User:John Cummings/Articles/Glossary on intellectual property and genetic resources, traditional knowledge and traditional cultural expressions
The Glossary of key terms related to intellectual property and genetic resources, traditional knowledge and traditional cultural expressions is a resource with over 100 definitions created by the World Intellectual Property Organisation who have generously released it under an open license so we can use the text directly on Wikipedia. Please help spread this knowledge by adding information from the glossary (in the table below) to Wikipedia and indexing the terms in Wikidata.
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Glossary text
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Access and Benefit-Sharing | Article 1 of the Convention on Biological Diversity (1992) prescribes “the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.”
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Adaptation | Adaptation is the act of altering a pre-existing work (either protected or in the public domain) or a traditional cultural expression, for a purpose other than for which it originally served, in a way that a new work comes into being, in which the elements of the pre-existing work and the new elements—added as a result of the alteration—merge together.3 Article 12 of the Berne Convention for the Protection of Literary and Artistic Works (1971) provides that authors of literary and artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works. Black’s Law Dictionary4 provides that copyright holders have the exclusive right to prepare derivative works, or adaptations, based on the protected work. | |||
Alternative Dispute Resolution | Alternative dispute resolution (ADR) offers an alternative to formal court-based systems for tackling intellectual property disputes that may arise in relation to traditional knowledge, traditional cultural expressions and genetic resources. It seeks to resolve disputes in non-adversarial ways in order to reach outcomes of mutual benefit for all parties. With ADR, the parties themselves assume responsibility for solving the conflict and can take into account issues other than legal norms. ADR is characterized by having both formal and informal procedures, offering options beyond those of litigation, and granting parties more control in determining the parameters of the dispute and the most appropriate way to reach resolution. ADR’s four key methods are negotiation, mediation, arbitration and collaborative law.
Issues related to traditional knowledge are often intricately intertwined with cultural values and many disagreements involve questions of culturally appropriate usage, sharing of knowledge and proper attribution. ADR is an important element of the range of options available to indigenous peoples and third-party users for resolving disputes.5 |
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Approval and Involvement | There is no universally accepted definition of the term. It has been suggested in one context that, although Article 8(j) of the Convention on Biological Diversity (1992), uses the phrase “approval and involvement,” various decisions on Article 8(j) have consistently interpreted this term to mean “prior and informed consent.”6 | |||
Beneficiaries | There is no universally accepted definition of the term. However, it has been argued by many stakeholders that traditional knowledge and traditional cultural expressions are generally regarded as collectively originated and held, so that any rights and interests in this material should vest in communities rather than individuals. In some cases, however, individuals, such as traditional healers, might be regarded as the holders of traditional knowledge or traditional cultural expressions and as beneficiaries of protection.7
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Biological Diversity | Article 2 of the Convention on Biological Diversity (1992) defines the term “biological diversity,” often shortened to “biodiversity,” as meaning the “variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.” | |||
Biological Resources | As defined in Article 2 of the Convention on Biological Diversity (1992), this term “includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.” Genetic resources form, therefore, one category of biological resources.
by-products.”
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Biotechnological Inventions | This term is defined in the European Union Directive on the Legal Protection of Biotechnological Inventions as “inventions which concern a product consisting of or containing biological material or a process by means of which biological material is produced, processed or used.”8 Biotechnological inventions fall into three categories: processes of the creation and modification of living organisms and biological material, the results of such processes, and the use of such results.9 | |||
Biotechnology | Article 2 of the Convention on Biological Diversity (1992) defines the term as “any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use.” The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010) uses the same definition in its Article 2.
a) in vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) and direct injection of nucleic acid into cells or organelles, or b) fusion of cells beyond the taxonomic family, that overcome natural physiological reproductive or recombination barriers and that are not techniques used in traditional breeding and selection.”
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Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization | The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of
the Benefits Arising out of their Utilization were adopted in 2002 by the Conference of the Parties of the Convention on Biological Diversity in order to provide guidance in respect of implementation of relevant provisions under Articles 8(j), 10(c), 15, 16 and 19 of the Convention related to access to genetic resources and benefit-sharing. The Guidelines are voluntary in nature and are addressed to a range of stakeholders.12 They cover procedural and regulatory aspects, in particular, of prior informed consent, and identify monetary and non-monetary forms of benefit-sharing.13 |
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Clearing House Mechanism | According to a glossary used by the United Nations Environment Program (UNEP), a Clearing House Mechanism (CHM) originally referred to a financial establishment where checks and bills are exchanged among member banks so that only the net balances need to be settled in cash. Today, its meaning has been extended to include any agency that brings together seekers and providers of goods, services or information, thus matching demand with supply. The CBD has established a Clearing-house Mechanism to ensure that all governments have access to the information and technologies they need for their work on biodiversity.14 | |||
Codified Traditional Knowledge | Codified traditional knowledge is “traditional knowledge which is in some systematic and structured form, in which the knowledge is ordered, organized, classified and categorized in some manner.”15
e.g. Ayurveda disclosed in ancient Sanskrit scriptures16 or Traditional Chinese Medicine (TCM) disclosed in ancient Chinese medical texts17; and (b) non-codified traditional medicinal knowledge which has not been fixed in writing, often remains undisclosed by traditional knowledge holders, and is passed on in oral traditions from generation to generation. In South Asia, for instance, the codified knowledge systems include the Ayurvedic system of medicine, which is codified in the 54 authoritative books of the Ayurvedic System, the Siddha system, as codified in 29 authoritative books, and the Unani Tibb tradition, as codified in 13 authoritative books.18
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Consultation | According to Black’s Law Dictionary, consultation is the act of asking the advice or opinion of someone (such as a lawyer).
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Convention on Biological Diversity | The Convention on Biological Diversity (CBD) is an international convention adopted in
June 1992 during the United Nations Conference on Environment and Development held in Rio de Janeiro, Brazil. According to Article 1, the Convention aims at “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.” It entered into force on December 29, 1993. |
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Country of Origin of Genetic Resources | According to Article 2 of the Convention on Biological Diversity (1992), “country of origin of genetic resources” means “the country which possesses those genetic resources in in-situ conditions.” Other definitions include genetic resources in ex-situ conditions. For instance, country of origin is defined by Article 1 of the Decision 391 on Access to Genetic Resources of Andean Community (1996) as a “country that possesses genetic resources in in-situ conditions, including those which, having been in in-situ conditions, are now in ex-situ conditions.” | |||
Country providing Genetic Resources | According to Article 2 of the Convention on Biological Diversity (1992), “country providing genetic resources“ means “the country supplying resources collected from in-situ sources, including populations of both wild and domesticated species, or taken from ex-situ sources, which may or may not have originated in that country.” | |||
Cultural Community | “Cultural community” has been defined as a tightly knit social unit whose members experience strong feelings of unity and solidarity and which is distinguished from other communities by its own culture or cultural design, or by a variant of the generic culture.21 | |||
Cultural Diversity | According to the United Nations Education, Science and Culture Organization (UNESCO) Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005), cultural diversity refers to the manifold ways in which the cultures of groups and societies find expression. These expressions are passed on within and among groups and societies.22 | Cultural diversity | ||
Cultural Expressions | The United Nations Education, Science and Culture Organization (UNESCO) Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) defines cultural expressions as “those expressions that result from the creativity of individuals, groups and societies, and that have cultural content.”23 | |||
Cultural Heritage | For purposes of the United Nations Education, Science and Culture Organization (UNESCO) Convention concerning the Protection of the World Cultural and Natural Heritage (1972), the following is considered as cultural heritage, as outlined in Article 1:
(b) groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; (c) sites: works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view. |
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Cultural Identity | Cultural identity denotes the correspondence which exists between a community—national, ethnic, linguistic, etc.—and its cultural life, as well as the right of each community to its own culture.24 The International Labour Organization (ILO) Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989) stipulates that governments should promote the full realization of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions.25 | |||
Cultural Property | Cultural property is defined in Article 1 of the United Nations Education, Science and Culture Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) as property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories:
(a) rare collections and specimens of fauna, flora, minerals and anatomy, and objects of paleontological interest; (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; (d) elements of artistic or historical monuments or archaeological sites which have been dismembered; (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; (f) objects of ethnological interest; (g) property of artistic interest, such as: (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii) original works of statuary art and sculpture in any material; (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material; (h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections; (i) postage, revenue and similar stamps, singly or in collections; (j) archives, including sound, photographic and cinematographic archives; (k) articles of furniture more than one hundred years old and old musical instruments. |
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Custodian | Black’s Law Dictionary defines “custodian” as a “person or institution that has charge or custody (of a child, property, papers, or other valuables).” According to the same source, “custody” refers to the care and control of a thing or person for inspection, preservation, or security. A “custodian” is defined in the Oxford English Dictionary as “a person who or organization which has the custody or guardianship of something or someone; a guardian.” The Merriam-Webster dictionary provides “one that guards and protects or maintains.” The term “custodian” in the context of traditional knowledge and cultural expressions refers to those communities, peoples, individuals and other entities which, according to customary laws and other practices, maintain, use and develop the traditional knowledge and cultural expressions. It expresses a notion that is different from “ownership”, since it conveys a sense of responsibility to ensure that the traditional knowledge or cultural expressions are used in a way that is consistent with community values and customary law. | |||
Customary Context | “Customary context” refers to the utilization of traditional knowledge or cultural expressions in accordance with the practices of everyday life of the community, such as, for instance, usual ways of selling copies of tangible expressions of folklore by local craftsmen.26 | |||
Customary Law and Protocols | Black’s Law Dictionary defines “customary law” as law “consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws.” Customary law has also been defined as “locally recognized principles, and more specific norms or rules, which are orally held and transmitted, and applied by community institutions to internally govern or guide all aspects of life.”27 The ways in which customary laws are embodied differ from one another. For instance, the laws can be codified, written or oral, expressly articulated or implemented in traditional practices. Another important element is whether these laws are actually “formally” recognized by and/or linked to the national legal systems of the country in which a community resides. A decisive factor in determining whether certain customs have status as law is whether they have been and are being viewed by the community as having binding effect, or whether they simply describe actual practices.
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Customary Practices | Customary practices may be described as the acts and uses governing and guiding aspects of a community’s life. Customary practices are engrained within the community and embedded in the way it lives and works. They cannot be perceived as stand-alone, codified “laws” as such.30 | |||
Database of Biodiversity-related Access and Benefit-sharing Agreements | The WIPO Database of Biodiversity-related Access and Benefit-sharing Agreements is
an electronic online collection of “guide contractual practices, guidelines, and model intellectual property clauses for contractual agreements on access to genetic resources and benefit-sharing, taking into account the specific nature and needs of different stakeholders, different genetic resources, and different transfers within different sectors of genetic resource policy.”31 As a capacity building tool, it aims to provide information resources for those seeking assistance on current practices relating to intellectual property, access and benefit-sharing and genetic resources and, as an empirical basis, it aims to contribute to the development by WIPO of intellectual property guidelines on access to genetic resources and benefit-sharing.32 |
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Derivative | Article 2(e) of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010) provides the following definition: “a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity.” | |||
Derivative Work | In copyright law, the term “derivative works” refers to the translations, adaptations, arrangements and similar alterations of preexisting works which are protected under
Article 2(3) of the Berne Convention for the Protection of Literary and Artistic Works (1971) as such without prejudice to the copyright in the preexisting works.33 Sometimes, the term is used with a broader meaning, extending to the compilations/collections of works protected under Article 2(5) of the Convention, (as well as under Article 10.2 of the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights, 1994 (the TRIPS Agreement), and Article 5 of the WIPO Copyright Treaty, 1996 (WCT)).34
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Derogatory Action = | The adjective “derogatory” refers to a prejudice to the honor or reputation in line with
Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works (1971). The term “action” refers to something other than an actual change or interference with the work itself. It is an action “in relation to” the work. The term “derogatory action” was added to the Convention at the Brussels Revision in order to cover uses of the work that were prejudicial to the author. It refers to situations where communication of a work is done in such a manner as to cause the author harm.38 |
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Disclosed Traditional Knowledge | “Disclosed traditional knowledge” refers to “[traditional knowledge] which is accessible to persons beyond the indigenous or local community which is regarded as the ‘holder’ of the [traditional knowledge]. Such [traditional knowledge] might be widely accessible to the public and might be accessed through physical documentation, the internet and other kinds of telecommunication or recording. [Traditional knowledge] might be disclosed to third parties or to non-members of the indigenous and local communities from which [traditional knowledge] originates, with or without the authorization of the indigenous and local communities.”39
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Disclosure | According to Black’s Law Dictionary, a “disclosure” is a revelation of facts or act or process of making known something that was previously unknown. In the field of copyright, “disclosure” may mean making a work accessible to the public for the first time. First publication of works is one—but not the only possible—form of disclosure, since works may also be disclosed through non-copy related acts, such as public performance, and broadcasting to the public by cable (wire).40 Recognition of such a right is not an obligation under international copyright norms. The Berne Convention for the Protection of Literary and Artistic Works (1971) refers to the use of publicly disclosed works in the context of exceptions, and the author has the right to disclose his work to the world.41 Under certain national laws, the “right of disclosure” is a moral right. | |||
Disclosure Requirements | Disclosure is part of the core rationale of patent law.42 Patent law imposes a general obligation on patent applicants, as referred to in Article 5 of the Patent Cooperation Treaty (PCT), “to disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art.” However, “disclosure requirements” is also used as a general term for reforms made to patent law at the regional or national level, and proposals to reform international patent law, which would specifically require patent applicants to disclose several categories of information concerning traditional knowledge and/or genetic resources when these are used in developing the invention claimed in a patent or patent application.43
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Documentation | The Oxford English Dictionary defines “documentation” as the accumulation, classification and dissemination of information; the material so collected. Documenting traditional knowledge and traditional cultural expressions may include recording them, writing them down, taking pictures of them or filming them—anything that involves recording them in a way that preserves them and could make them available for others. It is different from the traditional ways of preserving and passing on traditional knowledge and traditional cultural expressions within the community.
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Due Diligence | Black’s Law Dictionary defines due diligence as the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. | |||
Equitable Remuneration | Equitable remuneration refers to the remuneration of certain acts carried out in respect of a work or an object of related rights in an amount and in a manner consistent with what may be regarded as normal commercial standards in case of authorization of the same act by the owner of a copyright or related rights. Such remuneration is usually payable when economic rights are reduced to a right to remuneration (and, in general, applied on the basis of a non-voluntary license).48 The WIPO Performances and Phonograms Treaty, 1996 (WPPT), provides that performers and producers of phonograms enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms, published for commercial purposes, for broadcasting or for communication to the public (Article 15(1)). However, any Contracting Party may restrict or – provided that it makes a reservation to the Treaty – deny this right (Article 15(3)). | |||
Exceptions | The term “exceptions” sets the limits of the use of a copyrighted work. Exceptions are closely concerned with the acts that relate to the protected elements. Sometimes the word “exception” covers legislative decisions which remove certain original creations from the owner’s monopoly (the text of laws or judicial decisions, for example) but, on the whole, it is a question of determining what uses of protected elements are neither subject to authorization nor remuneration.49 The Berne Convention for the Protection of Literary and Artistic Works (1971), provides for the application of a three-step test to determine the permissibility of exceptions:
(i) the exception may only cover certain special cases; (ii) the exception must not conflict with a normal exploitation of the work and (iii) must not unreasonably prejudice the legitimate interests of the rights of right owners.50 |
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Expression by Action | “Expressions by action” refer to expressions of the human body.51 They can include folk dances, plays and artistic forms of rituals, and need not be reduced to material form, e.g., be written down in choreographic notation.52 | |||
Expressions of Folklore | In the WIPO-UNESCO Model Provisions, 1982, “expressions of folklore" are productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of a country or by individuals reflecting the traditional artistic expectations of such a community, in particular:
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''Ex-situ'' Conservation | Referring to the definition of “ex situ conservation” in Article 2 of the Convention on Biological Diversity (1992), “ex situ” may be understood as “components of biological diversity outside their natural habitats.” | |||
Fair Practice | The Berne Convention for the Protection of Literary and Artistic Works (1971) uses the expression “fair practice” in certain provisions on exceptions to copyright protection
(see Article 10(1) concerning quotations, and Article 10(2) on free utilization of works—to the extent justified by the purpose—by way of illustration for teaching). For determining what kind of practice may be regarded as “fair,” the criteria of the three-step test should be taken into account.54 |
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Farmers’ Rights | Article 9.1 of the Food and Agriculture Organization (FAO) International Treaty on Plant Genetic Resources for Food and Agriculture recognizes “the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centers of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world.” Article 9.2 defines “farmers’ rights” as “(a) protection of traditional knowledge relevant to plant genetic resources for food and agriculture; (b) the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and (c) the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.” Article 2 of the Food and Agriculture Organization (FAO) International Code of Conduct for Plant Germplasm Collecting and Transfer defines the term as “the rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly those in the centres of origin/diversity. These rights are vested in the International Community, as trustee for present and future generations of farmers, for the purpose of ensuring full benefits to farmers, and supporting the continuation of their contributions, as well as the attainment of the overall purposes of the FAO International Undertaking on Plant Genetic Resources.” | |||
Fixation | Fixation is the process or result of recording a work of authorship in tangible form (Black’s Law Dictionary). Fixation of a work or object of related rights in material form (including storage in an electronic (computer) memory), must be done in a sufficiently stable form, in a way that on this basis the work or object of related rights may be perceived, reproduced or communicated to the public.55 Fixation in material form is not always a necessary pre-requisite of protectability, but the Berne Convention for the Protection of Literary and Artistic Works (1971) allows national copyright laws to make fixation such a condition.56 The fixation of traditional cultural expressions in a material form may establish new intellectual property rights in the fixation and these rights may be used indirectly to protect the traditional cultural expressions themselves—such a strategy has been used to protect ancient rock art.57 It has been argued that the use of the term “expression” could give the impression of a fixation requirement for protection of traditional cultural expressions.58 | |||
Folklore | As defined in the United Nations Education, Science And Culture Organization (UNESCO) Recommendation on the Safeguarding of Traditional Culture and Folklore (1989), “folklore (or traditional and popular culture) is the totality of tradition-based creations, of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.”
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Formality | Black’s Law Dictionary defines a formality as an act, esp. an established form or conventional procedure, that must be done to make something legal. In the copyright context, the term “formality” refers to a procedural or administrative requirement, such as placing a copyright notice, deposing copies or registration, to be fulfilled as condition for the acquisition, enjoyment and exercise (including the enforceability) of copyright or related rights.60 Under the Berne Convention for the Protection of Literary and Artistic Works (1971), the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement), the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, the enjoyment and exercise of the rights may not be subject to any formality.61 | |||
Genetic Material | Article 2 of the Convention on Biological Diversity (1992) defines “genetic material” as “any material of plant, animal, microbial or other origin containing functional units of heredity.” It has also been suggested that genetic material can be understood “as material from any biological source where units of heredity are operating or having a function.”62 | |||
Genetic Resources | Article 2 of the Convention on Biological Diversity (1992) defines “genetic resources” as “genetic material of actual or potential value.”
defines the term as “the reproductive or vegetative propagating material of the following categories of plants: i) cultivated varieties (cultivars) in current use and newly developed varieties; ii) obsolete cultivars; iii) primitive cultivars (land races); iv) wild and weed species, near relatives of cultivated varieties; and v) special genetic stocks (including elite and current breeders’ line and mutants).” The International Undertaking does not refer to “functional units of heredity.” |
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Heritage (of Indigenous Peoples) | The “heritage of indigenous peoples” (and other peoples) or “indigenous cultural heritage”
refers broadly to the items described in the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous People, 2000, developed by the Chairperson-Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Mrs. Erica-Irene Daes. Paragraphs 12, 13 and 14 of the Guidelines provide definitions.
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Holder | Black’s Law Dictionary defines “holder” as “a person who has legal possession of a negotiable instrument and is entitled to receive payment on it.” WIPO uses this term to refer to all persons who create, originate, develop and preserve traditional knowledge in a traditional setting and context. Indigenous communities, peoples and nations are traditional knowledge holders, but not all traditional knowledge holders are indigenous.64 In this context, “traditional knowledge” refers to both traditional knowledge stricto sensu and traditional cultural expressions.
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Indigenous and local communities | The term “indigenous and local communities” has been the subject of considerable discussion and study and there is no universal, standard definition thereof. The term is used in the Convention on Biological Diversity (1992). Article 8(j) states that “[e]ach Contracting Party shall, as far as possible and as appropriate: … (j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices; …”. The same term is used in the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010).
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Indigenous Knowledge | Indigenous knowledge is knowledge held and used by communities, peoples and nations that are “indigenous”. In this sense, “indigenous knowledge” would be the traditional knowledge of indigenous peoples. Indigenous knowledge is, therefore, a part of the traditional knowledge category, but traditional knowledge is not necessarily indigenous. Yet the term is also used to refer to knowledge that is itself “indigenous”. In this sense, the terms “traditional knowledge” and “indigenous knowledge” may be interchangeable.68 | |||
Indigenous Peoples | The term “indigenous peoples” has been the subject of considerable discussion and study and there is no universal, standard definition thereof.
Sub-Commission on Prevention of Discrimination and Protection of Minorities, Mr. J. Martínez Cobo, is regarded as an acceptable working definition by many indigenous peoples and their representative organizations. The Study understands indigenous communities, peoples and nations as “those which, having a historical continuity with ‘pre-invasion’ and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those countries, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identities, as the basis of their continued existence as peoples, in accordance with their own cultural pattern, social institutions and legal systems.”
(b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”69
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Infringement | According to Black’s Law Dictionary, an infringement is an act that interferes with one of the exclusive rights of an intellectual property right owner. Specifically, in the field of copyright and related rights, infringement is an act carried out in respect of a work protected by copyright or an object of related rights without authorization of the owner of the copyright or related rights concerned where such authorization is required. The liability for infringement may exist not only on the basis of direct liability (for the performance of the unauthorized act in itself), but also on the basis of “contributory liability” or “vicarious liability.”76 | |||
''In-situ'' Conditions | According to article 2 of the Convention on Biological Diversity (1992): “In-situ conditions” means “conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.” | |||
Intangible Cultural Heritage | According to Black’s Law Dictionary, “intangible” refers to something that lacks a physical form. “Tangible” on the other hand is defined as “having or possessing physical form; capable of being touched and seen; perceptible to the touch.”
d) knowledge and practices concerning nature and the universe; e) traditional craftsmanship. |
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Integrity | The right of integrity is the right to prevent unauthorized alterations and changes to works.77 After the 1949 Brussels Revision of the Berne Convention for the Protection of Literary and Artistic Works (1971), the prohibition of other derogatory actions in relation to the said work which would be prejudicial to the author’s honor or reputation was added (Article 6bis). | |||
Intellectual Property Guidelines for Access and Benefit-sharing | From its first session, the IGC supported a task which would lead to the development by WIPO of Intellectual Property Guidelines for Access and Benefit-sharing. It was proposed that the Guidelines be based on a systemic survey of actual and model contractual agreements in the form of the WIPO Database of Biodiversity-related Access and Benefit-sharing Agreements.78
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International Patent Classification | The International Patent Classification (IPC) is “a hierarchical system in which the whole
area of technology is divided into a range of sections, classes, subclasses and groups. The Classification is a language independent tool indispensable for the retrieval of patent documents in the search for ‘prior art’.”85
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International Treaty on Plant Genetic Resources for Food and Agriculture | The International Treaty on Plant Genetic Resources for Food and Agriculture (the ITPGRFA) was adopted by the Thirty-First Session of the Conference of the Food and Agriculture Organization of the United Nations on November 3, 2001, and entered into force in 2004. The Treaty aims at: (1) recognizing the enormous contribution of farmers to the diversity of crops that feed the world; (2) establishing a global system to provide farmers, plant breeders and scientists with access to plant genetic materials; and (3) ensuring that recipients share benefits they derive from the use of these genetic materials with the countries where they have been originated.86 | |||
Inventive step | Inventive step (also referred to as “non-obviousness”) is one of the criteria of patentability and relates to the question of whether the invention would have been obvious to a person skilled in the art.87
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Licensing agreements | Licensing agreements are described as agreements setting out certain permitted use of materials or rights that the provider is entitled to grant, such as agreements to license the use of genetic resources as research tools, or to license the use of associated traditional knowledge or other intellectual property rights.89 | |||
Limitations | “Limitation”, according to Black’s Law Dictionary, refers to the act of limiting; the quality, state, or condition of being limited, a restriction. The word “limits,” in addition to “exceptions,” refers to “boundaries” or “restrictions”.90 In order to maintain an appropriate balance between the interests of rights holders and users of protected works, copyright laws allow certain limitations on economic rights, that is, cases in which protected works may be used without the authorization of the right holder and with or without payment of compensation.91
The Berne Convention for the Protection of Literary and Artistic Works (1971) sets conditions under which authors’ rights could be limited, and free uses therefore permitted.92 A three-step-test has been devised to determine the conditions under which an act of limitation may be carried out.93 This test has been extended to Article 13 of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement), Article 10 of the WIPO Copyright Treaty (WCT), as a test for exceptions and limitations on all economic rights under copyright. Article 16 of the WIPO Performances and Phonographs Treaty (WPPT) extends it to rights of performers and producers of phonograms covered by that treaty.94 |
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Material Transfer Agreements | Material Transfer Agreements (MTAs) are agreements in commercial and academic research partnerships involving the transfer of biological materials, such as germplasm, microorganisms and cell cultures to exchange of materials from a provider to a recipient and setting conditions for access to public germplasm collections, seed banks or in situ genetic resources.95 WIPO has developed the Database of Biodiversity-related Access and Benefit-sharing Agreements containing contractual clauses related to the transfer and use of genetic resources.96 The Food and Agriculture Organization (FAO) has developed and adopted in 2006 a Standard Material Transfer Agreement (SMTA) as required for the implementation of the International Treaty on Plant Genetic Resources for Food and Agriculture (2001).97 Appendix I of the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization suggests elements for material transfer agreements. | |||
Minimum Documentation PCT | According to the WIPO PCT Glossary, the Minimum Documentation could be described
as “the documents in which the International Searching Authority must search for relevant prior art. It also applies to International Preliminary Examining Authorities for examination purposes. The documentation comprises certain published patent documents and non-patent literature contained in a list published by the International Bureau. The Minimum Documentation is set out by the PCT Regulations Rule 34.”98
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Minority | According to Black’s Law Dictionary, “minority” refers to a group that is different in some respect from the majority and that is sometimes treated differently as a result.
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Misappropriation | In the field of intellectual property, Black’s Law Dictionary defines “misappropriation” as “the common-law tort of using the non-copyrightable information or ideas that an organization collects and disseminates for a profit to compete unfairly against that organization, or copying a work whose creator has not yet claimed or been granted exclusive rights in the work. […] The elements of misappropriation are: (1) the plaintiff must have invested time, money, or effort to extract the information, (2) the defendant must have taken the information with no similar investment, and (3) the plaintiff must have suffered a competitive injury because of the taking.”
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Misuse | In the field of patents, Black’s Law Dictionary defines “misuse” as “the use of a patent either to improperly extend the granted monopoly to non-patented goods or to violate antitrust laws.” In general, Black’s Law Dictionary states: “improper use, in an unintended or unforeseeable manner.” Dictionaries generally define misuse as a wrong, incorrect or improper use, or misapplication. Misuse may also refer to improper or excessive use, or to acts which change the inherent purpose or function of something.106 | |||
Modification | A modification is a change to something (Black’s Law Dictionary). It is a synonym of alteration. Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works (1971) provides, inter alia, for a right of the author to object to any distortion, mutilation or other modification of his work which would be prejudicial to his honor or reputation. | |||
Mutilation | “Mutilation” refers to the act of cutting out or excising a part of a thing, especially a book or other document; to change or destroy part of the content or meaning, according to the Oxford English Dictionary. The protection against mutilation is one attribute of the author’s moral rights, according to Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works (1971). | |||
Mutual Respect | The United Nations Declaration on the Rights of Indigenous Peoples (2007), in its preamble, considers mutual respect as a standard of achievement to be pursued in a spirit of partnership. “Mutual” relates to two or more people, having the same feelings for each other; standing in reciprocal relation to one another (Oxford English Dictionary). | |||
Mutually Agreed Terms | Besides recognizing the authority of national governments to determine access to genetic resources, Article 15(4) of the Convention on Biological Diversity (1992) provides that “access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article”. The Executive Secretary of the Convention has noted that contracts are the most common way of recording mutually agreed terms.107 The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization indicate some basic requirements for mutually agreed terms in Articles 41 to 44.
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Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010) | A protocol was adopted in October 2010 during the tenth meeting of the Conference of the Parties (COP 10) held in Nagoya, Japan. According to Article 1, the Protocol aims to “the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components.” The Secretary-General of the United Nations is the Depositary of the Protocol and opened it for signature at the United Nations Headquarters in New York from
2 February 2011 to 1 February 2012.
Article 16 (Compliance with Domestic Legislation or Regulatory Requirements on Access and Benefit-Sharing for Traditional Knowledge Associated with Genetic Resources). |
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Nation | Black’s Law Dictionary defines “nation” as a large group of people having a common origin, language, and tradition and usually constituting a political entity. “Nationals” refers to persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in a customs territory.108 The term “nation” carries connotations of a community shaped by common descent, culture and history and often by a common language as well.109 The term “cultural communities” is intended to be broad enough to include the nationals of an entire country, a “nation”, in cases where traditional cultural expressions are regarded as “national folklore” and belonging to all of the people of a particular country. This complements and accords with the practice in other policy areas.110 | |||
Novelty | Novelty is one of the criteria of patentability in any examination as to substance. An invention is new if it is not anticipated by prior art.111
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Offensive | “Offensive” refers to the causing of displeasure, anger or resentment; repugnant to the prevailing sense of what is decent or moral (Black’s Law Dictionary). | |||
Patent | A patent is defined as “a document which describes an invention which can be manufactured, used, and sold with the authorization of the owner of the patent. An invention is a solution to a specific technical problem. A patent document normally contains at least one claim, the full text of the description of the invention, and bibliographic information such as the applicant’s name. The protection given by a patent is limited in time (generally 15 to 20 years from filing or grant). It is also limited territorially to the country or countries concerned. A patent is an agreement between an inventor and a country. The agreement permits the owner to exclude others from making, using or selling the claimed invention.”113
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Preservation | Preservation has two broad elements – first, the preservation of the living cultural and social context of traditional knowledge and cultural expressions, so that the customary framework for developing, passing on and governing access to traditional knowledge or cultural expressions is maintained; and second, the preservation of traditional knowledge and cultural expressions in a fixed form, such as when they are documented. Preservation may have the goal of assisting the survival of the traditional knowledge or cultural expressions for future generations of the original community and ensuring their continuity within an essentially traditional or customary framework, or the goal of making them available to a wider public (including scholars and researchers), in recognition of their importance as part of the collective cultural heritage of humanity.114
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Prior Informed Consent | A right or principle of “prior informed consent” (PIC) or sometimes “free, prior and informed consent” (FPIC) is referred to or implied in several international instruments, particularly in the environmental field, such as Article 6(4) of the Basel Convention on the Transboundary Movement of Hazardous Wastes, 1989, and the Convention on Biological Diversity (1992).
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Prior Art | Prior art is, in general, all the knowledge that existed prior to the relevant filing or priority date of a patent application, whether it existed by way of written and oral disclosure. In some legal instruments there is a differentiation between printed publications, oral disclosures and prior use and where the publications or disclosure occurred.118
(ii) inventions that were publicly worked in Japan or a foreign country, prior to the filing of the patent application; or (iii) inventions that were described in a distributed publication, or inventions that were made publicly available through an electric telecommunication line in Japan or a foreign country, prior to the filing of the patent application.”120 |
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Protection | “Protection” in the work of the IGC has tended to refer to protection of traditional knowledge and traditional cultural expressions against some form of unauthorized use by third parties.121 Two forms of protection have been developed and applied.
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Protocol | Protocols are legal agreements, codes of conduct, guidelines or sets of manners that explain how people should behave in certain circumstances. They can be used to set community standards around knowledge circulation and use for outsiders as well as help change attitudes and set new standards. Generally, protocols are flexible and can change over time. They may be used as tools to help achieve certain goals that other areas of law have been unable to fulfill. As formal or informal guidelines for behavior, protocols can help build relationships and make new ones possible.125 | |||
Providers and Recipients of Genetic Resources | Providers and recipients of genetic resources may include the government sector
(e.g., government ministries, government agencies (national, regional or local), including those responsible for administration of national parks and government land); commerce or industry (e.g., pharmaceutical, food and agriculture, horticulture, and cosmetics enterprises); research institutions (e.g., universities, gene banks, botanic gardens, microbial collections); custodians of genetic resources and traditional knowledge holders (e.g. associations of healers, indigenous peoples or local communities, peoples’ organizations, traditional farming communities); and others (e.g., private land owner(s), conservation group(s) etc.)126 |
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Public Domain | In general, a work is considered to be in the public domain if there is no legal restriction for its use by the public.127
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Publicly Available | The experts at the Meeting of the Group of Technical and Legal Experts on Traditional Knowledge Associated with Genetic Resources in the Context of the International Regime on Access and Benefit-Sharing discussed the terms “public domain” and “publicly available” with special reference to traditional knowledge associated with genetic resources: “The term public domain, which is used to indicate free availability, has been taken out of context and applied to [traditional knowledge] associated with genetic resources that is publicly available. The common understanding of publicly available does not mean available for free. The common understanding of public availability could mean that there is a condition to impose mutually agreed terms such as paying for access. [Traditional knowledge] has often been deemed to be in the public domain and hence freely available once it has been accessed and removed from its particular cultural context and disseminated. But it cannot be assumed that [traditional knowledge] associated with genetic resources that has been made available publicly does not belong to anyone. Within the concept of public availability, prior informed consent from a [traditional knowledge] holder that is identifiable, could still be required, as well as provisions of benefit-sharing made applicable, including when a change in use is discernible from any earlier prior informed consent provided. When a holder is not identifiable, beneficiaries could still be decided for example by the State.”130 | |||
Registers of Traditional Knowledge | Registers can be analyzed from many different perspectives. According to their legal nature, registers can be termed either declarative or constitutive, depending upon the system under which they are established.131
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Reputation | Reputation, according to Black’s Law Dictionary, refers to the esteem in which a person is held by others. Reputation appears under the umbrella of author’s moral rights protection.135 At the Brussels Revision Conference of the Berne Convention for the Protection of Literary and Artistic Works (1971), preference was given to “honor” and “reputation,” found to be more objective concepts reflecting personal interests of the author, as opposed to “moral” or “spiritual interests,” which are wider concepts. In the eventuality of harm, there is a difference between harm to the reputation and harm to the author’s moral or spiritual interests. It is not enough that the author does not like what was done to her work; the action taken must also reflect badly on her in the public eye.136 | |||
Sacred | “Sacred” refers to “any expression of traditional knowledge that symbolizes or pertains to religious and spiritual beliefs, practices or customs. It is used as the opposite of profane or secular, the extreme forms of which are commercially exploited forms of traditional knowledge.”137
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Safeguarding | The United Nations Education, Science And Culture Organization (UNESCO) Convention for the Safeguarding of the Intangible Cultural Heritage (2003) describes safeguarding measures as: “measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non formal education, as well as the revitalization of the various aspects of such heritage.” Safeguarding refers to the adoption of precautionary measures to shield certain cultural practices and ideas which are considered of value | |||
Secret | Something “secret” is something that is kept from the knowledge of others or shared only with those concerned (Black’s Law Dictionary). “Sacred-secret” traditional knowledge and cultural expressions have a secret or sacred significance according to the customary law and practices of their traditional owners.143 | |||
Source of Genetic Resources | In its proposal “Declaration of source of genetic resources and traditional knowledge in patent applications” the Delegation of Switzerland proposed to require patent applicants to declare the “source” of genetic resources and traditional knowledge. It stated that “the term ‘source’ should be understood in its broadest sense possible”, since “a multitude of entities may be involved in access and benefit-sharing. In the foreground to be declared as the source is the entity competent (1) to grant access to genetic resources and/or traditional knowledge or (2) to participate in the sharing of the benefits arising out of their utilization. Depending on the genetic resource or traditional knowledge in question, one can distinguish: primary sources, including in particular Contracting Parties providing genetic resources,144 the Multilateral System of Food and Agriculture Organization (FAO)’s International Treaty,145 indigenous and local communities146; and secondary sources, including in particular ex situ collections and scientific literature.”147 | |||
''Sui Generis'' | Black’s Law Dictionary defines “sui generis” as “[Latin “of its own kind”] of its own kind or class; unique or peculiar. The term is used in intellectual property law to describe a regime designed to protect rights that fall outside the traditional patent, trademark, copyright, and trade-secret doctrines. For example, a database may not be protected by copyright law if its content is not original, but it could be protected by a sui generis statute designed for that purpose.” A sui generis system is a system specifically designed to address the needs and concerns of a particular issue. There are already several examples of sui generis intellectual property rights such as plant breeders’ rights—as reflected in the International Convention on the Protection of New Varieties of Plants, 1991 (“the UPOV Convention”)—and the intellectual property protection of integrated circuits—as reflected in the Treaty on Intellectual Property in respect of Integrated Circuits, 1989 (“The Washington Treaty”), among others. The Panama Law No. 20 of
26 June 2000 on the Special Intellectual Property Regime with Respect to the Collective Rights of Indigenous Peoples to the Protection and Defense of their Cultural Identity and Traditional Knowledge is a sui generis regime. |
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Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore | A protocol was adopted by member states of the African Regional Intellectual Property Organization (ARIPO) in August 2010 during the Diplomatic Conference held in Swakopmund, Namibia. According to Article 1.1, this Protocol aims: “(a) to protect traditional knowledge holders against any infringement of their rights as recognized by this Protocol; and (b) to protect expressions of folklore against misappropriation, misuse and unlawful exploitation beyond their traditional context”. The Protocol entered into force on May 11, 2015 when six Member States of the ARIPO either deposited instruments of ratification or instruments of accession. | |||
Tangible Expressions | “Tangible” refers to an expression capable of being touched and seen; perceptible to the touch; capable of being possessed or realized. It is opposed to “intangible” which refers to something that lacks a physical form, not capable of being touched; impalpable (Black’s Law Dictionary).
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Traditional Context | “Traditional” means that the traditional knowledge or cultural expressions are developed according to the rules, protocols and customs of a certain community, and not that they are old. In other words, the adjective “traditional” qualifies the method of creating traditional knowledge or cultural expressions and not the knowledge or expressions themselves.150 The term “traditional” means that the knowledge or cultural expressions derive from or are based upon tradition, identify or are associated with an indigenous or traditional people, and may be practiced in traditional ways.151 “Traditional context” refers to the way of using traditional knowledge or traditional cultural expressions in their proper artistic framework based on continuous usage by the community. An example could be the use of a ritual dance in its traditional context, as referring to the performance of the said dance in the actual framework of the rite.152
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Traditional Cultural Expressions |
WIPO uses the terms “traditional cultural expressions” and “expressions of folklore” to refer to tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested. Examples include traditional music, performances, narratives, names and symbols, designs and architectural forms. The terms “traditional cultural expressions” and “expressions of folklore” are used as interchangeable synonyms, and may be referred to simply as “traditional cultural expressions,” often in its abbreviated forms “TCEs.” The use of these terms is not intended to suggest any consensus among WIPO Member States on the validity or appropriateness of these or other terms, and does not affect or limit the use of other terms in national or regional laws. |
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Traditional Cultures |
According to Black’s Law Dictionary, traditions refer to past customs and usages that influence or govern present acts or practices. Intellectual property laws draw a distinction between traditional culture (which may be referred to as traditional culture or folklore stricto sensu) and, modern, evolving cultural expressions created by current generations of society and based upon or derived from pre-existing traditional culture or folklore.154 |
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Traditional Ecological Knowledge/Traditional Environmental Knowledge | The Dene Cultural Institute defines “traditional environmental knowledge” (TEK) as “a body of knowledge and beliefs transmitted through oral tradition and first-hand observation. It includes a system of classification, a set of empirical observations about the local environment, and a system of self-management that governs resource use. Ecological aspects are closely tied to social and spiritual aspects of the knowledge system. The quantity and quality of TEK varies among community members, depending on gender, age, social status, intellectual capability, and profession (hunter, spiritual leader, healer, etc.). With its roots firmly in the past, TEK is both cumulative and dynamic, building upon the experience of earlier generations and adapting to the new technological and socioeconomic changes of the present.”155
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Traditional Knowledge | There is as yet no accepted definition of traditional knowledge (TK) at the international level.
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Traditional Knowledge Digital Library | The Traditional Knowledge Digital Library (TKDL) is a pioneer initiative of India to prevent misappropriation of country’s traditional medicinal knowledge. An inter-disciplinary team of Traditional Medicine (Ayurveda, Unani, Siddha and Yoga) experts, patent examiners, IT experts, scientists and technical officers were involved in the creation of TKDL for Indian Systems of Medicine. The TKDL project involves documentation of the traditional knowledge available in public domain in the form of existing literature related to Ayurveda, Unani, Siddha and Yoga, in digitized format in five international languages which are English, German, French, Japanese and Spanish. The TKDL provides information on traditional knowledge existing in the country, in languages and format understandable by patent examiners at International Patent Offices (IPOs), so as to prevent the grant of wrong patents.158
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Traditional Knowledge Resource Classification |
The Traditional Knowledge Resource Classification (TKRC) is an innovative structured classification system for the purpose of systematic arrangement, dissemination and retrieval which identifies about 5,000 sub–groups of traditional knowledge against one group in international patent classification (IPC).160 The TKRC has been developed for the Indian Systems of medicine (Ayurveda, Unani, Siddha and Yoga). The TKRC has gained international recognition and linked with the IPC. It is likely to facilitate greater awareness on the traditional knowledge systems by leveraging the modern system of dissemination i.e. Information Technology, in particular, the Internet and Web technologies. It is anticipated that TKRC structure and details will create interest in those countries that are concerned about prevention of grant of wrong patents for non-original discoveries relating to traditional knowledge systems.161 |
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Traditional Medicine |
WHO defines the term as “the sum total of the knowledge, skills and practices based on the theories, beliefs and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health, as well as in the prevention, diagnosis, improvement or treatment of physical and mental illnesses.”162 WHO also defines “traditional medicine” as “including diverse health practices, approaches, knowledge and beliefs incorporating plant, animal, and/or mineral based medicines, spiritual therapies, manual techniques and exercises applied singularly or in combination to maintain well-being, as well as to treat, diagnose or prevent illness.”163 |
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Tradition-Based Creations and Innovations | Traditions are a set of cultural practices and ideas, which are considered to belong to the past and which are designated a certain status. Tradition-based creations or innovations refer to innovations and creations based on traditional knowledge as such, developed and innovated beyond a traditional context.164 Traditional knowledge as such refers to “knowledge systems, creations, innovations and cultural expressions that: have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; have generally been developed in a non-systematic way; and, are constantly evolving in response to a changing environment.”165 Tradition-based innovation refers the case where tradition is a source of innovation by members of the relevant cultural community or outsiders, and can also identify others uses of tradition relevant to an intellectual property analysis.166 The “List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be Found” (WIPO/GRTKF/IC/17/INF/9) discusses traditional knowledge “as such” and traditional knowledge-based creations and innovations further.167 | |||
The Convention was adopted by United Nations Education, Science and Culture Organization (UNESCO) in 1970 to protect the cultural property existing within the territories of States against the dangers of theft, clandestine excavation, and illicit export. It entered into force in 1972.
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UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions | The United Nations Education, Science and Culture Organization (UNESCO) Convention on Cultural Diversity is an international convention adopted by UNESCO in 2005. It entered into force on March 18, 2007.
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UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage | The Convention was adopted by United Nations Education, Science and Culture Organization (UNESCO) in 2003 and entered into force on April 20, 2006. It aims at safeguarding intangible cultural heritage, at ensuring respect for the intangible cultural heritage of communities, groups and individuals, at raising awareness of the importance of intangible cultural heritage and at ensuring mutual appreciation thereof, and at providing for international cooperation and assistance. |
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Unfair Competition | Black’s Law Dictionary defines “unfair competition” as “dishonest or fraudulent rivalry in trade and commerce; esp., the practice of endeavoring to pass off one’s own goods or products in the market for those of another by means of imitating or counterfeiting the name, brand, size, shape, or other distinctive characteristic of the article or its packaging.”
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United Nations Declaration on the Rights of Indigenous Peoples | The United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples in 2007. The Declaration acknowledges the equal human rights of indigenous peoples against cultural discrimination and seeks to promote mutual respect and harmonious relations between the indigenous peoples and States.
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Universal Declaration of Human Rights | The Universal Declaration of Human Rights is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on December 10, 1948, as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected.168 | |||
Use of Traditional Cultural Expressions/Traditional Knowledge | Traditional knowledge and cultural expressions can be used for different purposes. The use of traditional knowledge or cultural expressions includes commercial or industrial use, customary use, fair use, household use and public health use of traditional medicine, and research and educational use.
b) acts done only for experimental purposes or research purposes. |
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Utilization |
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010) defines at Article 2(c) as follows: “to conduct research and development on the genetic and/or biochemical composition of genetic resources, including through the application of biotechnology as defined in Article 2 of the Convention.” |
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WIPO Traditional Knowledge Documentation Toolkit (Documenting Traditional Knowledge – A Toolkit) | Documentation programs can raise intellectual property questions for holders of traditional knowledge. Conscious consideration of intellectual property implications is particularly important during the documentation process. The WIPO Traditional Knowledge Documentation Toolkit focuses on management of intellectual property concerns during the documentation process, and also takes the documentation process as a starting point for a more beneficial management of traditional knowledge as a community’s intellectual and cultural asset.169
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WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions | The Model Provisions were adopted in 1982 by a Committee of Governmental Experts convened jointly by WIPO and United Nations Education, Science and Culture Organization (UNESCO). The provisions provide a sui generis model for intellectual property-type protection of traditional cultural expressions/expressions of folklore, which has been fairly widely used by WIPO Member States.
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Footnotes (to be converted into references (please dont remove or change the numbers)
edit1 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, Art. 5(4).
2 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their utilization, para. 23.
3 WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, WIPO, p. 264.
4 The edition used for this document is the 10th edition, by Bryan A. Garner.
5 WIPO Background Brief No. 8, Alternative Dispute Resolution for Disputes Related to Intellectual Property and Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources, available at https://www.wipo.int/publications/en/details.jsp?id=3877.
6 Recommendations for African Negotiators from the 2nd Preparatory Meeting of African Indigenous Peoples and Local Communities, UNEP/CBD/COP/10/INF/37, 14 October 2010.
7 Report of the Seventeenth Session of the Committee (WIPO/GRTKF/IC/17/12).
8 Article 3.1 of the Directive 98/44/EC of the European Parliament and of the Council of 6 July, 1998 on the legal protection of biotechnological inventions.
9 See document WIPO/GRTKF/IC/1/3, para. 16.
10 FAO Statement on Biotechnology, available at: http://www.fao.org/biotech/fao-statement-on-biotechnology/en/.
11 See definition and full list-based definition, available at: http://www.oecd.org/sti/biotechnologypolicies/statisticaldefinitionofbiotechnology.htm.
12 See Bonn Guidelines, Articles 1, 7(a) and 17 to 21.
13 See Bonn Guidelines, Articles 24 to 50 and Appendix II.
14 UNEP Glossary of Terms for Negotiators of Multilateral Environmental Agreements, page 22, available at https://www.unenvironment.org/resources/report/glossary-terms-negotiators-multilateral-environmental-agreements.
15 List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be Found (WIPO/GRTKF/IC/17/INF/9), para. 16 of Annex.
16 Ayurveda is a codified system of traditional medicine which was disclosed in writing in the Vedic period when the Aryans compiled the four Vedas (1500-1800 B.C.) with maximum references in the Rigveda and the Atharvaveda.
17 Traditional Chinese Medicine was initially codified and disclosed in writing in the Yellow Emperor’s Canon of Medicine, the first monumental classic establishing TCM. The Canon was compiled over several hundred years and appeared between 300 and 100 B.C.
18 In India the First Schedule of the Drugs and Cosmetics Act, No. 23 of 1940, as amended by the Drugs and Cosmetics (Amendment) Act No. 71 of 1986, specifies the authoritative books of the Ayurvedic, Siddha and Unani Tibb Systems. See Inventory of Existing Online Databases Containing Traditional Knowledge Documentation Data (WIPO/GRTKF/IC/3/6), para. 8. Also see Karin Timmermans and Togi Hutadjulu, The TRIPs Agreement and Pharmaceuticals: Report of an ASEAN Workshop on the TRIPs Agreement and its Impact on Pharmaceuticals, p. 45.
19 Intervention of the Delegation of Canada, Report of the Second Session (WIPO/GRTKF/IC/2/16), para. 131.
20 Terri Janke, Pathways & Protocols – A Filmmaker’s guide to Working with Indigenous People, Culture and Concepts, p. 51.
21 Draft Glossary proposed by a group of Dutch experts convened by the bureau of the Netherlands National Commission for UNESCO, TER/CH/2002/WD/4, 2002.
22 Art.4(1), UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005.
23 Art.4(3), UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005.
24 UNESCO Thesaurus, available at http://www.vocabularyserver.com/unesco/en/index.php?tema=2526&/cultural-identity.
25 ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 1989,
Art. 2(2)(b).
26 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982, Part III, para. 42.
27 Protection Rights over Traditional Knowledge: Implications of Customary Laws and Practices, Research Planning Workshop, Cusco, Peru, 20-25 May, 2005.
28Customary Law, Traditional Knowledge and Intellectual Property: An Outline of the Issues (2013) https://www.wipo.int/export/sites/www/tk/en/resources/pdf/overview_customary_law.pdf
29Paul Kuruk, “African Customary Law and the Protection of Folklore”, Copyright Bulletin, XXXVI, No.2, 2002,
p. 6, quoting, in part, Paris, 15 June 1982, Gazette du Palais, 1982.2, Summary, p. 378, or Paris, 25 April 1978, Gazette du Palais, 1978.2, p. 448.
30 Customary Law, Traditional Knowledge and Intellectual Property: An Outline of the Issues (2013) https://www.wipo.int/export/sites/www/tk/en/resources/pdf/overview_customary_law.pdf
31 See document WIPO/GRTKF/IC/2/3 p. 4 para. 2; the online database is available at: https://www.wipo.int/tk/en/databases/contracts/index.html
32 See document WIPO/GRTKF/IC/17/INF/11.
33 Art. 2(3) Berne Convention. “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.”
34 WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, WIPO.
35 Art. 2(5) Berne Convention, Art. 10(2) TRIPS Agreement, Art. 6 World Copyright Treaty.
36 See Sam Ricketson and Jane C. Ginsburg, International Copyright and Neighboring Rights—The Berne Convention and Beyond, Oxford, Vol. I., p. 485.
37 Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, 2002, Part I. 4.
38 Sam Ricketson and Jane C. Ginsburg, International Copyright and Neighboring Rights—The Berne Convention and Beyond, Oxford, Vol. I., p. 603.
39 List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be Found (WIPO/GRTKF/IC/17/INF/9), para. 4 of Annex.
40 WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, p.282.
41 Art. 10bis and 11. See also Sam Ricketson and Jane C. Ginsburg, International Copyright and Neighboring Rights—The Berne Convention and Beyond, Oxford, Vol. I., p. 614.
42 See document WO/GA/32/8, Annex, p. 32.
43 For further information see document WIPO/GRTKF/IC/16/6, Annex I, pages 7 to 11
44 WIPO Technical Study on Patent Disclosure Requirements related to Genetic Resources and Traditional Knowledge, WIPO Publication No. 786(E), p. 65. A new WIPO study on patent disclosure requirements entitled “Key Questions on Developing Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge” was released in June 2017 and is available at: http://wwws.wipo.int/publications/en/details.jsp?id=4194
45 Document WIPO/GRTKF/IC/9/13 (Alternative Proposal).
46 Document TN/C/W/52.
47 Report on the Toolkit for Managing Intellectual Property when Documenting Traditional Knowledge and Genetic Resources (WIPO/GRTKF/IC/5/5), p. 4 of Annex.
48 WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms.
49 Exceptions and Limits to Copyright and Neighboring Rights, study prepared by Pierre Sirinelli,
WCT-WPPT/IMP/1, 1999, p.2.
50 Art. 9(2).
51 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982, para. 37.
52 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982, para. 37.
53 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, Section 2.
54 WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, p. 289.
55 WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, p. 290.
56 Art.2(2).
57 Terri Janke, “Unauthorized Reproduction of Rock Art”, in Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions, WIPO, 2003.
58 Report of the Seventeenth Session of the Committee (WIPO/GRTKF/IC/17/12), para. 50.
59 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982, Part I, para. 5-7.
60 WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, p. 290.
61 Art. 5(2) Berne Convention, Art. 9(1) TRIPS Agreement, Art. 25(10) WIPO Copyright Treaty and Art. 20 WIPO Performances and Phonograms Treaty. See WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, p. 291.
62 Document UNEP/CBD/WG-ABS/9/INF/1 (The Concept of “Genetic Resources” in the Convention on Biological Diversity and how it relates to a functional international regime on access and benefit-sharing”), p. 8.
63 Standard-Setting: Future Priorities for Standard-Setting Activities, Review of the draft principles and guidelines on the heritage of indigenous peoples, Working paper submitted by Yozo Yokota and the Saami Council, E/CN.4/Sub.2/AC.4/2006/5, 16 June 2006.
64 WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) “Intellectual Property Needs and Expectations of Traditional Knowledge”, p. 26.
65 List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be Found (WIPO/GRTKF/IC/17/INF/9), paras. 43 and 44 of Annex.
66 “The Concept of Local Communities”, Background paper prepared by the Secretariat of the Permanent Forum on Indigenous Issues for the Expert Workshop on the Disaggregation of Data (PFII/2004/WS.1/3/Add.1). See also UNEP/CBD/WS-CB/LAC/1/INF/5.
67 See CBD, Development of Elements of Sui Generis Systems for the Protection of Traditional Knowledge, Innovations and Practices, UNEP/CBD/WG8J/4/INF/18, p.5.
68 WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) “Intellectual Property Needs and Expectations of Traditional Knowledge”, p.23. See also List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be Found (WIPO/GRTKF/IC/17/INF/9), para. 41 of Annex.
69 Article 1, ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries.
70 UNEP Glossary of Terms for Negotiators of Multilateral Environmental Agreements, page 49, available at http://wedocs.unep.org/handle/20.500.11822/7569
71 See Operational Policy 4.10 on Indigenous Peoples, World Bank 2005; John Henriksen: Key Principles in Implementing ILO Convention No. 169, 2008.
72 [This footnote is part of the definition] International Labour Organization Convention 169 on Indigenous and Tribal Peoples (1989), United Nations Declaration on the Rights of Indigenous Peoples (2007), UNDG Guidelines on Indigenous Peoples’ Issues (2008); United Nations Permanent Forum on Indigenous Issues (under the Economic and Social Affairs Department), Inter-Agency Support Group on Indigenous Issues, and United Nations Second International Decade of the World’s Indigenous Peoples plan of action (see Annex I). The same criteria are used by the FAO in its policy on indigenous and tribal peoples (Available at http://www.fao.org/docrep/013/i1857e/i1857e00.pdf)
73 Available at http://www.ifad.org/english/indigenous/documents/ip_policy_e.pdf.
74 Available at http://www.undp.org/content/undp/en/home/librarypage/environment-energy/local_development/undp-and-indigenous-peoples-a-policy-of-engagement.html
75 United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities and its Study of the Problem of Discrimination against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986/7/Add.4., para 379 (1986).
76 WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, p. 293.
77 Sam Ricketson and Jane C. Ginsburg, International Copyright and Neighboring Rights—The Berne Convention and Beyond, Oxford, Vol. I., p.602.
78 See document WIPO/GRTKF/IC/2/3, para. 133.
79 See document WIPO/GRTKF/IC/7/9 (Genetic Resources: Draft Intellectual Property Guidelines for Access and Equitable Benefit-sharing).
80 See operational principles in document WIPO/GRTKF/IC/2/3, Section V.B, p. 50.
81 See document WIPO/GRTKF/IC/17/INF/12 (Genetic Resources: Draft Intellectual Property Guidelines for Access and Equitable Benefit-sharing: Updated version).
82Id.
83Id, page 4 of Annex.
84 See document WIPO/GRTKF/IC/17/INF/12.
85 WIPO PATENTSCOPE Glossary.
86 Article 1 of the ITPGRFA.
87WIPO Intellectual Property Handbook, WIPO Publication No. 489 (E), 2008, p. 20.
88 See Section 35 U.S.C. 103 available at: https://www.uspto.gov/web/offices/pac/mpep/s2158.html
89 See document WIPO/GRTKF/IC/17/INF/12.
90 “Exceptions and Limits to Copyright and Neighboring Rights,” study prepared by Pierre Sirinelli,
WCT-WPPT/IMP/1, p. 2.
91 WIPO Copyright and Related Rights website, https://www.wipo.int/copyright/en/limitations/index.html.
92 Art. 10(1).
93 Art. 9(2).
94 WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, p. 313.
95 See document WIPO/GRTKF/IC/17/INF/12.
96 Available at: https://www.wipo.int/tk/en/databases/contracts/index.html
97 Available at: http://www.fao.org/3/a-be623e.pdf
98 Available at: https://www.wipo.int/pct/en/texts/glossary.html#M
99 Para IX-2.1, PCT International Search Guidelines (as in force from 18 September 1998).
100 PCT Minimum Documentation, document PCT/MIA/9/4.
101 Francesco Capotorti, Former Special Rapporteur of the United Nations, 1979, cited by Dieter Kugelmann,
The Protection of Minorities and Indigenous Peoples Respective Cultural Diversity, A. Von Bogdandy and
R. Wolffrum, (eds), Max Planck Year Book of United Nations Law, Vol. 11, 2007, p. 237.
102 Art.2 (1) Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by General Assembly Resolution 47/135 of December 1992.
103 Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, Art.1(1).
104 Art. 27 International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force
23 March 1976.
105 “A Legal Framework for the Protection of Traditional Knowledge in Sri Lanka,” Working Document-Version 01- January 2009.
106 It was proposed to add the term “misuse” in the text of “The Protection of Traditional Knowledge: Revised Objectives and Principles” (WIPO/GRTKF/IC/18/5) by some Delegations, such as the Delegation of Indonesia and the Delegation of Mexico. However, the Delegation of Australia noted that misuse was a term that was used in the context of the Convention on Biological Diversity within the draft negotiating text for an international regime on access and benefit sharing of genetic resources and associated traditional knowledge. It was used to refer to acts that were contrary to mutually agreed terms, while misappropriation referred specifically to acquisition without prior informed consent. It called for further discussion as to the meaning of these terms in the context of the Committee and in relation to intellectual property rather than access to traditional knowledge associated with genetic resources.
107 See document UNEP/CBD/COP/4/22, para. 32
108 Daniel Gervais, The TRIPS Agreement. Drafting and Analysis, 3rd Edition, Sweet & Maxwell, p. 161.
109 Dieter Kugelmann, The Protection of Minorities and Indigenous Peoples Respective Cultural Diversity, A. Von Bogdandy and R. Wolffrum, (eds), Max Planck Year Book of United Nations Law, Vol. 11, 2007, p. 235.
110 Glossary on Intangible Cultural Heritage, Netherlands National Commission for UNESCO, 2002 (“... A nation can be a cultural community”), as quoted in “The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles”, WIPO/GRTKF/IC/17/4.
111 WIPO Intellectual Property Handbook, WIPO Publication No. 489 (E), 2008, p. 19.
112 See Section 35 U.S.C. 102, available at: https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l.html#al_d1fbe1_19797_b0. It is referred to Section 35 U.S.C. 151 – Issue of patent, which is available at: https://www.gpo.gov/fdsys/pkg/USCODE-2011-title35/pdf/USCODE-2011-title35-partII-chap14-sec151.pdf and to Section 35 U.S.C. 122(b) – Confidential status of applications; publication of patent applications, which is available at: https://www.gpo.gov/fdsys/pkg/USCODE-2011-title35/pdf/USCODE-2011-title35-partII-chap11-sec122.pdf.
113 WIPO PATENTSCOPE Glossary.
114 Overview of Activities and Outcomes of the Intergovernmental Committee (WIPO/GRTKF/IC/5/12),
para. 37.
115 The Protection of Traditional Knowledge: Updated Draft Gap Analysis: Revision, WIPO/GRTKF/IC/38/6, Annex I, p. 6.
116 Art.32(2), United Nations Declaration on the Rights of Indigenous Peoples; See also United Nations Development Group, Guidelines Related to Indigenous Peoples.
117 Stephen Allen and Alexandra Xanthaki, “Reflections on the UN Declaration on the Rights of Indigenous Peoples”, Oxford and Portland, Oregon, p.49. See also “United Nations Economic and Social Council Permanent Forum on Indigenous Issues”, Fourth Session, and “Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples”, E/C.19/2005/3. p.8.
118 WIPO Intellectual Property Handbook, WIPO Publication No. 489 (E), 2008, p. 19.
119 See Section 35 U.S.C. 102, available at: https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l.html#al_d1fbe1_19797_b0. It is referred to Section 35 U.S.C. 151 – Issue of patent, which is available at: https://www.gpo.gov/fdsys/pkg/USCODE-2011-title35/pdf/USCODE-2011-title35-partII-chap14-sec151.pdf and to Section 35 U.S.C. 122(b) – Confidential status of applications; publication of patent applications, which is available at: https://www.gpo.gov/fdsys/pkg/USCODE-2011-title35/pdf/USCODE-2011-title35-partII-chap11-sec122.pdf.
120 See Japanese Patent Law available at: https://www.wipo.int/wipolex/en/details.jsp?id=16061.
121 Overview of Activities and Outcomes of the Intergovernmental Committee (WIPO/GRTKF/IC/5/12),
para. 20.
122 Id, paras. 21 and 22.
123 Id, para. 21.
124 Id, para. 28.
125 Jane Anderson, “Indigenous Knowledge/Traditional Knowledge and Intellectual Property,” Issues Paper, Centre for the Public Domain, Duke University, 2011, available at http://www.law.duke.edu/cspd/itkpaper.
126 See document WIPO/GRTKF/17/INF/12.
127 See document SCP/13/5.
128 WIPO Guide to the Copyright and Related Rights Treaties by WIPO and Glossary of Copyright and Related Rights Terms.
129 See document SCP/13/5.
130 See UNEP/CBD/WG-ABS/8/2, Report of the Meeting of the Group of Technical and Legal Experts on Traditional Knowledge Associated with Genetic Resources in the Context of the International Regime on Access and Benefit-Sharing.
131 The Role of Registers & Databases in the Protection of Traditional Knowledge: A Comparative Analysis. UNU-IAS Report, January 2004, p. 32.
132 Id.
133 Id.
134 Article 16 of Law N° 27811, Law Introducing a Protection Regime for the Collective Knowledge of Indigenous Peoples Derived from Biological Resources. The law is available at https://www.wipo.int/wipolex/en/details.jsp?id=3420.
135 Art. 6bis of the Berne Convention.
136 Sam Ricketson and Jane C. Ginsburg, International Copyright and Neighboring Rights—The Berne Convention and Beyond, Oxford, Vol. I., p. 606.
137 Daniel J. Gervais, Spiritual but not Intellectual: the Protection of Sacred Intangible Traditional Knowledge, 11 Cardozo J. Int’l & Comp. L. 467, 469-490 (2003).
138 Gupta, A., “Rewarding Traditional Knowledge and Contemporary Grassroots Creativity: The Role of Intellectual Property Protection”, on file with the Secretariat.
139 See WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) “Intellectual Property Needs and Expectations of Traditional Knowledge”, p. 171, available at https://www.wipo.int/tk/en/tk/ffm/report/index.html.
140 Statement by the Delegation of New Zealand during the eleventh session of the Committee. See Adopted Report of the Eleventh Session (WIPO/GRTKF/IC/11/15), paragraph 220.
141 Statement by the Delegation of Japan during the eleventh session of the Committee. See Adopted Report of the Eleventh Session (WIPO/GRTKF/IC/11/15), paragraph 296.
142 The Protection of Traditional Knowledge: Draft Gap Analysis: Revision (WIPO/GRTKF/IC/13/5(b) Rev.),
p. 23 of Annex I, pages 11 and 16 of Annex II.
143 Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, 2002, Part I (4).
144 See Articles 15, 16 and 19 of the CBD.
145 See Articles 10-13 of the ITPGRFA.
146 See Article 8(j) of the CBD.
147 See document WIPO/GRTKF/IC/11/10.
148 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982,, Part III.
149 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982, Sect.2(iv).
150 Nino Pires de Carvalho, From the Shaman’s Hut to the Patent Office: A Road Under Construction, Biodiversity and the Law, p. 244.
151 Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/5/3, para. 53.
152 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982, Part III. 42.
153 Elements of a Sui Generis System for the Protection of Traditional Knowledge (WIPO/GRTKF/IC/4/8), para. 27.
154 Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/5/3,
para. 54.
155 Also see Marc G. Stevenson. “Indigenous Knowledge in Environmental Assessments”, 49 ARCTIC 278 (1996), p. 281.
156 Fikret Berkes, Traditional Ecological Knowledge in Perspective. Traditional Ecological Knowledge: Concepts and Cases. International Program on Traditional Ecological Knowledge and International Development Research Centre, Ottawa.
157 See WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) “Intellectual Property Needs and Expectations of Traditional Knowledge”, at p. 25, available at https://www.wipo.int/publications/en/details.jsp?id=283&plang=EN.
158 More information is available at http://www.tkdl.res.in/tkdl/langdefault/common/Abouttkdl.asp?GL=Eng
159 The Role of Registers & Databases in the Protection of Traditional Knowledge: A Comparative Analysis. UNU-IAS Report, January 2004, p. 18.
160 Id.
161 More information is available at http://www.tkdl.res.in/tkdl/langdefault/common/TKRC.asp?GL=Eng
162 WHO General Guidelines for Methodologies on Research and Evaluation of Traditional Medicine (WHO/EDM/TRM/2000.1), p. 1.
163 WHO Traditional Medicine Strategy 2002-2005, p. 7.
164 See Articles 10-13 of the ITPGRFA.
165 See WIPO Document WIPO/GRTKF/IC/3/9.
166 Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/5/3,
para. 57.
167 Daniel Gervais, The TRIPS Agreement. Drafting and Analysis, 3rd Edition, Sweet & Maxwell, p. 132.
168 See http://www.un.org/en/universal-declaration-human-rights/
169 WIPO Documenting Traditional Knowledge – A Toolkit is available at: https://www.wipo.int/publications/en/details.jsp?id=4235.