use is involved. The register, regulated by the department for collective rights, was set up especially for this purpose. It has a public database but the information it contained was confidential. Article 12 of Law 20 stated that access to public registers, including processes and development techniques submitted by indigenous communities, remain confidential. The data, of use to research centers and communities, submitted by indigenous peoples have rights over the data. Most of the information in the register was digitized and there was a regulation that covered the transfer of knowledge and customary practices. The Delegation further stated that the example given by the Delegation of Peru regarding the setting up of a local register and operated by the indigenous peoples themselves with a view to preserve their knowledge was an extremely interesting initiative and was similar to Panama's with regard to the application of cross border measures. For example, offices were set up in customs offices and duty free zones, however this confers no rights. In keeping with the IP law, the offices were connected online to the database of the national fund for patents and trademarks. The Delegation stated that the exercise had been useful. The law also sets out other functions to be created by the newly established department and those functions included the examination of submitted applications, thus creating a standardized typology for expressions of folklore; enforcement of existing laws pertaining to the protection of TK and expressions of folklore; the creation of new laws in the area of TK and expressions of folklore; the promotion of IP protection for those rights; the provision of technical assistance and capacity building; the facilitation and coordination with domestic and international organization; the cooperation between Panama and other countries so as to make sure rights holders derive benefit. From an administrative point of view, the Delegation stated that the position of a special examiner for indigenous collective rights was created and this person would be a civil servant having the powers to examine submitted applications. Additional measures to what already existed in the IP law were introduced, including specific measures for enforcement and procedures for infringement and attribution of authorities who have the powers to investigate infringement. The Delegation said that this law, like all IP laws was territorial in nature and if there was a dispute between territories in two different countries the principle of reciprocal protection could be applied. When the rights being protected were distributed throughout a number of communities then each community must meet the requirement set out, and if the rights were shared among a number of communities then the benefits were shared collectively as well. Moreover, the law included provisions for disclosure and promotion in public institutions in keeping with indigenous councils' decisions. Finally, the Delegation stated that the law was in place to carry out all tasks.
227. The Delegation of Norway stated that, while it agreed to the suggestion in document WIPO/GRTKF/IC/3/8 that existing IPRs may effectively protect certain elements of TK, there were real challenges to be faced. For example, medicinal plants used in traditional medicine would not be easily protected by plant variety protection systems where criteria such as uniformity were central. With regard to the development of an international sui generis system, the Delegation maintained that it was premature to develop and implement a system given the many uncertainties regarding the pros and cons of such a system. However, the Delegation drew the attention of the Committee to Article 10bis of the Paris Convention which contains measures against unfair competition. This article stipulates that the countries of the Paris Union were bound to assure to nationals of such countries effective protection against unfair competition. According to the article, any act of competition contrary to honest practices in industrial or commercial matters constituted an act of unfair competition. The article further mentions some examples of prohibited actions. The Delegation suggested that the Secretariat could discuss whether it would be possible to provide protection for TK along similar lines, using Article 10bis as a model when considering the framework of a sui generis system for TK. . The idea, they said, would then be to have a general international norm that obliged the States to offer protection against unfair exploitation of TK. Such a general norm could be supplied with internationally agreed guidelines on how to apply the norm. One aspect of such an angle to the problem would be that TK would be protected as such without any requirements of prior examination or registration, and judicial decisions in concrete cases on whether there had been an infringement of the TK protection, would be taken on the basis of a flexible norm referring to fairness and equity. The Delegation indicated that such internationally agreed guidelines would favourably assist national judges when applying such a norm. One of many possible objection to such protection scheme could be the difficulty for a local community to obtain such a court decision in a foreign country, stating that there had been an unfair exploitation of the TK and that compensation had to be paid. Nonetheless, the Delegation said that it could be argued that the mere possibility of such sanctions would serve as an incentive for potential TK abusers to obtain prior consent from the TK-holder and to participate in benefit-sharing arrangements. They added that the strength of the system would be that it was both simple and flexible. Finally, the Delegation stressed that the voice of indigenous peoples and local communities was an important factor when deciding upon options for TK protection, and that in the case of Norway this meant consultations with inter alia the Saami Parliament. The Delegation emphasized that its comments were only preliminary and tentative reflections on one possible angle to the question of protecting TK.
228. The Delegation of the Russian Federation supported the statements made by the Delegations of Australia, Brazil, the United States of America and those countries which had expressed an opinion on the need to discuss the document at the local level. The Delegation stated that, first, it may be necessary to define what types of TK cannot be protected by the existing IP system, as well as their specific features and, based on these features, try to formulate responses to the questions raised in paragraph 34 of the document, relating to the definition of the purpose of protection, criteria, owners and so on. This would enable the legal framework of a future sui generis system of protection for TK to be defined. Inter alia, the question of the enforcement of rights was very important. Who would defend the interests of owners and in what way? Is it the State? Or the public representatives of indigenous peoples? For this purpose, the Delegation stated, it is desirable to become familiar with the national experiences of Members, especially those who have already worked on devising a sui generis system for the protection of TK.
229. The Delegation of Mexico believed it was not premature to deal with a sui generis system. Progress made in WIPO was important to progress in other forums. The Delegation stated it was important to go deeper into the IP system, and to define a sui generis system within the IP system. The Delegation supported the document remaining open, and also suggested that there should be further work done to define the "public domain." The Delegation of Mexico suggested that the discussions on documents 7 and 8 would take time. In the interim it suggested caution in the use of databases and noted that the Chinese and Indian situations were unique to those countries, and their solutions would not necessarily be appropriate for African and Latin American communities.
230. The Delegation of New Zealand reaffirmed its previous statements that consideration of sui generis mechanisms is both necessary and important, which statements had been made in relation to domestic work being undertaken to determine whether measures in addition to IP are required to protect the TK of Maori. At the same time, New Zealand would not encourage the consideration of an international sui generis system at this stage. It was first necessary to fully examine the use of existing IPRs at the domestic level. In addition, the Committee should examine more closely the sui generis systems adopted by a number of Members. This might be done with reference to the key elements identified in paragraph 34 of document WIPO/GRTKF/IC/3/8, a key focus of which should be the policy objective of the protection afforded. Noting that the Delegation had not yet had time to consult with Maori groups on the document, the Delegation however supported the comments made by the Delegation of Mexico regarding databases and registries of TK. Particular care, it stated, should be taken in countries such as New Zealand where there was not a long history of recording TK.
231. The Delegation of Senegal stated that there should be no dichotomy between TK and folklore. The preservation of TK was important for national heritage and to prevent undue exploitation and commercialization. In this regard, international protection was very important.
232. The Delegation of Zambia stated that there should be a truly sui generis instrument at national and international levels, which should meet the aspirations of TK holders and custodians of GR and folklore, and be developed with the full participation of communities. TK systems should be the foundation for developing a sui generis system. To enact a sui generis system in the model of the current IP regime would render the sui generis system useless. The Delegation stated that the questions set out in the document were helpful. However, the ownership of knowledge and innovations is an alien concept to TK and TK systems. A further element of a sui generis system is its scope, which should reflect the aspirations of TK custodians and those who depend upon TK. The issue of illegal use of TK must be included in any sui generis system, which should, the Delegation added, be built around the fair and equitable sharing of benefits derived from the use of TK. In Zambia, TK is vested in TK systems and not in individuals as stated in paragraph 42 of the document. A sui generis system should go beyond the issue of damage to custodians of TK to issues of illegal use and misappropriation as well as the fair and equitable sharing of benefits. In Africa, the Delegation stated, TK and TK systems transcend artificial political boundaries, which was why a global sui generis system was needed.
233. The Delegation of India shared the concerns of others for the development of effective mechanisms for positive protection and benefit sharing in respect of the public domain as well as undisclosed TK. The Delegation suggested that the document be kept open for discussion and further responses. Use of existing IPRs and recourse to sui generis mechanisms need not be mutually exclusive and should be concurrently examined, the Delegation stated.
234. The Delegation of Egypt pointed out that it had been one of the delegations at the second session of the Committee that had supported the preparation of a document setting out elements of a sui generis system. It stated that a sui generis system was not foreign to the IP system. There was also a need to understand the term "sui generis." The protection of TK should be of unlimited duration. Databases should be set up but not used against stakeholders and should not be open to all. TK was neither old nor new, and was a common denominator between folklore and genetic resources. The Delegation stated that one should not separate the three elements. However, this did not mean one could not make a distinction between genetic resources and TK. In respect of right holders, this would differ from country to country. In some countries, such as Egypt, it was not possible to distinguish between communities. In such cases, the State should take responsibility and provision should be made for a competent authority to which applications could be made for access and benefit sharing (which might not be material profit but also technological benefit sharing).
235. The Delegation of Canada advised that its comments were preliminary, and, in particular, that it was not making detailed remarks regarding the questions set out in paragraph 34 of the document. The Delegation stated that the Committee had been discussing at least three approaches to protecting TK as IP: (1) further studying and clarifying the applicability of existing IP laws to TK; (2) identifying possible new elements to add to or alter existing IP laws (referred to in the document as "sui generis elements of existing IP systems"); and (3) elements of an entirely new and distinct system for TK protection (referred to in document as "elements of a sui generis system"). While these approaches were not mutually exclusive, Canada's preference was to focus on approaches 1 and 2. The Delegation stated that it was premature to identify any international legal framework specifically adapted to TK. Further exchange of national experiences would assist in identifying the scope of workable and effective mechanisms, and the Delegation suggested keeping the document open for Members to provide further practical information on national experiences. The questions set out in paragraph 34 of the document were a useful starting point, particularly the identification of policy objectives. For this purpose, Canada suggested that the Committee consider how to incorporate the perspectives of TK holders in identifying the relevant objectives. While recognizing the holistic nature of TK, the Delegation suggested that in order to divide the work into manageable pieces, further work of the Committee on elements for a sui generis system follow two tracks, one for technical TK and the other for cultural expressions/expressions of folklore. Finally, the Delegation suggested that the issues identified in the document might be used in redesigning the survey for document WIPO/GRTKF/IC/3/7.
236. The Delegation of Fiji stated that document was a useful foundation to build upon. The Delegation supported a holistic approach to TK, covering oral and codified TK. Communities had developed TK in response to their environment. The Delegation noted that Fiji had included the protection of TK within its Sustainable Development Bill dealing with environmental matters. The Committee's work should take environmental concerns into account and work with other bodies dealing with the environment. The protection of TK should be perpetual, the Delegation concluded.
237. The Delegation of Niger thanked those countries and communities that had presented their databases which were found very interesting and useful. The policy objectives for TK protection were very important and it was necessary to sensitize TK holders for the promotion of their TK. The establishment of national databases was very important. Finally, the Delegation suggested that the Secretariat of WIPO continue to cooperate with the working group established under article 8j of the CBD which is also working in a sui generis direction.
238. The Delegation of Ethiopia stated that although there were many ways and means of protecting TK, a sui generis approach was the most appropriate. Ethiopia had drafted a proclamation on access to GR which addressed community rights and benefit sharing. It was also exploring the possibility of adapting IPRs to protect TK. However, the lack of a proper inventory and documentation of TK had constrained efforts to protect TK, positively and defensively. The experiences of China, India and Venezuela were very interesting. There was a need, underlined by other Members, for the provision of technical assistance to developing countries and the Delegation called upon WIPO and other organizations to cooperate in this area. The setting up of effective national protection systems would enhance the creation of an international system.
239. The Delegation of Sudan attached significant importance to the document and said it was the first time that a basis was established for discussions on a sui generis system for the protection of rights. The Delegation was of the opinion that paragraph 34 of the said document constituted and appropriate structure and starting point for discussions and consideration by Member States and the Secretariat in order to reach a comprehensive system for the protection of TK. The Delegation underlined that the meeting was not required, at that phase, to discuss details of the sui generis system. It supported, in general the contents of the document and looked to the results of the work carried out by the Secretariat and Member States. Moreover, the Delegation expressed support for the observations and excellent remarks made by the Delegation of Egypt.
240. The representative of the Andean Community stated that there was no dichotomy between conventional IP and sui generis protection, as they were complementary. The representative acknowledged that recourse to trade secrets, collective trademarks, geographical indications, and copyright and related rights, for example the moral protection and the "droit de suite", were interesting measures for the protection of TK and as elements to be considered when constructing a sui generis system. However, such measures provided segmented protection for certain elements and did not protect TK as a whole. With regard to folklore, the representative said that it must be kept in mind that the UNESCO-WIPO Model Provisions proposed a regime that related to expressions mainly of an artistic nature and these were only a type of TK. Such protection granted was only of a defensive nature against abusive or unfair use. In light of all of the above issues, the representative stated that a sui generis regime appeared desirable and necessary. The Andean Community emphasized that it recognized all TK as the product of human intellect that had contributed and should continue to contribute to human development. TK therefore deserved to be protected in full in line with their holistic, indivisible nature. With reference to paragraphs 7 and 8 of document WIPO/GRTKF/IC/3/8, where the issuance of non-binding guidelines as an alternative for the treatment of TK was elaborated, the representative observed that such an alternative did not appear to be in line with the Committee's mandate and the nature and evolution of the debate thus far. The representative stated that the endeavour was to create an international and binding sui generis regime, and hopefully a multilateral one. While the elements considered in the document could be part of a possible legal framework they did not exhaust the list. As regards to the policy objectives of the protection, the representative stated that the approach could be double faceted, where the rights of exclusion as well as protection against undue and unfair use were a minimum platform. In support of the Delegation of Colombia, the representative said that the regime should not only have a defensive nature but should also promote, develop and help to recapture TK. Two additional elements were of the essence for the regime, namely prior informed consent and fair and equitable distribution of benefits, as referred to in article 8j of the CBD. The representative further suggested that paragraph 35 be amended to clearly reflect that it was not the regulation of access to genetic resources that was being sought but rather that there be protection of TK through IPRs. Furthermore, when considering a sui generis regime, any type of TK, without a priori exclusions, must be taken into account and the term "traditional knowledge" need not be defined. In addition, the classification of TK in lists that could become arbitrary and incomplete must be avoided. Referring to paragraphs 36 and 37 of said document, the representative agreed with an holistic approach to TK, however a theoretical distinction between TK related to genetic resources and TK of a cultural nature would be useful. This exercise would show that the TK related to genetic resources posses more urgent problems, such as the identification of its'origin and the sanction of biopiracy. Such distinction should not be interpreted as a means to indirectly regulate access to genetic resource. In this context, consultations with indigenous and local communities were necessary. As an aside, the representative pointed to certain corrections necessary to paragraph 16 of the document dealing with Andean Community Decision 391. This Decision did not regulate TK, not even TK restricted to genetic resources. Instead it was the supranational regime for access to genetic resources in the Andean region and references to TK were only to regulate prior informed consent under a contractual scheme. Regarding the criteria for protection, the representative stated that one should not lose sight of the criterion of novelty. While the document stated that the term traditional knowledge did not mean "old" but had to do more with its creation it did not solve the problem of TK which had already entered the public domain and consequently the loss of novelty. Additionally, paragraph 38 affirmed that disclosed TK cannot be recaptured without affecting legitimate expectations and rights of third parties. The representative contended that such statement could not be proven valid in all circumstances as there was no legitimate right that could be opposed on the grounds of misappropriation or infringement of the law. Thus TK disclosed without the consent of its holders should not be considered in the public domain . Given the difficulties in the use of the concept of novelty, the document suggested to use the concept of "commercial novelty". The representative said that while they understood that IPRs were mainly a system to guarantee the commercialization of intangible goods, there were practical problems to a priori identify the actual or potential value of certain types of TK, which under such an approach could lead to no protection. On the other hand there was a theoretical link between "commercial novelty" and a temporal limit for the protection which seemed to suggest a lack of conformity with the non-temporal nature of TK. An alternative approach could be to omit any reference to novelty and resort to concepts such as "originality" and/or "imminence". The first is used in copyright law and the latter is alluded to in the document when mention was made of the necessary link between TK and the community. Such considerations however require further debate. Referring to the issue of ownership, the representative acknowledged that while IPRs focus on physical or natural persons within a system of private rights, a new analysis may lead one to conclude that there may be other types of systems which recognize collective rights. The representative pointed out that "collective rights" should not be confused with the concept of "plurality of ownership", thus reference to stakeholders of a company was a misconstruction, and the suggested alternative designating the State as the custodian of community rights was unclear. Regarding the notion of exclusivity, it was important to ensure that rights be effectively exercised, and communities be able to chose whether to exercise private, public or collective rights, in accordance with customary laws. With regard to regional TK, the representative disagreed with paragraph 43 where the sharing of rights among two or more communities could be seen as a collusive agreement infringing competition law. Such sharing was a common exercise of a community's collective right. The representative agreed with what was stated in paragraphs 48 and 49 of the document. Assuming that not only the layout but also the content of the databases were protected, the representative said that databases could be used as a tool for accreditation rather than as a center around which to build a sui generis system. The representative agreed with paragraph 56 of the document. Furthermore, as effective IPRs depended on reciprocity, surveillance and sanctions at the international level, the representative proposed the introduction of a missing element to the list outlined in paragraph 34. The proposal applied, on the one hand, to the enhancement of these elements in existing IPRs in relation to patented inventions having illicitly used genetic resources and/or TK, that is, disclosure of origin should be a requisite for patenting and/or declaring null patents granted, and on the other hand, to the introduction of these aspects in a sui generis regime Finally, any time frame for protection could be set up. But, given the timeless nature of TK, limited time frames were not be appropriate. Time frames were not a substantive element of protection.
241. The representative of UNCTAD pointed out that the greatest value of TK was to the TK-holders themselves. Some 80% of the world's population relies on TK to meet their basic food and health needs. This is particularly true for the poorer and more vulnerable segments of societies. In most of Africa, for example, the ratios of medical doctors to population are in the range of 1:5-10,000, whereas the ratios of traditional healers to population are in the range of 1:200-500. Hence, an extremely important objective of any system to protect TK was the preservation of TK and promoting its further development. The World Bank's community-to-community TK exchanges were an interesting mechanism in this context. The protection of TK at the national level was also very important. This could raise awareness of the value of TK, promote its preservation and further development, and prevent misappropriate or unauthorized use domestically. However, it would not prevent unauthorized use in other countries. Thus, eventually, there will need to be discussions on an international framework for the protection of TK. In this regard, it would be quite helpful if, in the revision of document WIPO/GRTKF/IC/3/8, the WIPO Secretariat could include a section on possible modalities for international protection. This could include, for example, a treaty with minimum elements, mutual recognition agreements, and a sui generis database system comprising either a single global database or linked national and community databases. She noted that bilateral agreements were another option, but that transaction costs tended to be quite high. Therefore multilateral agreements were ultimately preferable. She hoped that the WIPO Secretariat could share their technical expertise and knowledge of other international agreements relevant to this subject. She meentioned that having some idea of the possible modalities for an eventual international framework could help countries currently developing national systems.
242. The Delegation of China stated that in document WIPO/GRTKF/IC/3/8, the conception of a sui generis mechanism included many valuable thoughts which were worth studying and discussing. The Delegation considered that the concept of TK was a relatively narrow concept, parallel to that of folklore, as reflected in the title of the Committee. Therefore, in defining the TK, the Delegation preferred to have a clear delimitation between TK and folklore so as to facilitate the work of the Committee. The Delegation cautioned that otherwise the crossing and overlapping of conceptual connotations would affect the further discussions of the Committee.
243. The Delegation of Colombia stated that for its country one of the most important issues was the concept of the public domain in relation to TK. The Delegation stated the importance of not merely plugging TK into existing systems of IPRs and requesting TK holders to adjust to these systems. Rather, it suggested, the Committee should try to imagine the politically and culturally most responsible way of responding to the needs of countries and communities which were TK holders.
244. The representative of the International Chamber of Commerce (ICC) stated that businesses' contribution to this process was both relevant and useful, and that any resulting sui generis system should concentrate on practicality if it were to have any value. The representative questioned what the policy objective the Committee was aiming for through a sui generis system and added that solutions should be culturally appropriate. The representative stated that they represented businesses throughout the world both in developed and developing countries. The representative stated then when considering the protection of TK, businesses have a useful contribution to make because they understood IP although they look at it from a business angle. The representative emphasized that a system should be both practically and theoretically good. The representative stated that the important question was highlighted by document WIPO/GRTKF/IC/3/8 in paragraph 34 with regard to policy objectives. He stated that there were a number of policy objectives but referred mainly to the prevention of biopiracy where he stated that the business community would like more clarity. The representative suggested the Committee take into account of the CBD as one of the policy objective as a sui generis system of protection should be consistent with that of the CBD. The representative suggested that an important policy of a sui generis system should be used as widely as possible and that an international system had to be effective in all cultures. The representative supported the proposal of Canada in trying to divide matters, rather than the holistic approach, and treat each subject-matter differently as already conducted extensively in the IP sphere. He added that it was possible to have discussions on the public domain but things within the public domain generally need to remain there with the exception. The representative concluded that a similar and possibly practical idea was the idea that TK can be protected indefinitely.
245. The representative of the Saami Council reiterated that legal systems designed to protect indigenous genetic resources, TK and folklore, should they be adequate, cannot be elaborated solely from an IP perspective. The representative stated that document WIPO/GRTKF/IC/3/8 thoroughly highlighted what they believed to be a fundamental difference between IPRs and TK; namely the intrinsic connection between TK and the culture and environment in which it was developed, in turn per definition implying that TK vest foremost in the people or community collectively, and not in any individual creator. The representative stated that this distinction between TK and IPRs become evident in the case of indigenous peoples. The representative stated that indigenous cultures were distinct in that they focused on the importance of the collective rather than of the individual and therefore stated that international law acknowledged that indigenous peoples' rights, contrary to other peoples' rights, were collective rather than individual in nature. Forming a vital part of indigenous peoples' collective cultures and identity, for indigenous peoples, TK, per definition, acquires a human right dimension, as indeed acknowledged by the Secretariat in the document under discussion, paragraph 14. The representative commended the Secretariat for this insight, and urged all Members to carefully consider this fact, when discussing how to protect indigenous knowledge as protecting indigenous knowledge was the same as awarding indigenous peoples the right to preserve, and develop, their cultures. He stated that a holistic approach was required when elaborating a system that could protect TK. Referring to the statement of the International Chamber of Commerce, the representative stated that they did not want a system designed that exported their culture to Europe. The representative recognized that existing IP mechanism could sometimes serve to protect various expressions of TK, and obviously support any effort to enhance the capacity of indigenous peoples to utilize such mechanisms, he urged the Intergovernmental Committee to start elaborating on a sui generis system for the protection of TK without further delay. The representative joined the Delegation of Colombia, and underlined that TK holders should not be forced to adopt to IP regimes that are not designed to protect TK. He stated that most existing IP mechanisms were limited in time, which meant that even if protected for a limited time cultural expressions would eventually end up in the public domain and that this was inadequate as protection for culture cannot be limited in time and should exist indefinitely. The representative reiterated that indigenous knowledge holders had not developed their knowledge for commercial use. The representative added that a sui generis protection should include also TK already in the public domain, and reiterated that it was crucial to apply the principle of prior and informed consent, when discussing a regime that can protect TK. He added that a sui generis system should include all knowledge that formed part of the relevant people or communities culture, since the system should be designed to protect the culture and not the knowledge as such. The representative stated that indigenous cultures were oral rather than written oriented and therefore must also be protected, as it is not documented. He concurred with many other delegations that any regime intended to protect TK should respect the customary law of the indigenous peoples and communities in question.
246. The representative of the Inuit Circumpolar Conference (ICC) stated that their goals included the protecting of their cultures and the developing of their economies. The representative stated that they regarded some of their TK as being shared based on their sense of responsibility and obligation to the communities, and that TK was evolving as well as their culture and political systems. Even though Inuits were using the existing IP systems, this did not imply that they were effective and their TK continued to be misused and misappropriated for commercial gain due to the to the lack of adequate alternative mechanisms. The representative stated that sui generis elements should include the structure of indigenous land claim agreements and self-government systems as possible models for establishing those types of regimes. The representative did not agree with the position of the International Chamber of Commerce regarding the public domain.
247. The representative of the Indian Movement Tupaj Amaru stated that IP like international law has evolved leaving indigenous peoples, their interest and their rights on the sidelines. The representative stated that the concept of IP right is a western one based on private property and individuals. The representative stated that the Durban Conference Against Racism and Discrimination demonstrated the positions of government in the protection the rights of indigenous peoples. The representative further added that the Committee should recognize the customary laws of indigenous peoples as related to the protection of their TK, their laws, their indigenous technologies as well as ecological knowledge. The representative referred to groups within the United Nations that attempt to deal with the issue of IP as it relates to indigenous peoples. The representative invited the Secretariat and WIPO to participate in these meetings. The representative concluded that the international community must accept that indigenous peoples have their own collective rights and that documents should take into account of customary laws.
248. The Secretariat advised that document WIPO/GRTKF/IC/3/8 was based on an empirical approach, and attempted to record and clarify the range of policy choices and mechanisms that are available. This being the reason for the focus on existing mechanisms which may include established IP mechanisms, national sui generis systems, and customary laws. It stated that the Committee has discussed the expansion of the IPC classification systems to take account of TK which in itself was a sui generis form of element. The Secretariat noted with regard to the future of the document some delegations had requested that document be left open and the questionnaire would be refined under document WIPO/GRTKF/IC/3/7.
249. The Chair concluded that:
- many delegations were in still in the process of consulting the present version of the document WIPO/GRTKF/IC/3/8 and that they will continue to do so;
- the Secretariat would receive comments and observations from Members in writing on (i) the contents of sui generis TK systems and (ii) the definition of TK by September 15, 2002;
- the Secretariat should prepare an amended and updated version of document WIPO/GRTKF/IC/3/8, taking account of (i) the differences between the folklore track or biological resources track; (ii) the integration of the analysis of national sui generis systems that have been implemented as well as their experience; and (iii) the suggestion made by the Delegation of Norway that the Secretariat could discuss whether it would be possible to provide protection for TK along similar lines as in article 10bis of the Paris Convention concerning unfair competition; (iv) taking into account the intricate issue of the interface between sui generis systems and traditional IP law; and
- an amended document 3/8 could be the basis of further discussion in the fourth session.
The Committee agreed with this conclusion.
Operational Definitions - Traditional Knowledge (WIPO/GRTKF/IC/3/9).
250. The Delegation of Fiji stated that it considered the document useful for discussion purposes, and suggested that it be kept open for further discussion, as was the case with document WIPO/GRTKF/IC/3/8. A practical and working definition at international level would need to be broad, and Members could be invited to propose a set of elements for such a definition. The Delegation added that Documents WIPO/GRTKF/IC/3/8 and WIPO/GRTKF/IC/3/9 should be discussed together in future.
251. The Delegation of Venezuela shared the views expressed in paragraphs 7 and 9 of document WIPO/GRTKF/IC/3/9 and believed that a definition of what constitutes TK was not necessary for the development of an appropriate intellectual property system, any more than it had been necessary for other intellectual property instruments. The Delegation stated that the decision on the terms to be used, with a view to protection, should reflect the protection objective pursued so as to avoid a situation where it was limited or where the door was left open to abuse of the system. The Delegation also emphasized that differences existed between the concepts of "traditional" and "customary". "Customary" seemed to be confined to behavior, whereas "traditional" meant those traditions maintained and which encompass spirituality, mysticism, ethics and culture. Furthermore, the TK of communities gives rise to technology for the meeting of their needs that are environmentally appropriate. The Delegation requested the Secretariat of the CBD to inform the Committee on progress in this subject area. The Delegation stressed that TK cannot be disintegrated or fragmented to adapt to different forms of intellectual property protection, which could happen if attempts were made to accommodate it within traditional forms of intellectual property protection. TK embodied elements that were sacred, spiritual and cultural, which all have to be taken into consideration. Any attempt to break TK down into its component parts for separate protection is liable to destroy its very nature. The Delegation reminded the Committee of certain characteristics of TK. They included the following: TK is a collective intellectual creation; it is a creation of the intellect of a people, manifested through knowledge, practices and products; TK is handed down from generation to generation; its holders have received the intellectual creation as a legacy from their ancestors; the biodiversity associated with it has been protected by use without abuse; it may or may not be embodied in a physical medium. Some peoples have set it down in written or symbolic form, while others have preserved it in oral form; it is linked to the material production, the ethics, the aesthetics and the spirituality of those peoples; it is living knowledge, which is enriched with the intellectual production of a multitude of individuals who are cumulatively innovating all the time; it is collective knowledge that can be administered by entities or individuals, and it constitutes the identity of the peoples that possess it.
252. The Delegation of Argentina stated that the document served to animate the debates on the subject of TK but that a broadening of the present scope of protection might lead to the removal of the subject matter to be protected from the public domain. This issue was a matter of concern to Argentina. It considered that, in principle, there was one basic qualification for intellectual property protection that TK did not possess, namely novelty. With regard to the time aspect of protection, as in the case of copyright and related rights, and also in the case of patents, the Delegation considered that protection should be finite. The disclosure involved in intellectual property, which enabled society as a whole to benefit from the knowledge and know-how and the resulting technological innovation, and which in turn enabled the knowledge acquired to be developed further, had been one of the cornerstones in the construction of modern systems of intellectual property protection. Taking into account the various forms of expression that TK could take (rituals, curative practices, medicinal recipes, symbols, designs and religious events, most of which were transmitted by word of mouth, and the exact origin of which in many cases was unknown), the Delegation considered that any attempt to find a definition encompassing all such aspects at the international level would be an extremely difficult exercise. As stated in the document, there was no one definition of "invention," but rather an enumeration of conditions and requirements (novelty, inventive step, industrial applicability) that allowed such inventions to enjoy patent protection. By the same token, the Delegation considered that it was not necessary at the present stage to direct work towards the adoption of a definition for "traditional knowledge," but that one should rather concentrate on trying to work out, if possible, conditions for the protection of TK in cases where it was not in the public domain, a subject that in any event would have to be clarified before any work could be done in that connection.
253. The Delegation of Sudan stated that a definition of TK should be global, comprehensive and detailed. The document should remain on the agenda for discussion at future sessions of the Committee. Finally, the Delegation supported the previous statements made by Venezuela, Egypt and others that the documents of the Committee should be available in all the working languages.
254. The Delegation of the United States of America noted that no real understanding could result from a discussion in which there was no common understanding of the subject at hand. As a first step towards a definition, the Delegation stated that the Committee could agree that by the next meeting, interested Member States identify in writing and with specificity what they meant when they used the phrase TK, including whether folklore was included or not. The Delegation further suggested that any definition make clear that they were distinct issues that must be addressed separately, as suggested by the delegation of Spain on behalf of the European Community.
255. Regarding document WIPO/GRTKF/IC/3/9 on Operational Terms and Definitions, the Delegation of Brazil, in an earlier intervention, agreed with the considerations made by the Secretariat that the absence of a definition of the term "traditional knowledge" did not prevent discussions on a sui generis system for the protection of TK, based on the well grounded arguments that the Paris Convention, for instance, did not provide a definition for patents (as explained in paragraph 9 of document 3/9). Given that TK was intrinsically rooted in local traditional communities, it would be particularly difficult to reach a consensual definition that could apply to the local reality of different communities. Consequently, it would be more efficient to leave operational terms and definitions for TK for the national legislation.
256. The Delegation of Canada recognized that the process of settling on a uniformly acceptable definition of TK was less significant than considering the underlying subject matter TK was to cover and the form of IP protection it was to be afforded. While the document was useful in its exploration of elements of TK, the multiplicity of national experiences suggested that arriving at a precise definition of TK at the international level would be a difficult if not counter-productive task at the present time. In this regard, the Delegation agreed with Brazil that any single definition would not be likely to reflect the local realities in which TK was rooted. Nor for that matter, was it necessary to have a definition in order to continue with the rest of the work of the Committee. Finally, the Delegation agreed that the term traditional knowledge should continue to be used by the Committee, recognizing that traditional knowledge included but was not limited to indigenous knowledge.
257. The Delegation of Russia believed that all the definitions in document WIPO/GRTKF/IC/3/9 relating to the domain of TK, folklore , cultural heritage were worthy of consideration. The Delegation stated that the definition of any notion depended on the goal for which this notion was used, and referred to paragraph 34 of document WIPO/GRTKF/IC/3/8. The Delegation was of the opinion that one of the goals in protecting TK as an intellectual property subject matter was to ensure access to genetic resources, TK and folklore and their just benefit-sharing. It stated however, that this neither runs counter to nor diminishes the importance of other goals such as the preservation and development of TK as cultural heritage. The Delegation concluded that it would be desirable that in the course of selecting the definition of TK, which should not be inflexible, this consideration be taken into account.
258. The representative of the Organization of African Unity (OAU) thanked WIPO for its useful and facilitative role in the development of the African Group position paper presented to the session of the Committee. The OAU urged WIPO to maintain this support. The representative stated that immediate solutions were needed to prevent the misappropriation of TK and folklore and related genetic resources in Africa and other developing countries, and, for this purpose, practical, binding and effective international remedies were necessary. While the introduction and enforcement of domestic laws were important, enforcement in other countries was costly. Therefore, an international system of protection for the protection of TK, folklore and related genetic resources was necessary. Regarding urgent priorities, the representative referred to the need for an agreement on a system for protecting TK and any information that had been or would be documented or archived. Noting the efforts under way to document TK as part of searchable prior art, the representative also recognized that such work may have the subversive effect of accelerating the misappropriation of TK. Therefore, a clear internationally agreed prohibition on all parties, except the owners, against using or exploiting documented or archived information other than for the purposes and on the terms that the knowledge was documented or archived was necessary. Regarding the status of the Committee it was hoped that the Committee would be streamlined, such as by way of reconstitution as a standing committee. The representative stated that the OAU would look forward to a diplomatic conference at some stage not going beyond the medium term. Despite the importance of TK, there was as yet no precise and generally accepted definition thereof. Similarly, there was no accepted definition of "local or indigenous communities." The representative referred to several definitions of these concepts in other international treaties and processes, including in the African Model Law. The representative stated that a definition of TK would encompass elements such as: (1) TK includes, but is not limited to, knowledge systems, innovations and adaptations, information, and practices of local communities or indigenous communities as understood within the territory of the Member, relating to any type of medicine or cures, agriculture, use and conservation of biological material and diversity, and any other aspect of economic, social, cultural, aesthetic or other values; (2) TK is not static but continues to evolve and its nature relates to the manner it develops rather than to its antiquity; (3) TK includes folklore unless the context should require otherwise or it is provided otherwise, and "local communities" should include indigenous peoples subject to supplementary definitions that Members may adopt within their domestic laws. The representative noted that the term "indigenous peoples and local communities" was inappropriate within the African context.
259. The representative of the Andean Community referred to her previous comments concerning document WIPO/GRTKF/IC/3/8. The representative stated that the term "novelty" had always within the IP system being used in a relative way and it need not be part of a sui generis system. Regarding the CBD, the work of the Committee was complementary thereto, and appropriate cooperation between WIPO and the CBD was desirable. Regarding ownership of rights, right-holders could be individuals or collectives. The Andean Community raised certain concerns with the Annex 1 to document WIPO/GRTKF/IC/3/9, which, it appeared, suggested that the terms listed therein were equivalents for TK. However, each of the terms listed had their distinct meanings. Decision 486 of the Andean Community used the term "traditional knowledge, innovations and practices", as well as the term "intangible component." There was a need to define TK, but this would be a difficult exercise. A working definition was needed and, perhaps, a descriptive list of examples or elements might be a starting point. TK was holistic, the representative added, and no forms of TK should be excluded. Folklore was also important, and was a normal expression of TK and culture.
260. The representative of UNCTAD stated that a broad working concept of TK and perhaps a non-exhaustive list of examples or elements would be useful. The representative agreed with previous suggestions that Members submit elements of a working definition.
261. The representative of the Indian Movement Tupaj Amaru stated that any definition of TK should recognize indigenous peoples as subjects of law. A definition should not limit the right of indigenous peoples to self-determination. The representative referred to various definitions in other contexts, and stated that it was important to determine for whom a definition was being established.
262. The representative of the Health and Environment Programme stated that a definition of TK should include and take into account all the needs and relevant circumstances of indigenous populations.
263. The Delegation of Peru asked for the floor to clarify a previous statement made by the representative of the Indian Movement Tupaj Amaru. The Delegation stated that when, in a previous intervention, it had referred to benefit-sharing, it had done so to point out that there were few examples of cases where benefits had been remitted to local communities. The Delegation wished that there be benefit sharing for the benefit of indigenous peoples whenever TK was used, as this was their legitimate right, and in this respect agreed with the representative of the Indian Movement Tupaj Amaru.
264. The Secretariat, at the invitation of the Chair made some general remarks. First, it seemed clear that it was not possible to solve the various issues regarding the protection of TK through identification of a suitable definition alone. Hence the working documents had distinguished between a definition, on the one hand, and the scope of protection, on the other hand. The role of the Secretariat was simply to offer and articulate options for consideration by the Committee. Questions such as the nature of the public domain, the term of protection, whether fixation ought to be a requirement and so on, could be dealt with at a later stage, and would probably be best dealt with in national laws. The Secretariat also drew attention to the working definition of TK that had been used by the Secretariat for purposes of the fact-finding missions (which was repeated in paragraph 25 of document WIPO/GRTKF/IC/3/9). Paragraph 35 of this document sought to set out some elements of a working definition.
265. In response to the comments by the Andean Community, the Secretariat confirmed that the list of terms in Annex 1 to the document had simply been put forward for information purposes, in the form of a broad lexicon of terms used in different policy contexts. Regarding the availability of documents in the different working languages, the Secretariat confirmed its strong desire to make available the documents as quickly as possible and in as accessible a form as possible. The Secretariat drew attention to the fact that the working documents were also available on WIPO's website.
266. The Chair concluded that the definition of TK was an extremely important issue, and work in this regard would be continued in parallel with work on other issues. It was not necessary to have consensus on a definition of TK at this stage. Some Members and other participants had suggested this matter could be left to national laws. Others had suggested the preparation of a list of elements to be used as building blocks to later establish a working definition, as well as enumerating such elements. These had included, the Chair noted, among others, Algeria (on behalf of the African Group), Colombia, the Islamic Republic of Iran, Switzerland, Venezuela, the Andean Community and the OAU. The Chair proposed that, for the next session of the Committee, the Secretariat should prepare a synthesis of the various elements that could make up a working definition of TK, based on document WIPO/GRTKF/IC/3/9 and taking account of comments made at this session, including the information requested by the Delegations of Venezuela and others. The Chair noted that, given the number of documents already requested of the Secretariat for the next session, this synthesis may only be made available near the time of the next session and may only be available in one working language for that session. This approach was approved by the Committee.
