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WIPO Publications No. 920(E) ISBN 92-805-1366-4

INTELLECTUAL PROPERTYAND TRADITIONAL KNOWLEDGE

WORLD

INTELLECTUAL

PROPERTY

ORGANIZATION

Booklet nº 2This is one of a series of Booklets dealingwith intellectual property and geneticresources, traditional knowledge andtraditional cultural expressions/folklore

Disclaimer: The information contained in this booklet is not meant as a substitutefor professional legal advice. Its main purpose is limited to providing basic information.

Certain images used in this booklet have been obtained from commerciallyavailable databases to which WIPO subscribes.

Credit for the Cover photos : 1: Ana Carvalho (also p.3); 2: FAO/19469/G. Bizzarri;4: FAO/14904/G.d. Onofrio

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Content

Traditional Knowledge: Key to aDiverse and Sustainable Future 1

A Brief Overview 2

Key Concepts 4Definitions and use of terms 4

What are the challenges confrontingTK holders? 7

What kind of legal protection for TK 10

Forms of protection 11

Positive Protection − Recognitionof IP Rights in TK 16

Use of existing intellectual property laws 17

Adaptations of existing IP throughsui generis measures 20

Use of sui generis exclusive rights 20

Other legal concepts for the protectionof TK 23

Defensive Protection − Safeguardingagainst Illegitimate IP Rights over TK 26

Amendment of existing WIPOadministered patent systems 28

Practical capacity-building tools 30

Conclusion 31

Traditional Knowledge:Key to a Diverse andSustainable Future

Indigenous and local communities justlycherish traditional knowledge (TK) as a partof their very cultural identities. Maintainingthe distinct knowledge systems that give riseto TK can be vital for their future well-beingand sustainable development and for theirintellectual and cultural vitality. For manycommunities, TK forms part of an holisticworld-view, and is inseparable from theirvery ways of life and their cultural values,spiritual beliefs and customary legal systems.This means that it is vital to sustain notmerely the knowledge but the social andphysical environment of which it forms anintegral part.

TK also has a strong practical component,since it is often developed in part as anintellectual response to the necessities oflife: this means that it can be of direct andindirect benefit to society more broadly.There are many examples of importanttechnologies being derived directly fromTK. But when others seek to benefit fromTK, especially for industrial or commercialadvantage, this can lead to concerns thatthe knowledge has been misappropriatedand that the role and contribution of TKholders has not been recognized and

Traditional Knowledge

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A Brief Overviewrespected. One of the challenges posed bythe modern age is to find ways ofstrengthening and nurturing the roots ofTK, even in times of social dislocation andchange, so that the fruits of TK can beenjoyed by future generations, and so thattraditional communities can continue to

thrive and develop in ways consistent withtheir own values and interests. At the sametime, TK holders stress that their TK shouldnot be used by others inappropriately,without their consent and arrangementsfor fair sharing of the benefits; moregenerally, it leads to calls for greaterrespect and recognition for the values,contributions and concerns of TK holders.

A Brief Overview

This kind of challenge arises in a host ofimmediate, practical ways. Some examples:

––––– a recent agreement would givetraditional healers in Samoa a share ofthe benefits from a new AIDS drugdrawing on their knowledge of themamala tree;

––––– the Kani tribe of South India is to sharein the benefits from a new sports drugthat is based on their knowledge of themedicinal plant arogyapaacha;

––––– representatives of TK holders haveopposed patents drawing on their TK(e.g. concerning the use of extractsfrom the neem tree, and the use ofturmeric as a wound-healing agent);

––––– traditional ecological knowledge held byAboriginal communities in Canada hasproven to be valuable in environmentalplanning and resource management;

––––– for some communities, TK provides apathway to social and economicdevelopment and new, more culturallyappropriate forms of tourism: the Seripeople of Mexico use the Arte Seri markto distinguish their craftworks based ontheir TK and associated geneticresources, and to support a sustainabletrade in these products;

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––––– Portugal recently passed a law toprotect the TK and plant varieties ofPortuguese farmers, adding this to agrowing collection of so called “suigeneris” laws on TK in a range ofcountries around the world;

––––– In 2001, China granted more than3000 patents on innovativedevelopments within the field ofTraditional Chinese Medicine (see boxon p.19).

The wider significance of TK means that itarises in international discussions on a hostof issues – food and agriculture; biologicaldiversity, desertification and theenvironment; human rights, especially therights of indigenous peoples; culturaldiversity; and trade and economicdevelopment. TK has also moved towardsthe center of policy debate aboutintellectual property (IP). This leads to somechallenging questions. Is the IP systemcompatible with the values and interests oftraditional communities – or does itprivilege individual rights over the collectiveinterests of the community? Can IP bolsterthe cultural identity of indigenous and localcommunities, and give them greater say inthe management and use of their TK? Hasthe IP system been used to misappropriateTK, failing to protect the interests ofindigenous and local communities? Whatcan be done – legally, practically – to

ensure that the IP system functions betterto serve the interests of traditionalcommunities? What forms of respect andrecognition of TK would deal withconcerns about TK and give communitiesthe tools they need to safeguard theirinterests?

With these questions in mind, WIPOstarted to work on TK in 1998. The firststep was to listen directly to TK holders,learning of the needs and expectations ofsome 3,000 representatives of TK-holdingcommunities in sixty locations around theworld. Their insights and perspectives stillguide WIPO’s work. The WIPOIntergovernmental Committee onIntellectual Property and GeneticResources, Traditional Knowledge andFolklore (“IGC”) was established in 2001 asan international policy forum. WIPO’s worktherefore ranges from the internationaldimension of TK and cooperation withother international agencies, to capacitybuilding and the pooling of practicalexperience in this complex area. Thisbooklet gives an overview of this work,discusses some key concepts and describesvarious national approaches to protectingTK against misuse or misappropriation.

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Key ConceptsKey Concepts

Definitions and use of terms

What is traditional knowledge? Can theastonishing diversity of indigenous andlocal intellectual traditions and culturalheritage be bundled together into onesingle definition, without losing thediversity that is its lifeblood? Is it feasibleor even desirable to find one form ofinternational protection for TK? For thatmatter, what is it to “protect” TK: what isto be protected, and what is it to beprotected from, for what purpose, and forwhose benefit? These questions, importantin themselves, lead to some deeperquestions. What is valuable and distinctiveabout TK: what makes it “traditional”?How can those qualities gain greaterrecognition and legal protection beyondthe traditional circle, indeed worldwide,but in a way that remains appropriate,useful and beneficial for the communitiesthat maintain TK systems?

No single definition would fully do justiceto the diverse forms of knowledge that are

held by traditional communities; and noform of legal protection system can replacethe complex social and legal systems thatsustain TK within the original communities.One form of protection, but one form only,

is the application of laws to preventunauthorized or inappropriate use of TK bythird parties beyond the traditional circle.This is the IP form of protection –recognition of the need to prevent thirdparties from misusing TK in certain ways.This has been achieved in many differentways in national laws – not necessarily bycreating property rights in TK, althoughthis approach has been taken in somecases. A common thread has been theneed to refocus existing legal laws or tocreate new ones to clarify and strengthenthe legal constraints against various formsof misuse or misappropriation of TK.

Traditional Knowledge and TraditionalCultural Expressions/Folklore

This form of protection focuses on the useof knowledge such as traditional technicalknow-how, or traditional ecological,scientific or medical knowledge. Thisencompasses the content or substance oftraditional know-how, innovations,information, practices, skills and learningof TK systems such as traditionalagricultural, environmental or medicinalknowledge. These forms of knowledge canbe associated with traditional culturalexpressions (TCEs) or expressions offolklore, such as songs, chants, narratives,motifs and designs. A traditional tool mayembody TK but also may be seen as acultural expression in itself by virtue of its

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design and ornamentation. This meansthat for many communities TK and itsform of expression are seen as aninseperable whole.

This has led to calls for policymakers torespect the holistic context of TK andTCEs, and to recognize the linkagesbetween these aspects of the life andculture of traditional communities. Forexample, the same body of customary lawis likely to apply to both TK and TCEs.

When it comes to providing specific legalprotection beyond the traditional communityagainst misuse by third parties, in practice ithas been found that some legal tools are

most useful inpreventing third

parties from misappropriating TK. Otherlegal tools are more effective against misuseof TCEs. Protection of TCEs/Folklore alsotouches directly on other policy areas, suchas cultural and artistic policy. It is a policy andlegal domain that is in practice distinct from,but related to, protection of TK. A separatebooklet (“Intellectual Property and TraditionalCultural Expressions/Folklore”, WIPOPublication No. 913 E) therefore deals withthe complementary protection of TCEs, andthis booklet focuses on the protection of TKas such – that is to say, the content orsubstance of knowledge. This reflects thediversity of choices made in many countries:frequently TK and TCEs are protectedthrough distinct legal mechanisms; in somecases, the two aspects are protected underthe one comprehensive law.

Some examples of traditional knowledge

––––– Thai traditional healers use plao-noi to treat ulcers

––––– The San people use hoodia cactus to stave off hunger while outhunting

––––– Sustainable irrigation is maintained through traditional watersystems such as the aflaj in Oman and Yemen, and the qanat inIran

––––– Cree and Inuit maintain unique bodies of knowledge of seasonalmigration patterns of particular species in the Hudson Bay region

––––– Indigenous healers in the western Amazon use the Ayahuasca vineto prepare various medicines, imbued with sacred properties.

The hoodia plant

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The “tradition” in TK

What makes knowledge “traditional” isnot its antiquity: much TK is not ancient orinert, but is a vital, dynamic part of thecontemporary lives of many communitiestoday. It is a form of knowledge which hasa traditional link with a certain community:it is knowledge which is developed,sustained and passed on within atraditional community, and is passedbetween generations, sometimes throughspecific customary systems of knowledgetransmission. A community might see TKas part of their cultural or spiritual identity.So it is the relationship with thecommunity that makes it “traditional”. TKis being created every day, and evolves asindividuals and communities respond tothe challenges posed by their socialenvironment. This contemporary aspect isfurther justification for legal protection. Itis not only desirable to develop aprotection policy that documents andpreserves TK created in the past, whichmay be on the brink of disappearance; it isalso important to consider how to respectand sustain the development anddissemination of further TK that arisesfrom continuing use of TK systems.

While the options and the technicalities ofprotection systems are diverse, a commonthread is that protection should principallybenefit the holders of the knowledge, in

particular the indigenous and traditionalcommunities and peoples that develop,maintain and identify culturally with TKand seek to pass it on betweengenerations, as well as recognizedindividuals within these communities andpeoples. Representatives of thesecommunities often stress that the approachto protection should take account of theircustomary laws and practices, rather thanimposing an unworkable mechanism thattakes no account of their needs andexpectations.

Some TK is closely associated with plantsand other biological resources, such asmedicinal plants, traditional agriculturalcrops and animal breeds. TK often providesresearchers with a lead to isolate valuableactive compounds within biologicalresources. Such genetic and biologicalresources are linked to TK and traditionalpractices through the utilization andconservation of the resource, which hasoften occurred over generations, andthrough their common use in modernscientific research. The protection of TK isoften closely linked to protection ofbiodiversity, in particular under theConvention on Biological Diversity (CBD). Aseparate booklet in this series (“IntellectualProperty and Genetic Resources”) will dealin more detail with genetic resources.

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What are the challengesconfronting TK holders?

TK holders face various difficulties. Insome cases, the very survival of theknowledge is at stake, as the culturalsurvival of communities is under threat.External social and environmentalpressures, migration, the encroachment ofmodern lifestyles and the disruption oftraditional ways of life can all weaken thetraditional means of maintaining or

passing knowledge on to futuregenerations. There may be a risk of losingthe very language that gives the primaryvoice to a knowledge tradition and thespiritual world-view that sustains thistradition. Either through acculturation ordiffusion, many traditional practices andassociated beliefs and knowledge havebeen irretrievably lost. Thus, a primaryneed is to preserve the knowledge that isheld by elders and communitiesthroughout the world.

In South India the medicinal knowledge of the Kani tribes led tothe development of a sports drug named Jeevani, an anti-stressand anti-fatigue agent, based on the herbal medicinal plantarogyapaacha. Indian scientists at the Tropical Botanic Garden andResearch Institute (TBGRI) used the tribal know-how to develop thedrug. The knowledge was divulged by three tribal members, whilethe customary rights to the practice and transfer of certaintraditional medicinal knowledge within the Kani tribes are held bytribal healers, known as Plathis. The scientists isolated 12 activecompounds from arogyapaacha, developed the drug Jeevani, and

filed two patent applications onthe drug. The technology wasthen licensed to the Arya VaidyaPharmacy, Ltd., an Indianpharmaceutical manufacturerpursuing the commercializationof Ayurvedic herbal formulations.A trust fund was established toshare the benefits arising fromthe commercialization of theTK-based drug.

The arogyapaacha plant from whichthe Jeevani drug was developed andsubsequently patented by the Indianresearch institute TBGRI.

Kani tribal memberidentifies components ofthe arogyapaacha plant

JEEVANI is a product ofthe Arya VaidaPharmacy which is anIndian company.

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Another difficulty facing TK holders is thelack of respect and appreciation for suchknowledge. For example, when a traditionalhealer provides a mixture of herbs to cure asickness, the healer may not isolate anddescribe certain chemical compounds and

describe their effect on the body in theterms of modern biochemistry, but thehealer has, in effect, based this medicaltreatment upon generations of clinical trialsundertaken by healers in the past, and on asolid empirical understanding of theinteraction between the mixture andhuman physiology. Thus, sometimes thetrue understanding of the value of TK maybe overlooked if its scientific and technicalqualities are considered from a narrowcultural perspective. In fact, manyconsumers in Western countries are turningto treatments based on TK, on theunderstanding that such “alternative“ or“complementary“ systems are soundlybased on empirical observation over manygenerations.

Yet another problem confronting TKholders is the commercial exploitation oftheir knowledge by others, which raisesquestions of legal protection of TK againstmisuse, the role of prior informed consent,and the need for equitable benefit-sharing.Cases involving natural products all bearevidence to the value of TK in the moderneconomy. A lack of experience withexisting formal systems, limited economicresources, cultural factors, lack of a unifiedvoice, and, in many cases, a lack of clearnational policy concerning the utilizationand protection of TK, results in thesepopulations often being placed at adecided disadvantage in using existing IPmechanisms. At the same time, the lack ofunderstanding and clear rules concerningthe appropriate use of TK creates areas ofuncertainty for those seeking to use TK inresearch and development of newproducts. There is a common need forwell-established, culturally appropriate andpredictable rules both for the holders andlegitimate users of TK.

A further challenge is to address theinternational dimension of the protectionof TK and benefit-sharing for associatedgenetic resources, while learning fromexisting national experiences. Onlythrough the participation of communitiesand countries from all regions can this

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work go forward to produce effective andequitable outcomes that are acceptable toall stakeholders.

These challenges are diverse and far-reaching, and involve many areas of lawand policy, reaching well beyond even themost expansive view of intellectualproperty. Many international agencies andprocesses are engaged on these andrelated issues. But responses to theseproblems should be coordinated andconsistent, and need to provide mutualsupport for broader objectives. Forinstance, IP protection of TK shouldrecognize the objectives of the CBD

concerning conservation, sustainable useand equitable benefit-sharing of geneticresources. In general, the preservation andprotection against loss and degradation ofTK should work hand-in-hand with theprotection of TK against misuse andmisappropriation. So when TK is recordedor documented with a view to preserving itfor future generations, care needs to betaken to ensure that this act ofpreservation doesn’t inadvertently facilitatethe misappropriation or illegitimate use ofthe knowledge.

Oryza longistaminata is a wild ricegrowing in Mali. Local farmersconsidered it a weed, but the migrantBela community developed detailedknowledge of its agricultural value.The Bela community developedsystematic understanding of thedistinct properties of this and otherkinds of rice, and recognized thatoryza longistaminata has strongerresistance to diseases such as riceblight than many other local kinds of

rice. Guided by this traditional knowledge, researchers subsequently isolated and cloned agene named Xa21, which conferred this resistance in rice plants.

Oryza longistaminata grows in the marshes and riverbanks of Mali.

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What kind of legal protectionfor TK?

The protection of TK is important forcommunities in all countries, particularly indeveloping and least developed countries.First, TK plays an important role in theeconomic and social life of those countries.Placing value on such knowledge helpsstrengthen cultural identity and theenhanced use of such knowledge toachieve social and development goals, suchas sustainable agriculture, affordable andappropriate public health, and conservationof biodiversity. Second, developing andleast developed countries areimplementing international agreementsthat may affect how knowledge associatedwith the use of genetic resources isprotected and disseminated, and thus howtheir national interests are safeguarded.Patterns of ownership of TK, cultural,scientific and commercial interest in TK,the possibilities for beneficial partnershipsin research and development, and the riskof the misuse of TK, are not neatlyconfined within national boundaries, sothat some degree of internationalcoordination and cooperation is essentialto achieve the goals of TK protection.

A comprehensive strategy for protecting TKshould therefore consider the community,national, regional and internationaldimensions. The stronger the integrationand coordination between each level, themore likely the overall effectiveness. Manycommunities, countries and regionalorganizations are working to address theselevels respectively. National laws arecurrently the prime mechanism for achievingprotection and practical benefits for TKholders. For instance, Brazil, Costa Rica,India, Peru, Panama, the Philippines,Portugal, Thailand and the United States ofAmerica have all adopted sui generis lawsthat protect at least some aspect of TK (sui

generis measures are specialized measuresaimed exclusively at addressing thecharacteristics of specific subject matter,such as TK). A WIPO background paperentitled “Consolidated analysis of the legalprotection of traditional knowledge”analyses these laws in more detail. Inaddition, a number of regional

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organizations, such as in the South Pacificand in Africa, have been working ondefining the specific rights in TK and how toadminister them. Various TK holders andother stakeholders in different countrieshave already found existing IP rights usefuland their TK protection strategies makesome use of the IP system.

While there are diverse national andregional approaches to protection,reflecting the diversity of TK itself and itssocial context, some common elementsarise in policy debate. For instance, it isstressed that protection should reflect theaspirations and expectations of TK holdersand should promote respect for indigenousand customary practices, protocols andlaws as far as possible. Several sui generismeasures, as well as conventional IP law,have recognized elements of suchcustomary law within a broader frameworkof protection. Economic aspects ofdevelopment need to be addressed and theeffective participation by TK holders is alsoimportant, in line with the principle of priorinformed consent. TK protection shouldalso be affordable, understandable andaccessible to TK holders. The view is widelyvoiced that holders of TK should be entitledto fair and equitable sharing of benefitsarising from the use of their knowledge.

The international legal framework, withinand beyond the IP system, is also animportant consideration. Where TK isassociated with genetic resources, thedistribution of benefits should be consistentwith measures established in accordancewith the Convention on Biological Diversity(CBD), providing for sharing of benefitsarising form the utilization of the geneticresources. Other important internationalinstruments include the International Treatyon Plant Genetic Resources for Food andAgriculture of the Food and AgricultureOrganization (FAO), the International Unionfor the Protection of New Varieties of Plants(UPOV), and the UN Convention to CombatDesertification (UNCCD). Other areas ofinternational law, notably human rights andcultural policy, are also part of the contextfor protection of TK.

Forms of protection

Two key demands on the IP system inparticular have arisen in policy debate: first,the call for recognition of the rights of TKholders relating to their TK, and, second,concerns about the unauthorizedacquisition by third parties of IP rights overTK. Two forms of IP-related protectionhave therefore been developed andapplied:

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––––– positive protection: giving TK holdersthe right to take action or seekremedies against certain forms ofmisuse of TK; and

––––– defensive protection: safeguardingagainst illegitimate IP rights taken outby others over TK subject matter.

Stakeholders have stressed that these twoapproaches should be undertaken in acomplementary way. A comprehensiveapproach to protection in the interests ofTK holders is unlikely to rely totally on oneform or the other.

The international policy framework

TK protection involves important policy issuesbeyond the domain of IP. This is a briefoverview of the work currently undertaken byvarious international bodies and processes.

Environment

� The United Nations EnvironmentProgramme (UNEP) provides leadershipand encourages partnerships in caringfor the environment by inspiring,informing and enabling nations andpeople to improve their quality of lifewithout compromising that of futuregenerations. In the framework of itsCapacity-building Initiative, UNEP worksto observe, monitor and assess the stateof the global environment, and improvethe scientific understanding of howenvironmental change occur, and howsuch change can be managed by action-oriented national policies andinternational agreements [for moreinformation, see www.unep.org].

� In 1992, the United Nations Conferenceon Environment and Development washeld in Rio de Janeiro under the auspicesof UNEP and led to the Rio Declarationon Environment and Developmentestablishing the Convention onBiological Diversity (CBD) to promotethe conservation of biological diversity,the sustainable use of its components

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and the fair and equitable sharing ofbenefits arising out of the utilization ofgenetic resources. Provisions on therespect and recognition of TK are a keyelement of the CBD, and importantwork is under way within the CBDframework to implement theseprovisions [see www.biodiv.org].

� Concluded in 1994, the UN Conventionto Combat Desertification (UNCCD)provided for the protection of traditionalknowledge in the ecological environmentas well as the sharing of benefits arisingfrom any commercial utilization of this TK[see www.unccd.int.].

Health

� In 1978, the World Health Organization(WHO) first recognized the relevance oftraditional medicine as a source ofprimary health care in the PrimaryHealth Care Declaration of Alma Ata.The topic has been addressed since1976 by the WHO Traditional MedicineTeam, including through thedevelopment of the WHO TraditionalMedicine Strategy [see www.who.int.].

Trade and Development

� While the World Trade Organization(WTO) Agreement on Trade-RelatedAspects of Intellectual PropertyRights (TRIPS) has no specific provisions

on the issue of traditional knowledge,the relationship between TK and TRIPSstandards has been a subject of activedebate and a number of proposals. TheDoha Declaration adopted, at the DohaWTO Ministerial Conference, in 2001,instructed the TRIPS Council to examineinter alia the protection of TK andfolklore [see www.wto.org].

� In 2000, the United Nations Conferenceon Development (UNCTAD) in its Planof Action stressed the importance ofstudying ways to protect traditionalknowledge, innovations and practicesof local and indigenous communitiesand enhance cooperation on researchand development on technologiesassociated with the sustainable use ofbiological resources. At its EleventhSession, in 2004, UNCTAD adopted theSao Paolo Consensus, which referredto “lack of recognition of intellectualproperty rights for the protection oftraditional knowledge” as an issue inassuring development gains for theinternational trading system and tradenegotiations [see www.unctad.org].

� The United Nations DevelopmentProgramme (UNDP) conducts extensivecapacity building work on TK, includingon aspects of legal protection andequitable benefit- sharing. [seewww.undp.org].

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Food and Agriculture

� In 1983 the UN Food and AgricultureOrganization (FAO) adopted theInternational Undertaking on PlantGenetic Resources (IUPGR), as a non-binding instrument in order to ensurethat plant genetic resources for foodand agriculture will be preserved,explored and made available for plantbreeding and scientific purposes. In1989 the FAO Conference recognizedFarmers’ Rights and in 1991 it agreedthat Farmers’ Rights would beimplemented through an internationalfund for plant genetic resources. In1993, the FAO Conference decided torenegotiate the InternationalUndertaking as a binding internationalinstrument in harmony with the CBDand for the realization of Farmers’Rights. After seven years ofnegotiations, the FAO Conferenceadopted the International Treaty onPlant Genetic Resources for Foodand Agriculture which provides in PartIII for the recognition of farmers’ rights,including “the protection of traditionalknowledge relevant to plant geneticresources for food and agriculture”[see www.fao.org].

Indigenous Rights

� Since 1993, the Declaration on theRights of Indigenous Peoples has beenunder negotiation. The draft refers tothe entitlement of indigenous peoples inrelation to their cultural and intellectualproperty.

Intellectual Property

� During 1998 and 1999 WIPO conductedfact-finding missions in 28 countries inorder to identify the IP- related needs andexpectations of traditional knowledgeholders (FFMs). Indigenous and localcommunities, non- governmentalorganizations, governmental represen-tatives, academics, researchers andprivate sector representatives wereamong the more than 3000 personsconsulted on these missions. The resultsof the missions were published by WIPOin a report entitled “Intellectual PropertyNeeds and Expectations of TraditionalKnowledge Holders: WIPO Report onFact-finding Missions (1998- 1999)” (FFMReport).

� In late 2000, the WIPO Intergovern-mental Committee on IntellectualProperty and Genetic Resources,Traditional Knowledge and Folklore(the Committee) was established. TheCommittee has made substantialprogress in addressing both policy and

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practical linkages between the IP systemand the concerns of practitioners andcustodians of traditional knowledge.Various studies have formed the basisfor ongoing international policy debateand assisted in the development ofpractical tools. Drawing on this diverseexperience, the Committee is movingtowards an international understandingof the shared objectives and principlesthat should guide the protection of TK.All these materials are available from theSecretariat at WIPO and at http://www.wipo.int/tk/en/tk/index.html

� As part of its broader program on TK,WIPO also organizes workshops andseminars, expert and fact-findingmissions, commissions case-studies, andcarries out and provides legislativedrafting, advice, education and training.

� The International Union for theProtection of New Varieties of Plants(UPOV) Convention provides a suigeneris form of IP protection specificallyadapted for plant breeding, with theaim of encouraging the development ofnew plant varieties. This system ofprotection provides for a “breeder’sexemption”: no restriction applies toacts done for the purpose of breedingother varieties, so as to maximize theavailability of genetic resources for plantbreeders and thereby maximize breeding

progress for the benefit of society. The“farmer’s privilege” concerning farm-saved seed is an optional benefit-sharing mechanism, under whichUPOV Member States may permitfarmers to use part of their harvest ofa protected variety for the planting ofa further crop on their own farms. The“distinctness” requirement under theUPOV Convention provides thatprotection shall only be granted afteran examination to determine if avariety is clearly distinguishable fromall other varieties, whose existence is amatter of common knowledge,regardless of their geographical origin.This provides a legal basis fordefensive protection in relation toexisting plant varieties. Under theUPOV system, only the person, whomay for example be a farmer, whobreeds a new plant variety can claimprotection for that variety [seewww.upov.int].

� Work on traditional knowledgeprotection is also continuing elsewherein the United Nations system. Forinstance, the United Nations Universityhas issued a report on “The Role ofRegisters and Databases in theProtection of TK”.

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Positive Protection – Recognition of IP Rights in TK

Diversity is the very essence of TK systems,precisely because they are so closelyintertwined with the cultural identity ofmany diverse communities. It is thereforenot surprising that practical experience sofar with the protection of TK has shownthat no single template or comprehensive“one-size-fits-all” solution is likely to suitall the national priorities and legalenvironments, let alone the needs oftraditional communities in all countries.Instead, effective protection may be foundin a coordinated “menu” of differentoptions for protection. This could perhapsbe underpinned by an internationallyagreed set of common objectives and coreprinciples that could form part of theinternational legal framework. The key isto provide TK holders with an appropriatechoice of forms of protection, to empowerthem to assess their interests and choosetheir own directions for the protection anduse of their TK, and to ensure there isadequate capacity to carry throughprotection strategies.

The way in which a protection system isshaped and defined will depend to a largeextent on the objectives it is intended toserve. Protection of TK, like protection of IPin general, is not undertaken as an end in

itself, but as a means to broader policygoals. The kind of objectives that TKprotection is intended to serve include:

––––– Recognition of value and promotion ofrespect for traditional knowledgesystems

––––– Responsiveness to the actual needs ofholders of TK

––––– Repression of misappropriation of TKand other unfair and inequitable uses

––––– Protection of tradition-based creativityand innovation

––––– Support of TK systems andempowerment of TK holders

––––– Promotion of equitable benefit-sharingfrom use of TK

––––– Promotion of the use of TK for abottom-up approach to development

The diversity of already existing TKprotection systems and the diversity of theneeds of TK holders require a degree offlexibility in how the objectives areimplemented at the national level. A similarsituation prevails in other branches of IPlaw as existing IP instruments givecountries flexibility in how they makeprotection available.

Positive Protection – Recognition of IP Rights in TK

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The options for positive protection includeexisting IP laws and legal systems (includingthe law of unfair competition), extended oradapted IP rights specifically focussed on TK(sui generis aspects of IP laws), and new,stand-alone sui generis systems which giverights in TK as such. Other non-IP optionscan form part of the overall menu, includingtrade practices and labeling laws, the law ofcivil liability, the use of contracts, customaryand indigenous laws and protocols, regu-lation of access to genetic resources andassociated TK, and remedies based on suchtorts as unjust enrichment, rights ofpublicity, and blasphemy. Each of these hasbeen used to some extent to protect various

On the ground, TK holders already use anarray of legal tools to safeguard theirinterests, drawing on IP laws and otherareas of law as needed. This requiresaccess to skills and resources. A numberof NGOs are stepping in to support localcommunities in contractual negotiationsand IP strategies (including on TK)concerning access to genetic resourcesand traditional knowledge. For example,the Centre for Research-Information-Action in Africa - Southern AfricaDevelopment and Consulting (CRIAA SA-DC) assists local communities in Namibiain the sustainable exploitation of naturalbotanical resources, and to implementappropriate IP strategies, for instance onan indigenous fruit project, to achievecommunity development goals.

Use of existing intellectualproperty laws

The policy debate about TK and the IPsystem has underlined the limitations ofexisting IP laws in meeting all the needsand expectations of TK holders. Even so,existing IP laws have been successfully usedto protect against some forms of misuseand misappropriation of TK, includingthrough the laws of patents, trademarks,geographical indications, industrialdesigns, and trade secrets. However,

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aspects of TK – some examples of the use ofIP rights are discussed in the WIPOpublication “Consolidated analysis of thelegal protection of traditional knowledge”.For a brief practical introduction to trademarks and designs, see “Making a Mark”,WIPO publication No. 900E and “LookingGood”, WIPO publication No. 498E. Futureguides in this same series will cover patentsand copyright.

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certain adaptations or modifications to IPlaw may be needed to make it workbetter. For example, TK is often heldcollectively by communities, rather than byindividual owners – this is often cited as adrawback in protecting TK. Yet it ispossible to form associations, communitycorporations or similar legal bodies to acton behalf of the community. In somecountries, government agencies take anactive role acting in trust for thecommunity. Some forms of protection,such as remedies against unfaircompetition and breach of confidence, donot require specific right holders.Communities’ concerns about TK typicallyspan generations, a much longer time-frame than the duration of most IP rights.But some IP rights, especially those thatrely on a distinctive reputation, cancontinue indefinitely. There are alsoconcerns that the cost of using the IPsystem is a particular obstacle for TKholders. This has led some to explorecapacity building, evolution of legalconcepts to take greater account of TKperspectives, the use of alternative disputeresolution, and a more active role forgovernment agencies and other players.

Existing IP rights have been used in thefollowing ways:

––––– Unfair competition and trade practiceslaws: these allow for action to be takenagainst false or misleading claims thata product is authentically indigenous,or has been produced or endorsed by,or otherwise associated with, aparticular traditional community. Forinstance, a company has been legallybarred from describing various hand-painted products as “certifiedauthentic” and “Aboriginal art” whenthey were not painted by Aboriginalpeople and had not undergone anycertification process.

––––– Patents: when practitioners innovatewithin the traditional framework, theyhave been able to use the patentsystem to protect their innovations. Forexample, in 2001 China granted 3300patents for innovations within the fieldof Traditional Chinese Medicine (seebox on p.19). Equally, systems havebeen developed to ensure thatillegitimate patent rights are notgranted over TK subject matter that isnot a true invention (see “defensiveprotection” below).

––––– Distinctive signs (trade marks, collectivemarks, certification marks,geographical indications): traditionalsigns, symbols and terms associated

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with TK have been protected as marks,and have been safeguarded againstthird parties’ claims of trade markrights. For instance, the Seri people ofMexico, faced with competition frommass production, registered the ArteSeri trademark to protect authenticironwood products that are producedby traditional methods from the Olneyatesota tree. Conservation of this uniquespecies of tree was also a factor inprotecting the trademark. Also inMexico, the appellations of originolinalá and tequila are used to protectlacquered wooden products and thetraditional spirit derived from the blue

agave plant, both products oftraditional knowledge that derive theirunique characteristics also from theindigenous genetic resources of theselocalities.

––––– The law of confidentiality and tradesecrets: this has been used to protectnon-disclosed TK, including secret andsacred TK. Customary laws ofcommunities often require that certainknowledge be disclosed only to certainrecipients. Courts have awardedremedies for breach of confidence whensuch customary laws are violated. Agroup of North American indigenouscommunities, the Tulalip Tribes, have

An international application under the Patent Cooperation Treaty (PCT), No. 2004/052382 A 1, on theuse of traditional chinese medicine (TCM) to reduce blood-fat, which claims an invention that combinesteaching of TCM with modern medicine

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developed Storybase, a digital collectionof their TK. Some of the TK may bedisclosed for patent review. Communityleaders identify other information as foruse exclusively within the Tulalipcommunity, according to customary law;the latter is protected as undisclosedinformation. Digital repatriation projectsthat involve the restoration of indigenousknowledge to original communities oftenneed to apply confidentiality carefully tocomply with customary law constraintson access to the knowledge.

Publication of sacred-secret materials hasbeen successfully prevented using a breachof confidence action. In Foster v Mountfordmembers of the Pitjantjatjara Councilobtained an interlocutory injunction, onthe basis of breach of confidence, torestrain the publication of a book entitledNomads of the Australian Desert. Theplaintiffs successfully argued that the bookcontained information that could only havebeen supplied and exposed in confidenceto the anthropologist Dr Mountford, thirty-five years ago. The plaintiffs alsosuccessfully argued that the “revelation ofthe secrets contained in the book to theirwomen, children and uninitiated men mayundermine the social and religious stabilityof their hard-pressed community”.

Case Study from “Stopping the Rip-offs”, AustralianAttorney-General’s Department at www.ag.gov.au

Adaptations of existing IPthrough sui generis measures

A number of countries have adaptedexisting intellectual property systems to theneeds of TK holders through sui generismeasures for TK protection. These takedifferent forms. A Database of OfficialInsignia of Native American Tribes preventsothers from registering these insignia astrademarks in the United States ofAmerica. New Zealand’s trade mark lawhas been amended to exclude trademarksthat cause offence, and this appliesespecially to Indigenous Maori symbols.India’s Patent Act has been amended toclarify the status of TK within patent law.The Chinese State Intellectual PropertyOffice has a team of patent examinersspecializing in traditional chinese medicine.

Use of sui generis exclusiverights

In some communities and countries, thejudgement has been made that evenadaptations of existing IP rights systems arenot sufficient to cater to the holistic andunique character of TK subject-matter. Thishas led to the decision to protect TKthrough sui generis rights. What makes anIP system a sui generis one is themodification of some of its features so asto properly accommodate the special

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characteristics of its subject matter, andthe specific policy needs which led to theestablishment of a distinct system.

Here are a few national experiences in usingsui generis IP rights for protecting TK:

––––– The sui generis regime of Peru wasestablished by Law No. 27, 811 of2002, whose objectives are to protectTK, to promote fair and equitabledistribution of benefits, to ensure thatthe use of the knowledge takes placewith the prior informed consent of theindigenous peoples, and to preventmisappropriation. Protection is affordedto collective knowledge of indigenouspeoples associated to biologicalresources. The law grants indigenouspeoples the right to consent to the use

of TK. The law also foresees thepayment of equitable compensationfor the use of certain types of TK intoa national Fund for IndigenousDevelopment or directly to the TKholders.

––––– The Biodiversity Law No. 7788 ofCosta Rica aims at regulating access toTK. It provides for the equitabledistribution to TK holders of thebenefits arising from the use of TK.Two scopes of subject matter aredefined in the Law: first, TK to whichthe Law regulates access, and, second,TK for which the Law providesexclusive rights. What will be the termand scope of sui generis communityintellectual rights and who will be thetitle holder is determined by aparticipatory process with indigenousand small farmer communities to bedefined by the National Commissionfor the Management of Biodiversity.

––––– The objective of Portugal’s sui generisDecree-Law No. 118, of April 20, 2002is the registration, conservation andlegal custody of genetic resources andTK. The Law provides protectionagainst the “commercial or industrialreproduction and/or use” of TKdeveloped by local communities,collectively or individually.

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––––– The Act on Protection and Promotion ofTraditional Thai Medicinal Intelligence,B. E. 2542 protects “formulas” oftraditional Thai drugs and “texts ontraditional Thai medicine”. In general,“traditional Thai medicinal intelligence”means “the basic knowledge andcapability concerned with traditionalThai medicine”. The Act confers theright holder – “those who haveregistered their intellectual propertyrights on traditional Thai medicalintelligence under the Act” – “the soleownership on the production of thedrug and research and development”.

When policymakers seek to develop a suigeneris system for the protection of TK,they generally need to consider thefollowing key issues:

––––– what is the (policy) objective of theprotection?

––––– what subject matter should beprotected?

––––– what criteria should this subject mattermeet to be protected?

––––– who are the beneficiaries ofprotection?

––––– what are the rights?––––– how are the rights acquired?––––– how are the rights administered and

enforced?

––––– how are the rights lost or how do theyexpire?

For more detailed information on thesekey issues, please refer to WIPOpublication “Consolidated analysis of thelegal protection of traditional knowledge”.The IGC has worked extensively on boththe protection of TK through existing IPsystems, and the development andapplication of sui generis systems. See IGCworking documents such as WIPO/GRTKF/IC/5/8, WIPO/GRTKF/IC/5/INF/2 and INF/4,WIPO/GRTKF/IC/6/4, WIPO/GRTKF/IC/7/5and WIPO/GRTKF/IC/7/6.

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Other legal concepts forthe protection of TK

When policymakers explore suitable legalmechanisms to protect TK againstmisappropriation, they consider a broaderrange of legal concepts apart from the kindof exclusive rights used in most forms of IPlaw. Several of these alternative conceptsare briefly described here:

Prior Informed Consent (PIC)

According to the principle of priorinformed consent (PIC), TK holders shouldbe fully consulted before their knowledgeis accessed or used by third parties and anagreement should be reached onappropriate terms; they should also be fullyinformed about the consequences of theintended use. The agreed scope of use maybe set out in contracts, licenses oragreements, which would also specify howbenefits arising from the use of the TKshould be shared. The principle of PICconcerning access to genetic resources isone of the cornerstones of the CBD (seetext box p.12). Given the close relationshipbetween genetic resources and some formsof TK, this same principle is also used in anumber of national laws concerningaccess to and use of TK.

Equitable benefit-sharing

The idea of an equitable balancing ofinterests is common to many legalsystems. In IP law, this is often phrased interms of a balancing of the interests ofright holders and the general public. Thefair and equitable sharing of benefits fromthe use of genetic resources is one of theobjectives of the CBD, and the CBD alsoencourages equitable sharing of benefitsfrom the use of certain forms of TK. Thusthe principle of equitable benefit-sharing isfound in a number of national lawsgoverning access and use of TK, especiallywhen TK is associated with geneticresources. According to this principle, theTK holders would receive an equitableshare of the benefits that arise from theuse of the TK, which may be expressed interms of a compensatory payment, orother non-monetary benefits. Anentitlement to equitable benefit-sharingmay be particularly appropriate insituations where exclusive property rightsare considered inappropriate.

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Benefit-sharing and TK in Samoa

Traditional healers of Samoa were recently acknowledged in a benefit-sharing agreementconcerning the development of prostratin, an anti-AIDS compound derived from theSamoan native mamala tree (homalanthus nutans). Prostratin forces the HIV out ofreservoirs in the body, thus allowing anti-retroviral drugs to attack it. The bark of themamala has been used by traditional healers to treat hepatitis, among other medicinal usesof the tree. This traditional knowledge guided researchers in their search for valuabletherapeutic compounds. Reportedly, revenues from the development of prostratin will beshared with the village where the compound was found and with the families of thehealers who helped discover it. Revenues will also be applied to further HIV/AIDS research.It is also proposed to license the prostratin research to drug makers so that the resultantdrugs are made available to developing countries for free, at cost, or at a nominal profit.

Benefit-sharing and TK in Mali

The traditional agricultural knowledge that led to the identification of the valuable qualitiesof Oryza longistaminata also facilitated the identification of the gene that conferred diseaseresistance (see text box on p. 9). When this gene was isolated and patented by theUniversity of California at Davis, an agreement was struck to provide for benefit-sharingwith the source country. A Genetic Resource Recognition Fund (GRRF) was established toshare with the stakeholders in Mali and other developing countries the benefits arisingfrom the commercial utilization of the patented gene. The user of technology is required topay a certain percentage of sales of products into the GRRF for a specified number ofyears. The Fund is intended to provide fellowships to agriculture students and researchersfrom Mali and other countries where the wild rice is found, so as to build capacity in thecountry providing the resource. WIPO consulted with the Bela and the farmingcommunities for a case study on this use of TK: see “WIPO-UNEP Study on the role ofintellectual property rights in the sharing of benefits arising from the use of biologicalresources and associated traditional knowledge” (WIPO Publication No. 769E).

Oryza longistaminatagrowing near a Bela

Community village

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Unfair competition

International IP standards have longrequired the suppression of unfaircompetition: this is defined as “any act ofcompetition contrary to honest practices inindustrial or commercial matters”, andincludes various acts that mislead thepublic or cause confusion. Unfaircompetition law has been used as apotential basis for protection of integratedcircuit layout designs, geographicalindications, undisclosed information andtest data, and phonograms. It has alsobeen discussed and used as a potentiallegal basis for protecting TK againstvarious forms of unfair commercial use.

Respect for customary laws andpractices

Customary laws, protocols and practicesoften define how traditional communitiesdevelop, hold and transmit TK. Forexample, certain sacred or secret TK mayonly be permitted to be disclosed to certaininitiated individuals within an Indigenouscommunity. Customary laws and practicesmay define custodial rights and obligationsover TK, including obligations to guard itagainst misuse or improper disclosure; theymay determine how TK is to be used, howbenefits should be shared, and howdisputes are to be settled, as well as manyother aspects of the preservation, use andexercise of knowledge.

For example, in North America, theinheritance and transfer of “medicinebundles” within or between families isaccompanied by the transmission oftraditional medical knowledge and certainrights to practice, transmit and apply thatknowledge. The ownership of the physicalbundle is often attached to exclusive rightsto exploit the products and processesassociated with the TK that the bundlesignifies.

As their TK is increasingly of interest tothose beyond the traditional context, TKholders have called for their customarylaws, practices and beliefs to be recognizedand respected by those seeking to use theirTK. For many representatives of traditionalcommunities, this is a cornerstone ofappropriate forms of protection. This hasled to consideration of a range of ways ofrespecting customary laws and practiceswithin other legal mechanisms, includingwithin conventional IP systems.

Preparation of Oryza longistaminata for foodconsumption, Mali

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TK is protected “defensively” by steps thatprevent third parties from obtaining orexercising invalid IP rights over the TK.Defensive protection can be valuable andeffective in blocking illegitimate IP rights,but it does not stop others from activelyusing or exploiting TK. Some form ofpositive protection is needed to preventunauthorized use. This is why acomprehensive approach to protectionneeds to consider positive and defensiveprotection as two sides of the same coin.For instance, publishing TK as a defensivemeasure may block others from patentingthat TK, but it can also make theknowledge more accessible and put it inthe public domain – this can, ironically,make it easier for third parties to use theknowledge against the wishes of the TKholders.

The main focus of defensive protectionmeasures has been in the patent system.Defensive protection aims at ensuring thatexisting TK is not patented by third parties– ideally, by ensuring that relevant TK istaken fully into account when a patent isexamined for its novelty and inventiveness.

Normally, a claimed invention in a patentapplication is assessed against the so-called “prior art” – the defined body ofknowledge that is considered relevant tothe validity of a patent. For example, if TKhas been published in a journal before theapplicable date of a patent application, itis part of the relevant prior art, and theapplication cannot validly claim that TK asan invention – the invention would not beconsidered novel. In recent years, concernhas been expressed that TK should begiven greater attention as relevant priorart, so that patents are less likely to coverexisting publicly disclosed TK.

Defensive Protection – Safeguarding againstIllegitimate IP Rights over TK

Defensive Protection – Safeguarding againstIllegitimate IP Rights over TK

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Defensive protection of TK has twoaspects:

––––– a legal aspect: how to ensure that thecriteria defining relevant prior art applyto the TK – for example, this couldmean ensuring that orally disclosedinformation must be taken intoaccount (since many important bodiesof TK are normally transmitted anddisseminated by oral means)

––––– a practical aspect: how to ensure thatthe TK is actually available to searchauthorities and patent examiners, andis readily accessible – for example, this

TK and environmental planning

The Nunavut Planning Commission (NPC) has been mapping wildlife populations, humanuse and areas of archaeological significance while examining land use issues. This mappingwork combines the TK of the Inuit with the latestcomputer mapping technology. The database resultingfrom this work includes the Nunavut EnvironmentalDatabase (NED), which is a subset of the Arctic Instituteof North America’s ASTIS database (Arctic Science andTechnology Information System). NED has been preparedfor the Nunavut Planning Commission by selecting ASTIS records about Nunavut. NPC hasmade the Nunavut Environmental Database available on the Internet for search andretrieval. Practical information on intellectual property implications and technical modalitiesof such public disclosure was required in light of the NPC’s plans to develop acomprehensive documentation strategy for all TK in Nunavut and possible incorporationinto databases.

can ensure that it is indexed orclassified, so that it is likely to befound in a search for relevant prior art.

The broad development underlying thisissue is that, as the reach of theintellectual property system in the globalinformation society extends to newstakeholders, such as indigenous and localcommunities, their knowledge base,including in particular their TK, constitutesan increasingly relevant body of prior artthe effective identification of which is ofincreasing importance for the functioningof the IP system.

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Another widely-discussed approach todefensive protection is the idea thatpatent applicants should in some wayhave to disclose TK (and genetic resources)used in the claimed invention, or that areotherwise related to it. Existing patent lawalready requires some of this informationto be disclosed by the applicant, but thereare several proposals to extend and focusthese requirements, and to create specificdisclosure obligations for TK and geneticresources. This aspect of defensiveprotection is discussed in “WIPO TechnicalStudy on Patent Disclosure RequirementsRelated to Genetic Resources andTraditional Knowledge”, WIPO PublicationNo. 786E.

Amendment of existing WIPOadministered patent systems

A range of practical mechanisms for thedefensive protection of TK have beendeveloped and implemented withincountries and international organizations.WIPO’s work on defensive protection hasincluded amendment of WIPO-administeredsystems, and the development of practicalcapacity-building tools.

For instance, the principal tool for locatingtechnical information for patent purposes,the International Patent Classification (IPC),has been expanded to take better accountof TK subject matter, in particularconcerning medicinal products based onplants extracts. This increases the likelihoodthat patent examiners locate already

TK and defensive protection: the turmeric patent

United States Patent 5,401,504 was initially granted with a main claim directed at ‘amethod of promoting healing of a wound in a patient, which consists essentially ofadministering a wound-healing agent consisting of an effective amount of turmeric powderto said patient.’ The patent applicants acknowledged the known use of turmeric intraditional medicine for the treatment of various sprains and inflammatory conditions. Thepatent application was examined, and the claimed invention was considered novel at thetime of application on the basis of the information then available to the examiningauthority. The patent was subsequently challenged and found invalid, as furtherdocumentation was made available (including ancient Sanskrit texts) that demonstratedthat the claimed invention was actually already known TK.

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published TK that is relevant to claimedinventions in patent application, withoutadversely affecting the legal status of TKfrom the point of view of TK holders.Further avenues for development of theIGC in this direction are being explored.

The Patent Cooperation Treaty (PCT) is aWIPO-administered treaty for internationalcooperation in the field of patents. Amongother things, it provides for an internationalsearch and examination. This helps clarifythe possible validity of a patent applicationbefore specific national processes begin.This is significant for applicants and fordefensive protection strategies alike. Theminimum documentation that should betaken into account during an internationalsearch was recently expanded to includeeleven TK-related information resources,thus increasing the likelihood that relevantTK will be located at an early stage in thelife of a patent.

The Traditional Knowledge DigitalLibrary project (TKDL), an initiative ofseveral Indian Government agencies,proposes to document the disclosedtraditional medicinal knowledge availablein public domain by sifting and collatinginformation on TK from the existingdisclosed literature covering Ayurveda. TheTKDL compiles the information in digitizedformat in five international languageswhich are English, German, French,Japanese and Spanish. An inter-disciplinaryteam of Ayurveda experts, a patentexaminer, information technology experts,scientists and technical officers haveworked for one and a half years forcreating the TKDL of Ayurveda. TKDL seeksto give recognition and legitimacy to theexisting TK and enable protection of suchinformation from getting patented.

Traditional Knowledge ResourceClassification (TKRC) is an innovativestructured classification system for thepurpose of systematic arrangement,dissemination and retrieval. This has beendeveloped for about 5000 subgroupsagainst one group in international patentclassification, i.e. AK61K35/78 related tomedicinal plants. TKDL is a collaborativeproject between the Indian National Instituteof Science Communication and InformationResources and the Department of IndianSystems of Medicine and Homeopathy,Ministry of Health and Family Welfare.

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Practical capacity-building tools

WIPO is also developing a package ofpractical tools and products for theprotection of TK and genetic resources.These include a Toolkit for IP Management,an Online Portal of Registries and Databasesof TK and Genetic Resources, including asample database of Ayurvedic traditionalmedicine from South Asia, and an agreeddata standard for databases and registries ofTK and associated biological resources.

A “Toolkit for IP Management WhenDocumenting TK and Genetic Resources”is under collaborative development toprovide practical assistance to TK holdersand custodians of genetic resources inmanaging the IP-implications of theirdocumentation work. The toolkit isintended to describe legal tools that areavailable, to discuss how they can besuccessfully used and thereby to enableinformed choices by TK holdersthemselves. The aim is to allow

stakeholders to determine whether, and inwhat cases, IP rights are the appropriatelegal and practical mechanisms to achievetheir objectives concerning their TK andgenetic resources.

TK holders are involved in a wide range ofTK collections, databases, registries andother forms of documenting and recordingtheir TK. Great care needs to be taken toavoid unintended disclosure of TK, forexample by making it available to thegeneral public in violation of customarylaws and practices. The toolkit illustrateshow any documentation or databaseinitiative needs to be preceded by fullconsideration of possible IP implications,including inadvertently placing TK in thepublic domain, or publishing itinappropriately. WIPO does not advise TKholders on compiling databases of TK anddoes not compile such databases itself.

The work on defensive approaches is beingundertaken within the context of acomprehensive approach to the protectionof TK, which takes account of the need,widely expressed, for more effectivepositive protection and for any holders orcustodians of TK to be fully informed of theconsequences of making any disclosure oftheir TK, especially when disclosure leads topublication of the TK or its more readyaccess by members of the public.

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Conclusion

The call for protection of TK against misuseor misappropriation raises deep policyquestions and practical challenges alike.The changing social environment, and thesense of historical dislocation, thatcurrently affect many communities mayactually strengthen resolve to safeguard TKfor the benefit of future generations. Justas the technological value of TK isincreasingly recognized and its potentialrealized, the challenge is to ensure that theintellectual and cultural contribution oftraditional communities is appropriatelyrecognized. This means taking greateraccount of the needs and expectations ofTK holding communities concerning theintellectual property system. Its traditionalqualities and frequent close linkage withthe natural environment mean that TK canform the basis of a sustainable andappropriate tool for locally-baseddevelopment. It also provides a potentialavenue for developing countries,particularly least-developed countries, tobenefit from the knowledge economy.

This booklet has sketched out some of thecurrent directions this process is taking. Itis a demanding set of tasks that need to beaddressed with care and consultation. Itrequires respect for the values andconcerns of traditional communities, as

well as consideration of the fullinternational policy and legal context,including a range of current internationaldebates. Even new or expanded forms of IPprotection would be inadequate to meet allthe needs and expectations that have beenvoiced, but various forms of IP mechanismhave been found to be practically useful.The current WIPO process aims at distillingthe practical and policy lessons of a widerange of experience in many countries,with a view to building a shared policyperspective and effective practical tools.

The WIPO work is framing the core principlesthat should underpin the protection of TK.This offers a potential foundation forinternational legal development in the formof precise policy and legislative options forenhanced protection of TK through adaptedor expanded conventional IP systems, orthrough stand-alone sui generis systems. Thismay in turn facilitate further development ofan international consensus on the moredetailed aspects of protection, as the lessonsof practical experience in achieving theseprinciples are better understood and shared.This should lead to strengthened linkagesbetween the needs and interests oftraditional communities, and the core publicpolicy principles of the IP system.

Conclusion

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Further reading

This booklet draws from many documents, studies and other materials prepared and consultedwithin the context of WIPO’s work, and all of which are available from the Secretariat and at :http://www.wipo.int/tk/en/tk/index.html. Here are some further materials you may find useful :

WIPO Secretariat, “Intellectual Property Needs and Expectations of Traditional KnowledgeHolders: WIPO Report on Fact-Finding Missions on Intellectual Property and TraditionalKnowledge (1998-1999)”

WIPO Secretariat, “Protection of Traditional Knowledge: Overview of Policy Objectives andPrinciples” (WIPO/GRTKF/IC/7/5)

The WHO Traditional Medicine Strategy 2002-2005 (WHO/EDM/TRM/2002.1)

The Role of Registers and Databases in the Protection of Traditional Knowledge –A comparative analysis, United Nations University, Institute of Advanced Studies (UNU-IAS)

“Composite report on the status and trends regarding the knowledge, innovations andpractices of indigenous and local communities relevant to the conservation and sustainableuse of biodiversity”, CBD (In progress)

“Protecting and Promoting TK: Systems, National Experiences and International Dimensions”,UNCTAD, 2004

“WIPO-UNEP Study on the Role of Intellectual Property Rights in the Sharing of Benefits Arisingfrom the Use of Biological Resources and Associated Traditional Knowledge”, WIPOPublication No. 769E

“WIPO Technical Study on Patent Disclosure Requirements Related to Genetic Resources andTraditional Knowledge”, WIPO Publication No. 786E

“Consolidated Analysis of the Legal Protection of Traditional Knowledge” (Forthcoming)

For more information contact the:World Intellectual Property Organization

Address:34, chemin des ColombettesP.O. Box 18CH-1211 Geneva 20Switzerland

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or its New York Coordination Office at:

Address:2, United Nations PlazaSuite 2525New York, N.Y. 10017United States of America

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Fax:1 212 963 4801

e-mail:wipo@un.org

Visit the WIPO website at:http://www.wipo.int

and order from the WIPO Electronic Bookshop at:http://www.wipo.int/ebookshop

WIPO Publication No. 920(E) ISBN 92-805-1366-4

INTELLECTUAL PROPERTYAND TRADITIONAL KNOWLEDGE

WORLD

INTELLECTUAL

PROPERTY

ORGANIZATION

Booklet nº 2This is one of a series of Booklets dealingwith intellectual property and geneticresources, traditional knowledge andtraditional cultural expressions/folklore