Traditional%20Knowledge,%20Traditional%20Creativity%20and%20Cultural%20Expressions:%20What%20Role%20for%20IP? - PowerPoint PPT Presentation

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Title: Traditional%20Knowledge,%20Traditional%20Creativity%20and%20Cultural%20Expressions:%20What%20Role%20for%20IP?


1
Traditional Knowledge, Traditional Creativity
and Cultural Expressions What Role for IP?
  • World Bank
  • Distance Learning Course on Indigenous Knowledge
  • March 31, 2005

Antony Taubman, Traditional Knowledge Division,
WIPO
2
Overview
  • What is the problem?
  • protection vs. preservation
  • Background to WIPOs activities
  • Snapshot of the WIPO Intergovernmental Committee
  • current issues and possible outcomes

3
Overview
  • What is the problem?
  • protection vs. preservation
  • Background to WIPOs activities
  • Snapshot of the WIPO Intergovernmental Committee
  • current issues and possible outcomes

4
The Call for Protection the Deep Forest case
This is an illustrative example for educational
purposes only no views are expressed, and no
conclusions should be drawn, on any legal
question on the basis of this presentation
5
Baegu Music Rorogwela Lullaby
sung by Afunakwa The rorogwela lullabies are
often sung not by the mother but by the childs
elder sister. The words refer to such a
situation the elder sister asks the baby not to
cry because its parents are dead and there is no
one else there to hear it.
6
(No Transcript)
7
The call for protection the deep forest case
  • 1973 UNESCO recording Fateleka and Baegu Music
    from Malaita
  • Baegu lullaby from Northern Malaita, Rorogwela
    sung by Afunakwa
  • Some elements (substantial?) of (i) the melody
    of the lullaby and (ii) the recording
    (fixation) of the vocal performance used in
    Sweet Lullaby by Deep Forest
  • Attributed to African cultures
  • CD a huge commercial success, Sweet Lullaby
    widely used in commercials
  • 1996, Norwegian saxophonist Jan Garbarek records
    an adaptation of "Rorogwela, credited as "a
    traditional African melody, arranged by Jan
    Garbarek"

8
The call for protection the deep forest case
  • Immediate legal issues musical work,
    performance, moral rights, economic rights
  • Broader issues preservation vs. protection
    enforcement of legal rights recognition of
    traditional works, communal ownership, customary
    law
  • Policy choices what is needed here
  • sui generis (stand alone) protection?
  • adapted or extended use of existing intellectual
    property system?
  • better, more equitable use of existing
    intellectual property system?

9
The call for protection the deep forest case
  • Sui generis protection under existing treaties
  • WIPO Performers and Phonograms Treaty protects
    performances of expressions of folklore
  • Moral rights
  • Economic rights even if recordings are not for
    commercial gain
  • Berne Convention protects certain unpublished
    works of unknown authorship
  • including traditional musical works
  • fifty years after the work has been lawfully made
    available to the public.

10
Overview
  • What is the problem?
  • protection vs preservation
  • Background to WIPOs activities
  • Snapshot of the WIPO Intergovernmental Committee
  • current issues and possible outcomes

11
Overlapping areas of concern
  • Definitions are needed to focus work, but need
    not create firm boundaries
  • Cultural heritage - expressions of folklore or
    traditional cultural expressions (TCEs)
  • Traditional knowledge (TK) - technical knowhow
    - e.g. medical knowledge
  • Genetic resources

12
Overlapping areas of activity
  • Folklore - TCEs
  • UNESCO (intangible cultural heritage)
  • WIPO (folklore, Berne Convention, WPPT)
  • WTO (folklore and TRIPS)
  • ITC (capacity building on crafts)
  • Traditional knowledge
  • CBD (Article 8(j), 10(c), 17.2)
  • FAO (Farmers rights)
  • UNCTAD (TK in trade and development)
  • WHO (Traditional medical knowledge)
  • WTO (TRIPS)
  • WIPO (TK and patent issues PCT, IPC)

13
Overlapping areas of activity
  • Genetic resources
  • CBD conservation, sustainable use, equitable
    benefit-sharing
  • FAO International Treaty on Plant Genetic
    Resources for Food and Agriculture
  • WTO (TRIPS)
  • WIPO (IGC)
  • Indigenous rights
  • ILO Indigenous and Tribal Peoples Convention,
    1989 (No. 169)
  • Office of the High Commissioner for Human Rights
    (OHCHR)Working Group on Indigenous Populations
    (WGIP) Draft Declaration on the Rights of
    Indigenous Peoples.

14
Background to WIPOs work
  • International cooperation on folklore since 1970s
  • Berne Convention protection of folklore
  • Article 15.4 In the case of certain unpublished
    works of unknown authorship
  • (a) In the case of unpublished works where the
    identity of the author is unknown, but where
    there is every ground to presume that he is a
    national of a country of the Union, it shall be a
    matter for legislation in that country to
    designate the competent authority which shall
    represent the author and shall be entitled to
    protect and enforce his rights in the countries
    of the Union.
  • (b) Countries of the Union which make such
    designation under the terms of this provision
    shall notify the Director General by means of a
    written declaration giving full information
    concerning the authority thus designated. The
    Director General shall at once communicate this
    declaration to all other countries of the Union.

15
Background to WIPOs work
  • International cooperation on folklore since 1970s
  • Berne Convention protection of folklore
  • UNESCO-WIPO work in early 1980s
  • UNESCO-WIPO Model Provisions for National Laws on
    the Protection of Expressions of Folklore Against
    Illicit Exploitation Other Prejudicial Actions
  • Expressions of folklore developed and maintained
    in country shall be protected by this law
    against illicit exploitation and other
    prejudicial actions as defined in this law.
  • "expressions of folklore" productions consisting
    of characteristic elements of the traditional
    artistic heritage developed and maintained by a
    community of country or by individuals
    reflecting the traditional artistic expectations
    of such a community ...

16
Background to WIPOs work
  • International cooperation on folklore since 1970s
  • Berne Convention protection of folklore
  • UNESCO-WIPO work in early 1980s
  • UNESCO-WIPO Model Provisions
  • 1985 treaty premature
  • 1996 WIPO Performances Phonograms Treaty
  • protection of expressions of folklore
  • performers include those who perform
    expressions of folklore
  • rights include moral rights, rights of fixation,
    rights over communication and dissemination,
    economic rights
  • even if recording was not made for commercial gain

17
Background to WIPOs work
  • International cooperation on folklore since 1970s
  • Berne Convention protection of folklore
  • UNESCO-WIPO work in early 1980s
  • UNESCO-WIPO Model Provisions
  • 1985 treaty premature
  • 1996 WIPO Performances Phonograms Treaty
  • protection of expressions of folklore
  • 1997 Phuket plan of action
  • 1998-99 Fact-finding missions on TK
  • 2001- Intergovernmental Committee on GR, TK, F

18
Overview
  • What is the problem?
  • protection vs preservation
  • Background to WIPOs activities
  • Snapshot of the WIPO Intergovernmental Committee
    (IGC)
  • current issues and possible outcomes

19
Traditional Values and IP at Odds?
  • What does WIPO have to do with traditional
    knowledge and cultural expressions?
  • Disquiet on the part of proponents and opponents
    of the received IP system concerns raised about
  • imposing an IP straitjacket on traditional
    cultures, overriding collective values of
    indigenous and other traditional communities
  • IP concerns mainstream technology
    commercialises commodifies knowledge culture
    facilitates misappropriation of TK and cultural
    expressions
  • IP rights are atomistic, private, individual - at
    odds with values of traditional communities
  • IP concerns creativity and innovation, not
    tradition

20
Where did the IGC come from, where is it going?
  • From 1998-99, WIPO visited some 60 locations for
    dialogue with around 3,000 representatives of TK
    holder communities
  • idea was to base the new program on direct
    learning of the needs expectations of TK
    holders themselves
  • these insights still central to WIPOs work
  • IGC established in 2001 - building on practical
    experience worldwide
  • clarifies that this is an existing area of IP law
    and practice many laws and practical cases
    worldwide, within and beyond the conventional IP
    system
  • but what is the international dimension?

21
Towards resolution back to basics
  • The IP system criticized for misappropriating
    TK/TCEs, neglecting the interests of Indigenous
    local communities.
  • But these very concerns often expressed in terms
    that echo core principles of the IP system
  • promoting equity and balance,
  • reconciling private and collective interests,
  • recognizing distinctive origins and the
    legitimate source of innovation and creativity,
  • suppressing free-riding and unjust enrichment,
  • defending distinctive reputations from
    illegitimate exploitation,
  • providing for rights of attribution and integrity
  • This observation is the essence of an emerging
    consensus

22
What kind of challenge to the IP system?
  • Indigenous and local communities continue to
    innovate and create within their traditions
  • seek recognition for their past continuing
    contribution to humanitys cultural
    intellectual heritage
  • and appropriate respect for customary laws
  • IGC a process of reviewing the core principles of
    IP law, assessing how to apply those principles
    for equitable protection of TK and TCEs
  • analysing validity, equity, effectiveness of IP
    system from the distinct vantage point of
    indigenous and local communities
  • Responding to critical concerns about the
    relevance and legitimacy of IP system, the IGC
    has seen deep reflection on the nature of IP, its
    objectives, its assumptions, its limitations and
    its boundaries.

23
Some key substantive issues
  • misappropriation - what is it to misappropriate
    TK/TCEs, what is the cause of action and the
    nature of the damage?
  • retroactivity - is the existing public domain
    legitimate inviolable?
  • localisation - how to recognize and defer to a
    communitys customary law?
  • collectivity - what legal status or legal
    personality for traditional communities?
  • ownership - what is the nature of custodianship?
    Who benefits?
  • subject matter - what makes knowledge and
    cultural expressions traditional ?

24
Some key process issues
  • coordination - already an active area of national
    and regional legislation - what is the
    international layer?
  • interface with IP law - what is the sui generis
    element of protection of TK and TCEs?
  • interface with other law - access regimes for
    genetic resources, cultural policy, etc. what
    is the (adapted, expanded or sui generis) IP
    element?

25
New IGC mandate for 2004-05
  • continue work on questions included in previous
    mandate
  • new work to focus on consideration of
    international dimension, without prejudice to
    work in other fora,
  • no outcome is excluded, including possible
    development of an international instrument(s)
  • the ICG urged to accelerate its work and to
    present a progress report
  • International Bureau to continue to assist by
    providing necessary expertise and documentation.

26
Folklore/Traditional Cultural Expressions (TCEs)
  • IGC agrees in March 2004 to focus and accelerate
    substantive work on TCEs, including preparing
  • an overview of policy objectives and core
    principles for protection of TCEs (draft
    provisions)
  • document WIPO/GRTKF/IC/7/3
  • If Member States so choose, this could form the
    basis of a new international instrument to
    protect TCEs
  • the draft provisions could provide the substance
    or content of an international instrument
  • political decision remains as to what legal
    status and future process is needed to carry this
    forward

27
Traditional Knowledge (TK)
  • IGC agrees in March 2004 to focus and accelerate
    substantive work on TK, including preparing
  • an overview of policy objectives and core
    principles for protection of TK (draft
    provisions)
  • document WIPO/GRTKF/IC/7/5
  • If Member States so choose, this could form the
    basis of a new international instrument to
    protect TK
  • the draft provisions could provide the substance
    or content of an international instrument
  • political decision remains as to what legal
    status and future process is needed to carry this
    forward

28
(No Transcript)
29
What principles for TCEs/folklore?
  • Responsiveness to aspirations and expectations of
    relevant communities
  • Balance and proportionality
  • Respect for and cooperation with other
    international and regional instruments and
    processes
  • Flexibility and comprehensiveness
  • Recognition of the specific nature,
    characteristics and traditional forms of cultural
    expression
  • Respect for customary use and transmission of
    TCEs/EoF
  • Effectiveness and accessibility of protection

30
Specific substantive principles for TCEs/folklore
  • Term of protection
  • Formalities
  • Sanctions, remedies and enforcement
  • Application in time
  • Relationship with intellectual property
    protection
  • International and regional protection
  • Scope of subject matter
  • Criteria for protection
  • Beneficiaries
  • Management of rights
  • Scope of protection
  • Exceptions and limitations

31
What forms of protection?
  • culturally significant/sacred TCEs/EOF
  • prevent reproduction, adaptation, public
    communication and other such forms of
    exploitation of any distortion, mutilation or
    other modification of, or other derogatory action
    in relation to and the acquisition by third
    parties of IP rights
  • secret TCEs/EoF
  • prevent unauthorized disclosure and subsequent
    use of and acquisition by third parties of IP
    rights
  • performances of TCEs/EoF
  • protect moral and economic rights as per WPPT
  • other TCEs/EoF
  • identify source prevent offensive use, prevent
    misleading indications, and equitable
    remuneration

32
What forms of protection?
  • culturally significant/sacred TCEs/EOF
  • prevent reproduction, adaptation, public
    communication and other such forms of
    exploitation of any distortion, mutilation or
    other modification of, or other derogatory action
    in relation to and the acquisition by third
    parties of IP rights
  • secret TCEs/EoF
  • prevent unauthorized disclosure and subsequent
    use of and acquisition by third parties of IP
    rights
  • performances of TCEs/EoF
  • protect moral and economic rights as per WPPT
  • other TCEs/EoF
  • identify source prevent offensive use, prevent
    misleading indications, and equitable
    remuneration

33
What forms of protection?
  • culturally significant/sacred TCEs/EOF
  • prevent reproduction, adaptation, public
    communication and other such forms of
    exploitation of any distortion, mutilation or
    other modification of, or other derogatory action
    in relation to and the acquisition by third
    parties of IP rights
  • secret TCEs/EoF
  • prevent unauthorized disclosure and subsequent
    use of and acquisition by third parties of IP
    rights
  • performances of TCEs/EoF
  • protect moral and economic rights as per WPPT
  • other TCEs/EoF
  • identify source prevent offensive use, prevent
    misleading indications, and equitable
    remuneration

34
What forms of protection?
  • culturally significant/sacred TCEs/EOF
  • prevent reproduction, adaptation, public
    communication and other such forms of
    exploitation of any distortion, mutilation or
    other modification of, or other derogatory action
    in relation to and the acquisition by third
    parties of IP rights
  • secret TCEs/EoF
  • prevent unauthorized disclosure and subsequent
    use of and acquisition by third parties of IP
    rights
  • performances of TCEs/EoF
  • protect moral and economic rights as per WPPT
  • other TCEs/EoF
  • identify source prevent offensive use, prevent
    misleading indications, and equitable
    remuneration

35
What objectives for protection of TK?
  • Recognise value
  • Promote respect
  • Meet the actual needs of holders of traditional
    knowledge
  • Empower holders of TK
  • Support traditional knowledge systems
  • Contribute to safeguarding traditional knowledge
  • Repress unfair and inequitable uses
  • Concord with relevant international agreements
    and processes
  • Promote innovation and creativity
  • Promote intellectual and technological exchange
  • Promote equitable benefit sharing
  • Promote community development and legitimate
    trading activities
  • Preclude the grant of invalid IP rights
  • Enhance transparency and mutual confidence
  • Complement protection of traditional cultural
    expressions

36
What guiding principles for TK protection?
  • Responsiveness to the needs and expectations of
    TK holders
  • Recognition of rights
  • Effectiveness and accessibility
  • Flexibility comprehensiveness
  • Equity and benefit-sharing
  • Consistency with existing legal systems
  • Respect for and cooperation with other
    international and regional instruments and
    processes
  • Respect for customary use and transmission of TK
  • Recognition of the specific characteristics of TK

37
What substantive principles for TK protection?
  • Protection against misappropriation-
    suppression of misappropriation- general nature
    of misappropriation- acts of misappropriation-
    unfair competition
  • Recognition of the customary context
  • Legal form of protection
  • General scope of subject matter
  • Eligibility for protection
  • Beneficiaries of protection
  • Equitable compensation and recognition of
    knowledge holders
  • Prior informed consent
  • Exceptions and limitations
  • Duration of protection
  • Application in time
  • Administration and enforcement of protection
  • International and Regional Protection

38
What form of protection?
39
(No Transcript)
40
(No Transcript)
41
(No Transcript)
42
Next steps
  • Comment period on draft provisions for TK and TCE
    protection
  • Revised draft provisions to be circulated approx.
    end March
  • Further informal consultations in April - May
  • IGC meets on June 6 to 10 to consider
  • substance of provisions
  • how to take the substance forward?
  • what recommendations to the General Assembly?

43
policy objectives core principles
options for recognizing TK/TCE protection in
foreign jurisdictions
An emerging framework
elements of folklore/ TCE protection at the
national level
measures on IP genetic resources
elements of TK protection at the national level
Link to detailed capacity building materials
44
Genetic Resources and Intellectual Property
45
Overview
  • Linking equitable benefit-sharing from genetic
    resources and the patent system
  • Issues and processes in WIPO fora
  • Some working materials
  • Cooperation with the Convention on Biological
    Diversity (CBD)
  • Some substantive questions

46
Overview
  • Linking equitable benefit-sharing from genetic
    resources and the patent system
  • Issues and processes in WIPO fora
  • Some working materials
  • Cooperation with the Convention on Biological
    Diversity (CBD)
  • Some substantive questions

47
Access equitable benefit-sharing what links
to the patent system?
  • Access and benefit-sharing in line with
    objectives of CBD and FAO International Treaty
  • e.g. CBD objectives (i) conservation of
    biological diversity (ii) sustainable use of its
    components (iii) fair and equitable sharing of
    the benefits arising out of the utilization of
    genetic resources
  • Patent system - in particular treatment of
    inventions that arise out of the utilization of
    genetic resources (and associated TK)

48
Access equitable benefit-sharing what links
to the patent system?
  • Two essential scenarios put forward
  • Direct patenting of source material
  • a patent (or application) directly claims as an
    invention genetic resources (or associated
    traditional knowledge) obtained from a separate
    source
  • Patenting inventions derived from source material
  • a patent (or application) claims an invention
    that is somehow derived from or somehow uses
    genetic resources or TK - this link expressed in
    several ways
  • Has the GR/TK been legitimately accessed?
  • Is the patent consistent with equitable
    benefit-sharing?

49
Access equitable benefit-sharing what links
to the patent system?
  • Opens up some fundamental questions
  • Legal what obligations arise (or should arise)
    from the circumstances of access and the nature
    of use of genetic resources (and associated TK)?
  • How does (or should) this affect
  • the entitlement to apply for and be granted a
    patent (should the applicant receive a patent?)
  • the patentability of the invention as such (does
    the invention
  • other interests and entitlements (e.g. equitable
    or ownership interests, expectation to benefit)
  • other obligations (e.g. obligation to report on
    patenting activity, obligation to disclose)

50
Access equitable benefit-sharing what links
to the patent system?
  • Disclosure requirements
  • various existing mechanisms, national/regional
    legislative initiatives,and international
    proposals
  • create or confirm a legal linkage betweenGR or
    TK used and the claimed invention
  • beyond disclosure per se (provision of
    information), have variously been linked to
  • patentability of invention as such
  • entitlement to apply or be granted a patent
  • capacity to enforce a patent

51
Access equitable benefit-sharing what links
to the patent system?
  • Supplementing basic legal issues, some practical
    questions
  • E.g. what kinds of practical arrangements would
  • reduce the likelihood of illegitimate patents
    being granted that claim GR/TK directly, or
    non-inventive derivatives of GR/TK
  • continuing work on various defensive protection
    and enhanced search and examination measures
  • facilitate equitable sharing of benefits from
    legitimate patenting of derivative inventions
    (what kinds of agreements and partnerships
    promote monetary and non-monetary benefit sharing
    - Bonn Guidelines)
  • information and capacity building work (database
    of benefit sharing agreements, practical guide to
    supplement general ABS capacity-building
    projects)
  • UNEP-WIPO study on IP aspects of access and
    benefit-sharing

52
Overview
  • Linking equitable benefit-sharing from genetic
    resources and the patent system
  • Issues and processes in WIPO fora
  • Some working materials
  • Cooperation with the Convention on Biological
    Diversity (CBD)
  • Some substantive questions

53
WIPO fora and GR/patent issues
  • Intergovernmental Committee on IP and Genetic
    Resources, TK Folklore
  • considers legal issues (technical study)
  • oversees capacity-building initiatives
  • Standing Committee on Patent Law
  • proposed text for Article 2 of draft Substantive
    Patent Law Treaty
  • reference to issue of disclosure at last meeting
  • Working Group on PCT Reform
  • Swiss proposal for amendment of PCT Regulations
    to allow for disclosure mechanisms

54
Overview
  • Linking equitable benefit-sharing from genetic
    resources and the patent system
  • Issues and processes in WIPO fora
  • Some working materials
  • Cooperation with the Convention on Biological
    Diversity (CBD)
  • Some substantive questions

55
(No Transcript)
56
Technical study on disclosure mechanisms
  • Prepared initially under the supervision of the
    IGC, responding to invitation from Sixth CBD
    Conference of Parties
  • based on questionnaire responses from WIPO Member
    States
  • successive drafts considered by IGC
  • transmitted to CBD COP VII by the WIPO General
    Assembly
  • triggers request for follow-up work from CBD COP,
    and proposed further feedback from CBD to WIPO

57
Technical study
  • ...to contribute to international discussion and
    analysis of this general issue, and to help
    clarify some of the legal and policy matters it
    raises...
  • ...technical input to facilitate policy
    discussion and analysis in the CBD and in other
    fora, and it should not be considered a formal
    paper expressing a policy position on the part of
    WIPO, its Secretariat or its Member States...
  • ...explored issues relevant to the interaction
    between the patent system and GR/TK used in an
    invention... not sought to resolve these issues
    but rather to illustrate and elucidate them.
    may wish to consider future work in this area
    including additional exchange of national
    experience, and the elaboration of case studies
    and the analysis of some of the specific
    disclosure scenarios described and discussed in
    the draft study

58
Technical study
  • ...to contribute to international discussion and
    analysis of this general issue, and to help
    clarify some of the legal and policy matters it
    raises...
  • ...technical input to facilitate policy
    discussion and analysis in the CBD and in other
    fora, and it should not be considered a formal
    paper expressing a policy position on the part of
    WIPO, its Secretariat or its Member States...
  • ...explored issues relevant to the interaction
    between the patent system and GR/TK used in an
    invention... not sought to resolve these issues
    but rather to illustrate and elucidate them.
    may wish to consider future work in this area
    including additional exchange of national
    experience, and the elaboration of case studies
    and the analysis of some of the specific
    disclosure scenarios described and discussed in
    the draft study

59
Technical study
  • ...to contribute to international discussion and
    analysis of this general issue, and to help
    clarify some of the legal and policy matters it
    raises...
  • ...technical input to facilitate policy
    discussion and analysis in the CBD and in other
    fora, and it should not be considered a formal
    paper expressing a policy position on the part of
    WIPO, its Secretariat or its Member States...
  • ...explored issues relevant to the interaction
    between the patent system and GR/TK used in an
    invention... not sought to resolve these issues
    but rather to illustrate and elucidate them.
    may wish to consider future work in this area
    including additional exchange of national
    experience, and the elaboration of case studies
    and the analysis of some of the specific
    disclosure scenarios described and discussed in
    the draft study

60
  • Analyses options under five aspects (Section VI)
  • relationship between the claimed invention and
    the GR/TK or what would be a sufficient link
    between the two to trigger a disclosure
    requirement
  • legal principle forming basis of requirement
  • nature of the obligation placed on the applicant
  • consequences of failure to comply with the
    requirement
  • how the requirement would be implemented,
    verified or monitored
  • Sets out specific methods for disclosure (Section
    VIII)

61
  • Possible disclosure scenarios (191-199)
  • TK as relevant prior art
  • TK holder as inventor
  • Disclosure of origin of genetic
    resources(enablement and best mode)
  • Disclosure of the actual genetic resources
  • Evidence of entitlement to apply
  • Registration of equitable/ownership interests
  • Disclosure of information in compliance with
    other legal obligations (e.g. access regimes)
  • Specific GR/TK disclosure mechanisms
  • various specific mechanisms, various legal bases
    for requirements

62
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63
UNEP-WIPO study on ABS and IP
  • Pre-launch version submitted to Ministerial
    Conference, CBD COP VII
  • Joint UNEP-WIPO launch imminent
  • (inspection copies available today)
  • Professor AK Gupta (Honey Bee Network)
  • explores three case studies of the role of
    patents in access and benefit sharing
  • independent analysis of the practical and legal
    issues that arise, limitations of current
    approaches

64
Overview
  • Linking equitable benefit-sharing from genetic
    resources and the patent system
  • Issues and processes in WIPO fora
  • Some working materials
  • Cooperation with the Convention on Biological
    Diversity (CBD)
  • Some substantive questions

65
CBD invitation to WIPO
  • Convention on Biological Diversity (CBD)
    Conference of Parties (COP) VI
  • Decision VII/19 - interrelation of access to
    genetic resources and disclosure requirements in
    IP rights applications

66
  • Invitation to WIPO to...
  • examine, and where appropriate address, taking
    into account the need to ensure that this work is
    supportive of and does not run counter to the
    objectives of the CBD, issues regarding the
    interrelation of access to genetic resources and
    disclosure requirements in IP rights
    applications, including, inter alia

67
  • Invitation to WIPO to...
  • examine, and where appropriate address, taking
    into account the need to ensure that this work is
    supportive of and does not run counter to the
    objectives of the CBD, issues regarding the
    interrelation of access to genetic resources and
    disclosure requirements in IP rights
    applications, including, inter alia
  • Options for model provisions on proposed
    disclosure requirements
  • Practical options for IP rights application
    procedures with regard to the triggers of
    disclosure requirements
  • Options for incentive measures for applicants
  • Identification of the implications for
    functioning of disclosure requirements in various
    WIPO-administered treaties
  • IP-related issues raised by proposed
    international certificate of origin/source/legal
    provenance

68
Possible Reporting Procedure
  • and regularly provide reports to the CBD on
    its work, in particular on actions or steps
    proposed to address the above issues, in order
    for the CBD to provide additional information to
    WIPO for its consideration in the spirit of
    mutual supportiveness

69
Possible future work proposed to IGC
  • in the light of developments to consider
    possible future work for the Committee on this
    issue, including the proposals in para 12(ii) of
    WIPO/GRTKF/IC/5/10
  • including the continued exchange of national
    experience and case studies, and the development
    of guidelines and recommendations concerning the
    interaction between access to genetic resources
    and patent disclosure.

70
Overview
  • Linking equitable benefit-sharing from genetic
    resources and the patent system
  • Issues and processes in WIPO fora
  • Some working materials
  • Cooperation with the Convention on Biological
    Diversity (CBD)
  • Some substantive questions

71
Some substantive questions
  • Legal and policy issues concerning
  • eligibility of inventions per se for protection
  • eligibility of applicants to gain patents
  • ownership, inventorship and equitable interests
  • capacity to exploit and benefit from patents
  • interplay between obligations incurred in one
    jurisdiction arising from access to genetic
    resources, and the operation of the patent system
    in another jurisdiction
  • Incentives to use patent system to promote ABS
  • Sanctions for failure to comply with ABS
    regulations

72
The various avenues proposed
  • CBD invitation
  • model provisions
  • practical options for triggers of disclosure
    requirements
  • options for incentive measures for applicants
  • implications for various WIPO-administered
    treaties
  • IP-related issues from proposed international
    certificate
  • PCT system Swiss proposal to enable disclosure
    requirements
  • Standing Committee on Patent Law reference to
    genetic resources in draft, disclosure issue
    raised
  • Intergovernmental Committee proposed guidelines
    and recommendations, policy and legal development
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