1. Does the WIPO’s Framework on Traditional Knowledge
Address the Concerns of Indigenous Peoples?
Par Christophe DERNONCOURT
Master 2 Propriété Industrielle
Université Paris II Panthéon-Assas
Sous la Direction du
Professeur Jean-Christophe GALLOUX
Année 2013/2014

2. 2
Acknowledgement
First, I express my sincere gratitude to my supervisor Pr. Galloux for having accepted this
subject and provided guidance in the writing of this dissertation.
I would also thank my former teacher Howard Johnson whose passionate teachings
encouraged me to lead research in international intellectual property law and in particular in
the issue of developing countries and indigenous peoples.
My sincere thanks also go to University Paris II Panthéon-Assas and the teaching staff of my
Master degree, as well as all my fellow classmates who made this year unforgettable.
Finally, I would like to thank my family and all the people who have helped and supported
me in the writing of this paper, including Eric Le Bellour who has always been inclined to
assist me.
This dissertation is the result of the author’s own independent work and investigation. Law
school does not approve or disapprove the opinions expressed in this paper.
Tout d’abord, je souhaite exprimer ma sincère gratitude envers mon directeur de mémoire, le
Professeur Galloux, pour avoir accepté ce sujet et pour ses conseils dans l’écriture de ce
mémoire.
Je remercie également mon ancien professeur Howard Johnson dont les enseignements
passionnés ont éveillé mon intérêt pour le droit international de la propriété intellectuelle et
notamment la question des pays en développement et des peuples autochtones.
Mes remerciements s’adressent également à l’Université Paris II Panthéon-Assas et à
l’équipe enseignante du Master, ainsi qu’à tous mes camarades de promotion qui ont rendu
cette année inoubliable.
Enfin, je remercie mon entourage et toutes les personnes qui m’on aidé et soutenu dans
l’écriture de ce mémoire, notamment Eric Le Bellour qui a toujours accepté de me fournir les
moyens nécessaires à la réussite de ce travail.
La faculté n’entend donner aucune probation ni improbation aux opinions émises dans ce
mémoire, ces opinions doivent être considérées comme propres à leur auteur.

3. 3
Abstract
This study is a review of the draft sui generis regime for the protection of TK proposed by the
WIPO Intergovernmental Committee (Annex 1) on 9 July 2014. It aims at assessing to which
extent the proposed provisions incorporate the requests of the main beneficiaries, i.e.
indigenous and local communities. Nevertheless, the dissertation also critically analyzes the
relevance of these requests in light of all parameters in question. In particular, in the context
of an intellectual property protection, certain demands of indigenous peoples, although often
legitimate, seem unrealistic or counterproductive for the elaboration of an efficient
international system of protection. This study is thus seeking to objectively examine what is
to become the next intellectual property right.
Ce mémoire est une étude du projet de régime sui generis pour la protection du Savoir
Traditionnel, proposé par le Comité Intergouvernemental de l’OMPI (Annexe 1) le 9 juillet
2014. Il vise à évaluer dans quelle mesure les dispositions proposées tiennent compte des
demandes des principaux intéressés, à savoir les communautés locales et autochtones.
Néanmoins, ce mémoire analyse également la pertinence de ces demandes, en tenant compte
de tous les paramètres en jeu. En particulier, dans le contexte d’une protection par le droit de
la propriété intellectuelle, certaines exigences des peuples autochtones, bien que souvent
légitimes, sont irréalisables ou contreproductives pour l’élaboration d’un système de
protection efficace au niveau international. Cette étude cherche donc autant que possible à
analyser de façon objective ce qui semble se dessiner comme le prochain droit de propriété
intellectuelle.

4. 4
Table of Contents
Introduction....................................................................................................................................5
Part I: Traditional Knowledge and Indigenous People in the International
Context ..............................................................................................................................................8
Chapter 1: The Current Global Protection of Traditional Knowledge ....9
I. The stakes of a multilateral protection: the concerns of indigenous peoples beyond the North-
South divide ....................................................................................................................................9
II. The existing instruments protecting traditional knowledge: toward a necessary sui generis
right? .............................................................................................................................................14
Chapter 2: The WIPO’s Solution, Appropriate for Misappropriation?........22
I. The place of indigenous peoples in the Intergovernmental Committee forum..........................22
II. The Draft Articles, between the demands of indigenous peoples and the international reality24
Part II: The Future Traditional Knowledge Right ......................................................31
Chapter 1: The acquisition of traditional knowledge right............................32
I. The criteria for the protection....................................................................................................32
II. The beneficiaries of the protection...........................................................................................40
Chapter 2: The Exercise of the Traditional Knowledge Right........................45
I. The scope of protection .............................................................................................................45
II. The enforcement of the right....................................................................................................52
Conclusion ....................................................................................................................................56
Annex 1 .............................................................................................................................................58
Bibliography ..................................................................................................................................73

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Introduction
On 9 July 2014, the WIPO Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore (“the IGC”) adopted the Draft
Articles for the Protection of Traditional Knowledge.1
Although the framework developed by
the IGC is not perfectly complete and still need to be transmitted for discussion to the WIPO
General Assembly in September 2014, this decision constitutes a new important step forward
for the recognition and the establishment, at an international level, of an intellectual property
right protecting traditional knowledge of indigenous peoples.
The decision is all the more a satisfaction that the process has been long and difficult before
coming to such an achievement. From at least as far back as 1980s, concerns about the
misappropriation of traditional knowledge (“TK”) and genetic resources (“GRs”) of
indigenous and local communities have emerged. Many international texts and conventions
were then adopted to address the demands of developing countries and TK-holders. Among
them are the UN Declaration on the Rights of Indigenous Peoples2
, the International Labour
Organization Convention No.1693
, and the Convention on the Biological Diversity (the
“CBD”) along with its Nagoya Protocol.4
Nevertheless, these international texts, despite their importance in recognizing the rights of
indigenous communities, do not properly address the issue of traditional knowledge per se,
and are more focused on traditional knowledge associated to genetic resources or other
concerns of indigenous peoples such as self-determination, development and land rights.5
1
WIPO IGC, Decision of 28th
session of the Committee, 9 July 2014, WIPO/GRTKF/IC/28/REF/DECISIONS;
WIPO, The Protection of Traditional Knowledge : Draft Articles, 2014, WIPO/GRTKF/IC/28/5. The Draft
Articles are reproduced in Annex 1.
2
UN Declaration on the Rights of Indigenous Peoples adopted by the General Assembly of the UN, 13
September 2007.
3
International Labour Organization Convention No.169 concerning Indigenous and Tribal Peoples in
Independent Countries, 27 June 1989.
4
Convention on the Biological Diversity, 5 June 1992 ; Nagoya Protocol on Access to Genetic Resources and
the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological
Diversity, 29 October 2010.
5
For example CBD Art. 8(j) refers to “knowledge, innovations and practices of indigenous and local
communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological
diversity” (emphasis added); see also ILO Conv. No. 169, Art. 7.1 and the UN Declaration, Art. 31.

6. 6
Besides, they are criticized as they lack effective enforcement mechanisms, necessary to
sufficiently ensure the respect of indigenous communities’ rights.6
In 2000, the IGC was mandated by the WIPO General Assembly to provide a platform for
discussions on the relationships existing between intellectual property and TK and to
“identify and explore the intellectual property needs and expectations of new beneficiaries,
including the holders of indigenous knowledge and innovations”.7
The IGC was thus
involved in the development of sui generis systems for the protection of three important
issues related to indigenous peoples, namely Genetic Resources, Folklore (also called
Traditional Cultural Expressions, “TCEs”) and TK.8
After nearly 15 years of negotiation at WIPO, the emergence of a new intellectual property
right protecting TK against misuses and misappropriations, with all the efficient and complex
system it implies, should hence meet the satisfaction of indigenous and local communities.
However, the question remains: to what extend does the framework developed by the IGC
really address their concerns? This question deserves to be raised since indigenous and local
communities have expressed their reluctance toward an intellectual property protection,
emphasizing that TK have more spiritual and cultural than commercial values.9
Furthermore,
most indigenous peoples are seeking a system which can safeguard and preserve their TK
and not a system which allow them to exploit it.10
But above all, the issue of TK is a very complex one, having important economic and social
implications at an international level; the weakness of indigenous and local communities in
the international debate then involves a real risk that their requests be not reflected in the final
text.
6
See for example Srinivas K., “Protecting traditional knowledge holders’ interests and preventing
misappropriation – traditional knowledge commons and biocultural protocols: necessary but not sufficient?”,
I.C.J.P. 2012, 19(3), 401- 422, 403 ; see also Nijar G., “Traditional knowledge systems, international law and
national challenges: marginalization or emancipation?”, E.J.I.L, 2013, 24(4), 1205-1221, 1210 and 1217-1218;
Dodson M. and Barr O., “Breaking the deadlock: developing an indigenous response to protecting indigenous
traditional knowledge”, 11 Austl. Indigenous L. Rev., 2007, 19, 22.
7
WIPO/IPTK/RT/99/2
8
Note that the IGC developed three different drafts regarding GRs, TCEs and TK. Nevertheless, although all
these issues are linked to each other and often raise similar difficulties, this study only focuses on the draft
provisions for the protection of TK.
9
CIEL, The Gap between Indigenous Peoples’ Demands and WIPO’s Framework on Traditional Knowledge,
Sept. 2007, 3, accessible at http://www.ciel.org/Publications/WIPO_Gap_Sept07.pdf (accessed, 03/08/2014).
10
OseiTutu J. J., “A sui generis regime for traditional knowledge: the cultural divide in intellectual property
law”, 15 Marq. Intell. Prop. L. rev. 147 2011, 188; see also Farley C., “Protecting folklore of indigenous
peoples: is intellectual property the answer?”, 30 Conn. L. rev. 1, 1997, 55.

7. 7
This study is thus a review of the draft sui generis regime for the protection of TK proposed
by the IGC. It aims at assessing whether the proposed provisions embody the approach of the
first concerned beneficiaries, i.e. indigenous and local communities. Nevertheless, this does
not mean that all requests of indigenous peoples should be accepted and implemented in the
framework. Especially, in the context of an intellectual property protection, certain demands
of indigenous peoples, although often legitimate, seem unrealistic or counterproductive for
the elaboration of an efficient international system of protection.
Part I explores the TK issue in the international intellectual property context, whereas Part II
examines in more depth the WIPO draft framework, following the logical of every existing
IPRs.

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Part I: Traditional Knowledge and Indigenous
People in the International Context
The debate regarding the creation of an international regime of protection for TK involves the
participation of an important number of actors, which go far beyond the strict sphere of users
and right-holders. Indeed, the question has been rapidly taken over by the international
community and more precisely by Member States of the different multilateral organizations
concerned with TK issues. In that respect, the long pace of work to come to the WIPO draft
provisions has clearly brought out the differences of approach and the divide between
industrialized and developing countries. Whereas the latter - main providers of TK - consider
the issue of an international protection as essential for their economic development and the
struggle against illegitimate misappropriation, the former - main users of TK - on the contrary
see TK as a freely accessible public good which should not be subject to any monopoly
right.11
Long regarded as a deadlock in multilateral intellectual property negotiations, the
issue of traditional knowledge right has then mainly developed at national and regional
levels. There are consequently reasons to believe that the draft international solution currently
developed by the WIPO constitutes a first important recognition of this grass-root movement.
However, given the international tense debate mainly steered by economic, political and
social considerations, it has often been very difficult for small indigenous and local
communities to occupy a leading position in the drafting of an appropriate regime of
protection for their TK.12
And yet, beyond the economic and development perspectives it
may offer to developing countries, such a protection is also considered as crucial for the
survival of most communities.13
Chapter 1 provides a clear overview of the current global situation with respect to the
protection of traditional knowledge. Chapter 2 examines the future traditional knowledge
right as proposed by the IGC and its implementation in the international intellectual property
system.
11
See OseiTutu, supra no. 10.
12
Antons C., “Geographies of knowledge: cultural diffusion and the regulation of heritage and traditional
knowledge/cultural expressions in Southeast Asia”, W.I.P.O.J., 2012, 4(1), 83-91, 85 ; see also for example,
WIPO/GRTKF/IC/7/Prov2, para 135.
13
See for example Arowolo A., “African traditional knowledge systems management: the struggle between
science and tradition”, IUP Journal of Knowledge Management, Vol. IX, 4, 2011, 8.

9. 9
Chapter 1: The Current Global Protection of Traditional
Knowledge
Traditional knowledge is not a marginal resource in the world. Often seen as ancient or
primitive, TK nevertheless remains, whatever the form it may take, an important basis for the
present-day life of most people around the world.14
For example, in 2001, it was estimated
that 70 percent of the Indian rural population depended on the old Ayurveda system of
traditional medicine.15
Besides, the significant value of TK has also been highlighted by the
increasing misappropriation that multinational corporations and industrialized countries have
carried out in order to take economic advantages of it. The stakes of the establishment of an
appropriate international regime for the protection of TK are then real and should not be
undermined (I). Unfortunately, so far, very little have been made at the multilateral level to
grant such a protection, especially in respect of the global IP system which is criticized as
fostering the misappropriation process instead of providing the proper legal means to contend
with it (II).
I. The stakes of a multilateral protection: the concerns of indigenous peoples beyond the
North-South divide
The international debate has brought out three major trends concerning the protection of
TK.16
Developed countries like the USA, Japan, Canada and the EU are quite reluctant to a
special regime of protection, considering especially that TK is part of the public domain as
soon as it is freely accessible outside the sphere of the indigenous community. Developing
countries (DCs) and least-developed countries (LDCs) for their part see in the protection of
TK held by their peoples a potential to create economic growth opportunities.17
Finally,
indigenous and local communities, as TK-holders, are looking for a positive system that is
sufficiently able to ensure the safeguarding of their cultural heritage.18
In brief, the TK issue
involves various and different motivations at the negotiation table. Whether they are
economic, social or cultural, these concerns play an important role in the elaboration of a
framework for the protection of TK.
14
Biber-Klemm, “The protection of traditional knowledge on the international level - Reflections in connection
with world trade”, UNCTAD Meeting, 2000, 2.
15
WHO, Legal Status of Traditional Medicine and Complementary/Alternative Medicine : a Worldwide Review,
2001, 9.
16
See CIEL, supra no. 9, 1-2.
17
See for example WIPO/RT/LDC/1/14, para. 10.
18
CIEL, supra no. 9, 1.

10. 10
A. The potential economic interests of TK in the North-South divide
In 2005 it was estimated that there existed over 300 million indigenous people in the world,
living in approximately 70 countries - a great majority of them being DCs or LDCs.19
These
indigenous and local communities hold and use in their daily life the knowledge they have
inherited from their ancestors for a multitude of generations. Such knowledge is kept and
maintained with care within the ethnic groups since it vitally contributes to their identity,
cohesion and survival. On the other hand, a certain amount of TK associated to these
communities has also significantly contributed to the development of new products in modern
industries and therefore constitutes a real economic opportunity, especially in the agricultural
and pharmaceutical sectors. It is difficult to precisely estimate the economic value of TK in
the global market, but certain figures give an insight. For instance, three-quarters of the plants
that provide active ingredients for prescription drugs came to the attention of researchers
because of their use in traditional medicine.20
This is not negligible when one knows that the
estimated market value of plant-based medicines sold in OECD countries in 1990 amounted
to $61 billion.21
Many other examples of well-known traditional knowledge that have been
widely observed and used in modern societies may be cited : this includes inter alia the
traditional medicinal uses of the Indian neem, the Tai healers’ use of the plao-noi plant to
treat ulcers, the traditional aflaj and qanat water system developed by local communities in
Oman, Yemen and Iran to maintain sustainable irrigation, the San use of the hoodia plant to
stave off hunger, the sacred use of the Ayahuasca vine in the western Amazon, the Inuit’s
knowledge of seasonal migration patterns of certain species in the Hudson Bay region, the
use of the hallucinogenic yagè plant by Colombian shamans in religious ceremonies…22
In this context, the control of the utilization of TK turns out to be an interesting deposit for
states rich in this kind of resources. By the elaboration of a TK right, DCs and LDCs then
hope to eventually benefit from the global IP system which has been so far a burden for their
19
United Nations Development Program, “UNDP and indigenous peoples: a policy of engagement”, 2005, at
11; see also Dodson M and Barr O., supra no. 6, 25 ; Carpenter A., Katyal S. and Riley A., “In defense of
property”, 118 Yale L. J. 2009, 1022, 1103.
20
Gray A., “Between the spice of life and the melting pot: biodiversity conservation and its impact on
Indigenous peoples, IWGIA, 1991, 70 ; see also Nijar, supra no. 6, 458-459.
21
Principe, Economics and Medicinal Plants , in Medicinal Plants : Their Role in Health and Biodiversity
(Tomlinson and Akerele eds.), 1998, 44-45
22
WIPO, Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural
Expression : an Overview, WIPO Publications, 2012 ; OseiTutu, supra no. 10, 165 ; Commission on Intellectual
Property Rights (UK), Integrating Intellectual Property Rights and Development Policy (2002) 67 ; see also,
Dutfield G., “TRIPS-related aspects of traditional knowledge”, Case W. Res. J. Int’l L., 2001, 233 – 275.

11. 11
economic development. Since 1994 and the adoption of the WTO Agreement on Trade-
related Aspects of Intellectual Property Rights (“TRIPS”),23
DCs and LDCs have expressed
their concerns about the harmful effects the high international IP standards are having on
their development.24
Indeed, although IPRs have been praised for their incentive effects on
national innovation, technology transfer and economic growth stimulation,25
they have
actually failed to provide positive results concerning less industrialized countries, whose
innovation capacity is relatively limited.26
Quite the opposite, IPRs clearly seem to worsen
the situation in very poor countries due notably to the restricting impact of monopoly rights
on vital issues such as access to medicines, education and food security.27
The global IP
system is consequently criticized as having been elaborated only by and for Western
countries, main producers of IP subject matters. Indeed, as highlighted by Shubbah Gosh,
IPRs have a new strategic role in that they “can serve as an instrument by member states to
subsidize its constituencies and engage its resources more effectively in the international
marketplace”.28
Thus, information-exporting countries have tended to favour a globalized
protectionist model so as to maximize their economic gains.29
On the contrary, DCs and
LDCs are more importers than exporters of IP products and therefore suffer from this
unwanted system. This does not mean that DCs and LDCs are not important providers of the
global knowledge pool; it is simply that in the actual situation their creations and resources
hardly fit the Western IP categorization system, i.e. copyright, trademarks, patents, designs
and geographical indications.
23
The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization,
signed in Marrakesh, Morocco on 15 April 1994.
24
See Gervais D., “Traditional knowledge: a challenge to the international intellectual property system”, 7 Int’l
Intell. Prop. L. & Pol’y 76-1, 2002, 76-2.
25
Gould, D. M. and Gruben W. C., “The role of intellectual property rights in economic growth”, 48 Journal Of
Development Economics 1996, 323-350; Demiray A. D., “Intellectual Property and the External Power of the
European Community: The new Extension”, 16 Mich. J. Intern’l. L. 1994, 187, 200 Brangstetter L. G., “Do
stronger patents induce more local innovation ?” in Maskus K. and Reichman J. (eds), International Public
Goods and Transfer of Technology: Under a Globalized Intellectual Property Regime, CUP 2005, 309-320, 310
; also OseiTutu, supra no. 10, 152.
26
Blakeney M. and Mengistie G., “Intellectual property policy formulation in LDCs in Sub-Saharan Africa”,
African Journal of International and Comparative Law 19(1), 2011, 66-98, 73.
27
On the harmful impacts of IPRs on public health, education and food security in poor countries, see :
Bambauer D. E., “Why Intellectual Property Rights matter to Less-Developed Countries”, Information
Technologies and International Development, Vol.1(3), 2004, 63-71, 67 ; UNESCO, World Information Report
1997/1998, UNESCO, 1998, p.320 ; Haugen H.M., Muller M.R and Narasimhan S.M., “Food security and
intellectual property rights: finding the linkages” in Intellectual Property and Human Development, CUP, 2010,
Chapter 3, 103-138, p. 10 .
28
Ghosh S., “The traditional terms of the traditional knowledge debate”, Northwestern Journal of International
Law & Business, 2003, 589, 598.
29
Drahos P., A Philosophy of Intellectual Property, Dartmouth 1996, 190-191.

12. 12
In such circumstances, TK represents an attractive option for less developed countries in
order to rebalance the current international IP system.30
The economic perspectives it induces
have therefore strongly reinforced the support of DCs and LDCs toward the concerns
expressed by indigenous and local communities in relation to the misuse of their TK.
Nevertheless, in the interests of indigenous peoples, it is important that the debate about the
protection of TK do not derive in the continuation of debates between North and South in
ownership and control of resources31
nor in the elaboration of a legal system only steered by
global economic considerations.
B. Preservation v. exploitation: the Great Dilemma of indigenous peoples
Indigenous people have expressed one major concern in relation to the elaboration of a
regime protecting their TK. Indeed, according to their requests, the international model must
primarily ensure the preservation of TK within the community and prevent any form of
misappropriation.32
Misappropriation refers to the extraction and utilization of TK (and their
associated resources) as well as the acquisition of IPRs derived from such knowledge and
resources without the prior consent of, and the provision for benefit-sharing with, the
individuals or community that provided the TK and the related resources.33
For instance,
lucrative and commercial medicines have been developed from TK held by the Kaani
community in relation to certain berries helping to overcome fatigue.34
Likewise, in 1986, a
US patent was granted to a US citizen, Loren Miller, with respect to a plant variety used by
Amazonian indigenous communities in religious ceremonies.35
Given the close and vital
dependence of indigenous peoples’ lifestyles on their traditional resources, such
embezzlements are recognized very detrimental thefts and real threats to the safeguarding of
TK.
More than the commercial value, indigenous representatives have insisted on the cultural,
spiritual - and often sacred – value of traditional practices and knowledge.36
Placed in a
30
Castle D. and Gold R., “Traditional knowledge and benefit sharing: from compensation to transaction, in
Philips P. and Onwueke C. (eds), Accessing and Sharing the Benefits of the Genomics Revolution (2007), 67.
31
Ghosh, supra no. 28, 592.
32
Liu Y., “Justification of subject-matter for legal protection of traditional knowledge”, EIPR 2007, 29(11),
456-460, 456 ; see also Milius, “Justifying intellectual property in traditional knowledge”, I.P.Q. 2009, 2, 185-
216, 187.
33
Dutfield G., The Public and Private Domains : Intellectual Property Rights in Traditional Knowledge, 21/3
Science Communication, 2000, 278.
34
Nijar G., “Incorporating traditional knowledge in an international regime on access to genetic resources and
benefit sharing : problems and prospects” , E.J.I.L. 2010, 21(2), 457-475, 462.
35
US. Plant no. Plant 5 751 issued on 17 June 1986 « Da vine ».
36
CIEL, supra no. 9, 3.

13. 13
different context, the use of TK may be considered as disrespectful and also constitute a
threat of a different nature. It is for example the case when TK has been intended to be kept
secret or only accessible to a small amount of people but is largely disclosed and widespread
through commercialization and modern means of communication.
However, while indigenous peoples emphasize the need of a preservative system, some of
them are inclined to offer their knowledge for exploitation as soon as they can derive fair
benefits of the process.37
In that way, TK holders can benefit from their indigenous
knowledge and use that particular trade route on the road to economic prosperity.38
But in the
same time this is with reason a good alternative to preserve the knowledge. First, because the
diffusion of TK will necessarily lead to its conservation.39
Second, because it will help
resolving the serious problem of the rejection of traditions by indigenous youth who sees in
modern lifestyles the hope for a better life.40
Indeed, it must be noted that indigenous people
are among the poorest in the world; the risk of the extinction of certain communities involves
the risk that humanity loses their TK.41
By providing economic incentives for the
maintenance of traditional ways of life, the model may then greatly serve the longevity of
both communities and TK. In addition, as Carlos Correa noted:
“fencing off their knowledge does nothing to protect it from being ever more eroded,
undermined, or ignored at the risk of being lost”.42
On the other hand, the system may also turn out to be counter-productive. Indeed, an over-
exploitation of TK resources would be likely to dilute the traditional character and more
especially its linkage to a specific indigenous community. There is then a risk that the
knowledge loses its sacred value, becomes trivial and enters the so-called “public domain”.
Furthermore, one may legitimately point out the problematic - and a bit cynical - question of
the excessive accumulation of wealth generated by a sensible property management of
traditional resources. Indeed, if the system enables TK-holders to earn too much money, is
there not a risk that their traditional ways of life disappear?
37
Milius D., “Justifying intellectual property in traditional knowledge”, I.P.Q. 2009, 2, 185-216, 190.
38
Ibid., 187.
39
See Liu, supra no. 32, 456.
40
Wendland W., “Intellectual property, traditional knowledge and folklore: WIPO’s exploratory program”, IIC
2002, 33(4), 485-504, 498
41
Gervais D. « Traditional knowledge & intellectual property: a TRIPS-compatible approach”, 2005 Mich. St.
L. Rév. 137, 138.
42
Correa C., “Traditional knowledge and Intellectual Property- issues and options surrounding the protection of
traditional knowledge”, Quatar UN Office, 2001, 7.

14. 14
The TK issue thus forms a great dilemma for indigenous peoples: their opinions differ
between keeping their TK secret within the community and sharing it in order to get a fair
benefit from it. In addition, the legal model must embody a certain moderation regarding its
implications so as not to unreasonably denature the original functions of TK in the daily life
of communities it is associated with. In that respect, the call for a tailored instrument, that is
adapted to each indigenous tribe, renders the elaboration of a comprehensive global system
even more complicated.
II. The existing instruments protecting traditional knowledge: toward a necessary sui
generis right?
To be the most efficient, it is important that the legal TK instrument covers the widest
possible territory and be supported by a well-organized system. While intellectual property
law meets these fundamental requirements, there is currently no multilateral IP treaty that
precisely addresses the question of TK. It may then be tempting to rely on traditional IPRs
that are already strongly implemented in the global legal landscape in order to apply them to
TK. Nevertheless, this has proven to be a very limited solution. In fact, it is currently only at
the national and regional levels that appropriate IP instruments specific to TK can be found.
A. At the international level
In the area of public international law, there already exists a various range of legal
instruments that address the issue of indigenous TK. These especially include the 1970
UNESCO Cultural Property Convention,43
the 1972 World Heritage Convention,44
the ILO
Convention 169,45
the CBD,46
and the 1994 UN Convention to Combat Desertification.47
Nevertheless, a standard criticism of these conventions is that they consider the protection of
TK as only a part of the greater concern for global ecological sustainability.48
Some other
declarations may also be cited such as the 1993 Mataatua Declaration49
, the 1992 Kari-Oca
43
UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November
1972.
44
UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property, 14 November 1970.
45
International Labour Organization Convention No.169 concerning Indigenous and Tribal Peoples in
Independent Countries, 27 June 1989.
46
Convention on the Biological Diversity, supra no.4.
47
UN Convention to Combat Desertification (UNCDD), 17 June 1994.
48
Milius, supra no. 37, 200.
49
Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, June 1993.

15. 15
Earth Charter50
and the UN Declaration on the Rights of Indigenous Peoples.51
However,
besides their similar inabilities to properly address the treatment of TK per se, these
international declarations are not legally-binding and merely call for better conducts of
signatory states.
It is noteworthy that, despite the continuous adoption of mutually supportive texts, none of
the international IP treaties mentions the treatment of TK. In that respect, certain authors have
considered that, in some cases, the TK issue should not be dealt with IPRs, but should remain
a matter for environmental regulation or self-governance treaties.52
Yet, there is no
convincing reason why TK could not be dealt by intellectual property law. Indeed,
intellectual property law is a flexible and “broad concept that can include matter that does not
currently fall within existing categories”.53
Moreover, intellectual property law is one of the
most globally developed system, offering a solid framework for the protection of TK.
1. From local to global protection: a straight TRIPS
Among the international IP agreements, the TRIPS Agreement is the last great achievement
in date and undoubtedly the most “ambitious intellectual property convention ever
attempted”.54
Indeed, due to the inclusion of the TRIPS Agreement in the Marrakesh package
of agreements, any of the 160 WTO-members has to implement it in its internal order. The
TRIPS Agreement is also the only multilateral treaty to deal with all major existing IPRs.
Last but not least, all the provisions are strongly enforceable since the agreement benefits
from the elaborated WTO dispute settlement.55
Consequently non-compliant measures may
be challenged and punished by heavy trade sanctions from other Member States.56
The inclusion in this major agreement of provisions that would adequately address the
concerns of indigenous peoples is therefore the ultimate dream of TK right supporters.
50
Kari-Oca Declaration and Indigenous Peoples Earth Charter, May 1992.
51
UN Declaration, supra no. 2.
52
See Gervais D, supra no.41, 156 ; see also Harms L., “Indigenous traditional knowledge and intellectual
property law”, IIC 2010, 41(5), 503-505.
53
WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders : WIPO Report on
Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), 2001, 6.
54
Reichman J., “Compliance with the TRIPS Agreement: Introduction to a Scholarly Debate”, 29 Vand. J.
Transnat’l L. 1996, 363-390, 366.
55
See art. 64 of the TRIPS Agreement.
56
Annex 2 of the WTO Agreement, Understanding on rules and procedures governing the settlement of disputes
(1994).

16. 16
However, the TRIPS Agreement does absolutely not treat or even mention the issue of TK.57
Such a deficiency contributes to the criticisms toward the TRIPS Agreement according to
which the treaty is intended to benefit only Western countries and not developing countries.58
Many propositions have fed the discussions about how the TRIPS provisions could be
adapted to cover TK. For instance, a solution has been intended to amend the Agreement and
require the disclosure of TK in patent application, so that it will be in line with the CBD.59
Likewise, the provisions on geographical indications have been proposed to be extended in a
such a way that they can embrace TK.60
But the discussion has mainly focused on Article
27(3) of the Agreement, which deals with some aspects of the patentability of certain
biotechnological inventions, and especially provides that patent can be excluded in relation to
plant varieties if Member states have opted for a sui generis right.61
At the Doha Round in 2001, WTO Member States directed the TRIPS Council to explore the
relationship between the TRIPS Agreement, the CBD and the protection of TK.62
Nevertheless, developed countries have agreed on a “consensus”63
to wait first for more
certitude concerning the elaboration of an international sui generis right at the WIPO64
:
“Once WIPO has completed work on model national legislation, attention could be
focused on how and to what extent the protection of traditional knowledge can be
included in the TRIPs Agreement.”65
However, one may wonder why such a process should be applied to TK whereas it was not
even applied to geographical indications. As OseiTutu rightfully pointed out, before their
recognition in the TRIPS Agreement, geographical indications had not been explicitly
57
See Drahos P. and Braithwaite J., Information Feudalism: Who Owns the Information Economy?, Earthscan,
2002, 10.
58
Arewa O., “TRIPS and traditional knowledge: Local communities, local knowledge, and global intellectual
property frameworks, 10 Marq. Intell. Prop. L. Rev., 2006, 155, 160-163 ; Adewopo A., “The global
intellectual property system and Sub-Saharan Africa: a prognostic reflection”, 33 U. Tol. L. Rev., 2002, 749,
749-750.
59
Milius, supra no. 37, 215.
60
See Gopalakrishnan, N., Nair P., Babu A., “Exploring the relationship between geographical indications and
traditional knowledge: an analysis of the legal tools for the protection of geographical indications in Asia”
ICTSD Working Paper, 2007.
61
Stoll P.-T. and von Hahn A., “Indigenous peoples, indigenous knowledge and indigenous resources in
international law”, Part II, in Von Lewinski (ed.), Indigenous Heritage and Intellectual Property: Genetic
Resources, Traditional Knowledge and Folklore, Kluwer Law International, 2008, 38.
62
Doha Ministerial Declaration, 14 November 2014, para. 19.
63
Cottier T., “The protection of genetic resources and traditional knowledge: towards more specific rights and
obligations on world trade law”, 1 Journal of International Economic Law, 1998, 555, 581-4
64
Maina C., “Power relations in the traditional knowledge debate: a critical analysis of forums”, ICJP, 2011,
18(2), 143-178, 156.
65
Opinions of the European Union, Japan and Singapore, in TRIPS Council, The Protection of Traditional
Knowledge and Folklore: Summary of Issues Raised and Points Made (2002), WTO/IP/C/W/370, at 27.

17. 17
protected as IPRs in any widely accepted international agreement.66
By the way, geographical
indications and traditional knowledge are substantially very close. Indeed, geographical
indications seem to be the cunning found by industrialized European countries to protect
certain products of their heritage and hence, in a way, a certain form of their traditional
knowledge.67
Anyway, it seems that indigenous people have to wait before the issue of a sui generis TK
right comes onto the TRIPS agenda. Until then, there remains the question of the extent to
which they can rely on traditional IPRs already recognized at the international level to get an
emergency alternative.
2. Traditional IPRs - Traditional Knowledge: traditionally incompatible?
Dodson and Barr provided a good understanding of the current situation:
“Although the categories provided by intellectual property law fails to at times
suffice, for the most part intellectual property law fails to protect indigenous rights
and interests. It seems that the failure is because Western constructs of intellectual
property focus on individual knowledge and creativity, rather than communal trans-
generational knowledge”.68
The fact that TK is collectively held admittedly raises the issue of the complex right
management; nevertheless it does not exclude in itself the possibility of using existing IPRs
to protect TK. There indeed exist many examples of collective ownership of IPRs,69
the first
of them being geographical indications. Actually, the real difficulties lie more in how little
appropriate the regimes of “Western IPRs” are in respect of TK subject-matters.
For instance, some IPRs like distinctive signs, copyright and design right are by their very
nature inappropriate to TK insofar as they cannot cover knowledge as such. In light of these
intellectual property regimes, indigenous knowledge is an intangible good, like ideas and
genres, and only its tangible expressions can be protected.70
In that regard, current
international IP obligations are more likely to provide a solution for certain forms of
traditional cultural expressions and other TK-issued products. For instance, the sign Arte Seri
66
OseiTutu, supra no. 10, 170.
67
Actually, given the fact that they protect “products” and not directly the “know-how” that is embodied in,
geographical indications are even closer to TCEs. See Article 22 of the TRIPS Agreement which defines
geographical indications as “indications which identify a good as originating in the territory of a Member, or a
region or locality in that territory, where a given quality, reputation or other characteristic of the good is
essentially attributable to its geographical origin”.
68
Dodson and Barr, supra no. 6, 23.
69
OseiTutu, supra no. 10, 167
70
See on this Brown M., “Can culture be copyrighted ?”, 49 Current Anthropology, 1998, 193.

18. 18
was registered as a trademark to identify authentic ironwood products that are made by
traditional methods from the Olneya tesota tree71
and the appellation of origin olinala has
been used to protect a lacquered wooden product whose characteristics are derived from the
indigenous resources of the locality. Nonetheless, IPRs appear to only apply to “goods” and
are therefore unable to cover several forms of TK, in particular medicinal and other scientific
knowledge.72
As to how patents could be used, the main problems relate to how hardly TK can meet the
protection criteria. Currently, relying on patent rights appears inadequate because TK is
commonly viewed as prior art, therefore not meeting the novelty requirement.73
In addition,
patent rights have been developed to protect “inventions”, and not skills, know-how or
knowledge. In that sense, patents are arguably more tailored for TK-based inventions than
TK itself:
“While discoveries and other forms of traditional medicinal knowledge based on
plants or animal parts or fluids generally cannot be patented, either because they are
obvious or because they are in the public domain, drugs derived from such plants and
animals are generally patentable. These patents will belong to the company that
developed and refined the molecule. However, the research and development efforts
concerning traditional medicinal knowledge and products is often inspired by holders
of traditional knowledge”.74
Seen that way, existing IPRs appear to contribute in the misappropriation process more than
they struggle against it. This is the reason why certain countries have developed mechanisms
to negatively protect certain of their TK from the scope of IPRs. For example Chinese
Intellectual Property Office got equipped with teams of patent examiners specialized in
traditional Chinese medicine and has established since 2002 a specific database to meet their
examination needs. Likewise, some countries such as New Zealand have provided
mechanisms designed to prevent the registration of trademarks in respect of indigenous
words.75
Besides all these substantive difficulties, the granting of IPR protection is mostly determined
by the fulfilling of administrative formalities and the payment of official fees. The costs of
71
WIPO, supra no. 22. 29.
72
Gervais, supra no. 24, 76-8 ; See also Bicskei M., Bizer K., Sidali K. and Spiller A., “Reform proposals on the
geographical indications of the European Union for the protection of traditional knowledge”, WIPOJ, 2012,
3(2), 222-236.
73
Li X., “Novelty and inventive step : obstacles to traditional knowledge protection under patent regimes : a
case study in China”, EIPR, 2007, 29(4), 134-139, 134-136.
74
Gervais, supra no. 41, 76-3.
75
New Zealand Trade Mark Act, 2005, s.17

19. 19
registering, maintaining, monitoring and defending an IPR may rapidly amount to hundreds
of thousands of dollars. The excessive size of these amounts effectively prevents indigenous
and local communities from lodging applications or at least considerably limits the number of
IPR they can apply for…76
Finally, TRIPS obligations on confidential information probably provide the best solution for
indigenous peoples since TK is often intended to remain secret within the community.77
A
good illustration of the way in which provisions on undisclosed secrets can be used is the
Australian case Foster v Mountford.78
In this case, members of the Pitjantjatjara Council
successfully relied on breach of confidence rules to obtain an interlocutory injunction
restraining the publication of the Nomads of the Australian Desert book. They indeed proved
that certain information contained in the book had been supplied in confidence to the author
35 years earlier.
However, once again, limits have been highlighted, especially regarding the lack of complete
harmonization of the regime of undisclosed information that experiences serious differences
between civil law and common law countries,79
and that is above all strongly associated to
trade secrets rather than cultural secrets.
B. At regional and national levels
Considering the absence of a comprehensive international instrument, many countries have
adopted national or regional measures to explicitly protect their TK. Even though protections
granted to indigenous peoples via domestic legislation is limited in their territorial
effectiveness, they offer the advantage of being tailored to the specific needs and
characteristics of TK present in the country, including their community context, their
development dimension, the social identity of their holders as well as their method of
transmission.
Among the existing domestic mechanisms, the Australian legislations recognize the “special
knowledge held by Indigenous persons about biological resources”80
and, in certain states,
mechanisms of mutual support between Aboriginal health workers and conventional medical
76
Githaiga, "Intellectual property law and the protection of indigenous folklore and knowledge", E Law paras,
5(2), 1998, 88.
77
TRIPS Agreement, art. 39.
78
Foster and Others v Mountford and Rigby Ltd (1976) 14 ALR 71. See the comments of Antons C., “Foster v
Mountford: cultural confidentiality in a changing Australia”, University of Wollongong Papers, 2009.
79
Gervais, supra no. 24, 76-8.
80
Australia Environmental Protection and Biodiversity Conservation Amendment Regulations 2005 S.8A01(c).

20. 20
practitioners have been successfully established81
; the constitution of Ecuador expressly
enshrines and protects the practice of indigenous knowledge82
; Brazilian local regulations
recognize the rights of indigenous and local communities to prevent unauthorized use and
exploitation of information and data that embody TK83
; in Bolivia, a national legal system
protects certain areas, such as the Chaco National Park, wherein indigenous knowledge is
used in management practice84
; in Thailand, national laws tend to safeguard and promote
Thai medicinal knowledge in the country85
; in South Africa, national laws recognize and
regulate the practice of traditional medicine86
; following the Pacific Community’s Regional
Framework, Samoa enacted a sui generis model for the protection of its TK in 201187
; in the
Philippines, traditional medicinal practices and certain other forms of TK are recognized in
different acts88
; Peru has provided since 2002 sui generis protection for the TK of its
indigenous peoples89
; in Ethiopia, TK is recognized and protected through the national
conservation of cultural heritage process90
; the Indian legislation has established mechanisms
of fair compensation for traditional agricultural knowledge holders…91
At regional level, the ARIPO’s Swakopmund Protocol92
is probably one of the most advanced
scheme and an important instrument since it covers a great amount of territories where TK is
commonly viewed as vital for populations. Likewise, in other part of the world, including
South Asian, Andean and Pacific regions, draft frameworks have also been elaborated in
order to provide member states with appropriate models to be implemented in national
legislations.93
81
See for instance Health Practitioners and Allied Professionals Registration Act, 1985 of the Northern
Territory of Australia.
82
Constitution of Ecuador, 1998, art. 44.
83
See Brazilian Provisional Act No. 2, 186-16, 2001.
84
Bolivia, Supreme Decree No. 24, 122, 1995.
85
Protection and Promotion of Traditional Thai Medecinal Intelligence Act, B.E. 2542, 1999.
86
South African Traditional Health Practitioners Act, 2004.
87
Samoan Intellectual Property Act 2011.
88
Philippian Traditional and Alternative Medicine Act, 1997 ; Indigenous Peoples Rights Act, 1997.
89
Peruvian Law 27811 indtroducing a Protection Regime for the Collective Knowledge of Indigenous Peoples
derived from Biological Resources, 2002.
90
Research and Conservation of Cultural Heritage Proclamation, 2000; Access to Genetic Resources and
Community Knowledge, and Community Rights Proclamation, 2006.
91
Indian Biological Diversity Act 2002.
92
ARIPO’s Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions, 2010.
93
Draft Legal Instrument for South Asian Association for Regional Cooperation Countries on Protection of
Traditional Knowledge, 2006 ; Pacific Regional Framework for the Protection of Traditional Knowledge and
Expressions of culture, 2002 ; Andean Community Decision 486, Common Intellectaul Property Regime, 2000.

21. 21
All these national and regional provisions have so far significantly influenced the work
within the WIPO IGC.94
Indeed, considering the analysis of this Chapter, the elaboration of
international standards in relation to the protection of traditional and indigenous knowledge
appears to follow a three-step process: 1. The development and the testing of solutions at a
national and regional level, including experimenting with existing IPRs and the elaboration of
sui generis models, 2. The drafting of an international convention that provides an
harmonized framework for further domestic legislations, and 3. the inclusion in the
multilateral mandatory TRIPS Agreement of standards provisions based on existing rules.
Today, the situation is stagnating at step 2, but the solution currently developed by the WIPO
IGC seems to be the key to move to step 3. However, does it really bring the right and
appropriate solution for indigenous peoples?
94
See on this Taubman A. and Leistner M., “Analysis of different areas of indigenous resources” in Von
Lewinski (ed.), Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and
Folklore, Kluwer Law International, 2008, 156.

22. 22
Chapter 2: The WIPO’s Solution, Appropriate for
Misappropriation?
The assessment of how appropriate the WIPO‘s framework on TK is in relation to the
concerns of indigenous peoples necessarily implies considering to which extent such peoples
are involved in the decision process. There is indeed a palpable will of the IGC to integrate
TK-holders’ opinions into the debate. On the other hand, there are also significant political
and economic considerations around the issue of indigenous knowledge. It results that,
although the IGC is intended to provide a discussion platform for all actors, the first people
concerned with a protection regime have experienced important difficulties to impose
themselves in the negotiations (I). Consequently, the way how the IGC deals with the TK
issue is partially rejected by indigenous communities who mainly disagree with the choice of
an IP-anchored right (II).
I. The place of indigenous peoples in the Intergovernmental Committee forum
In 1998, WIPO was requested by its member states to analyze the relationship between
intellectual property and traditional knowledge.95
After three years of fact-finding missions,
WIPO released a report relating the needs and expectations of indigenous peoples and other
holders of TK.96
Before that, in 2000, at the 26th
session of the WIPO General Assembly,
Member states had already decided to create a special body, the IGC, to deal with this
matter.97
The IGC was initially mandated to explore in more depth the IP options for the
protection of TK - as well as folklore and genetic resources – but rapidly it was instructed by
the WIPO General Assembly to work on the development of an appropriate international
instrument, including a possible sui generis regime.
However, many criticisms have been addressed to the IGC, especially concerning its slow
pace of work that contrasts with the “urgent need to expedite the establishment of
international legally binding instruments”.98
It is true that the IGC has had trouble taking
things further, but this is primarily due to the unwillingness of developed countries to discuss
95
WIPO, Main Programme 11, Programme and Budget 1998/1999, WO/BC/18/X and WO/PC/8/Y, 1998.
96
WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders : WIPO Report on
Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), WIPO Publications,
2001.
97
WIPO, Matters concerning Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore, WIPO/GA/26/6, 2000.
98
WIPO, Bandung Declaration on the protection of traditional cultural expressions, traditional knowledge, and
genetic resources, WIPO/GRTKF/IC/11/12, 2007, para. 8.

23. 23
substantive provisions of the new framework.99
For instance, one of their strategy has been
“to reiterate their repeated calls for "further study", and this tactic has generally impeded a
full substantive discussion.”100
There is nevertheless a certain blessing in disguise in this slowness in the sense that it has
allowed a constructive discussion and the elaboration of a multitude of documentations.
Another major problem experienced at the IGC concerns the difficulties in the participation
of indigenous peoples. It is noteworthy that, contrary “to other processes at WIPO, the IGC
has made significant effort to enhance the participation of representatives of indigenous and
other local communities”.101
In comparison, only Member states and certain international
intergovernmental organizations can participate in the WTO meetings. Similarly, indigenous
communities “were not among the parties that negotiated the CBD”. 102
However, despite the efforts to integrate TK-holders, the IGC’s work has mainly been
conducted without their broad-based contribution. Indeed, although at times they see their
interests represented by their countries’ delegations, indigenous communities often have to be
satisfied with a mere “observer” status.103
This means that, according to Rule 24 of the
WIPO’s General Rules of Procedures, they can take part in the debates when invited but can
never submit proposals, amendments or motions… Furthermore, besides its complexity, the
accreditation is not ex officio but decided by the Organization on the basis of subjective
information; therefore the process can be used to exclude certain indigenous representatives
who would be seen as undesirable.104
Finally, the participation of TK-holders is also impeded by the costs to attend the IGC
meetings. In that respect, the creation of a Voluntary Fund, based on voluntary contributions
by governments, NGOs and other private or public entities, has been initiated by WIPO in
order to improve the involvement of poor indigenous representatives. But due to the weak
amount of donation, it has so far failed to financially support all the eligible representatives.
Indeed, at the beginning of the 28th
session on 7-9 July 2014 for instance, the amount
99
See for instance Roberts T., « Intellectual property : 9th meeting of the Intergovernmental Committe on
genetic resources, traditional knowledge and folklore, Geneva, April 24-28, 2006 », EIPR 2006, 28(8), N155;
CIEL, supra no. 9, 4.
100
Ibid.
101
Ibid., 2.
102
Srinivas, supra no. 6, 402-403.
103
See Antons C. , supra no. 12, 85.
104
Maina C., “Power relations in the traditional knowledge debate: a critical analysis of forums”, ICJP, 2011,
18(2), 143-178, 161.

24. 24
available in the account of the Fund was only 823.10 Swiss Francs.105
Amendments were
therefore proposed by the delegations of Australia, Finland, New Zealand and Switzerland to
draw contributions from the regular WIPO budget, in the absence of sufficient voluntary
contributions.106
In this context, it has appeared difficult for indigenous communities to get heard at the IGC
sessions. These meetings are primarily member driven and the lobbying carried out by TK-
holders and NGOs is all the more difficult that countries delegations do not always have the
same ambitions and concerns regarding the TK issue. Maina related for instance that
“member states representatives and indigenous peoples do not share the same views and
national tensions are sometimes evident at international meetings”.107
There is therefore great
doubt that the framework elaborated by the IGC completely meets the satisfaction of
communities. And this doubt is emphasized by the fact that the draft had to be transmitted to
the WIPO General Assembly for approval, giving the final word to the decision power of
Member States.108
II. The Draft Articles, between the demands of indigenous peoples and the international
reality
In addition to the difficulties regarding their participation in the discussion forums,
indigenous people have expressed their concerns about the IP-anchored mandate of the IGC.
Indeed for a majority of TK-holders, the elaboration of an appropriate system goes beyond
the field of IP and can only be achieved if it addresses in the same time the issues of human
rights.109
On the contrary, the adoption of an instrument that is fundamentally entrenched in
“Western” intellectual property law is negatively perceived by certain indigenous
communities because they keep considering that IPRs are inappropriate and favor
misappropriation.
In that regard, certain authors have argued that intellectual property law should not be the key
for the protection of TK, including Harms who stated:
105
WIPO/GRTKF/IC/27/3 para.1
106
WIPO/GRTKF/IC/28/10
107
Maina, supra no. 104, 160.
108
WIPO IGC, Decision of 28th
session of the Committee, 9 July 2014, WIPO/GRTKF/
IC/28/REF/DECISIONS.
109
See OseiTutu, supra no. 10, 205-207 ; see also Munzer S. and Raustiala K., “The uneasy case for intellectual
property rights in traditional knowledge, 27 Cardozo Arts & Ent. L.J., 37, 48.

25. 25
“Does one protect culture by means of barriers or does one protect it by removing barriers? I
believe in the latter. It will require some serious legal engineering and mental gymnastics to
change IP law in order to accommodate [TK] protection”.110
This view is nevertheless not entirely shared by indigenous and local communities.111
A. The choice of a new intellectual property right
As a special body created by and administered under the aegis of WIPO, the IGC could not
choose other track but intellectual property for the development of its framework. Even
though its work has always been driven by the need to find adequate responses to concerns
related to misappropriation of TK, the two options considered by the IGC were related to the
international IP architecture, i.e. whether enhance the current IPRs in a way to embrace TK or
elaborate a sui generis form of protection specific to TK.112
The former, due to the exploitative and individualistic nature of current IPRs that contrasts
with the trans-generational and communal nature of TK, has proven to be quite impossible,
unless taking the risk of endangering the very foundations of all the IP system.113
On the other hand, the emergence of a new kind of IPRs has in general been positively
welcomed by a majority of indigenous and local communities’ representatives, provided that
such IPR is adapted to the particular characteristics of TK. Indeed the point “is not that TK
holders do not recognize intellectual property concepts, but rather that the formal intellectual
property system is a type of intellectual property system which they are not familiar”.114
The use of monopolistic and exclusive methods to protect informal knowledge is actually not
uncommon within traditional societies, especially through hereditary secrets or customary
rituals.115
But in that respect, indigenous communities see their TK as a responsibility
towards other community members rather than property owned by an individual or group;
“[t]hus, for many traditional communities, their TK entails a bundle of relationships and
obligations rather than a bundle of economic rights as under the common law property
system. The notion that such elements of TK can be ‘owned,’ and with it the possibility that
110
Harms L., “Indigenous traditional knowledge and intellectual property law”, IIC 2010, 41(5), 503-505, 504.
111
See Wendland, supra no.40, 504.
112
See CIEL, supra no.9, 3-4.
113
Gervais, supra no. 41, 143 ; see also Wendland W., “Intellectual property, traditional knowledge and
folklore: WIPO’s exploratory program”, IIC 2002, 33(4), 485-504, 502.
114
WIPO, supra no. 96, 287.
115
Id., 62.

26. 26
other responsibilities and relationships pertaining to that knowledge could be negated, is
incomprehensible”.116
Though, several aspects of the IGC’s framework reveal that the TK right is still much
anchored in the logical and spirit of intellectual property law as designed by developed
countries.
First, the future instrument was conferred the common structure of the current forms of IPRs,
i.e. an identifiable subject-matter, an identifiable beneficiary, and defined restricted acts in
relation to the said subject-matter without the prior authorization of the right-holders and in
the absence of statutory exceptions.117
Second, the framework pays as much attention to the commercial value as the spiritual
dimension of TK. Indeed, even though the Preamble tends to recognize the social, spiritual,
ecological and cultural value of TK, discussions are still ongoing on whether the “economic”
and “commercial” value should be taken into account as well.118
Similarly, while it is almost
clear that the future instrument is to:
“promote and support the [conservation of and] preservation [of] [and respect for] traditional
knowledge [by respecting, preserving, protecting and maintaining traditional knowledge
systems [and providing incentives to the custodians of those knowledge systems to maintain
and safeguard their knowledge systems]”119
,
there are still references in the Preamble to Western intellectual property notions, e.g. the
“safeguard of the public domain” and the “transfer and dissemination of knowledge”.120
In
that last regard, paragraph (vii) is directly inspired from the objectives article of the TRIPS
Agreement that provides:
“The protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of technology, to
the mutual advantage of producers and users of technological knowledge and in a manner
conducive to social and economic welfare, and to a balance of rights and obligations”.121
116
Curci J., The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual
Property, Cambridge University Press, 2010, 92.
117
See Gervais, supra no. 24, 76-7.
118
Draft Articles, Preamble (i).
119
Draft Articles, Preamble (iii).
120
Draft Articles, Preamble (v) : “recognize the value of a vibrant public domain and the body of knowledge
that is available for all to use, and which is essential for creativity and innovation, and the need to protect,
preserve and enhance the public domain” and (vii): “[the protection of traditional knowledge should]
contribute toward the promotion of innovation and to the transfer and dissemination of knowledge to the mutual
advantage of holders and users of traditional knowledge and in a manner conducive to social and economic
welfare and to a balance of rights and obligations”. Note that both these propositions are still under discussion.
121
The TRIPS Agreement, art. 7.

27. 27
One may express reasonable doubts on whether the balance inherent to other IPRs should be
applied to TK right, because indigenous knowledge is not a non-rival good as other
intellectual property subject matters. Indeed, inventions and intangible works are non-
competing in the sense that “their use by an individual does not prevent others from using
them in the same amount. On the contrary, it is precisely their use, their movement that
implement and extent their value”.122
In contrast, the wide dissemination and the repeated use
of a traditional knowledge weakens the link that associates such knowledge to the original
indigenous community and, therefore, by becoming over time a common good of humanity
(or written in Western IPR language, a “public domain” item), it loses its “traditional” feature
and in the same time its protection under the TK right.
B. The ambitions of the future convention
The IGC’s instrument is intended to establish international standards in relation to the
protection of indigenous traditional knowledge. In doing so, it should not refer to common
principles of existing IPRs as if they were a prerequisite for the elaboration of a new sui
generis right. At the risk of repeating oneself, classical intellectual property rules have not for
purposes to protect cultural heritage but to promote creativity, efficiency and
commercialization.123
Thus it would be more sensible to rely on principles embodied in
indigenous customs whose objectives are more adapted and familiar to TK-holder.124
Indigenous and local communities have emphasized the need for a better “recognition that
customary laws can be used to regulate and control the manner in which such knowledge is
communicated, shared, used and applied.”125
In order to address their concerns, the IGC requested a study on the role of customary law
and its relationship with TK.126
Nevertheless, the recommendations of the study are not
reflected in the Draft Articles, which only contain the commitment of Member States to:
“not restrict the generation, customary use, transmission, exchange and development of
traditional knowledge by the beneficiaries, within and among communities in the traditional
and customary context, [in accordance with national law]”.127
122
Barbato, Intellectual Property and Human Rights, Università degli Studi di Roma La Sapienza, Thesis, 2010,
2.
123
OseiTutu, supra no. 10, 187-188.
124
See for instance WIPO/GRTKF/IC/7/15/Prov.2, para. 24 : “Customary law is the laws that most matters for
indigenous peoples and is inalienable from their identity and integrity” (Call of the Earth).
125
CIEL, supra no. 9, 3.
126
WIPO, Customary Law, Traditional Knowledge and Intellectual Property : an Outline of the Issues, 2007,
available at : http://www.wipo.int/export/sites/www/tk/en/resources/pdf/overview_customary_law.pdf (accessed
10/08/2014).

28. 28
On the other hand, it is true that customs, by their very nature, are different and vary from a
country to another, from a region to another and even from a community to another.
Moreover, very few Member States fully recognize indigenous customs in their domestic
statutes. Consequently, by relying on local indigenous customary laws instead of common
international standards, the future convention might see its scope be significantly restricted
due to the failure to fully harmonize the international regime.
Currently, the question of how customary laws should be implemented in the IGC’s
framework is still under debate.
So is the question of the framework’s legal binding force. Indeed, Draft Articles are still
using an ambiguous vocabulary, e.g. “shall”/”should”, “Member states”/”Contracting
Parties”. The lack of consensus around these notions somehow reveals certain incertitude as
to which value is to be given to the framework within the international IP landscape. Should
it be an instrument that merely recognizes TK and provides Member states with a model for
their domestic legislation? Or should it be a legally binding document creating a union
between countries like the Berne and Paris conventions128
?
Some indigenous and local communities highlighted the necessity of a legally binding
document for their needs to be met.129
On the other hand, developed countries expressed their
reluctance towards binding international standards, considering primarily that the IGC was
only a forum for discussions.130
Nonetheless, it seems more and more likely that the WIPO’s framework is to become a new
international convention in the end. According to the Australian delegation’s view, the IGC
has been “on path to build a third pillar for the world IP community – a pillar which would
complement the pillars of the Berne and Paris Conventions.”131
However, even if it was the
case, the question would remain of whether all WIPO Member States would adopt it,
including developed countries. Likewise, a standard criticism to the WIPO system concerns
the difficulties to enforce the provisions of its conventions. Indeed, WIPO is only equipped
with a mechanism for the resolution of disputes between private parties132
but, contrary to the
127
Draft Articles, Preamble (ix).
128
Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, as amended on
September 28, 1979 ; Paris Convention for the Protection of Industrial Property, March 1883, as amended on
September 28, 1979.
129
See WIPO/GRTKF/IC/9/14/ Prov. 2, para. 50.
130
See for instance, the European Union and the USA in WO/GA/41/15, 5-7; also, CIEL, supra no. 9, 11.
131
WIPO, Report of the WIPO General Assembly, Thirtieth (16th
Ordinary) Session, 2003, WO/GA/30/8, 13.
132
WIPO Arbitration and Mediation Center.

29. 29
WTO, it does not provide an effective system to sanction Member states that do not fulfill
their obligations. Therefore, like the Berne and Paris convention, recognition in the TRIPS
Agreement would be required before the convention on TK could be globally effectively
enforced.133
In that regard, TK-holders have also expressed concerns regarding the relationship of the
instrument with other international agreements and treaties. They indeed consider that the
future convention on the protection of TK should be “mutually supportive with other
international systems and processes discussed at the CBD and the Food and Agricultural
Organization of the United Nations (FAO)”.134
The idea is still to entrench the indigenous
knowledge protection in a system that is not solely limited to intellectual property but also
addresses human rights and self-determination issues.135
Despite considerable efforts, their
requests appear to be only partially satisfied; while the Preamble and Article 10 of the draft
framework consider the relationship with other international agreements, they are currently
excessively anchored in the intellectual property system. According to these provisions, the
instrument is to:
“take account of, and operate consistently with, other international and regional instruments
and processes, in particular regimes that relate to intellectual property and access to and
benefit sharing from genetic resources which are associated with that traditional
knowledge”136
and
“establish a mutually supportive relationship [between [intellectual property [patent] rights
[directly based on] [involving] [the utilization of] traditional knowledge and with relevant
[existing] international agreements and treaties.]137
Also, there is curiously no mention in the instrument on TK of the non-diminishment
principle whereas such principle is present in the draft article 10 of the instrument on
Traditional Cultural Expressions.138
Yet, this clause is viewed important by TK holders
because it ensures that the future convention does not nullify or diminish rights that have
133
See Harms, supra no. 52, 505 : «It took TRIPS to make the Berne and Paris Conventions after a century
somewhat effective ».
134
CIEL, supra no. 9, 6.
135
See WIPO/GRTKF/IC/11/5 (b), 17.
136
Draft Articles, Preamble (iv)
137
Draft Articles, Art. 10.
138
WIPO, The Protection of Traditional Cultural Expressions : Draft Articles, 2014, WIPO/GRTKF/IC/28/6.
Article 10 contains another paragraph that provides: “Nothing in this [instrument] may be construed as
diminishing or extinguishing the rights that indigenous [peoples] or local communities have now or may acquire
in the future.]”. Note that paragraph 13 of the Preamble also contains this statement.

30. 30
been previously recognized and contained in treaties, agreements and other constructive
arrangements.139
The first part of this study revealed that the protection of indigenous knowledge involves a
number of considerations and stakes. Especially, it has brought to the fore and engages with
one of the major challenges facing the global intellectual property system, namely struck the
balance between developed and developing countries’ interests. While it appears that an
appropriate regime protecting traditional knowledge constitutes one of the key to this
problem, indigenous and local communities are still truly worried about the approach
followed by the international community. Indeed, according to a majority of indigenous
representatives, the IGC’s work remains too much entrenched in intellectual property notions
as conceived by Western countries.
Also, there has been serious risks that debates about the future instrument exclusively take
account of Member states’ issues, relegating indigenous people’ concerns to a position of
secondary importance. The efforts made by the Committee to improve the participation of TK
holders in the negotiations are still insufficient, since the latter are not invited to the decision
making process.
In such circumstances, formal outlines of the draft regime turn out not to fully satisfy the
expectations of indigenous and local communities. Especially, the absence of reference to
indigenous customary laws, the reserved integration of the instrument in a broader system
that includes human right issues, as well as the reluctance of certain Member states to provide
the future convention with a legally-binding force, all this is already suggesting an overall
disappointment. And that is even before getting into substantive aspects of the future TK
right.
139
WIPO, Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources: certain suggested
cross-cutting issues, 2014, WIPO/GRTKF/IC/27/INF/10, 13.

31. 31
Part II: The Future Traditional Knowledge Right
As previously noted, the structure of the Draft Articles on the protection of TK, as approved
by the IGC on 9 July 2014, is based on the common structure of existing IPRs, namely: a
preamble defining the intentions of contracting parties along with a list of definitions
concerning the terms used (Preamble, Policy Objectives and Use of Terms), a defined
subject-matter with different criteria for eligibility (Article 1), a designed right-holder
(Article 2), a list of restricted acts outlining the scope of the protection (Article 3),
complementary obligations for Member states (Article 3bis), a list of sanctions and remedies
(Article 4) and additional measures (Article 4bis140
), certain obligations regarding the
administration of rights (Article 5), a list of exceptions and limitations to restricted acts
(Article 6), a precise duration of the right (Article 7), the establishment of the required
formalities for the protection (Article 8), and final provisions concerning the application of
the convention (Article 9: transitional measures ; Article 10: the relations with other
international agreements ; Article 11 : national treatment ; Article 12 : transboundary
cooperation).
Although this demonstrates, once again, the difficulty of the IGC to withdraw from the basic
intellectual property concepts, this common architecture nevertheless establishes a certain
consistency and prevents the future TK right from being completely marginalized or
disconnected from the whole system. In that sense, it guarantees legal certainty and improves
global harmonization insofar as contracting countries are familiar with such a system and are
more likely to align the regime of the new instrument to those of other existing IPRs.
Chapter 1 deals with the draft provisions on right acquisition (Articles 1, 2, 8 and 11) and
Chapter 2 analyses the draft provisions on the enforcement of right (Articles 3 - 7 and 12).
140
Note that this article actually concerns the issue of disclosure requirement in patent and plant variety
applications, a question which is still much under debate.

32. 32
Chapter 1: The acquisition of traditional knowledge right
An important mission of the IGC has been to discuss and reach a consensus on the meanings
to be assigned to the concept of indigenous traditional knowledge (and, in the same time, of
folklore and genetic resources). According to Wendland:
“Clarity on terminology and subject-matter [is] important in order to be able to delimit the
scope of WIPO’s work. This [is] also deemed necessary in order to adjust possibly high
expectations concerning the relevance and role of intellectual property law”141
Reaching broad agreements on the notion of TK does not merely imply to provide a legal
definition of the term but also to clarify how such a definition is adapted to intellectual
property. In addition, it is noteworthy that the IGC’s work is divided in three fields, i.e. TK,
TCEs and GRs, and three distinct frameworks are currently under discussion, including the
Draft Articles on the protection of TK. Therefore, the search for a precise meaning of
traditional knowledge requires clarifying its relationship with the two other concepts in a
manner that all of the three instruments might be mutually supportive and fully cover
indigenous communities’ assets.
The IGC has then been trying to supply precise criteria for the protection (I) as well as a
clearer definition of who the beneficiaries are (II).
I. The criteria for the protection
According to Article 1, protection is granted to traditional knowledge that fulfills a number of
additional criteria. However, as noted by certain NGOs, “defining traditional knowledge has
been a challenge for the IGC, and this is largely due to the fact that such knowledge is
complex in nature”.142
Indeed, traditional knowledge may cover different concepts in
particular when it is related to genetic resources or folklore,143
and WIPO itself has had great
difficulties to properly define the notion over time.
A. Traditional knowledge as a subject-matter
In the same way as inventions, signs and works are respectively the subject-matters of
patents, trademarks and copyright, “traditional knowledge” is unsurprisingly the subject-
matter of the protection granted by the IGC’s draft framework.
141
Wendland, supra no. 113, 489.
142
CIEL, supra no. 9, 3.
143
See Curci J., The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual
Property, Cambridge University Press, 2010, Chapt 4 “Towards clearer legal definitions”.

33. 33
Given the real hardship it is to define the notion and especially to distinguish it from other
knowledge, scholars suggested to state “simply that TK is the knowledge held by traditional
peoples and communities”.144
Another solution is to keep the notion undefined and vague so
that each country might adapt the notion to its proper needs. Such an approach is not unusual
in international intellectual property law. For instance, it may be noted that neither the TRIPS
Agreement nor the Paris Convention defines the notion of “invention”, leaving Member
states free to build their own thresholds for patent protection.145
Representative of indigenous and local communities have mainly endorsed such options,
stating that a loose definition is likely to broaden the protection granted and, in the same time,
that the perception of TK may differ from tribe to tribe and community to community.146
Despite those requests, the IGC opted for a middle position. According to the Draft Articles’
Use of Terms:
“Traditional knowledge [refers to]/[includes]/[means], for the purposes of this instrument,
know-how, skills, innovations, practices, teachings and learnings of [indigenous [peoples]
and [local communities]]/[or a state or states].
[Traditional knowledge may be associated, in particular, with fields such as agriculture, the
environment, healthcare and indigenous and traditional medical knowledge, biodiversity,
traditional lifestyles and natural resources and genetic resources, and know-how of traditional
architecture and construction technologies.]”
Several comments can be made regarding this definition.
1. Traditional but not indigenous
Firstly, it is interesting to see that the IGC has opted for the term “traditional knowledge”
instead of a multitude of available alternatives, e.g. “indigenous knowledge”, “community
knowledge”, “indigenous heritage”, “traditional medicine”, “local and traditional
knowledge”, “traditional and local technology, knowledge, know-how and practices”.147
“Traditional knowledge” is admittedly the most commonly used term, but the absence of
144
Dutfield, supra no. 22, 240. Dutfield argues that this is the approach adopted by the CBD, in Article 8(j),
which refers to: “knowledge, innovations, and practices of indigenous and local communities embodying
traditional lifestyles”.
145
See for instance the TRIPS Agreement, art. 27 : “Subject to the provisions of paragraphs 2 and 3, patents
shall be available for any inventions, whether products or processes, in all fields of technology, provided that
they are new, involve an inventive step and are capable of industrial application” (emphasis added). See also
WIPO/GRTKF/IC/3/8, 5.
146
Gowda P. and Khan U., “Sacred but vulnerable: a critical examination of the adequacy of the current legal
framework for protection of tribal sacred traditional knowledge”, 2008 NUJS L. Rev. 109, 112; see also Antons
C., supra no. 12, 86.
147
Wenland, supra no. 40, 490-491 ; Dodson and Barr, supra no. 6, 24.

34. 34
reference to the “indigenous” feature also suggests that traditional knowledge may emerge
from sources that are not necessarily indigenous. It is actually what the WIPO’s fact-finding
missions reported:
“[i]ndigenous knowledge is therefore part of the traditional knowledge category, but
traditional knowledge is not necessarily indigenous. That is to say, indigenous knowledge is
traditional knowledge, but not all traditional knowledge is indigenous.”148
In any case, the definition provided by the draft framework reveals a persistent consensus
deficiency on this issue, as illustrated by the current debate over the wording option between
“of indigenous and local communities” and “of states”.
Regarding this last issue, if discussions are still ongoing within the IGC this is because
certain national governments are seeking to widen the definition of the subject-matter in a
manner to cover other forms of knowledge.149
In particular, they explain that an
encompassing definition of TK should also include traditional knowledge that has long
entered mainstream culture or become widely spread across the nation.150
These attempts by
Member states to take up the subject in their own interests are viewed with an extreme
distrust by organizations representing indigenous people. For the latter, it is indeed
fundamental that discussions remain focused on the local origins of TK, and especially its
link to indigenous communities.151
Nevertheless, it is true that the concept of “indigenous” induces a categorization of the
national population (i.e. indigenous/non-indigenous) which may be detrimental to certain
peoples. As rightly pointed out by the delegation of Trinidad and Tobago, in certain
countries, especially small islands states, there are no indigenous people or local
communities, but rather a whole community.152
An appropriate definition of traditional
knowledge must therefore reflect this kind of realities.
Notwithstanding, the reference to the indigenous link is still present in the draft framework,
and in particular it constitutes, with “traditional”, the determinants of the different criteria for
eligibility.
148
WIPO, supra no. 96, 23 ; also Wendland, supra no. 40, 492 – 493.
149
See for example the statements of China in WIPO/GRTKF/IC/21/7/PROV.2, 16: “With regard to countries
which had a long history, for example in relation to traditional medicine and other TK, this TK had sometimes
been codified, and its scope of transmission was quite large. This kind of TK was obviously known by people
outside the community, but whether it was open or still secret, it needed to be protected so as to prevent its
misappropriation. For these reasons, the Delegation of China suggested that appropriate criteria and measures to
protect TK were needed and that TK that was already in the public domain should not be excluded”.
150
Antons C., supra no. 12, 85.
151
Ibid.
152
WIPO/GRTKF/IC/21/7/PROV.2, 24.

35. 35
2. An exhaustive list?
Secondly, the IGC’s draft framework provides a positive definition of what TK is by listing
its constituting elements, i.e. know-how, skills, innovations, practices, teachings and
learnings.
This definition significantly differs from that elaborated by the WIPO Secretariat in 2002, for
which TK was a wider category that included folklore as well. More precisely it referred to:
“tradition-based literary, artistic or scientific works; performances; inventions; scientific
discoveries; designs; marks, names and symbols; undisclosed information; and all other
tradition-based innovations and creations resulting from intellectual activity in the industrial,
scientific, literary or artistic fields”.153
In that respect, the current IGC’s definition seems closer to what was covered by the former
expression “tradition-based innovations”. The listed constituting elements are also more
consistent with other national or regional frameworks, such as the Swakopmund Protocol.154
However, there are still debates about whether such a list should be limited to the stated
categories or, on the contrary, should be non-exhaustive.155
TK is, by its very nature,
evolving and perceived differently depending on the communities. There is thus reason to
believe that the listed materials are not completely in line with how certain indigenous people
culturally perceive their TK.156
Furthermore, intellectual property law experience has proven
that a subject-matter categorization is likely to be incomplete and outdated over time.157
In
that sense, a loose or non-exhaustive listing may improve the adaptation of the IPR in
question to external changes.
On the other hand, the question arises as to whether TK should include traditional lifestyles,
languages, or even religions, customs, methods of governance and so on.158
Certain
sociologists indeed highlighted for instance the close relationship between TK and religions
153
WIPO IGC, Elements of a Sui Generis System for the Protection of Traditional Knowledge, December 2002,
WIPO/GRTKF/IC/4/8, 9-10.
154
ARIPO’s Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions, 2010.
According to the Protocol, the notion of TK includes “know-how, skills, innovations, practices and learning”.
155
The debate is illustrated by the undecided wording: “refers to”, “means” and “includes”.
156
See Gowda, supra no. 146, 113.
157
See for instance the Berne convention, art. 2 which establishes a list of examples for copyrightable subject-
matters. The list is written in old terms but is also non-exhaustive and has therefore permitted to include new
forms of copyrightable works such as software. See WIPO Copyright Treaty, 20 December 1996, Art.4.
Similarly, the TRIPS Agreement, art. 15.1 is sufficiently vague to include other kinds of sign than those listed,
such as three-dimentional signs, sounds or even odors.
158
See Liu, supra no. 32, 457-458.

36. 36
in primitive societies.159
And one may remind the case of the yagè plant whose
hallucinogenic property has been traditionally known and used by Colombian shamans in
religious ceremonies. Nevertheless, protecting certain elements of traditional lifestyles may
be viewed as an unreasonable extension of the concept of traditional knowledge, as
understood in its intellectual property meaning. Indeed, even though exclusive rights were to
be granted for traditional lifestyles or elements thereof, they would be impractical to
enforce.160
The preservation of languages, beliefs, or divine worships requires a protective
regime that goes beyond the framework of monopoly rights or mandatory obligations.161
3. The irrelevance of the field associated with the knowledge
Finally, the second paragraph of the definition gives examples of fields with which TK is the
most often associated, i.e. medicine, natural and genetic resources, agriculture, constructions
and so on.
Nevertheless, the wording clearly suggests that this list is not exhaustive and that therefore
the activity area does not constitute a relevant condition for the existence of TK. As to
patents, the TRIPS Agreement provides a similar statement in article 27, according to which
patent is available to any inventions, whatever their fields of technology.162
B. Additional criteria for eligibility
In copyright law, a work is protected as long as it is original.163
Likewise, an invention is
patentable only if it is new, involves an inventive step and is capable of industrial
application.164
According to Article 1 of the IGC’s draft instrument, protection is granted to
TK that meets a number of additional criteria, namely:
“(a) that is created, and [maintained] in a collective context, by indigenous [peoples] and local
communities [or nations] [,whether it is widely spread or not];
(b) that is [directly] [linked]/[distinctively associated] with the cultural [and]/[or] social
identity and cultural heritage of indigenous [peoples] and local communities [or nations];
(c) that is transmitted from generation to generation, whether consecutively or not;
159
See Durkheim E., The elementary forms of religious life (1912), available at
http://www.gutenberg.org/files/41360/41360-h/41360-h.htm (accessed 11/08/2014)
160
See also Milius, supra no. 37,214.
161
Liu mentioned the example of traditional medicine practitioners in the Chinese Yunnan province who were
required not to change their lifestyles. He rightly argued that such obligations did not respect their right to
autonomy and equal treatment. See Liu, supra 32, 457-458.
162
The TRIPS Agreement, art. 27(1): “patents shall be available for any inventions, whether products or
processes, in all fields of technology”.
163
See the Berne convention, arts. 2(3), 8, 11, 14.
164
The TRIPS Agreement, art. 27(1).

37. 37
(d) which may subsist in codified, oral or other forms; and [or]
(e) which may be dynamic and evolving.”
Member states still disagree on certain notions and on whether these criteria should be
cumulative or not. But above all, particular attention is paid to a last criterion which requires
that TK :
“has been used for a term as has been determined by each [Member State]/[Contracting Party]
[but not less than 50 years].”
Before analyzing the significance of each of these requirements, it is noteworthy that the
Draft Articles do not provide a precise definition of “traditional”. Actually, this is probably
because the “traditional” feature is reflected in all the enounced eligibility criteria of which it
is the determinant. In that sense, traditional is the key notion of TK.165
As reported by WIPO
at the very beginning of its study on TK, traditional means that knowledge has generally been
transmitted from generation to generation, is generally regarding as pertaining to a particular
people or its territory and is constantly evolving in response to a changing environment.166
Given the particular subjective link existing between TK and community, indigenous groups
have asserted that only TK-holders should reserve the right to decide what constitutes their
own knowledge and how it should be defined.167
In that regard, the Mataatua Declaration
states that “in the development of policies and practices, indigenous peoples should [...]
define for themselves their own intellectual and cultural property”.168
Notwithstanding, the IGC opted for an approach more consistent with the current intellectual
property system in that it defined the protectable subject-matter in accordance with objective
elements rather than subjective decision power. It is in fact the position adopted by other
frameworks, including the Swakopmund Protocol.169
It therefore implies that communities
who are invoking rights on their knowledge must first gather serious evidence that such
knowledge meets the requirements of the framework and especially that it is “traditional”.170
But this does not mean that proofs must be solely objective and an important place is still
accorded to how indigenous and local communities subjectively perceive their knowledge as
165
Lopez Romero T., “Sui generis systems for the protection of traditional knowledge” Int. Law: Rev. Colomb.
Derecho Int. Bogotá, no. 6, 2005, 301-339, accessible at http://www.javeriana.edu.co/juridicas/pub_rev
/international_law/ultimo_numero/9.pdf (accessed 14/08/2014), 307.
166
WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders : WIPO Report on
Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), 2001, 11.
167
Wendland, supra no. 40, 496.
168
Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, June 1993, 1.1.
169
Swakopmund Protocol, s.4.
170
See Simpson T., “The cultural and intellectual property rights of indigenous peoples”, IWGIA, 1997, 18-22,
21.

38. 38
part of their own identity and culture. In that sense, communities can still decide what TK is,
or rather what it is not.
1. TK as part of the community
The criteria enounced in (a) and (b) of Draft Article 1 embody the intimate relationship that
links TK to the community.171
Indigenous people have insisted on the needs that the
protectable subject matter must be based on central characteristics, in particular that TK is
“the very foundation of their cultural heritage, cultural identity and social integrity”.172
In that
respect, TK constitutes means of identification for the group since its preservation and
integrity is linked to the preservation of the culture itself.173
Moreover, its close link to the
group is also due to the holistic nature of TK insofar as every community member and every
generation participates in the creation and maintenance of the knowledge. As pointed out by
Arowolo, TK is seen as holistic in reason of “centuries of association with the environment
and traditional religion, thereby creating an understanding of the interrelationships between
different elements of a landscape or habitat”.174
2. TK as an ancestors’ legacy
As reflected in Draft Article 1(c) and (d), TK is passed on within a community over
generations. The transmission may take different forms which often vary from one people to
another. This is primarily due to the fact that, as TK is an integral part of the group identity,
transmission systems are based on the specific customary rules of the said group. Admittedly,
most common means of knowledge transfer include oral transmissions and learnings through
observation and hands-on experience. Nevertheless, in practice it is not only limited to those
means.175
In addition, the holistic nature of TK and the transmission process permits the adaptation of
knowledge to environmental evolutions and other external changes. Thus TK is by nature
171
See WIPO, supra no. 22, 11.
172
CIEL, supra no. 9, 3.
173
Lopez Romero T, supra no. 165, 308-310.
174
Arowolo, supra no. 13, 13.
175
Niedzielska M., “The intellectual property aspects of folklore protection”, Cop. Mont. Rev. W.I.P.O., 1987,
16, 339-340 ; Wendland, supra no. 40, 496.