The following questions and answers are for basic information purposes only and do not imply any formal endorsement by WIPO or its member states. They do not constitute legal advice. More formal and technical definitions of terms and examples of their usage can be obtained from an informal glossary prepared by the WIPO Secretariat.
Key Issues and Core Concepts
- What are the Issues?
- What is Traditional Knowledge?
- What are Traditional Cultural Expressions?
- What are Genetic Resources?
- What does the “Protection” of Traditional Knowledge and Traditional Cultural Expressions mean?
- What does the “Protection” of Genetic Resources mean?
- Can Existing IP Law Provide Protection for Traditional Knowledge and Traditional Cultural Expressions?
- What is the Role of Customary Law?
- Have Countries Instituted Laws that Address these Issues?
- What does WIPO do in Respect of Indigenous Peoples and Traditional Communities?
Key Issues and Core Concepts
Traditional knowledge (TK) and traditional cultural expressions (TCEs) are generally regarded by conventional intellectual property (IP) systems as being in the public domain and so free for anyone to use. Indigenous peoples, local communities and many States argue that this opens up TK and TCEs to unwanted misappropriation and misuse.
- a traditional remedy could be appropriated by a pharmaceutical company and the resulting invention patented by that company;
- an indigenous folk song could be adapted and copyrighted, without any acknowledgement of the indigenous community which created the song and without sharing any of the benefits arising from the exploitation of the song with the community.
For their part, inventions derived from genetic resources (GRs) may be patented, and this raises questions as to the relationship between the patent system and the conservation and sustainable use of biodiversity and the equitable sharing of benefits from such use.
However, the reality is more complex than these simple examples might suggest, and there are no easy answers.
Many states and communities believe that TK and TCEs ought to be protected as a form of IP. To some limited degree, they already are. However, it is widely considered that a new, IP-based protection system for TK and TCEs ought to be developed. This would involve the creation of specially-adapted IP rules to prevent unauthorized or inappropriate use of TK and TCEs by third parties, i.e., their copying, adaptation or other kind of exploitation.
This does not mean that conventional IP systems are being forced upon TK and TCEs, but rather that the values and principles embedded in IP law could be adapted and redeployed for new subject matter and for new beneficiaries.
WIPO undertook consultations with representatives of indigenous and local communities in 1998 and 1999 as to their IP-related needs and expectations in respect of their TK and TCEs. During these missions, WIPO consulted with over 3000 people in more than 30 countries. The results of the missions are published in Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) .
Traditional knowledge or “TK” may be considered as:
- knowledge, know how, skills, innovations or practices;
- that are passed between generations;
- in a traditional context; and
- that form part of the traditional lifestyle of indigenous and local communities who act as their guardian or custodian.
It can be, for example, agricultural, environmental or medicinal knowledge, or knowledge associated with genetic resources. Examples include, among thousands of others:
- knowledge about traditional medicines;
- traditional hunting or fishing techniques;
- knowledge about animal migration patterns;
- knowledge about water management.
Sometimes, the term “TK” can also refer to more: it can include folklore or traditional cultural expressions, even though WIPO formally makes a distinction between TK on the one hand, and TCEs on the other.
- may be considered as the forms in which traditional culture is expressed;
- form part of the identity and heritage of a traditional or indigenous community;
- are passed down from generation to generation.
They can be:
- or many other artistic or cultural expressions.
- contain genetic information of value; and
- are capable of reproducing or being reproduced.
Examples include material of plant, animal, or microbial origin, such as medicinal plants, agricultural crops and animal breeds.
Biological resources include GRs, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.
“Protection” of TK or TCEs in the IP sense may mean the protection of TK/TCEs against their misuse or misappropriation, such as their copying, adaptation or use by unauthorized third parties. The objective of protection, in short, is to make sure that the intellectual innovation and creativity embodied in TK or TCEs are not wrongly used.
IP protection can mean recognizing and exercising exclusive rights, i.e., excluding others from making certain uses of TK or TCEs. IP protection can also include non-proprietary forms of protection like moral rights, equitable compensation schemes and protection against unfair competition.
“Protection” is therefore different from “preservation” or “safeguarding,” which are the identification, documentation, transmission, revitalization and promotion of cultural heritage in order to ensure its maintenance or viability. The objective, in that case, is to make sure that the TK or TCEs do not disappear and are maintained and promoted.
“Protection,” “preservation” and “safeguarding” are not mutually exclusive. Having different objectives, they may be implemented in conjunction with one another and help promote each other, for example, through documentation or inventory-making.
GRs themselves are not IP (they are not creations of the human mind) and thus cannot be directly protected as such.
However, inventions based on or developed using GRs (associated with TK or not) may be patentable or protected by plant breeders’ rights.
In considering IP aspects of use of GRs, WIPO’s work complements the international legal and policy framework defined by the CBD and its Nagoya Protocol, and the International Treaty on Genetic Resources for Food and Agriculture of the United Nations Food and Agriculture Organization.
“Biopiracy” is a term sometimes used loosely to describe biodiversity-related patents that do not meet patentability criteria or that do not comply with the CBD’s obligations, but this term has no agreed meaning. WIPO members are considering whether, and to what extent, the IP system should be used to support and implement these obligations.
Some argue that measures should be taken to prevent patents from being obtained over GRs (and associated TK) which do not:
- fulfill the existing requirements of novelty and inventiveness; and/or
- comply with CBD obligations on prior informed consent, mutually agreed terms, fair and equitable benefit-sharing, and disclosure of origin.
WIPO has improved its own search tools and patent classification systems for patent examiners when they examine patent applications which claim GRs.
Many, but not all, WIPO members want to make it mandatory for patent applications to show the source or origin of GRs, as well as evidence of prior informed consent and a benefit sharing agreement. Parallel discussions are taking place in the World Trade Organization’s Council on Trade Related Aspects of Intellectual Property (TRIPS Council).
Lastly, WIPO also deals with the IP aspects of mutually agreed terms for fair and equitable benefit-sharing. It regularly updates an online database of relevant contractual practices, and has draft guidelines on IP clauses in access and benefit-sharing agreements.
Can Existing IP Law Provide Protection for Traditional Knowledge and Traditional Cultural Expressions?
IP refers to creations of the human mind such as inventions, designs, literary and artistic works, and symbols, names, images, and performances.
IP laws typically establish:
- private property rights in creations and innovations in order to:
- grant control over their exploitation, particularly commercial exploitation;
- to provide incentives for further creativity;
- other forms of protection, for example:
- moral rights protection;
- equitable compensation; and
- protection against unfair competition.
Existing IP law can provide some form of protection of TK and TCEs.
Original works based on TCEs may be protected by copyright and related rights. Trademarks, geographical indications, industrial designs, and unfair competition law may offer direct or indirect protection to TCEs.
Innovations based on TK may benefit from patent protection: TK as such may be protected as a trade secret or as confidential information, and may also benefit from trademark, geographical indication and unfair competition protection.
Gap analyses provide some in-depth analysis of the protection of TK and TCEs by existing, conventional IP law.
Customary law is the set of customs, practices and beliefs that are accepted as obligatory rules of conduct by a community. Customary law forms an intrinsic part of social and economic systems and the way of life of indigenous and traditional communities.
Many argue that any IP-related protection granted to TK or TCEs should be in line with, or even simply comprise, the customary laws and protocols of indigenous and local communities.
There are several national and regional instruments that deal with the IP protection of TK, GRs and/or TCEs.
The Database of Legislative Texts on the Protection of Traditional Cultural Expressions, Traditional Knowledge and Genetic Resources is a selection of national and regional laws, regulations and model laws on the protection of TK and TCEs against misappropriation and misuse, as well as legislative texts relevant to GRs.
WIPO’s Traditional Knowledge Division addresses these questions, through:
- facilitating a normative process among Member States aimed at developing an international legal instrument; and
- providing complementary capacity-strengthening.
Many argue that, because of the international scale of the misappropriation and misuse of TK, TCEs and GRs, there is a need for well-established, culturally appropriate and predictable rules at the international level.
Negotiations on an international legal instrument take place within the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). All meeting documents are available online. A Brief gives an overview of the process.
WIPO cannot provide any form of legal advice to individual members of the public or on specific cases. Upon request, the WIPO Secretariat does provide legislative information and advice to its member states and regional intergovernmental organizations.
As part of its broader capacity-building program, upon request, and within its budgetary limits, WIPO organizes workshops and seminars, expert and fact-finding missions, it commissions case studies, and carries out and offers legislative drafting advice, education and training.
Beneficiaries of WIPO’s technical capacity-building activities range from governments to indigenous and local communities, research, scientific and cultural institutions, academia, non-governmental organizations and other members of civil society.
Representatives of indigenous and local communities are assisted by the WIPO Voluntary Fund to attend the negotiations in the WIPO IGC, and their active participation is crucial for a successful outcome of the negotiations.
WIPO is developing a distance learning program on IP and TK, TCEs and GRs, in cooperation with the WIPO Academy.
WIPO also offers a Cultural Documentation and IP Management Training Program.
Disputes between holders and third party users of TK, GRs and TCEs over ownership and control, access and benefit-sharing can emerge. Such disputes are complex and bring about not only legal, but also cultural or ethical questions, and therefore remedy through litigation in a national court is not always possible or desirable.
Alternative Dispute Resolution (ADR), and in particular mediation and arbitration, offers new avenues for tackling disputes.
The WIPO Arbitration and Mediation Center can assist parties in the resolution of disputes and has a dedicated service for art and cultural heritage issues. It also has specific Mediation Rules developed in cooperation with the International Council of Museums (ICOM).
Indigenous peoples and traditional communities have unique needs and expectations in relation to IP, which can be sensitive given their complex social, historical, political and cultural dimensions.
At the international level, indigenous and traditional community issues in IP often present distinct challenges because they are unlike any other that IP law has yet faced: they intersect every category of IP and often present IP dimensions that overlap with other ethical or cultural issues.
The United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples in 2007. The Declaration recognizes the equal human rights of indigenous peoples to all other peoples against any forms of discrimination and seeks to promote mutual respect and harmonious relations between the indigenous peoples and States.
The Declaration provides in Article 31 that Indigenous peoples “have the right to maintain, control, protect and develop their Intellectual Property over such cultural heritage, traditional knowledge and traditional cultural expressions.”
The Declaration is frequently referred to in WIPO’s work on these issues, including in the IGC’s negotiations.
WIPO's work is founded on extensive consultation with representatives of indigenous peoples and local communities and other NGOs which are permanent observers to WIPO or specifically accredited to the IGC. To be able to participate, an NGO must apply for accreditation at least two months prior to an IGC session. The NGO must fill out a form with information about its activities and relevance to the work of the IGC. Indigenous representatives of an accredited NGO may apply to the Voluntary Fund for funding to participate in the IGC.
Sessions of the IGC commence with presentations by a panel of representatives of indigenous and local communities. These presentations are a rich source of information on the experiences, concerns and aspirations of indigenous and local communities concerning the protection, promotion and preservation of TK, TCEs and GRs.
The Indigenous Fellowship Program addresses the needs for stronger capacity in indigenous IP law and in IP law and policy for indigenous lawyers and policy advisors. The Program aims to ensure that indigenous peoples are actively involved in the work of WIPO on issues that concern them.
It recognizes the strong legal expertise that exists within indigenous communities, and offers an indigenous person a valuable professional opportunity and a practical role within the WIPO Secretariat, including the WIPO IGC and related consultations and activities. The Fellowship is offered each year and comprises a non-renewable, nine month stint within WIPO’s Traditional Knowledge Division.
IP issues are raised by the growing interests of indigenous peoples and traditional communities in owning, controlling and accessing documentation of their cultures held by museums, libraries and archives.
Cultural institutions play an invaluable role in the preservation, safeguarding and promotion of collections of TCEs, such as photographs, sound recordings, films and manuscripts, which document communities’ lives, cultural expressions and knowledge systems.
Institutions in many countries are developing frameworks for understanding the implications of caring for TK and TCEs. Many museums, libraries and archives have established best practices to deal with IP issues. The WIPO publication IP and the Safeguarding of Traditional Cultures presents legal information and best practices from institutions and communities.
There are many initiatives underway around the world to document TK, TCEs and GRs. In most cases the purpose is preservation or safeguarding rather than legal protection. It is true that recording and documentation can play an important role for the safeguarding of cultural heritage.
However, documentation and digitization can make TK more widely available to the general public, and this can lead to misappropriation and use in ways that were not intended by their holders, in violation of their customary laws. But sometimes documentation is meant to constitute a confidential or secret record reserved for the holders. This emphasizes the importance of linking documentation initiatives to an IP strategy and to ensure that it does not take place in a policy or legal vacuum.
In an IP context, documentation can help protect TK, TCEs and GRs. For example:
- Formal registries support some sui generis protection systems;
- Databases of TK and GRs can play a role in defensive protection within the patent system, such as India’s database on traditional medicinal knowledge, the Traditional Knowledge Digital Library.
The WIPO Cultural Documentation and IP Management Training Program provides training on the technical aspects of documentation and on the IP management related thereto.
The WIPO publication IP and the Safeguarding of Traditional Cultures presents legal information and best practices from communities and cultural institutions on the documentation of TK and TCEs held within institutions.
A WIPO Toolkit for IP Management provides practical assistance to TK holders and custodians of GRs in managing the IP-implications of their documentation work. The toolkit describes legal tools that are available, discusses how they can be successfully used and thereby enable informed choices by TK holders. It provides step-by-step advice on IP management before, during and after documentation. The aim is to allow stakeholders to determine whether, and in what cases, IP rights are the appropriate mechanism to achieve their objectives.
Effective IP management is an important aspect of the planning process that festival organizers need to address to both safeguard and promote their own long-term interests and those of festival participants.
WIPO is working with organizers of events to develop appropriate IP management strategies and tools to deal with the various IP issues that can arise before, during and after such events. WIPO provides information and advice on the main IP challenges organizers face and how they may elaborate an effective IP management strategy for festivals.