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National Forum on TK Protection

Intellectual Property Office/National Museum


Elpidio V. Peria

Biodiversity, Innovation, Trade and Society (BITS) Policy Center, Inc.


21-22 March 2012

Traditional Knowledge & Indigenous Peoples:


The Philippines' Legal Landscape

Constitutional Basis

International Commitments

Scope of Legislative Efforts & Community


Initiatives

Issues for Further Resolution and Action

Way Forward

OVERVIEW

The State recognizes and promotes the rights of


indigenous cultural communities within the framework
of national unity and development

(sec. 22, Article II, Declaration of Principles and


State Policies)

The State shall recognize, respect and protect the


rights of indigenous cultural communities to preserve
and develop their cultures, traditions and institutions. It
shall consider these rights in the formulation of
national plans and policies

(sec. 17, Article XIV, ELSTACS)

Constitutional Basis

INTERNATIONAL
INSTRUMENT/ARENA

SUBJECT MATTER

Intl Convention on the


Elimination of All Forms of
Racial
Discrimination (ICERD)

Non-discrimination esp on equal


participation in all cultural activities

WTO-TRIPS
Agreement (art. 27.3[b])

Protection of traditional knowledge &


folklore

- Nagoya Protocol on ABS

Customary law, community protocols

FAO-ITPGRFA
- Standard Matls Transfer Agrmt

Farmers' Rights- Art. 9


Benefit-Sharing

UNESCO Conventions
- Intangilble Cultural Heritage
- Diversity of Cultural Expressions

Preservation of cultural heritage

UN Declaration on the Rights of


Indigenous Peoples (UNDRIP)

Right to self-determination; Cultural heritage


protection

Describe the main attributes of the product

Link the product attributes to customer


needs
Convention on Biological Diversity
Sustainable use

International
Commitments
WIPO-IGC
Protection of Intellectual property aspects of
genetic resources, traditional knowledge,

Legislation

SUBJECT MATTER

Describe the main attributes of the product


-rights to self-determination; cultural integrity; free
and prior informed
(FPIC); ancestral
Link the product attributes
toconsent
customer
domains
needs

Indigenous
Peoples' Rights Act

(IPRA. Republic Act 8371)

Cultural Heritage Act (Republic Act


10066)

Protection of elements of cultural heritage

Wildlife Act (Republic Act 9147)

Traditional use; right to FPIC in bioprospecting


activities

Traditional and Alternative Medicine Act


(Republic Act 8423)

Right to a share from the commercialization of


traditional medicine knowledge

Plant Variety Protection Act


(Republic Act 9168)

Farmers' rights to save, exchange, use, share and sell


seeds

Intellectual Property Code (Republic Act


9283)

Sui generis protection of plant varieties and animal


breeds and a system of protection for community
intellectual rights

The Legal Landscape (1):


At a Glance

Describe the main attributes of the product

Legislation/

Administrative
Issuance
Link the product

needs
Animal Welfare Act

( Republic Act 8485)

SUBJECT MATTER

attributes to customer

-grant of exception to the killing of animals when


made part of a ritual required by tribal or ethnic
custom of indigenous cultural communities

Magna Carta of Women


(Republic Act 9710)

Protection of the rights of Moro and indigenous


women to their indigenous knowledge systems and
practices, traditional livelihood, and other
manifestations of their cultures and ways of life

Technology Transfer Act


(Republic Act 10055)

Research and devt institute or institution (RDI) to


disclose any biodiversity and genetic resource,
TK,IKSP in all applications for intellectual property
protection

The Legal Landscape (2):


At a Glance

Chapter VI Cultural Integrity

sec. 29- Protection of Indigenous Culture, Traditions and


Institutions
sec. 30 Educational Systems
sec. 31- Recognition of Cultural Diversity
sec. 32- Community Intellectual Rights
sec. 33- Rights to Religious, Cultural Sites and Ceremonies
sec. 34- Right to IKSP and to Develop Own Sciences and
Technologies
sec. 35- FPIC requirement for Access to BGR
sec. 36- Sustainable Agro-techical development

Indigenous Peoples' Rights Act


(IPRA, Republic Act 8371)

Sec.

32. Community Intellectual Rights ICCs/IPs have the right


to practice and revitalize their own cultural traditions and
customs.
The State shall preserve, protect and develop the past, present
and future manifestations of their cultures as well as the right to
the restitution of cultural, intellectual, religious, and spiritual
property taken without their free and prior informed consent or in
violation of their laws, traditions and customs.

Indigenous Peoples' Rights Act


(IPRA, Republic Act 8371)

Sec. 34.

Right to Indigenous Knowledge Systems and Practices


and to Develop own Sciences and Technologies ICCs/IPs are
entitled to the recognition of the full ownership and control
and protection of their cultural and intellectual rights.
They shall have the right to special measures to control,
develop and protect their sciences, technologies and cultural
manifestations, including human and other genetic resources,
seeds, including derivatives of these resources, traditional
medicines and health practices, vital medicinal plants, animals
and minerals, indigenous knowledge systems and practices,
knowledge of the properties of flora and fauna, oral traditions,
literature, designs, and visual and performing arts.

Indigenous Peoples' Rights Act


(IPRA, Republic Act 8371)

Art. V Registration and Conservation of Cultural Property

sec. 14 Philippine Registry of Cultural Property (PRECUP)


sec. 16 Documentation and Preservation of Traditional and
Contemporary Arts
sec. 19 National Inventory of Intangible Cultural Heritage
sec. 21- Indigenous Properties

National Cultural Heritage Act


(Republic Act 10066)

Sec. 7 Collection of Wildlife

Collection of wildlife may be allowed in accordance with sec. 6 of


this Act; xxxx.... Provided, further, That collection of wildlife by
indigenous people may be allowed for traditional use and not
primarily for trade.xxx
Sec.14 Bioprospecting
The Secretary xxx...before granting the necessary permit, shall
require that prior informed consent be obtained by the applicant
from the concerned indigenous cultural communities. xxx...The
prior informed consent from indigenous peoples shall be
obtained in accordance with existing laws.

Wildlife Act (RA 9147)

Sec. 2 Declaration of Policy

It shall also be the policy of the State to seek a legally


workable basis by which indigenous societies would own
their knowledge of traditional medicine. When such
knowledge is used by outsiders, the indigenous societies
can require the permitted users to acknowledge its
source and can demand a share of any financial return
that may come from its authorized commercial use.

Traditional and Alternative Medicine Act


(RA 8423)

Sec. 3 DOCUMENTATION OF IKS on TRADITIONAL AND


ALTERNATIVE HEALTH CARE

The Board shall endeavor to develop workable


mechanisms, in accordance with the customary
practices of the place,
for the identification and documentation of indigenous
knowledge systems relevant to the utilization of
biological and genetic resources that are applied in
traditional and alternative health care practices of the
community

Traditional and Alternative Medicine Act


(RA 8423 Implementing Rules and Regulations, Rule IX)

Sec. 4 INTELLECTUAL PROPERTY RIGHTS


The Institute shall endeavor to monitor and inventory
Philippine natural health products that have been inappropriately
applied for IPR protection in the Philippines and abroad without
complying with applicable laws and regulations

And shall make representations with the appropriate international


institutions with the assistance of other institutions and agencies
of the Government of the Philippines to cancel these rights or
to renegotiate the terms and conditions thereof that are
favorable to Philippine interests

Traditional and Alternative Medicine Act


(RA 8423, Implementing Rules and Regulations, Rule IX)

Sec. 4 INTELLECTUAL PROPERTY RIGHTS


The application of existing forms of intellectual property rights
on biological and genetic resources as well as indigenous
knowledge systems shall be without prejudice to the
application of whatever sui generis rights that may be
provided by law to the appropriate local and indigenous
communities.

The Board or other appropriate governmental bodies shall also


intervene, whenever it becomes necessary for the protection of
the general welfare of the communities involved, to protect and
ensure the rights of the communities during the
negotiations for benefit sharing.

Traditional and Alternative Medicine Act


(RA 8423, Implementing Rules and Regulations, Rule IX)

Section 43. Exceptions to Plant Variety Protection. - The


Certificate of Plant Variety Protection shall not extend to:
d) The traditional right of small farmers to save, use, exchange,
share or sell their farm produce of a variety protected under this
Act, except
when a sale is for the purpose of reproduction under a commercial
marketing agreement. The Board shall determine the condition
under which this exception shall apply, taking into consideration
the nature of the plant cultivated, grown or sown.
This provision shall also extend to the exchange and sell of seeds
among and between said small farmers: Provided, That the small
farmers may exchange or sell seeds for reproduction and
replanting in their own land.

Plant Variety Protection Act (RA 9168)

Sec. 22.4 Exceptions to Patentability

Provisions under this subsection shall not preclude


Congress to consider the enactment of a law providing
sui generis protection of plant varieties and animal
breeds and a system of community intellectual rights
protection.

Intellectual Property Code (RA 8293)

IP Code (RA 8293)

Sui generis protection of plant


varieties and animal breeds

System of community
intellectual rights protection

PVP Act (RA 9168)


a plant variety protection
system with sui generis
protection for farmers rights
to seeds

IPRA (RA 8371)

Right to practice and


revitalize their own cultural
traditions and customs
Right to the restitution of
cultural, intellectual, religious
and spiritual property

NO policy proposal for right


to animal breeds yet

TAMA (RA 8423)

State policy to seek a legally


workable basis by which
indigenous societies would
own their knowledge of
traditional medicine
Right to require permitted
users to acknowledge its
source

Full ownership and control


Right to demand a share of
and protection of their cultural any financial return that may
and intellectual rights
come from its authorized
commercial use
right to special measures

Summary of Sui Generis Protection


Legally Available

Sec. 6

The killing of any animal other than cattle pigs, goats,


sheep, poultry, rabbits, carabaos, horses, deer and
crocodiles is likewise hereby declared unlawful except
in the following instances:
(1) When it is done as part of the religious rituals of an
established religion or sect or a ritual required by tribal
or ethnic custom of indigenous cultural communities;
however, leaders shall keep records in cooperation
with the Committee on Animal Welfare
- implementing regulations issued by DA, DAO 252007

Animal Welfare Act (RA 8485)

Sec. 28- Recognition and Preservation of Cultural Identity and


Integrity

- The State shall recognize and respect the rights of


Moro and indigenous women to practice, promote,
protect, and preserve their own culture, traditions, and
institutions and to consider these rights in the
formulation and implementation of national policies
and programs.
To this end, the State shall adopt measures in
consultation with the sectors concerned to protect
their rights to their indigenous knowledge systems
and practices, traditional livelihood, and other
manifestations of their cultures and ways of life:
Provided, That these cultural systems and practices
are not discriminatory to women.

Magna Carta of Women (RA 9710)

Sec. 3 (c)(i) Disclosures

- The RDI shall provide the GFA with a written


disclosure on the following: (1) any biodiversity,
genetic resources or materials, associated TK, and
IKSP utilized in or which formed as basis in the
development of the subject matter contained in the
IPR application; (2) the primary source of any
biodiversity, genetic resources or materials,
associated TK,and IKSP utilized in or which formed
as basis in the subject matter contained in the
application; or (3) the secondary source, if no
information on the primacy source is available

IRR of Technology Transfer Act (RA 10055),


Rule 12, sec. 3

TRIBAL BOTIKA
- an initiative of the BukidnonDaraghuyan tribal community to
revitalize and protect their
traditional knowledge of
medicinal plants found within
their ancestral domain in the
vicinity of Mt. Kitanglad Range
Natural Park, Malaybalay City,
Bukidnon, Philippines

Community Initiatives (1)

Talaandig Communitys assertion of ownership of Mt.


Kitanglad and Community Protocol based on IPRAs
sec. 70
SEARICEs community registries anchored on the Local
Government Code and PVP Acts Sec. 72
PPRDIs draft ordinance on Farmers Rights
BITS Policy Center's Art, Culture and Copyright
Workshop where cultural rights' checklist and Artists'
Template will be developed

Other Community Initiatives (2)

DRAFT GENERAL GUIDELINES ON FESTIVALS


- developed during the workshop co-organized by
Tebtebba and the Third World Network, held 4-5
October 2010, in La Trinidad, Benguet,
- MANDATORY ORIENTATION given to LGU organizers on

indigenous cultures and practices to be included in festivals;


- MEMBERSHIP OF MEMBERS OF ICC in FESTIVAL
COMMITTEES

- RULES on PICTURE-TAKING, T-SHIRTS; TRIBAL COSTUMES;


STREET DANCING; PRIZES

Other Community Initiatives (3)

- do these rules apply independently of each other in


a particular situation or will they apply concurrently and
cumulatively?
- is there one set of rules that will prevail over all other
rules?
- how will customary law principles apply to nonindigenous peoples? How about extra-territorially?
- how do we expand principles on legal pluralism,
whereby customary law of indigenous peoples co-exist
with existing rules in civil law, political law, etc.

Issues for Further Resolution and Action

- continuing collaboration among government


agencies on these issues always a good working
procedure
1) specific rules on Chapter VI of IPRA
2) monitoring the patenting of Phil natural products
abroad and assert claims for benefit-sharing
3) sui generis rules on animal breeds
4) interplay of customary law with intellectual property
rights
5) supplemental measures for the protection of
intangible cultural heritage
6) reaching out to indigenous peoples nationwide
can they be assisted with their more pressing problems?

Ways Forward