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	Journal of Malaysian and Comparative Law

“Interfaces Between Intellectual Property, Traditional Knowledge, Genetic Resources and Folklore: Problems and Solutions”

Allow me to begin this lecture with a personal reminiscence. The month of October 1954 is vividly etched in my memory. It was in that month that I, a penniless student, while awaiting the results of the Final Examination for the Admission of Advocates to the Ceylon Bar, came to Malaysia for the first time to spend a holiday with an uncle, an eminent lawyer, who lived in Kuala Lumpur.

I had travelled to Malaysia on a P&0 liner which sailed regularly on roundtrips from Southampton to Hongkong, calling at various ports on the way, including Colombo and Penang. My ticket had been provided by a generous family as a reward for success in preceding examinations. Every day I went to the Ceylon High Commission to read the newspapers. One day the results were there in black and white – and, lo and behold, I had won the scholarship awarded to the candidate placed first in the first class and two prizes for the Law of Evidence and the Law of Persons & Property. The total scholarship and prize monies came to the then princely sum of 500 rupees. Emboldened by this unexpected windfall I asked my uncle for a loan of 500 rupees which was exactly the sum required to continue the journey to Hongkong when the next cruise ship called at Penang. My uncle agreed without asking to see the newspaper – an expression of avuncular trust that I greatly cherished, but on condition of reimbursement on my return home; an early lesson that nothing comes free in life. In a sense, that episode in Kuala Lumpur was the start of a long career that has taken me through the law, into diplomacy and politics.

Today, I stand here, exactly 48 years to the very month after that first visit to Kuala Lumpur, to deliver the 9^th lecture in the series dedicated to the memory of Tun Abdul Razak, the second Prime Minister of Malaysia.

Mr. Pro Chancellor, Tun Abdul Razak was widely admired for many reasons. The performance of his immediate predecessor, the charismatic Tunku Abdul Rahman, the first Prime Minister of Malaysia, the Father of the Nation, would indeed have been a hard act to follow. The Tunku was an out-going, western-oriented, even flamboyant, personality, and on any comparison between him and his successor the latter was likely to suffer. But Tun Razak did not. He too was a Barrister and, during his student days in England, a leader of the Kesatuan Malaya Great Britain (Malay Association of Great Britain) and founder of the Malaya Forum, an organization for Malaysian students to discuss their country’s political issues. His interest in politics was evident early in life but it was really the administrative skills he acquired in the Malaya Civil Service after his return from England that seem to have equipped him for high political office later. Tun Razak was a builder and organizer. In 1950 he became the youth chief for the United Malays National Organization (UMNO); two years later the Assistant State Secretary of Pahang and in February 1951, at just 33 years of age, Pahang’s Chief Minister. In due time he became Education Minister; a member of the 1956 mission to London to secure the independence of Malaysia; Minister of Rural Development, Deputy Prime Minister and Minister of Defence. His achievements included formulating the development policy known as the Red Book. When he became Prime Minister in 1970 he was certainly well qualified to lead Malaysia. Tun Razak is also renowned for launching the New Economic Policy in 1971. He, and others of the “second generation” of Malay politicians, saw, to their great credit, the need to tackle vigorously the economic and social disparities which fuelled racial antagonism. The NEP set two basic goals – to reduce and eventually eradicate poverty, and to eliminate the identification of economic function with race. Tun Razak set up the National Front in 1993 to replace the ruling Alliance Party, and increased the membership of its parties and coalitions in an effort to establish “Ketahanan Nasiona” (national strength) through political stability. For his contribution in the area of national and rural development Tun Razak is popularly known as the Father of Development.

Many multi-racial, multi- religious, multi-lingual developing countries, on emerging into independence, had no strategy for the elimination, or even the containment, of the fissiparous tendencies inherent in their societies. They, Sri Lanka being one of them, have paid a bitter price for the cumulative neglect of their leaders on this score over many decades. Others, like Malaysia, took timely action to diagnose, analyze and resolve the problems of potential racial, religious and linguistic conflict. They have built united societies. On a platform of political and social stability they have gone on to build impressive economic strength. Thus the Malaysia of today enjoys the benefits of the sterling work done by Tun Razak and other early leaders to build a stable society in this country.

Mr. Pro Chancellor, we in the developing world have watched with unstinted admiration, indeed astonishment, I would say, the spectacular rise of Malaysia to unparalleled prosperity based on political and social stability. While Tunku Abdul Rahman, Tun Razak and the other Prime Ministers and leaders of Malaysia laid the foundation for today’s prosperity by adopting the enlightened policy of working towards racial understanding and harmony, cohesion and integration, it has undoubtedly been Prime Minister Mahathir’s dynamism over the last two decades that has taken Malaysia to the economic heights that it has reached today. The Prime Minister’s performance is praise-worthy not only for his farsightedness in economic terms but for his political courage, his determination to overcome obstacles in the path of Malaysia’s progress – and recently for his tenacity in lifting the Malaysian economy out of the doldrums into which it had temporarily fallen. Prime Minister Mahathir is not a man to mince his words. I have often sat next to, or near, him at international meetings when he has spoken with unbridled eloquence on issues that deeply affect the developing world, disdainful of the diplomatic niceties that often merely serve to varnish the unpalatable truth. Those of us who shared his views but were unable to voice them due to political compulsions of our own, silently and gratefully applauded him for saying what sorely needed to be said, but not everybody was free to say.

Today, on the occasion of this formal visit to Malaysia, I consider it appropriate, as a former Foreign Minister of Sri Lanka, to pay a tribute to Prime Minister Mahathir for his continuous, well informed and fearless espousal of many third world causes over many years. I have no doubt that the protection and promotion of traditional knowledge, genetic resources and folklore are matters that Prime Minister Mahathir would advocate vigorously.

Mr. Pro Chancellor, I am deeply honoured by the invitation of the University of Malaya to deliver the 9^th Tun Abdul Razak Memorial Lecture. I am deeply conscious of the fact that my predecessors as memorialists are luminaries of the highest order; many are house-hold names in the international legal fraternity – Lord Diplock, Sir Garfield Barwick, Sir Philip Kirby, Professor H. W. R. Wade, among others.

This invitation also gives me great pleasure for sentimental reasons. Over a century ago many Ceylonese families settled in Malaysia. They have prospered here. They are good citizens of this lovely country. They have made notable contributions to the welfare of Malaysia, especially in the professions. They have toiled hard for the progress and success of their adopted home.

I have come back to Malaysia many times since 1954. I have always felt at home in Malaysia. During the eighties I was here quite often as the Director of the World Intellectual Property Organization (WIPO) in charge of Asia and the Pacific to discuss with the Malaysian authorities the modernization of the country’s intellectual property laws and to persuade the Malaysian government to become a member of WIPO. Those endeavours were, I am happy to say, fruitful.

Mr. Pro Chancellor, before I begin to address the complexities of the subject at hand I need to set the scene, as it were, by making some observations on the origin of the concept of intellectual property, and its development, in particular over the past three decades, and by describing the architecture of the international fora in which intellectual property issues are discussed and treaties formulated within the United Nations system. Against this background it would be easier to understand how and why issues pertaining to the rather obscure subjects of traditional knowledge, genetic resources and folklore - subjects which had remained shrouded in mystery over the centuries, subjects on which the Western States are uninformed and in which they have minimal interest - came to occupy, in less than ten years, a place on centre stage in the theatre of intellectual property.

Fifty years ago my generation of law students, had never heard of the expression “intellectual property”. We knew that there was a legal instrument called a “patent” which had something to do with protecting inventions. We knew of the existence of trademarks. We had heard of copyrights.

Most of the British Colonies had an archaic patent law among their statutes, a law designed solely to facilitate the registration of foreign patents. In the absence of an industrial economy, and indigenous inventiveness being neither evident nor encouraged, a patent law in a developing country which had not yet become a sovereign legal entity had no perceived relevance to the development concerns of that country. Patent law did not figure in any legal curriculum at that time.

Trademarks, of course, are as old as trade and there was a fair amount of trademark litigation in the colonial era. But, in colonial times, the number of registered local trademarks when compared to the number of registered foreign trademarks was very low. Trademark applications have increased exponentially in the last few decades, as the volume of domestic and foreign trade has increased to the point where goods and services urgently require adequate protection from unfair competition.

Copyright laws inherited from the British were completely outdated by the time the Empire disintegrated.

Mr. Pro Chancellor, the intellectual property system (comprising patents, industrial designs, trademarks and copyright) was conceived of in the late 19^th century when Europe was fast industrialising, and competitive enterprises seeking markets for their products at home and abroad needed protection.

The need for international protection of intellectual property became evident when foreign exhibitors refused to attend the International Exhibition of Inventions in Vienna in 1873 because they were afraid their ideas would be “stolen” and exploited commercially in other countries.

That year marked the birth of the Paris Convention for the Protection of Industrial Property, the first major international treaty designed to help the nationals of one member State to obtain protection in other member States for their intellectual creations in the form of industrial property rights in inventions (patents), trademarks and industrial designs. The Paris Convention entered into force in 1884 with only 14 member States. An International Bureau was set up to carry out administrative tasks, such as organizing meetings of the member States.

In 1886, copyright entered the international arena with the Berne Convention for the Protection of Literary and Artistic Works. The aim of this Convention was to help nationals of its member States obtain international protection of their right to control, and receive payment for, the use of their creative works such as novels, short stories, poems, plays; songs, operas, musicals, sonatas; and drawings, paintings, sculptures and architectural works.

Like the Paris Convention, the Berne Convention set up an International Bureau to carry out administrative tasks. In 1893, these two small bureaux united to form an international organization called the United International Bureaux for the Protection of Intellectual Property (best known by its French acronym BIRPI). This small inter-governmental organisation, based in Berne, Switzerland, with a staff of seven, preceded the League of Nations by more than two decades.

As the importance of intellectual property grew, the structure and form of the Organization changed, as well. In 1960, BIRPI moved from Berne to Geneva to be closer to the United Nations and other international organizations in that city. A decade later, following the entry into force of the Convention Establishing the World Intellectual Property Organization, BIRPI became WIPO, undergoing structural and administrative reforms and acquiring a Secretariat answerable to the member States. Thus, the roots of the World Intellectual Property Organization go back to 1883, when Johannes Brahms was composing his third Symphony, Robert Louis Stevenson was writing Treasure Island, and John and Emily Roebling were completing construction of New York’s Brooklyn Bridge.

In 1974, WIPO became a specialized agency of the United Nations system of organizations with a mandate to administer intellectual property matters conferred on it by the member States of the United Nations.

Today the World Intellectual Property Organization is a dynamic entity with 176 member States, an international staff in the thousands drawn from countries around the world, and with a mission and a mandate that are constantly growing. It is now the dominant edifice on the skyline of the international intellectual property scene.

The role of the World Intellectual Property Organisation

If the World Intellectual Property Organisation, the great majority of whose members are developing States, did not exist it is unlikely that questions relating to the protection and promotion of traditional knowledge, genetic resources and folklore would have surfaced in the international arena. These are matters of deep concern to the Third World, of much less concern to the developed world.

In November 1997 the then newly elected Director General of WIPO, Dr. Kamil Idris, a national of Sudan, established the Global Intellectual Property Issues Division (the Global Issues Division) to enable WIPO to remain in the forefront of global IP developments by responding to three challenges facing the IP system in a rapidly changing world. These were identified as - accelerating technological development, integration of the world economic, ecological, cultural, trading and information systems and the growing relevance of intellectual property rights to these areas of activity.

Between June 1998 and November 1999 , in order to ascertain and identify the intellectual property needs and expectations of the holders of traditional knowledge (hereinafter sometimes referred to as TK) nine ground-breaking fact-finding missions (hereinafter called the WIPO missions) were fielded to 28 countries in the South Pacific, Southern and Eastern Africa, South Asia, North America, Central America, West Africa, the Arab countries, South America and the Caribbean.¹

The first session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (hence the title of this lecture) was held in April/May

If the World Intellectual Property Organisation, a specialized Agency of the United Nations, the great majority of whose members are develping States, did not exist it is unlikely that questions relating to the protection and promotion of traditional knowledge genetic, resources and folklore would have surfaced in the international arena .These are matters of deep concern to the Third World, of much less concern to the developed world.

In November 1997 the then newly elected Director General of WIPO, Dr. Kamil Idris, a national of Sudan, established the Global Intellectual Property Issues Division (the Global Issues Division) to enable WIPO to remain in the forefront of global IP developments by responding to three challenges facing the IP system in a rapidly changing world. These were identified as - accelerating technological development, integration of the world economic, ecological, cultural, trading and information systems and the growing relevance of intellectual property rights to these areas of activity.

Between June 1998 and November 1999 , in order to ascertain and identify the intellectual property needs and expectations of the holders of traditional knowledge (hereinafter sometimes referred to as TK) nine ground-breaking fact-finding missions (hereinafter called the WIPO missions) were fielded to 28 countries in the South Pacific, Southern and Eastern Africa, South Asia, North America, Central America, West Africa, the Arab countries, South America and the Caribbean. Much of the material in this lecture is taken from the findings of those missions.

The first session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (hence the title of this lecture) was held in April/May 2001. Thus, this hitherto neglected, even unknown, topic arrived at last on the international scene, and has now become, as the European Community and its member States recently said, “a topic very high on the international IP agenda.”

The debates in Specialised Agencies of the UN, like WIPO, are confined to the subjects of their mandated competence. It is in these fora that a great deal of excellent technical work, rich in depth and detail, is done. The Specialised Agencies attract and engage the best experts in their areas of speciality drawn from the entire world. Each Specialised Agency is a monumental repository of specialised knowledge and experience.

Mr. Pro Chancellor, let me say at once that the three themes (traditional knowledge, genetic resources and folklore) which are the subject matter of this lecture are so closely interlinked (intertwined would be a more accurate expression) that it would be sensible to discuss them together. Their common characteristics (about which I will speak later) the similar problems they raise, and the question of intellectual property rights (IPR’s) for their protection render it unnecessary, indeed it would be tedious and repetitive, to deal with them separately and sequentially. It is accepted, as we shall see later, that genetic resources (being one category of biological resources) and folklore are both aspects of traditional knowledge.

But, first, what is traditional knowledge? No universally accepted definition has as yet emerged. The debate continues, and the field of debate is a veritable minefield of conceptual and semantic complexities. Given the highly diverse and dynamic nature of TK it may not be possible, indeed it may not be necessary, to develop a singular and exclusive definition of the term. For the purpose of this lecture I would go along with WIPO’s current use of “traditional knowledge” as a heading, a definition which denotes working a categorisation of topics that fall under that heading. The expression refers to (quote) “tradition - based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.” “Tradition-based” refers to knowledge systems, creations, innovations and cultural expressions which have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; and are constantly evolving in response to a changing environment. Categories of traditional knowledge could include: agricultural knowledge; scientific knowledge; technical knowledge; ecological knowledge; medicinal knowledge, including related medicines and remedies; biodiversity-related knowledge; “expressions of folklore” in the form of music, dance, song, handicrafts, designs, stories and artwork; elements of languages, such as names, geographical indications and symbols; and, movable cultural properties. Excluded from this description of TK would be items not resulting from intellectual activity in the industrial, scientific, literary or artistic fields, such as human remains, (the graves of ancestors, for instance), languages in general, and other similar elements of “heritage” in the broad sense. (unquote) Thus formal working definition of the expression “traditional knowledge” is really a catalogue of items that are encompassed by that expression. I would like to flesh out that working definition by drawing on the findings of the WIPO missions.

From those missions WIPO discovered some features, some nuances and refinements in the understanding and practical application of TK, that are worth noting. There are four such features.

First, although there are creations which may be done purely to satisfy the aesthetic will of the artisan, many such creations are symbolic of a deeper order or belief system. When a traditional singer performs a song, the cadence, melody, and form has to follow rules maintained for generations. Thus, a song’s performance entertains and educates the current audience, but also unites the current population with the past. For example, plants used for medicinal purposes also often have symbolic value for the community. Many sculptures, paintings, and crafts are created according to strict rituals and traditions because of their profound symbolic and/or religious meaning.

Secondly, traditional knowledge, as representing cultural values, is generally held collectively. What may appear to be an isolated piece of literature (a poem, for example) or an isolated invention (the use of a plant resource to heal wounds, for instance) is actually a product of a vast and mostly coherent and integrated complex of beliefs and knowledge, control of which may not vest in the hands of individuals who use isolated pieces of knowledge, but be vested in the community or collective.

A third feature to be noted is that most traditional knowledge is transmitted orally from generation to generation, and thus remains largely undocumented, although efforts are now being made to document that great body of knowledge coming from the past in order to preserve and protect it by legal means.

A fourth feature, and a fundamentally important aspect of traditional knowledge, is that it is “traditional” only to the extent that its creation and use are part of the cultural traditions of communities. “Traditional”, therefore, does not necessarily mean that the knowledge is ancient or static. Paradoxical as it may sound, “traditional” knowledge is being created every day, it is evolving as a response of individuals and communities to the challenges posed by their social environment. As a Japanese writer, Nakashima, has said:

“Traditional knowledge is not merely learned by rote and handed down from one generation to the next. Inherently dynamic, it is subject to a continuous process of verification, adaptation and creation, altering its form and content in response to changing environmental and social circumstances.”

Thus, in its use, traditional knowledge is also contemporary knowledge. It is, therefore, desirable to develop a system that does more than merely document and preserve traditional knowledge created in the past which may be on the brink of disappearance. It is also important to envisage a system that contributes to the promotion and dissemination of innovations which are based on the continuing use of tradition. One is therefore not talking only about freezing and preserving knowledge that exists now, but also about preserving what exists as an indispensable and powerful tool for fostering continuous traditional innovation and creativity. The Future Harvest Centres made a similar point in respect of the way in which “traditional knowledge” is conceived:

The aim “should be the generation and conservation of TK, and not its preservation. Not only will this avoid the static (although somewhat romantic) connotation of TK; it will highlight the dynamic utility of TK practices and innovation.”

Mr. Pro Chancellor, let me, before I leave this part of the lecture, suggest a concise proposition that reflects the multi-faceted, all-encompassing nature of the expression traditional knowledge, and, I think, justifies my decision to treat the three themes - traditional knowledge, genetic resources and folklore - in a holistic manner rather than as separate, albeit connected, issues. For this purpose I would adopt the language of Mugabe: “Traditional knowledge is thus the totality of all knowledge and practices, whether explicit or implicit, used in the management of socio - economic and ecological facets of life. This knowledge is established on past experiences and observations. It is usually a collective property of a society. Many members of the particular society contribute to it over time. This knowledge is transmitted from generation to generation”.

What are genetic resources ? Mr. Vice Chancellor, I turn now to the meaning of genetic resources. Although, as we have seen, traditional knowledge includes genetic resources, what has to be remembered is that genetic resources are very much at the cutting edge of modern scientific and technological experimentation. Hardly a day passes without some discovery, followed by some innovation or invention, taking place in the field of genetic resources in the advanced laboratories of the world.

In line with current international usage

‘genetic resources’ means “genetic material of actual or potential value”; ‘genetic material’ means “any material of plant, animal, microbial or other origin containing functional units of heredity”. “Functional units of heredity” are considered to include whole organisms, and biochemical extracts from tissue samples that contain DNA or, in some cases, RNA, such as genes, plasmids, etc. The ‘functionality’ of a ‘unit of heredity’ is a matter of interpretation which is highly dependent on the evolution of modern biotechnology; biological resources’ means “genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.” Thus, genetic resources form one category of biological resources; ‘plant genetic resources’ means “germplasm or genetic material of actual or potential value” in the context of international rules for the exploration and collection of plant genetic resources. The terms “genetic material” or “plant germplasm” in this context mean “reproductive or vegetative propagating material of plants.”; in the area of “plant genetic resources for food and agriculture” the term “plant genetic resources” means “the reproductive or vegetative propagating material of various categories of listed plants.”

Ladies and Gentlemen, I am sure you will agree with me that the complexity of the subject matter of genetic resources is self-evident.

Mr. Pro Chancellor, I come now to the definition of certain terms used in international fora under the compendious expression “folklore”

“folklore” means “all literary, artistic and scientific works created on national territory by authors presumed to be nationals of such countries or by ethnic communities, passed from generation to generation and constituting one of the basic elements of the traditional cultural heritage;” (this is taken from the 1976 Tunis Model Law on Copyright for Developing Countries); “expressions of folklore” means “productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community or by individuals reflecting the traditional artistic expectations of such a community.” (this is taken from the UNESCO-WIPO Model Provisions); “verbal expressions” include “folk tales, folk poetry and riddles;” “musical expressions” include “folk songs and instrumental music;” “expressions by action” include “folk dances, plays and artistic forms of rituals;” “tangible expressions” include “drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewelry, basket weaving, needlework, textiles, carpets, costumes; musical instruments; architectural forms”; “artisanal products” means “those produced by artisans, either completely by hand, or with help of hand-tools or even mechanical means, as long as the direct manual contribution of the artisan remains the most substantial component of the finished product. These are produced without restriction in terms of quantity and using raw materials from sustainable resources. The special nature of artisanal products derives from their distinctive features, which can be utilitarian, aesthetic, artistic, creative, culturally attached, decorative, functional, traditional, religiously and socially symbolic and significant.” (This definition is taken from the UNESCO/ITC International Symposium on Crafts and the International Market: Trade and Customs Codification, 1999.)

What then is the connection between traditional knowledge genetic

resources and folklore in relation to intellectual property?

They share at least two characteristics. The first is the concept of “common heritage”. For example, genetic resource policy is based on (quote) “the universally accepted principle that plant genetic resources are a heritage of mankind and consequently should be available without restriction.”(unquote) (Article 1, International Undertaking on Plant Genetic Resources (1983)); for example, (quote) “movable cultural property representing the different cultures forms part of the common heritage of mankind.” (unquote) (Preamble, Recommendation for the Protection of Movable Cultural Property (1964))); for example, (quote) “folklore forms part of the universal heritage of humanity” (unquote) (Recommendation on the Safeguarding of Traditional Culture and Folklore (1989), Preamble); for example (quote) “folklore represents an important part of the living cultural heritage of the nation” (unquote) (UNESCO-WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore for Illicit Exploitation and Other Prejudicial Actions (1982), Preamble).

According to one view, the intangible elements of this common heritage were always available for use and, from the intellectual property perspective, were considered to be in the public domain. Thus, the primary international policy objective was the preservation of the common heritage. Creators and innovators could freely utilize elements of this heritage from the public domain in their creations and innovations.

However, in recent years, new technologies and scientific discoveries have generated unprecedented ways for creators and innovators to utilize certain elements of this common heritage, and consequently attention has shifted from the preservation towards the utilisation of such heritage. Accordingly, the other view comes into play. Certain elements of the common heritage are now seen as resources (i.e., material of actual or potential value) which are provided to the innovator or creator, rather than being freely available to him in the public domain. Hence the public domain status of the material has been called into question.

The second common characteristic is that they constitute subject matter which transforms and evolves beyond the logic of individualized human intellectual activity. Genetic resources complicate the boundaries of human innovation, because they are self-replicating, living resources. Similarly, the traditions which underlie traditional knowledge and folklore evolve across individuals and generations. In both contexts, human creativity and innovation create considerable added value. However, in both cases the resource reproduces and transforms itself in a logic that lies beyond, and is independent of, the individualized creativity and innovation from which existing intellectual property rights result. Because of this distinctive quality, there have been discussions under each theme about a possible need to establish new and specific intellectual property standards which address their unique nature.

The basic problem confronting the holders of traditional knowledge:

unfair exploitation by outsiders for their own profit

A Western writer, Greaves, has said: (quote) “Indigenous cultural knowledge has always been an open treasure box for the unfettered appropriation of items of value to Western civilization. While we assiduously protect rights to valuable knowledge among ourselves, indigenous people have never been accorded similar rights over their cultural knowledge. Existing Western intellectual property laws support, promote and excuse the wholesale, uninvited appropriation of whatever indigenous item strikes our fancy or provides profit, with no obligations or expectation to allow the originators of the knowledge a say or a share in the proceeds”. (unquote).

The European Community and its member States have said in a submission to the third session of the WIPO Intergovernmental Committee: (quote) “The protection of traditional knowledge (TK) has become a topic very high on the international IP agenda. It is felt, in particular by indigenous and local communities, that TK deserves stronger protection than is available under existing IP regimes. Complaints have been made about inter alia, the inappropriate patenting of TK, the absence of the sharing of benefits from TK - based inventions, and the insufficient consideration of TK in prior art searches by patent offices” (unquote).

Needs and expectations of developing countries regarding traditional

knowledge: samples of their problems

From the realm of theory let us now descend to the realities on the ground. It has been established by the WIPO missions that TK holders encounter a variety of problems, not all of them being redressable by IP rights. The complaints referred to by the European Community, to which I alluded a moment ago, in its recent submission to WIPO are fully supported by the actual experience of developing countries.

Let me take a number of examples of “uninvited appropriations” of traditional knowledge,” to use the expression of Greaves, - by the acquisition of patent rights over TK based inventions by non - TK holders, by bio-piracy, by various forms of copying and plagiarism of folk tales, music, dances etc, by the sale of communal spirituality, by the unlawful use of marks, by the extraction of trade secrets through deception, by the unauthorised use of textile and other product designs, and so on.

India has complained against US patent grants on neem-based fungicides using the oil of the neem tree; on turmeric, and on basmati rice, a grain that has been grown in Asia from time immemorial. The turmeric patent for wound healing was subsequently cancelled by the US Patent and Trademark Office because the TK documentation that was cited after the patent applications had been granted (this is permissible under patent law) negated the patentability of the alleged inventions. The patents would not have been granted in the first place had TK documentation been included in searchable prior art as a part of non-patent literature.

An Indian authority has said to WIPO: “ you asked us about our needs in relation to intellectual property. The first need is our call to stop the implementation of the TRIPS Agreement which is eroding our traditional knowledge systems. After that we can begin to think of how we want to protect traditional knowledge.” He added: “We want help from WIPO to first invalidate patents granted by other jurisdictions”.

Classical patent law throws up two problems concerning the patentability of traditional knowledge: first, a given TK - based modification may appear to be novel and non obvious in Western knowledge systems (and therefore patentable), whereas it may be entirely obvious within the TK system. For example, the plant phyllanthus amarus (local name: “niruri”) is used in traditional medicine for hepatitis disorders in general, and a patent had been sought for its application in viral hepatitis B. This finding is novel in modern knowledge but it is not in the TK system, because viral hepatitis B is seen as a subset of hepatitis disorders. The identity of the virus type, though it may be important to modern medicine is irrelevant in TK systems.

Second a concern has been expressed about the ethics of patent applications, the claims of which relate to human genetic material, particularly that of indigenous peoples. This concern is extended to the IP aspects of ongoing genomic research on indigenous peoples. At a meeting of the representatives of the Bloodtribe at Calgary, Canada, in 1998 an adverse reference on ethical grounds was made to a US patent on ‘Papua New Guinea human T. lymphotropic virus’.

Let me turn now to bio-prospecting and bio-piracy. The enormous commercial value of biological resources, to which the label “green gold” was given by the corporate sector of the developed countries some years ago, and the controversy that surrounds this subject, has generated some interesting statistics. A Sri Lankan writer, Gunawardena, has said that the western corporate sector very correctly predicted more than a decade ago that the income which could be generated by investing on biological resources would far surpass the profits that can be gained from the use of non-living resources such as gold, diamonds and oil. His estimate is that the market value of products based on genetic resources alone (genetic resources comprise only a part of biological resources) exceeds 800 billion US dollars today, and is comparable only to the market in computers, accessories and software.

He gives an example in the field of medicine to illustrate his point. The Rosy Periwinkle (Catheranthus roseus) yields several compounds that are of particular value in the pharmaceutical industry. One compound, Vincristine, has reduced the mortality rate in childhood leukaemia from 80% to 20%. The price of one kilogramme of purified Vincristine is a staggering 11 million 900,000 US dollars, according to the Economist, which is more than a thousand times the price of an equivalent amount of gold in the world market. (Gold fetches about 10,000 US dollars per kilogramme).

Over the past decade or so there has been a resurgence of interest in traditional knowledge and medicine. Of the 119 drugs in the world market today, developed from higher plants, 74% were discovered from a pool of traditional herbal medicines. Even in 1985 the estimated world market for medicine, developed from medicinal plants discovered by indigenous peoples, amounted to 43 billion US dollars.

Developing countries and their traditional peoples have contributed considerably to the global pharmaceutical industry which at the beginning of the 1990’s had worldwide annual sales amounting to more than 130,000 billion US dollars. Okoth-Owiro and Juma have estimated that plant-derived prescription drugs in the U.S.A originate from 40 species of which 50% are from the tropics. These 20 species generate about 4 billion US dollars for the economy of the United States.

The search for these plants has been accompanied by the appropriation of traditional knowledge. For example in the 1970’s, the US National Cancer Institute (NCI) invested in extensive collections of Maytenus buchananii from the Simba Hills of Kenya. NCI was generally led by the knowledge of the Digo communities - indigenous to the Simba Hills area - who have used the plant to treat cancerous conditions for many years. More than 27.2 tons of the shrub were collected by the NCI from a game reserve in the Simba Hills for testing under a major screening program. This plant yields maytansine which was considered a potential treatment for pancreatic cancer. According to Mugabe all the material collected was traded without the consent of the Digo people; neither was there any recognition given of their knowledge of the plant and its medicinal properties.

The NCI has also collected Homalanthus nutans from the Samoa rainforests. The plant contains the anti-HIV compound prostratin. The collection was undertaken on the basis of traditional knowledge. The NCI has also benefited from traditional knowledge of Ancistrocladus korrupensis from the forest reserve to screen for an anti-HIV principal, Michellamine B. This bio-prospecting effort has progressed into pre-clinical development. The NCI and other drug research and development organizations continue to invest considerable sums of money to prospect for plants containing useful chemicals, and many of them are investigating the efficacy of traditional medicines.

Although trade in medicinal plants from developing countries has increased in the past few decades with more drugs developed, few if any benefits accrue to the source countries and the traditional communities. Total trade in herbal remedies and botanicals in 1995 yielded over 56 billion US dollars and the only payments to the communities were for the manual labor involved. According to Posey, less than 0.001% of profits from drugs developed from natural products and traditional knowledge accrue to traditional people who provided technical leads for the research.

Mugabe points out that there are, however, a few exceptions. These include Shaman Pharmaceuticals and the Body Shop. Shaman develops new therapeutics by working with indigenous peoples of tropical forests. The Body Shop is bioprospecting in the Kayapo area of Brazil extensively drawing on traditional knowledge of the Kayapo Indians. It has invested in ethnobotanical research for the development of new ingredients for its body-care products. In 1991, the Body Shop had at least 300 products with annual sales of 90 million US dollars. By 1995, its annual sales stood at least at 200 million US dollars. Both Shaman and the Body Shop have developed mechanisms for returning some of the benefits from the commercialization of medicinal plants and traditional knowledge to the traditional people. The Body Shop also sponsors projects to assist local people to establish enterprises for processing crude products.

As Mugabe says, “on the whole, a significant part of the global economy is based on the appropriation and use of traditional knowledge. Indeed, traditional knowledge is increasingly contributing to production in modern economies where property rights are inimical to community intellectual property. Modern economic policies and laws (particularly modern property laws) undervalue this knowledge: at best they ignore it and at worst they contribute to its destruction.”

Jagath Gunawardene has argued that the laws enacted in developing countries to protect biological resources are often designed to permit easy access to those resources in a subtle manner that does not attract the attention, suspicion or aversion of the public. The favourite method is to ask for a package of legal reforms as a counterpart commitment for providing a loan for the sector. He adds, in a bitter comment: “Those who dare question the prudence of such reforms run the risk of being cowed or embarrassed into silence by a barrage of criticism and being called everything from a nationalist and chauvinist to being outdated and backward. Those who are amenable are hailed as realistic, modernist and futuristic or even holistic”. Gunawardene’s contention cannot be lightly dismissed in the light of the voluminous literature that has recently burgeoned on the question of bio-piracy. Indeed, the recent statement of the European Community lends considerable weight to his contention.

Mr. Pro Chancellor, I turn now to copyright issues. In a comprehensive contribution to our understanding of the creation of wealth through “cultural industries” and the ill-effects of copy right infringements and piracy on the national economy, Lehman has, in a paper prepared for the Task Force meeting of the WIPO Policy Advisory Commission in Beijing in May, 2002, cited an impressive set of figures. Adam Smith’s statement in The Wealth of Nations (1776) - “that the labour of performing artists perishes in the very instant of its production”, and that the work of musicians, actors and singers created little wealth for a country, is no longer valid. On the contrary today’s information-based global economy constitutes an important source of national wealth and international competitive advantage.

In 2001, core copyright industries contributed an estimated 535.1 billion US dollars to the U.S. economy, accounting for approximately 5.24% of GDP. From 1977 to 2002, the value added to the United States’ GDP by the core copyright industries increased at an average annual rate of 7.01%. During the same period employment in the U.S. copyright industries more than doubled to 4.7 million workers, increasing nearly three times as fast as the annual rate of the economy as a whole. Copyright industries contribute more to the U.S. economy and employ more workers than any other single industrial sector, including chemicals and allied products, motor vehicles and motor vehicle equipment and parts, aircraft and aircraft parts, agricultural products, electronic components and accessories, and computers and peripherals.

Copyright-based industries are also flourishing around the world. For example, 2,132 films and television dramas were produced in India in 2000, the most in any nation, growing steadily at a compound annual rate of 15% to reach an anticipated value of 1.03 billion US dollars; the U.S. comes next (2051 productions):, then Japan (807 productions), France (535 productions), Hong Kong (423 productions), Philippines (383 productions), Italy (303 productions), United Kingdom (269 productions), Spain (245 productions), and Bangladesh (195 productions).

The growth of cultural industries is not limited to motion pictures. The music industry is an important cultural industry requiring relatively small capital investment. Changing tastes are noticeable. The notion that only U.S. or English music appeals to consumers is incorrect. As Lehman points out commercially successful music is no longer just the Beatles, Beethoven and Michael Jackson. Today a whole generation of African and Latin American artists are gaining popularity in Europe and North America. Well known examples of commercially successful African artists, protected by copyright and neighbouring rights, include: Salif Keita, Soda Stereo, Milton Nascimento, Angelique Kidjo and Baaba Maal. In 1999, the U.S. Secretary of Commerce advised WIPO member States that some attitudes needed to be changed, and that the view that emerging economies cannot benefit from intellectual property rights on the Net (that this is only important to developed countries) is incorrect because Internet can help African singers more than it can help Madonna. With the Internet, suddenly, African singers’ works are available and suddenly these artists could sell music to people everywhere.

It is clear that copyrights have great potential for assisting in the establishment and flourishing of cultural industries in developing countries, including film, music, literature, and broadcasting, if only modern intellectual property legal protection and efficiently managed national intellectual property offices (coordinated with agencies responsible for international trade), and also national collecting societies to facilitate the transfer of benefits to creators and performers could be established.

Workers in the fields of culture such as writers, composers and performers also stimulate business opportunities for others. For instance, artistes create opportunities for the small businesses that thrive as distributors and retailers of music, books and videos. According to the International Federation of Phonogram Industries (IFPI) sales of recorded music in Latin America totaled 2.4 billion US dollars, and from 1991 through 1998 the annual growth rate of the industry averaged 38%. The booming market for African sound recordings is now estimated at 1.25 billion US dollars per year.

Sound recording copyrights create comployment at all levels, including jobs as artistes, sales clerks, and hotel and restaurant workers. However, in the years since 1997, the growth of music sales has slowed in Latin America. According to IFPI, while global sales of music declined by 5% in 2001, in big Latin American markets they declined even more. In Brazil, sales of recorded music declined by 25% and in Mexico by 16% in 2001. Lehman suggests, citing the IFPI, that “piracy, combined with economic crises, particularly hit markets in Latin America.”

There can be no question that the problem of piracy is the most significant impediment to the growth of the music industry in developing countries. The World Bank has identified piracy as “the great limiting factor on the sales of music within Africa.” According to a Bank expert, “estimates for West Africa suggest the piracy level is as much as 85% to 90%.” John Collins, Professor of Musicology at the University of Ghana, has cited the negative impact of piracy on his country’s once thriving music industry. According to him.

“A..... problem in Ghana is that although numerous FM radio stations have sprung up in the last few years or so these rarely pay for the use of copyrighted material and several FM stations do not even carry announcements about the songs that they play. They rather play the whole record, thus encouraging people to tape them. As a consequence cassette sales have slumped.”

As Professor Collins has noted, broadcast and recording technologies can be used to violate creators’ copyrights and destroy the economic foundation for a thriving cultural industry such as music. This problem is exacerbated with the arrival of the digital age.

The control of digital piracy has become a matter of considerable importance. The need to protect copyright in works fixed in digital form and transmitted through the Internet has been recognized by WIPO in the timely promulgation of the WIPO Copyright Treaty (WCT) and the WIPO Performers and Phonograms Treaty (WPPT) which recognize that digital technology can open more opportunities to the world’s musicians and performers as new markets for their work are created. But, creators’ rights have to be effectively enforced against those who would engage in piracy.

Lehman is right when he says that piracy is the primary barrier to the use of a country’s cultural assets as an engine of economic growth. This is a problem in both developed and developing countries, but the impact of piracy is the greatest in developing countries and countries in transition to market economies. In the United States, the country with the largest copyright-based industry and one of the strongest copyright enforcement regimes, the piracy rate for software products is estimated at 24%. The total economic loss from piracy in 2000 was estimated at 8.31 billion US dollars. The total lost in salary and wages to piracy was estimated at 5.67 billion US dollars and lost taxes were estimated at 1.59 billion US dollars Nevertheless, even with piracy at this level the copyright industries continued to lead other sectors in economic growth.

In other countries, however, Lehman says that piracy rates have reached catastrophic levels that greatly inhibit the growth of local copyright-based industries.

He cites Ukraine, a leading example of a country with an historically formidable technological capability and a well educated and creative populace which has an 80% piracy rate for video products, a 95% rate for music, 89% for business software, and 99% for entertainment software. By contrast, India, which has a national policy of encouraging the local film, music and software industries, experienced a 60% video piracy rate, a 40% music piracy rate, and a 63% business software piracy rate.

High piracy rates not only inhibit the growth of local industry; they also mean that the films, music and software used by the population will reflect the cultural values of foreigners, not of that country’s own rich and diverse creative tradition. In short, piracy, as Lehman says, can kill the creative tradition of centuries and replace it with an homogenized and alien global culture.

Jamaica is a case in point.

Its rich cultural heritage, which includes not only its distinctive music but also its visual arts, food, fashion, and other aspects of its culture, is known and admired around the world. But Jamaicans reap very little economic benefit from these rich cultural resources because of an inadequate intellectual property infrastructure.

Most of the business activity associated with Jamaican culture takes place outside the country’s borders. According to a study by the United Nations Council on Trade and Development (UNCTAD), Jamaican music is a 1.2 billion US dollar global industry. However, Jamaica itself sees only a small portion of that revenue. It needs to build its publishing infrastructure and create strong copyright and neighboring rights collecting societies.

A recent survey by the National Music Publishers Association of the United States (NMPA) shows that the total global revenue from music publishing exceeds 6 billion US dollars In the U.S. alone, the annual revenue of the Harry Fox agency is over 450 million US dollars. At the present time, Jamaican and Caribbean artists are receiving very little income to which they are entitled under the Berne and Rome Conventions because they lack music publishers and collecting societies to represent their interests. Lehman says that assuming, conservatively, that Jamaican music (reggae, calypso and jazz) constitute three percent (3%) of the U.S., European and Japanese markets, the Jamaican share of revenue should approach 180 million US dollars. Yet Jamaica lacks the publishing industry to exploit this revenue source.

Against this background of the global scope and reach of cultural industries, and the enormous profits available to those who know how to harvest them, I turn now to some specific forms of copyright infringement and plagiarism from various parts of the developing world.

For example, members of the Cree nation in North America say that there are cultural sensitivities attached to exercising the right of translation in literary works based on oral traditions and traditional stories. As one of them reported, “I’ve written 10 childrens books for Cree children, based on cree stories and lifestyles. Then I got a call from Germany and Italy: they wanted to translate the book. But there is a lot of misinterpretation and misappropriation in the translations. I stopped writing because of this problem of misinterpretation.” The person explained that this was a collective decision of Cree Elders: “A lot of things that are interpreted wrongly are an insult to the community. The Elders have thought about this problem and wanted to find ways to bring the misinterpretations home and keep and interpret them in a proper environment.” It has also been reported that copyright infringements of aboriginal artistic works on greeting cards were being pirated in neighbouring countries.

Plagiarism of traditional oral works, including traditional legends, myths, stories, poems and other oral traditions has been noted especially in Guatemala. The rich oral traditions kept by the elders in various Mayan communities are being collected and documented. However, those oral works are often compiled by persons alien to the communities of origin, who then edit and publish them without either indicating the source or recognizing any rights on behalf of the authors or communities of origin. Usually, the persons gleaning the information from the communities do not obtain prior consent.

The process of extracting those traditions from their original community and transposing them to the “western” world without fully understanding their meaning and purpose, erodes debases and ultimately destroys them.

The problem is aggravated by the inputs of the compilers and editors, who often unscrupulously transform, abridge or mutilate the legends, myths, stories and poems to suit perceived market preferences, disregarding the need to preserve the original traditions intact. It is unfortunate that publishers of Mayan oral traditions fail to interpret and transmit them truthfully, mostly as a result of ignorance or economic interest prevailing over social responsibility. For example, it has been said that few editors know (or care) about the meaning of the number seven in oral tradition, or the meaning of the color red in the textile design. It is felt that indigenous communities have a moral right to their traditions, and that the law should recognize this.

In respect of music, concern has been expressed that traditional musical expressions, as well as traditional instruments, tended to disappear, or evolve under foreign influence. A similar problem is evident in respect of traditional dances. The younger generations are drifting away from traditional expressions of music and dance. The question has been raised as to whether anything could be done to present the erosion of traditional music and dances. Dedicated funds and special regional encounters and festivals are thought to help in this respect.

Sri Lanka has complained of the unauthorised reproduction of folk tales to feed a growing market for “exotic third world literature”, and also of the unauthorised audio-visual fixation of traditional Sri Lanka dances and their reproduction abroad.

Another problem among the Mayan communities concerns the marketing of their spiritual values. Outsiders are faking and offering for sale “Mayan horoscopes”, generally duping their clients. Mayan elders do not charge for preparing horoscopes, since that is one of their traditional functions within the community.

The purchasers of indigenous cultural expressions are typically not related to the communities themselves. Therefore such “selling” of communal spirituality generally benefits persons who have little interest in preserving the original culture, but who are in the market for the spoils. The plagiarizing of traditional spiritual and religious ceremonies is felt to be particularly offensive. A growing number of “foreign” persons are reported to arrive in the native communities to learn the rites and gestures of traditional Mayan ceremonies, but they fail to comprehend the underlying spiritual meanings thereof. Those persons subsequently return to their homes and perform pastiche or take ceremonies that only mimic the original version.

The question of selling spirituality has sparked off an interesting debate in indigenous communities. Some denounce this practice as a self-inflicted prejudice, because it is the members of the communities themselves who “sell out” their spiritual values, knowledge and information, without informing the purchaser of the spiritual value of the information, nor requesting or obtaining any assurances that the information will not be exploited as a commercial commodity. Others believe that traditional communities should not follow in the foot steps of other cultures that have lost their spiritual values and “commoditized” their cultural expressions. Rather, indigenous communities should teach other cultures the importance of spiritual values. Seemingly, the need for such values is now felt by members of other cultures; hence the surge of visitors who wish to learn and copy traditional indigenous rites, ceremonies and healing methods. That heritage, it is said, could be shared, but it has to be protected from usurpation.

Next, I will look at the unauthorised use of marks and signs. There are examples of appropriations of native American signs by non-native natural or legal persons in order to distinguish their goods or services from those of other undertakings. For example, the Onake Mark of the Onake Corporation consists of a Mohawk word; the name of a revered Lakota figure, Tasunke Witko, or ‘Crazy Horse,’ was used by a brewing company in Brooklyn, NY, to market malt.

The passing off of Asian-made products as native American products overseas has also been noted. Examples are the passing off of low-end native American crafts in Taiwan; the passing off of Asian artistic works as authentic Inuit art; as well as the passing off of European-made imitations as high-end native American art.

Besides avoiding the misappropriation of native American symbols by non-native persons, aboriginal communities have expressed a need for improved use of certification marks by indigenous peoples and other TK holders to certify their products. Some aboriginal peoples in Canada have already been using certification marks to certify their products. For example, the Inuit have used the ‘Igloo Tag’ to certify the authenticity of Inuit art, and the ‘Irocraft’ mark has been used by a Six Nations Company to market Iroquois crafts, books and cultural artifacts, such as masks, etc.

Another problem area is the unauthorised use of textiles and other product designs . A need to improve the protection of traditional designs of textile and similar products is strongly felt both in Guatemala and Panama. The Guatemalan authorities have denounced, in international fora and elsewhere, practices by individuals and enterprises, generally foreign operators, who systematically copy the different textile designs of the various Mayan communities in the country to produce copies and imitations industrially. Such industries have been found to operate from, among other places, Mexico, the United States of America and Japan. In the traditional native communities weaving and textile techniques are transmitted from mother to daughter, and there are initiation rites that the outsiders circumvent when they install themselves in those communities to learn those traditional skills. The process of copying is generally preceded by one or more visits of outsiders to the local indigenous communities to “learn” the traditional weaving techniques, designs and patterns. Those persons subsequently leave without providing any information on the purpose of their learning, and without seeking prior informed consent or concluding any agreement.

The imitation of traditional textile designs causes the communities not only economic prejudice, but also seriously erodes and threatens to ultimately destroy the already endangered traditional textile and weaving crafts. Textile designs reflect the spirituality and the individual feelings of the weaver or artisan. For example, each Mayan garment has a meaning, comprising historical symbolism. A person not belonging to a particular Mayan community is not worthy of wearing garments produced by that community with that community’s designs and patterns, because the foreigner does not belong to the community’s tradition and does not participate in its history.

In Panama the main point of concern regarding textile designs was the protection of the traditional “mola”, produced by the native Kuna communities. The “mola” is a traditional handmade textile work manufactured by cutting and stitching several layers of cloth to form a multicolored, highly decorative product. Molas may be applied to a variety of products as surface decoration, including all sorts of wearing apparel, leather goods, headwear, accessories, etc. They are also traded as works of pictorial art, to be exhibited as such. Each “mola” is an original work, individually made by the crafter, generally a native woman.A law was enacted in 1984 to repress the counterfeiting of molas. This was regarded as urgent, since mola crafting was the livelihood of the native Kuna communities of Panama. Examples of copying abound. For instance, it was reported that fake molas made in Japan were on sale in shops in New York; imitation molas made industrially in Taiwan had been seized on importation into Panama. A more complex problem was caused by the production of molas by the (smaller) Kuna community living in neighboring Costa Rica, who had started promoting their products in competition with the original Panamanian molas. Since 1990, government authorities in Panama had held consultations with the native Kuna communities to find ways and means to protect the molas from unauthorised copying. Among the possible approaches envisaged, copyright and industrial design protection had been considered, as well as geographical indication (or appellation of origin) protection for the traditional appellation “mola”.

The last form of abuse that I wish to consider is the extraction of trade secrets by deception. The Cree people have raised the question whether traditional know-how about natural resource management which tribes are keeping secret, could be protectable in the same way as technical know-how which is kept secret by large companies in their commercial operations. Section 7 of Part II of the TRIPS Agreement on the Protection of Undisclosed Information provides that “[n]atural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information fulfills certain requirements. The requirements set out by the TRIPS Agreement are that such information is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information is question; has commercial value because it is secret; and has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

For example, the Cree community argues that in some cases these requirements might be fulfilled since their leaders are meticulous about concealing their knowledge towards outsiders; the information has commercial value because it is secret and reasonable steps have been taken by the Grand Council to keep the knowledge secret. The example they quote is that when the hydrodam came up traditional ecological knowledge (TEK) was harvested from the Cree. Then a non-Cree person, an expert in fish, came to them and wanted to know where fish go up the rapids to spawn. He made more than 50,000 US dollars with that information.

Experts at the Traditional Medicine Clinic in Muscat, Oman have discussed trade secrets as possible means of protecting their traditional medicinal practices and knowledge. The Traditional Medicine Clinic was established by Sultan Qaboos in 1988 in order to conserve Omani national heritage in the field of traditional medicine and in order to provide free-of-cost medical treatment. The Clinic employs six traditional healers from different provinces of the Sultanate and treats about 25 to 35 patients daily with traditional plant medicines. Each traditional healer working in the Clinic specializes in a specific medical field and practices exclusively or primarily in that field. Each healer keeps his specialized medicinal knowledge and practices secret and does not disclose it to any one, including other staff and practitioners of the Clinic. The Head of the Clinic outlined the importance of this secrecy system, while emphasizing that the products and services of the Clinic were provided to patients free of cost and for non-commercial purposes. Nevertheless, the healers confirmed that the traditional knowledge has commercial value; that the information is secret in the sense that it is not generally known or readily accessible to other persons in the Clinic; and that it is subject to reasonable efforts by the healers to keep it secret.

Pro Chancellor, having spoken at length on the problems faced by the holders of traditional knowledge, I come to the question of the solutions and remedies available to them.

But, first, there is another question to be addressed ? Should traditional knowledge be protected at all ?

Field research shows that some critics are opposed to any form of protection or regulation of TK, whether by IP or any other system. This view was based upon the notion that traditional knowledge is by its nature in the public domain, that it should not be the subject of exclusive rights or “commodified”, and that attempts to regulate its use and transmission would have far-reaching philosophical and practical implications for the public domain and the creation, management and free flow of information. Critics point also to the difficulties inherent in attempting to police and enforce new controls on cultural property and TK.

Some critics are sceptical of, or opposed to the use of, the IP system to protect TK. Such views are relatively well represented in academic, non-governmental and other literature, including certain indigenous peoples’ statements and declarations. These views may be summarized briefly as follows: the IP system, as a product of the European industrial and intellectual tradition, fails indigenous people and other TK holders at various levels. In the operational context, the cost of filing and registration of intellectual property rights is prohibitive, as are the costs of enforcement and infringement proceedings. There are also clear conceptual problems: “IPR law provides indigenous peoples with few legal courses of action to assert ownership of knowledge because the law simply cannot accommodate complex non-Western systems of ownership, tenure and access.” It is argued that the IP system negatively excludes TK because of its trans-generational and communal nature.

Apart from these immediate operational and conceptual problems, critics also pointed to more subtle dysfunctions. The IP system is seen by some as a modern reincarnation of European colonialism. They refer to what they describe as deep-running divergences between “Western” and “indigenous” knowledge systems, particularly as to their respective conceptions of the origins, management and ownership of information and knowledge. Several persons believe that the notions of “property rights” and “ownership” are foreign to indigenous and local communities. Claims are also made that indigenous and local communities are being subject to exploitative and increasing “biopiracy” by private sector companies from particularly the pharmaceutical, seed and agrochemical industries. Examples are cited of patents granted over modified genetic resources and TK-based innovations that, according to critics, push at the boundaries of “novelty” and “inventiveness”. Indeed, several such patents have been withdrawn after challenges that the patents had been granted over properties well known in systems of TK of indigenous and local communities, such as the turmeric case. These cases illustrate the difficulty that patent examination offices in industrialized countries have in recognizing prior art that has been created and held by traditional knowledge systems. Thus, the negative exclusionary effect of the IP system is compounded by a positive exclusionary effect, where IP rights are acquired by non-TK holders to the exclusion of their pre-existing rights. Certain of these views expressed by critics are contextualized within broader criticisms of the intellectual property system as serving only the interests of industrialised countries, and not those of developing countries. In short, such informants believe that the IP system is inherently inappropriate and dysfunctional in relation to the needs and expectations of TK holders. They argue for a non-IP “sui generis” system, or systems of “community”, “collective” or “indigenous” rights.

It is clear, and WIPO agrees, that certain of these criticisms may be justified. There are indeed TK systems and formations that the IP system cannot accommodate. However, numerous persons have stated that one should not exaggerate the case against IPRs. There are a growing number of instances where individuals and communities are testing and using the existing patent, trademark, design or copyright systems to protect their knowledge and culture with some success. Some of the criticism leveled at the IP system appears generalized and not founded upon a strong technical knowledge of IP law and practice and of the specifics of concrete uses of TK. Imprecise use of technical language and IP concepts also obfuscates the issues, rendering balanced and factual assessments of the true role of IP in specific cases more difficult to make.

It is helpful, too, to draw careful distinctions between the IP system and how it is meant to work, on the one hand, and particular cases in which the system may have failed, on the other. Cases in which patents should not have been granted, for instance, are examples of bad patents, not necessarily a bad patent system.

TK systems are increasingly accepted as an important source of useful information in the achievement of sustainable development. Studies of local communities provide evidence that the protection of TK can provide significant environmental benefits as well as possible commercial applications. Much of the world’s crop diversity is in the custody of farmers who follow age-old farming and land use practices that can conserve biodiversity and provide other local benefits, such as diet diversity, income generation, production stability, minimization of risk, reduced insect and disease incidence, efficient use of labor, intensification of production with limited resources and maximization of returns with low levels of technology. TK is also an important source of income, food and health for large parts of populations, particularly in developing countries. In addition, as population pressures force indigenous communities to adopt unsustainable practices, such as over-fishing or clearing forests on watersheds, incentives and mechanisms to protect biological resources and associated TK can be crucial in preserving threatened species.

The protection of traditional knowledge is also important for social and cultural reasons. This is so particularly, perhaps, in developing and least developed countries, but as the Government of Canada has pointed out “the protection and preservation of TK is also an important issue in industrialized countries”. TK can play a role in the economic and social organization of countries, and recognizing the value of such knowledge may be a viable means of promoting a sense of national cohesion and identity. TK holders also stress the importance of TK validation and protection for individual and community dignity and respect. The United States has provided information on legislative and other measures concerning the preservation, conservation and protection of TK and folklore in that country.

What are the existing intellectual property mechanisms available to protect traditional knowledge?

(i) Trademarks. Traditional communities are seeking to register collective and certification trade marks to establish signs under which goods emanating from their community or group, or manufactured in accordance with particular methods or standards, can be sold.

(ii) Geographical indications. Some traditional knowledge holders are considering the registration of geographical indications, as contemplated internationally in the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1979) and the Protection under the Madrid Agreement for the Repression of False and Deceptive Indications of Source (1891).

(iii) Patents. Attempts have been made for the collective filing of patent applications by associations of traditional knowledge holders on behalf of their members, in order to share the filing costs. Proposals have also been put forward to include in patent applications, which claim traditional knowledge-based inventions, an indication that the traditional knowledge and/or biological resource has been obtained with the prior informed consent of the country or community of origin.

(iv) Copyright and Related Rights. Traditional knowledge holders have sought to protect their “moral rights” using the moral rights concept in copyright. They have also expressed an interest in protecting compilations of traditional knowledge documentation through the concept of original and non-original database protection. Related rights may indirectly protect traditional knowledge through the protection of the rights of performers. There have also been debates on utilizing the domain public payant system in respect of traditional knowledge, under which royalties continue to be paid for the use of literary and musical works in the public domain.

(v) Unfair Competition. There have been extensive debates on protecting certain elements of traditional knowledge by using trade secrecy as well as the law of “passing off”.

WIPO has composed a short fable to help illustrate the nature of traditional knowledge and the availability of existing mechanisms of intellectual property that fit its characteristics. Let us imagine that a member of an Amazon tribe does not feel well and requests the shaman’s medical services. The shaman, after examining the patient, will go to his garden (many shamans in the Amazon rain forest are plant breeders) and collect some leaves, seeds and fruits from different plants. Mixing those materials according to a method only he knows, he prepares a potion according to a recipe of which he is the sole holder. While preparing the potion and, afterwards, while administering it to the patient (according to a dosage he will likewise prescribe), the shaman prays to the gods of the forest and performs a religious dance. He may also inhale the smoke of the leaves of a magical plant (the “vine of the soul”). The potion will be served and saved in a vase with symbolic designs and the shaman will wear his ceremonial garments for the healing. In certain cultures, the shaman is not seen as the healer, but as the instrument that conveys the healing from the gods to the patient.

The traditional knowledge of the Amazon shaman is a combination of all those elements. If taken separately, existing intellectual property mechanisms could protect most if not all, of those elements. For example:

(i) the different plants from which the shaman has made the potion may be protected under a plant variety protection system, provided the plants are new, stable, distinct and uniform;

(ii) the potion (or the formula thereof) can be the subject matter of a patent, provided it is new, inventive and susceptible of industrial application, or as undisclosed information.

(iii) The use and the dosage of the potion can also be protected by a patent, under some national laws which make patents available for new uses of substance as well as for new inventive therapeutic method;

(iv) The prayer, once fixed, could be copyrighted;

(v) The performances, once fixed, can be protected by copyright-related rights, and the shaman-as performer - can be accorded the right to authorise the fixation of the performance;

(vi) The vase containing the potion can be patented or protected under a utility model certificate if it has new and inventive functional features; if not, it can be protected under an industrial design system;

(vii) The designs on the vase and on the garments can be protected either by copyright or by the industrial design systems.

The difficulty with this fable is its unreality in practical terms. It seems most unlikely that complex intellectual property concepts could penetrate the dense Amazon jungle to protect the shaman’s traditional knowledge.

New standards for traditional knowledge protection are, nevertheless, being developed, mostly in the form of sui generis legislation to protect elements of traditional knowledge not covered by existing intellectual property systems. For example, several countries are developing sui generis systems for the protection of traditional medicine. WIPO member States and traditional knowledge holders have pointed to limitations which are inherent in existing intellectual property tools and have articulated a need for the development of new IP tools to protect forms of traditional knowledge not covered by existing IP tools.

WIPO has been mandated by its member States to identify the general features of an adequate sui generis system for the protection of traditional knowledge, and another to identify the elements that system must contain in order to be effective. The elements have been identified as follows : what is the policy objective of the protection ? What is the subject matter ?; how are the rights acquired ?; how to administer and enforce the rights ?; and how are the rights lost or how do they expire ?’

WIPO is of the view that there are already elements available in existing mechanisms of intellectual property protection, both in a traditional knowledge context and outside it, that could be transposed into a sui generis system for the protection of TK. Using available elements has the advantage of avoiding uncharted waters. Moreover, concerns with biopiracy and transaction costs in the areas of expressions of folklore and biodiversity-associated traditional knowledge are better (if not only) overcome by resorting to the adaptation of tested systems, and the legal principles that they contain.

Hon. Lakshman Kadirgamar P.C., M.P.*

^[*]Attorney, Barrister; Preseident’s Counsel;

Member of Parliament; Hony. Master of

Inner Temple; Member, Policy Advisory

Commission; World Intellectual Property

Organization (WIPO); Minister of Foreign

Affairs, Sri Lanka (1994-2001), Chairman,

SAARC Council of Ministers (1998-2001).

[1]Much of the material for this address has been drawn from various WIPO sources, especially the WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), WIPO Publication No. 768 E, 1SBN 92-805-09683. I am also indebted to many eminent authors on intellectual property, whom I have named, for the valuable observations and stastistical material contained in their writings.