Tomme Rosanne Young

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Published on April 17, 2008

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Historical development and recent events: Legal treatment of folklore and traditional knowledge:  Historical development and recent events: Legal treatment of folklore and traditional knowledge Tomme Rosanne Young 17 January 2005 ICTSD workshop: Trade in Cultural Goods, Traditional Knolwedge and Intellectual Property – Paris, France Formal Agreement: Article 8 of the Convention on Biological Diversity:  Formal Agreement: Article 8 of the Convention on Biological Diversity Article 8: In situ Conservation Each Contracting Party shall, as far as possible and as appropriate: ****** (j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices ARTICLE 10: Sustainable Use of Components of Biological Diversity Each contracting party shall, as far as possible and appropriate: ***** (c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements The link to Genetic Resources:  The link to Genetic Resources Article 15: Access to Genetic Resources … (7) Each Contracting Party shall take legislative, administrative or policy measures… with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms. Article 8: In situ Conservation “as far as possible and as appropriate” “Subject to its national legislation,” respect, preserve and maintain knowledge, innovations and practices … and promote their wider application … and encourage the equitable sharing of the benefits arising BUT Compare : Article 15: ‘commercial and other utilisation of genetic resources’ and ‘share… with the Contracting Party providing such resources.’ Article 8 : ‘knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity’ ‘the holders of such knowledge, innovations and practices’ and ‘encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices ’ Akwe Khan Guidelines - 2004 Slide4:  Development of Legal Protections for TK and Folklore Legally protectable interests: Human Rights: (International Body of law, national ‘constitutions’) Intellectual Property Rights: (WIPO, national IPR laws.) Trade Protections: (WTO and included instruments; national economic and market laws.) Other interests Livelihoods: (National Policy/Economic Integration) Choices (also legally protectable in some instances) Ethics Recognition: Slide5:  World Intellectual Property Organisation 1967 – “to promote protection of intellectual property 1974 – “to promote intellectual creativity” Specific Protection (e.g., Olympic Symbol, Phonographic recordings, Television broadcasts, paintings, computer domain names, etc.) Critical components of patentability Prior Art Invention Novelty Innovative step Etc. Intergovernmental Committee on IPRs, Genetic Resources, Traditional Knowledge, and Folklore Slide6:  World Trade Organisation Owing to the ‘genetic-resource-connection, focus on Article 27.3(b) of the Agreement on Trade-Related Intellectual Property Rights (TRIPS) Other WTO issues affecting folklore include General Agreement on Trade in Services (GATS) Agreement on Technical Barriers to Trade (TBT) Committee on Trade and Environment (CTE) Basic Principles of Discriminatory Access to Markets TRIPs (current focus on health issues) MEAs Labeling and Certification Products of Traditional Agricultural Knowledge – Protecting Community Developed Varieties:  Products of Traditional Agricultural Knowledge – Protecting Community Developed Varieties The International Treaty on Plant Genetic Resources for Food and Agriculture Agricultural Development Protection focused on balancing rights of traditional groups and small farmers Collective interests and sharing of listed crops No intellectual property rights out of products of these crops The Bigger Picture:  The Bigger Picture The “IPR path” and other options (Rights and other Objectives) The very beginning of a long process Similarities between TK/Folklore and Genetic Resources Differences . How to proceed? Legal approach: What is the objective/result? Can a legally consistent, legally rational mechanism be developed for this objective? Can such a mechanims be enforced, implemented, overseen? To what extent will these efforts achieve positive result?

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