1. Intellectual Property
and the Protection of
Traditional Knowledge,
Genetic Resources and
Folklore

2. Overview
♣ Introduction
♣ Terminology - What is Traditional Knowledge (TK) and Traditional
Cultural Expressions (TCES)
♣ Examples and case studies
♣ Background to WIPO’s work
♣ Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore (IGC)
♣ IGC Outcomes
♣ Legal Technical Assistance and Capacity Building
♣ Indigenous Participation and Involvement

3. Traditional values and IP at odds?
What does WIPO have to do with ‘traditional knowledge’?
Proponents and opponents of IP raised concerns:
– “imposing an IP straitjacket on traditional cultures,” “overriding collective
values of indigenous communities”
– IP concerns ‘mainstream’ technology; commercialises & commodifies
knowledge & culture; facilitates misappropriation of TK and cultural
expressions
– IP rights are private, individual - at odds with values of traditional
communities
– IP is concerned with innovation, not tradition

4. Towards resolution: back to basics
The IP system criticized for misappropriating TK/TCEs,
neglecting the interests of Indigenous & local communities.
But these very concerns often expressed in terms that echo
core principles of the IP system:
promoting equity and balance,
reconciling private and collective interests,
recognizing distinctive origins and the legitimate source of
innovation and creativity,
suppressing free-riding and unjust enrichment,
defending distinctive reputations from illegitimate exploitation,
providing for rights of attribution and integrity
This observation is the essence of an emerging consensus

5. What is Traditional Knowledge (TK)?
Traditional Cultural Expressions (TCE)?

6. Terminology
Definitions shouldn’t create firm boundaries:
• Cultural Heritage - expressions of folklore or traditional cultural
expressions (TCEs)
• Traditional Knowledge (TK) - ‘technical’ know how - e.g. medicinal
knowledge
• Genetic resources - ownership, custody, traditional relationship

7. EXAMPLES
Representative of the Saami Council
Kuna Mola
Chiva Colombia

8. Misappropriation of TK and TCEs
• Unauthorized commercial use
• Culturally offensive, derogatory and fallacious use
• No acknowledgement of source
• False association with “tradition”/borrowing of style

9. EXAMPLES
Left: Banduk Marika Djanda and the Sacred Waterhole (lino print)
Right: Indofurn’s ‘Djanda and the Sacred Waterhole’ carpet

10. Are traditional cultural expressions
economic assets?
• Indigenous visual arts and crafts industry worth
$130 million in Australia (2002 report)
• “World music” - Graceland, 1986 sold over 3.5
million copies worldwide

11. EXAMPLES
HAKA
Authentic Commercial Use

12. LEGO AND MAORI
EXAMPLES

13. Background to WIPO’s Work
Berne Convention for the Protection of Literary and Artistic
Works
- Article 15(4) attempts to introduce copyright protection for folklore at international
level and provides some form of protection where if the identity of the author is
unknown he/she may still be entitled protection
Tunis Model Law on Copyright for Developing Countries (1976)
- adopted with the assistance of WIPO and UNESCO, and provides specific
protection for works of national folklore

14. WIPO-UNESCO Model Provisions for National Laws on the Protection
of Expressions of Folklore Against Illicit Exploitation and Other
Prejudicial Actions (1982)
- drafted in response to concerns that expressions of folklore were susceptible to improper
exploitation have been used by countries within their national legislations
WIPO Performances and Phonograms Treaty (WPPT)
- adopted in 2002, provides definition of “performer” to include performer of expression of
folklore
Background to WIPO’s Work

15. WIPO-UNESCO World Forum on the Protection of Folklore - Phuket,
Thailand (1997)
-discussed issues and needs related to IP and folklore, and recognized the need for new
international standard of protection
WIPO Report on Fact-finding Missions on Intellectual Property and TK
(1998 - 1999)
- fact-finding missions in 28 countries to identify IP-related
needs and expectations of TK-holders
Background to WIPO’s Work

16. WIPO-UNESCO Regional Consultations on the Protection of
Expressions of Folklore (1999)
- four regional consultations organized and each regional consultation adopted
recommendations identifying IP needs and issues, and proposals for future works. Also
recommended the establishment of a committee to facilitate future work in this area.
Background to WIPO’s Work

17. INTERGOVERNMENTAL COMMITTEE ON
INTELLECTUAL PROPERTY AND
GENETIC RESOURCES, TRADITIONAL
KNOWLEDGE AND FOLKLORE
(IGC)

18. Where did the IGC come from, where is it going?
1998-99 fact-finding missions (60 locations; dialogue with around 3,000
representatives of TK holder communities)
– new program based on direct learning of the needs & expectations
of TK holders themselves
– these insights still central
IGC established in 2001
– clarifies that this is an existing area of IP law and practice; many
laws and practical cases worldwide, within and beyond the
conventional IP system
– what is the international dimension?

19. INTERGOVERNMENTAL COMMITTEE ON
INTELLECTUAL PROPERTY AND GENETIC
RESOURCES, TRADITIONAL KNOWLEDGE AND
FOLKLORE
(IGC)
Forum in which discussions can proceed among Member States on three
primary themes, namely intellectual property issues that arise in the context
of
(i) access to genetic resources and benefit sharing;
(ii) protection of traditional knowledge, whether or not associated with those
resources; and
(iii) protection of expressions of folklore

20. New IGC Mandate 2004-05
Continue work on questions included in previous mandate
 new work to focus on consideration of international dimension, without
prejudice to work in other fora
 no outcome is excluded, including the possible development of an
international instrument(s)
 the IGC urged to accelerate its work and to present a progress report
 International Bureau to continue to assist by providing necessary
expertise and documentation

21. Tangible Outcomes
• Series of Studies and Analysis of Positive Protection of TK and
TCEs
• Analysis of elements of sui generis protection systems for TK
• Practical Analysis of terminology concerning TK and TCEs
• Practical tools for the positive and defensive protection of TK
• TK Portals
• Inventories of periodicals and databases to promote search and
examination
• Publication of practical case studies on TCES/Folklore
• Publication of case studies concerning access to genetic
resources and associated benefit-sharing

22. • Toolkit for Managing Intellectual Property when Documenting TK
and Genetic Resources
• WIPO Practical Guide on the Legal Protection of Traditional
Cultural Expressions
• Guide on Contractual Practices and Clauses relating to
Intellectual Property, Access to Genetic Resources and Benefit-
Sharing
• Customary Law Study
• Portal of Online Databases and Registries of Traditional
Knowledge and Genetic Resources
IGC Continuing Work

23. Outcomes of IGC 6
The IGC commissioned:
• Draft policy objectives and core principles for TK protection
• An outline of policy options and legal elements for TK
• Questionnaire on prior art criteria relevant to TK and draft
recommendations for patent search and examination concerning TK
systems
• Drafts policy objectives and core principles for the protection of
TCEs
• An outline policy options and legal elements for TCEs
• Enhance participation of indigenous and local communities in the
IGC

24. Outcomes of IGC 7
Results of the most recent meeting
• Discussion of key documents focusing on key draft
policy objectives and core principles for TK and
TCEs
• Enhanced indigenous participation

25. LEGAL TECHNICAL ASSISTANCE AND
CAPACITY BUILDING

26. LEGAL TECHNICAL ASSISTANCE AND
CAPACITY BUILDING
• Regional and National Activities
• Expert and Fact-finding Missions
• Legislative Development
• Education and Training
• Indigenous Participation and Involvement

27. Regional and national activities
The main objectives of the activities are to:
• provide Member States, Indigenous and local communities, relevant
organizations and other stakeholders with a series of fora where they
can consider and reflect on the technical, legal and policy dimensions
of the issues that arise in the context of the mandate of the IGC
• ensure that States, Indigenous peoples and local communities, and
other stakeholders have a clear idea of the work and mandate of the
IGC, so that they may contribute to its deliberations in an effective way.

28. Expert and Fact-finding Missions
Fact-finding mission to China on the Legal Protection of National
Folklore - November 28 and December 4, 2002
Fact-finding mission to China on the Protection of Traditional Chinese
Medicines - November 10 to 14, 2003

29. Legislative development
Within the context of the Secretariat’s normal and ongoing Development Cooperation
functions:
- contributed comments and information on the protection of TCEs and TK to
many countries which have requested this as part of their drafting of IP laws or
review of existing laws.
Requests also received from regional IGOs. e.g.:
(1) Legal and policy options for the intellectual property protection of traditional
knowledge for the African Regional Industrial Property Organization
(ARIPO), as technical cooperation in the context of developing an integrated
policy approach to traditional knowledge.
(2) Similar resource materials were drawn on in consultations on legal and policy
options with the African Intellectual Property Organization (OAPI).

30. Legislative Drafting, Comments and Information
Regional Framework for the Protection of TK and TCEs
At the request of Pacific Island States through the Secretariat of the Pacific Community (SPC) and
the Pacific Islands Forum Secretariat (PIFS), the Secretariat has provided information and legislative
drafting comments and advice in relation to the development of a Regional Framework for the
Protection of Traditional Knowledge and Expressions of Culture for Pacific Island countries.
Practical Guide on TCE for LDCs
Practical Guide providing legal technical assistance to States to
implement or improve existing IP Systems at a National Level

31. Outreach and publications
Awareness-raising publications
Booklets
> Intellectual Property and Traditional Knowledge;
> Intellectual Property and Traditional Cultural Expressions
(expressions of folklore);
> Intellectual Property and Access to Genetic Resources.
Background Papers
> The Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore;
> Intellectual Property and Traditional Knowledge;
> Consolidated Analysis of the Legal Protection of Traditional Cultural
Expressions;
> Intellectual Property and Access to Genetic Resources.

32. Education and Training
WWA Distance Learning Courses
DL-203 "Traditional Knowledge and
Intellectual Property"
http://www.wipo.int/academy/en/dl101/index.htm
Coming Soon!

33. Specialized Course on IP and Traditional Knowledge
DL - 203
Course outline: The course shall present a general overview of the
TK/IP nexus, in particular how the IP system relates to the
protection of TK.
The course shall be comprised of six (6) substantive modules:
• the notion of “traditional knowledge”,
• its value and importance in the cultural, scientific and commercial
spheres,
• current practices representing a threat to TK,
• the rights TK holders want recognized,
• possible models of protection of TK,
• institutions and processes relevant to TK and IP.

34. Indigenous Participation and Involvement
NEW!! Accredited Non-Governmental Organizations' (NGOs) Page
NGOs play active and important role in the work of the IGC since its inception.
Apart from the NGOs already accredited to WIPO, around 95 additional NGOs have
been accredited especially for the IGC many of which are representatives of local
indigenous communities.
The IGC itself and the WIPO Assembly have both stressed the need to enhance the
participation of local and indigenous communities in its work.
Currently under consideration, the possibilities of enhancing indigenous participation
(document WIPO/GRTKF/IC/7/12)

35. ♣ Future of IP and TK
♣ Role of WIPO
♣ Other International Foras

36. Thank You
Susanna Chung