International IP Law and Sustainable Development LAW61020 SEMINAR 5 HANDOUT Traditional Knowledge,

International IP Law and Sustainable Development

LAW61020

SEMINAR 5 HANDOUT

Traditional Knowledge, Biodiversity and Genetic Resources

Traditional Knowledge

Traditional knowledge encompasses the know-how, skills, innovations and practices developed by indigenous peoples and local communities, such as knowledge of medicinal plants, including systems of traditional medicine. Traditional cultural expressions are generally understood as the tangible and intangible forms in which traditional knowledge and cultures are expressed, such as traditional dances, songs and designs. We focus in this seminar on traditional knowledge.

There is no agreed definition of traditional knowledge internationally. National and regional laws and academic literature may define traditional knowledge narrowly or broadly. In relation to intellectual property law, the focus of international instruments tends to be on a narrow definition of traditional knowledge, often focused around the traditional knowledge associated with genetic or biological resources. Traditional knowledge encompasses a broad range of different types of knowledge held in indigenous communities, including Sacred Knowledge (such as that held by elders or healers); Specialised Knowledge (such as that restricted to a family, clan or kin); and Communal Knowledge that has been made available to the public with the consent of the original developers and holders.

Task:

Watch: What is Traditional Knowledge? Centre for International Governance Innovation, https://www.youtube.com/watch?v=14YInJGNwZc

Read: Chapter 15 of Dutfield and Suthersanen on Global Intellectual Property Law, (2nd ed, Edward Elgar 2020), available online via library catalogue.

Consider:

What is traditional knowledge? List some examples from your knowledge and experience or reading and research.

What are the three related issues that Dutfield and Suthersanen suggest arise from the connection of traditional knowledge and IP? Do you agree? Why/why not?

What is the connection between patents and genetic resources, biodiversity and traditional knowledge?

International regulation of biodiversity and genetic resources

The exploitation of biodiversity and genetic resources is regulated through a number of international instruments, most notably the Convention on Biological Diversity and the Nagoya Protocol. These two Instruments interact with the international intellectual property regime, and this relationship is not always straightforward.

Task 2:

Prepare answers to the following questions:

What are the main objectives of the Convention on Biological Diversity?

What is the global framework for access and benefit sharing?

What are the key provisions of the Convention on Biological Diversity and the Nagoya Protocol which implement this global framework for access and benefit sharing?

In your view, how effective is the approach embodied in the Convention on Biological Diversity and the Nagoya Protocol to address the concerns re traditional knowledge?

You may find the following helpful in preparing your answers:

Chapter 1, ‘The International Framework for Access and Benefit Sharing of Genetic Resources and Associated Traditional Knowledge’ in The Convention on Biological Diversity and the Nagoya Protocol: Intellectual Property Implications, A Handbook on the Interface between Global Access and Benefit Sharing Rules and Intellectual Property, United Nations Conference on Trade and Development (UNCTAD), Geneva, 2014, available at: https://unctad.org/system/files/official-document/diaepcb2014d3_ch1_en.pdf

Chapter 15 of Dutfield and Suthersanen on Global Intellectual Property Law, (2nd ed, Edward Elgar 2020)

Biopiracy or Bioprospecting? The role of IP

In recent years, increasing concern has been expressed about the exploitation of indigenous knowledge and resources by commercial interests in the developed world. The role that intellectual property, and particularly patents, may play in perpetuating inequalities has become the focus of increased academic attention.

Reading:

Anupam Chander and Madhavi Sunder, ‘The Romance of the Public Domain’ (2004) 92 California Law Review 1331

Aman Gebru, ‘The Global Protection of Traditional Knowledge; Searching for the Minimum Consensus’ (2017) 17 The John Marshall Review of Intellectual Property Law 42–91

Daniel F Robinson, ‘Biopiracy and the Innovations of Indigenous Peoples and Local Communities’ in Peter Drahos and Susy Frankel (eds), Indigenous peoples’ Innovation: Intellectual Property Pathways to Development (ANU E Press, 2012)

Evana Wright, ‘Protecting traditional knowledge in Australia: what can we learn from India and Peru?’ in Susy Frankel (ed) Is Intellectual Property Pluralism Functional? (Edward Elgar, 2019)

Rebalancing responses to problematic aspects of IP and traditional knowledge

Various responses to the difficulties surrounding the intersection of traditional systems of knowledge and the international patent regime have been proposed in the literature. Among these are requirements of the disclosure of origin of genetic resources, systems of benefit sharing, attempts to develop databases of traditional knowledge and sui generis systems of protection.

Task 3:

Choose one of the following proposed responses:

Requirement of disclosure of origin in patent law

Traditional knowledge databases

Benefit sharing

Sui generis systems of protection

Prepare notes on the following questions:

Explain what your chosen response involves – what are its key features?

Give an example of where your proposed response is put into practice.

Do you think that this proposed response is effective in addressing the issues we have explored in this seminar? Why/why not?

In answering these questions, you should draw on your reading from earlier sections.

Further Reading:

Olive Heffernan, ‘Why a landmark treaty to stop ocean biopiracy could stymie research’ (2020) 580 Nature 20, available at https://www.nature.com/articles/d41586-020-00912-w

Graham Dutfield, ‘A Critical Analysis of the Debate on Traditional Knowledge, Drug Discovery and Drug-based Biopiracy’ (2011) 33 EIPR 237

The Convention on Biological Diversity and the Nagoya Protocol: Intellectual Property Implications, A Handbook on the Interface between Global Access and Benefit Sharing Rules and Intellectual Property, United Nations Conference on Trade and Development (UNCTAD), Geneva, 2014, available at https://unctad.org/webflyer/convention-biodiversity-and-nagoya-protocol-intellectual-property-implications

Peter Drahos and Susy Frankel (eds), Indigenous peoples’ Innovation: Intellectual Property Pathways to Development (ANU E Press, 2012)

2018 CIGI Annual Report. ‘Valuing Traditional Knowledge and Indigenous Innovation’. https://www.cigionline.org/interactives/2018annualreport/valuing-traditional-knowledge-and-indigenous-innovation/.

‘Intellectual Property Needs and Expectations of Traditional Knowledge Holders WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999)’. Geneva: World Intellectual Property Organization, 2001. https://www.wipo.int/edocs/pubdocs/en/tk/768/wipo_pub_768.pdf

Evana Wright, Protecting Traditional Knowledge, Lessons from Global Case Studies, (Edward Elgar 2020)

Emily Cloatre, ‘From International Ethics to European Union Policy: A Case Study on Biopiracy in the EU’s Biotechnology Directive’ (2006) 28 Law & Policy 345

Vandana Shiva, Reclaiming the commons: Biodiversity, indigenous knowledge, and the rights of Mother Earth (Synergetic Press, Santa Fe 2020)