Traditional knowledge: the challenges facing international lawmakers
By Dr. Marisella Ouma, Intellectual Property Consultant, Kenya
This article is based on the keynote address by Dr. Ouma at the WIPO Seminar on Intellectual Property and Traditional Knowledge in Geneva, Switzerland, in November 2016.
Local and indigenous communities have used traditional knowledge for centuries. It applies to everything from agriculture and food storage to construction, medicines, and the preservation of biological resources and the environment. The customary laws and cultural taboos of these communities have long served to preserve this knowledge and regulate its use.
But growing commercial use of these resources beyond the traditional context means they are increasingly vulnerable to misappropriation and misuse by third parties. That is why holders of traditional knowledge and many international policymakers are calling for new policies and laws in this area.
Some countries, including Costa Rica, Kenya, Peru and Zambia, already have laws that protect traditional knowledge. Others have focused specifically on protecting genetic resources. And some have joined ranks at the regional level to protect traditional knowledge. For example, the Swakopmund Protocol on the Protection of Traditional Knowledge and Traditional Cultural Expressions was adopted in 2010 by the 19 member states of the African Regional Intellectual Property Organization (ARIPO).
Although these developments are an important step in the right direction, such fragmented protection does not offer the custodians of traditional knowledge an adequate level of protection in today’s globalized world.
Why international protection is needed
National and regional laws that protect traditional knowledge have only a limited impact. For one thing, they only have legal effect in the country or countries in which they have been enacted. One way to extend the protection they confer is by establishing bilateral or plurilateral agreements between countries that share a common interest in protecting traditional knowledge and have similar national laws. But few countries actually have these laws in place. That is why it is so important to have an international regime that establishes minimum standards of protection and for countries to ratify and implement such a regime at the national level. Only then will it be possible to extend protection beyond national borders, for example to promote reciprocity in the treatment of traditional knowledge.
National and regional laws share a number of common objectives. They define what is to be protected and who is to benefit and how. They often seek to (a) ensure that control over traditional knowledge rests with indigenous or local communities, (b) preserve and protect against misappropriation and misuse by third parties and (c) promote equitable benefit sharing. Protection often goes well beyond intellectual property (IP) aspects of traditional knowledge (e.g. eligibility to acquire IP rights over traditional knowledge), encompassing all aspects of its use in a traditional context.
Drawing these shared policy objectives into an international agreement would offer a more adequate response to the unauthorized use of traditional knowledge, or acquisition of IP rights over that knowledge, by third parties who have no legitimate claim on it. At the very least, an international agreement that was implemented at the national level would ensure that the custodians of traditional knowledge have control over and can manage its use and are properly compensated.
Discussions on arrangements to preserve, promote and protect traditional knowledge at the international level are ongoing in different international forums. At WIPO, negotiations on IP forms of protection have been taking place within the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore since 2011 (the Committee began its work in 2001, but formally began “negotiations” in 2010). While WIPO administers many international IP-related treaties, none of them specifically addresses the issue of traditional knowledge (although some do provide protection for the analogous areas of traditional cultural expressions and performances of them).
Developing an international IP regime to protect traditional knowledge is challenging. In many instances, traditional knowledge, including sacred and secret knowledge, does not fit neatly into the established IP system. For example, traditional knowledge values established practice over originality and supports the intergenerational transmission of knowledge and indefinite protection. It is also held by the community as a whole and its use is regulated by customary law which may or may not be codified. In view of the difficulties of mediating the relationship between established IP rights and traditional knowledge systems, international negotiations at WIPO are focusing on developing a customized or sui generis system of protection for traditional knowledge.
Lessons from the past
The history of international IP law-making offers some useful insights of relevance to policymakers involved in these negotiations.
For example, we see that changes in economic and technological circumstances can be an important trigger for developing new international laws. Indeed, the first international IP law, the Paris Convention for the Protection of Industrial Property of 1883, was largely a response to the expansion of cross-border trade in the late 19th century. At the height of the industrial revolution, companies were increasingly looking to commercialize their wares in other countries. This gave rise to the need to safeguard the interests of nationals operating in foreign markets, and vice versa. In response the Paris Convention (Article 2(1)) and the Berne Convention for the Protection of Literary and Artistic Works of 1886 (Article 5(1)) introduced the principle of national treatment. The principles of reciprocity, mutual recognition and most favored nation have also since been introduced into international law, including within the framework of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) (Article 4).
National treatment is unlikely to help in protecting traditional knowledge, however, because it is only applicable where such national laws exist. That means that the traditional knowledge of an indigenous community in Peru will be protected in Kenya and vice versa, because these countries have laws governing the protection of traditional knowledge. But it does not apply in countries where legislation to protect such knowledge is not in place.
It is also worth noting that many international laws tend to draw on the provisions of existing national laws. The Paris Convention, for example, sought to harmonize national patent laws, which proved inadequate in protecting inventors operating beyond national boundaries. Likewise, the Berne Convention drew on existing national copyright laws to establish minimum international standards for copyright protection. But when it comes to the protection of traditional knowledge, the limited number of countries that have national laws in place makes developing an international framework based on existing laws all the more challenging.
Any attempt to establish an international regime needs to carefully define international policy objectives, particularly in terms of what and who needs to be protected. Another important step is to clearly identify points of convergence in national laws.
About Prior Informed Consent and Equitable Benefit Sharing
According to the principle of prior informed consent, holders of traditional knowledge, traditional cultural expressions or genetic resources should be fully consulted before their knowledge is accessed or used by third parties. An agreement should then be reached on appropriate terms and the holders should be fully informed of the consequences of the intended use. The agreed scope of use may be set out in contracts, licenses or agreements, which may specify how benefits arising from the exploitation should be shared.
In WIPO discussions, many argue that the use of protected subject matter ought to be subject to prior informed consent, especially for sacred and secret materials. However, others fear that granting exclusive control over traditional cultures could stifle innovation, diminish the public domain and be difficult to implement in practice.
The idea of equitable balancing of interests is common to many legal systems. In IP law this is often phrased in terms of balancing the interests of right holders and the general public. According to this principle, holders of traditional knowledge, traditional cultural expressions or genetic resources receive an equitable share of the benefits that arise from their use. This may be expressed in terms of a compensatory payment or other non-monetary benefits. See: Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions: An Overview.
One of the key advantages of establishing an international legal framework, of course, is that such arrangements provide for minimum acceptable standards of protection and thereby create greater legal certainty by offering some degree of harmonization of national laws. This makes it easier for rights holders, including custodians of traditional knowledge, to manage and trade their IP assets.
History also shows us that international IP laws have, over time, moved from policy guidance toward more detailed substantive provisions regarding eligibility for protection, subject matter, criteria for protection, scope of rights, exceptions and limitations, and more recently enforcement and other administrative provisions. International treaties should, however, not be too prescriptive in terms of how they are to be implemented. As long as minimum standards are in place each member state has the flexibility to decide on how to make their provisions operational. The overriding goal should be to ensure that the stated objectives are achieved.
What an international regime needs to do
Traditional knowledge is increasingly under threat. Its appropriation and use by third parties who seek to acquire IP rights in it are on the rise. Examples include traditional knowledge associated with neem, turmeric and hoodia. In each case, the knowledge held by indigenous and local communities was crucial in the subsequent pharmaceutical use of these plants, yet in each case, this contribution was not initially recognized or rewarded.
In this context, international policy objectives might include the preservation of traditional knowledge, control of its commercial use, safeguards against third-party claims on IP related to traditional knowledge, access and benefit sharing, equitable remuneration, facilitation of innovation using traditional knowledge and provisions on prior informed consent.
The advantages of a sui generis system of protection
A sui generis system of protection, based on IP principles as adapted, would make it possible to accommodate the peculiarities of traditional knowledge systems and ensure that the custodians of such knowledge are able to manage and exploit it in line with customary practice.
It would provide a means of defensive protection to stop third parties from acquiring IP rights over traditional knowledge. India, for example, has established a traditional knowledge database (TKDL) which has significantly reduced the number of erroneous patents derived from traditional knowledge.
A sui generis system would also provide for positive protection of traditional knowledge, empowering communities to promote their knowledge, control its use and benefit from any commercial exploitation. Several national laws and the ARIPO Swakopmund Protocol provide such protection but the impact of these laws is limited to the countries in which they are enacted.
To develop a sui generis system, policymakers can build on the existing legal frameworks. For example, Article 8(j) of the Convention on Biological Diversity (CBD) requires parties, subject to their national laws “to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity”. The Convention also addresses the issues of access and benefit sharing.
Similarly, the Nagoya Protocol to the CBD on Access and Benefit Sharing deals with traditional knowledge associated with genetic resources, and addresses issues like prior and informed consent, equitable remuneration and maintenance of community laws and procedures as well as customary use and exchange.
Likewise the UN Declaration on the Rights of Indigenous Peoples (Article 31) provides for the rights of indigenous peoples to “maintain, control, protect and develop”, among other things, their traditional knowledge and genetic resources as well as their IP over such knowledge.
Such provisions provide a solid foundation on which to develop an effective system of protection.
Policymakers also need to consider the nature and diversity of existing traditional knowledge systems when crafting an international framework.
A relevant and effective framework will also take into account the transboundary nature of traditional knowledge, which is often widely shared by communities across national boundaries.
Policymakers have various options when it comes to developing an effective international regime to protect traditional knowledge. International protection can take various forms. These include a legally binding international agreement – all countries joining the agreement would be bound by its provisions – that draws on commonalities in national and regional laws and policy objectives. It is important to stress that a “binding” instrument is, in fact, only binding on those countries which choose to ratify and implement it.
Another option would be to develop a non-binding joint recommendation. Such soft-law instruments provide guidelines for the implementation of existing international laws. For example, the Joint Recommendation Concerning Trademark Licenses aims to harmonize and simplify the formal requirements for recording trademark licenses under the 1997 Trademark Law Treaty. But a joint recommendation is unlikely to be helpful in protecting traditional knowledge, first because it is non-binding and second because it requires a pre-existing international legal framework. On the other hand, many more countries might be enticed to follow a non-binding instrument, and, over time, it could have significant influence in practice, as the trademark recommendations have shown. It might also pave the way for a more “binding” outcome in future.
A third option could be to bring together the basic principles embedded in existing international treaties dealing with aspects of traditional knowledge, such as the CBD and the Nagoya Protocol). But these agreements only deal with selected aspects of traditional knowledge (i.e., in relation to biodiversity and genetic resources) to the exclusion of others, and they do not cover all the IP issues.
The ideal outcome of current international negotiations would be a legally binding international treaty with clear substantive clauses underpinned by well-defined policy objectives – a treaty that builds on existing laws, leaves enough space for national flexibility and addresses both the characteristics and diversity of traditional knowledge systems. This would provide protection beyond national borders, help to harmonize national laws and promote international cooperation. If sufficiently balanced and sensible, all countries should hopefully ratify it, because an instrument only binds countries that do so.
While reaching a balanced international agreement on complex issues is difficult, history shows that it is possible and can generate benefits. An international agreement to protect traditional knowledge would enable indigenous and local communities to control, manage, preserve and use their traditional knowledge assets. It would also open up access to a mine of knowledge – currently held almost exclusively by those communities – for innovation and development. Developing a balanced, robust and flexible international IP framework to protect traditional knowledge is in all our interests.