Ownership of TK and Traditional Cultural

Expressions
Discussion under WIPO IGC-GRTKF (Beneficiaries and
Management of Rights)
 T K Discussion First Session IGC GRTKF
WIPO delegation noted that the Intellectual property
regimes were not designed with traditional knowledge in
mind .
It granted exclusive rights for a certain period of time to
new knowledge by individuals or corporation.
TK evolves incrementally over time gets passed on orally
and improved over generations and held collectively by
one or several communities.
There was a need for further study in the relationship
between customary protection of TK and IPR systems.
 TCE Discussion First Session IGC GRTKF
Unlikely to find a single universal template to protect
TCEs that suits :
National priorities
Legal and cultural environment
Needs of traditional communities in all countries
Concerns over attempt to codify and institutionalize
protection of cultural identity.
Preference for a minimalist approach where countries have
a discretion in the choice of legal mechanism.
 Why IGC GRTKF ??
WIPO was the appropriate forum to ensure an
internationally acceptable and equitable resolution of
the concerns of different groups.
TK and TCE owners did not have the economic capacity
to take up IPR claims and a practical solution for it had
to be developed.
Need to develop an international mechanism for the
adequate protection of TK and TCE.
 Mechanisms that were in place in Asian
countries (First Session IGC GRTKF)

INDIA BANGLADESH PHILIPPINES

Biodiversity Bill The draft biodiversity States duty to
2000(Protection of TK and community recognize and respect
through measures such knowledge protection and protect the rights
as documentation and Act protected the of indigenous
development of a sui rights and TK of local communities was
generis system. and indigenous enshrined in the 1987
The Patent (Second communities and constitution.
Amendment ) Bill, 1999 encouraged an
Measures for appropriate system for
protection of ABS.
biodiversity and TK
 Beneficiaries (TK)Seventh session
The delegates agreed that in relation to TK indigenous
and local communities had a very high stake in the
outcomes.
Not all TK belonged to indigenous people, a need to
consider non-indigenous holders of TK, such as farming
communities.
The delegates also stated that narrow sense of
ownership may create problems.
Formal proposal for a Voluntary fund to increase the
participation of communities.
 Beneficiaries (TK)Seventh session (Annexe 1)

Protection of TK for the principal benefit of holders of

knowledge .
Protection should benefit the indigenous and traditional
communities and peoples that develop, maintain and
identify culturally with traditional knowledge and seek to
pass it on between generations, also recognized individuals
within these communities and peoples.
Benefits from protection should be appropriate to cultural
and social context and needs and aspirations of
beneficiaries.
 Beneficiaries (TCE)Seventh session(Annexe1)

B.3 Beneficiaries Measures for the protection of

TCEs/EoF should be for the benefit of the indigenous
peoples and traditional and other cultural communities:
(i) in whom the custody and protection of the TCEs/EoF
are entrusted in accordance with the customary law and
practices of that community; and
(ii) who maintain and use the TCEs/EoF as being
characteristic of their traditional cultural heritage.
 Beneficiaries (TCE)Seventh session

The focus of the committee is broader than just

indigenous groups.
Previous documents have referred to beneficiaries of
protection broadly to include indigenous people
traditional communities and local communities.
Countries are given the choice to decide on the terms to
be used in the national legislation.
 Management of Rights (TCE)Seventh session
The proposal suggests that authority to exploit TCEs
could be granted even by an authority acting on behalf
of indigenous groups.
As per the draft authorization should be granted after
merely consultations with indigenous peoples
concerned.
Indigenous TCE could only be accessed with the free,
prior and informed consent of the people concerned and
this should be reflected in the international regime.
 Concept of Public Domain in TK
A work is considered to be in the public domain if there is no legal
restriction for its use by the public (Glossary of terms IGC GRTKF)

A per the indigenous and local communities , the public

domain excludes TK and TCEs from protection and is
used to justify misappropriation.
Indigenous cultures do no make any property/non
property distinctions and Public Domain is alien to
them.
TK resembles public domain material sharing with
community is common.
 Concept of Public Domain in TK and TCE

Advocates for protection of TK and Public domain character of TK and

TCE argue that public domain TCEs is valuable as it allows for
would leave the common person to their regeneration and
the mercy of an unregulated revitalization
marketplace. Members of the community will
Putting TK and TCE in the public not be able to innovate on
domain would violate the intangible cultural heritage if
confidential character of sacred exclusive property rights were to be
and secret elements which belong given.
to the living heritage and would Over protection of Cultural
accentuate the deterioration of expression would lead to depletion
cultural values. and hence fewer works to build on.
They suggest Traditional Freeze the culture in a historic
knowledge commons moment