International Dimensions -Intellectual Property, Genetic Resources and Traditional Knowledge
There has been a considerable amount of discussion by intergovernmental organisations, in recent years, about the relationship between intellectual property and genetic resources. The debate has spread to also concern the traditional knowledge of indigenous peoples and local communities associated with those resources. It has become a mainstream issue in a number of international fora including the World Intellectual Property Organisation (WIPO), the Convention on Biological Diversity (CBD), the World Trade Organisation (WTO) and a host of others.12
The intellectual property related issues arising in these fora are diverse and only some of them are considered in this paper. While not wishing to overly simplify matters, the issues can be broadly divided into two areas:
- Access to biological resources and benefit-sharing; and
- The protection of traditional knowledge, innovations and creativity, whether or not associated with biological resources.
The issues raised in the first category relate to the potential impact of the grant of intellectual property rights on access to genetic resources. Some countries consider that intellectual property should guarantee the protection of a country's biological and genetic heritage. It has been proposed that changes be made to patent laws to ensure that access to genetic resources continues and that fair and equitable benefit-sharing occurs, as required by the CBD. Suggested changes include the compulsory exclusion of plants and animals from patentability and a requirement that evidence of the source of genetic materials and prior informed consent be provided with patent applications.
The issues raised about intellectual property, genetic resources and associated traditional knowledge focus, in particular, on what is considered to be the inappropriate or exploitative use of traditional knowledge by third parties through the grant of intellectual property rights for inventions based on that knowledge. Traditional knowledge holders, and some governments, are concerned about "biopiracy" and the patenting of inventions based on traditional knowledge or resources without consent, compensation or acknowledgement of the intellectual contributions of indigenous peoples and local communities concerned.
Only some of the issues surrounding intellectual property and traditional knowledge relate to biological resources. While it is not the purpose of this paper to consider a definition of traditional knowledge, it is sufficient to note that traditional knowledge subject matter is often divided, for the purposes of discussion, into traditional knowledge associated with the environment and with traditional cultural expressions (folklore). This paper does not consider the issues relating to traditional cultural expressions.
The remainder of this paper summarises the debate on these issues by WIPO, and to a lesser extent the WTO and the CBD. The primary focus is on the discussions of WIPO, as the expert body on intellectual property matters, in particular the IGC. This is not to suggest that WIPO has expertise on actual traditional knowledge. Solutions to the issues raised by traditional knowledge holders about the misappropriation or protection of traditional knowledge may well lie outside of the conventional intellectual property rights framework. The adaptation of existing intellectual property mechanisms, or the development of new ones, is, however, expected to address some of the concerns that have been raised.
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