01-Jul-2024
Written by: Cynthia Zeenni
The diversity of different and unique cultures and traditions around the world is impressive. Each of these cultures embodies these traditions in various manifestations, such as daily habits, arts and crafts. Traditional knowledge (the “TK”) and traditional cultural expressions (the “TCEs”) are important cultural assets of many communities. They are also economic assets that can be traded or licensed for income generation and economic development. TK and TCEs can also serve as an inspiration to other creators and innovators.
TK refers to the collective knowledge, know-how, skills, and practices that are developed, sustained, and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. It can be found in a wide variety of contexts, including agricultural, scientific, technical, ecological, and medicinal knowledge as well as biodiversity-related knowledge.
On the other hand, TCEs also called "expressions of folklore", may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts, and narratives, or many other artistic or cultural expressions. They are integral to the cultural and social identities of indigenous and local communities, embody know-how and skills, and transmit core values and beliefs. Their protection is related to the promotion of creativity, enhanced cultural diversity and the preservation of cultural heritage.
It is, however, too often the case that TK and TCEs are vulnerable to acts of misappropriation and misuse.
However, how IP laws can help protect indigenous cultural expressions and traditional knowledge from exploitation?
We will be discussing herein (i) the role of IP rights in protecting TK and TCEs; (ii) the intersection of Intellectual Property and Traditional Knowledge; and (iii) the practices that protect TK and TCEs.
The role of IP rights in protecting TK and TCEs
The increasing risk of exploitation and misappropriation of TK and TCEs has necessitated the implementation of intellectual property rights (the “IP rights”) laws which confers exclusive property rights in order to allow the control of the commercial exploitation of traditional knowledge and cultural expressions by the creators, and establishes a moral protection of the same goods, avoiding their expropriation by third parties and preventing unfair competition.
In Qatar, for example, the State represented by the Ministry shall protect national folklore by all legal means and shall act as the author of folklore works in facing any deformation, modification, or commercial exploitation.
In general, intellectual property has been defined as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce”. The IP system protects such creations and innovations from unauthorized use, including unauthorized copying, adaptation, commercial use and communication to the public. From this definition one can find the different kinds of protection of intellectual property such as: patents for inventions; copyrights for artistic works; trademarks for symbols, names, and images; and industrial designs for unique designs. There are also other IP forms, like trade secrets and geographical indications which are also protected by the current intellectual property system. The intellectual property system (the “IPS”) exists to balance the interests of the inventor or author on one hand and the rights of the public or society on the other hand. The State through the IPS confers exclusive rights to inventors, authors, and other creators of intellectual property to provide incentives to the creators of intellectual property.
These existing laws, however, leave gaps in protection and do not fully protect TK and TCEs as the intellectual property code only protects traditional knowledge that complies with its requirements.
By developing the role of the IP in protecting TK and TCEs, we shall develop the intersection between intellectual property and TK/TCEs.
Intersection of Intellectual Property and TK/TCEs: Issues and Challenges
The intersection between TK/TCEs and conventional intellectual property is not as simple as one might think, it is very complex:
- 1st, the intellectual property system encourages novelty and innovation while TK and TCEs seeks to preserve traditions and ancient traditions and expressions;
- 2nd, the intellectual property system grants exclusive rights to individuals or organizations when there is normally no single “inventor”, “author” or “creator” and often the author or inventor of traditional knowledge and cultural expressions is unknown;
- 3rd, the goal of the intellectual property system is that the inventor must disclose that information to the public so that, upon expiration of protection, that information becomes part of the public domain. In contrast, indigenous peoples generally don't want their TK and TCEs to become part of the public domain because they want to keep exclusive ownership of it, because that's what makes them unique to them as a people;
- 4th, conventional intellectual property is generally tangible and complete so as to know the extent or coverage of protection over the work. On the other hand, TK and TCEs are generally abstract, unlimited and ever evolving; and
- 5th, conventional intellectual property is protected mainly for commercial purposes while TK and TCEs are protected primarily for preservation and not for commercial application.
It is possible to detect the contradiction between the protection of TK and TCEs and the modern legal framework of intellectual property rights. Traditional knowledge of indigenous and local communities has characteristics that make it unsuitable for protection by ordinary intellectual property rights laws. In most cases, TK and TCEs are neither attributable to one individual, nor can be dated, since they are the result of a work that is passed through generations inside a community. It is not easily protected by the current intellectual property system, which typically grants protection for a limited period to new inventions and original works by individuals and companies.
With the legal differences between the features of conventional intellectual property on one hand and traditional knowledge on the other, we shall develop the idea if intellectual property system can be used solely to protect TK and TCEs or is there any other practices to be used that protects TK and TCEs.
Practices for TK and TCEs protection
The World Intellectual Property Office (the “WIPO”) and its Traditional Knowledge Division (the “TKD”) have been leading the charge to safeguard the traditional knowledge of indigenous communities. The TKD plays a central role in forming a state agreement for traditional knowledge protection via the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the “IGC”).
WIPO not only addresses requests for aid and technical guidance concerning traditional knowledge and its country-specific applications, but also conducts awareness-raising programs across society to emphasize the importance of safeguarding and appropriately managing intellectual property rights linked to traditional knowledge. These initiatives encompass diverse tasks like managing IP aspects of cultural events, resolving intellectual property disputes tied to traditional knowledge through alternative means, and engaging indigenous groups directly via the IGC and related forums. Despite these commendable endeavors, it's evident that the current intellectual property system falls short of fully preserving traditional knowledge.
While all these efforts of the WIPO are admirable, it cannot be denied that the existing intellectual property system is unable to fully protect traditional knowledge.
According to the WIPO, traditional knowledge can be protected using the conventional intellectual property system by using two approaches:
- Positive protection which is the method by which TK and TCEs are applied for intellectual property protection using the conventional system of protection. In this approach, it is the TK and TCEs that will conform to the requirements of the conventional system. Some aspects of positive protection are being explored:
- Copyright and patent protection for contemporary creation and innovation based on TK
- Preventing unauthorized used;
- Active exploitation of TK and TCEs by the originating community itself;
- Unfair competition;
- May be protected as confidential information;
- TCEs ma be protected under copyright and related laws.
- Defensive protection which is a set of strategies to prevent third parties from gaining illegitimate or unfounded intellectual property rights over TK and TCEs. These strategies include:
- Amending WIPO-administered patent systems to make it more difficult for third parties to patent TK;
- Developing TK databases that can be used as evidence of prior art to defeat a claim to a patent on TK;
- Providing practical assistance to TK holders on documenting TK.
Defensive protection is important because it helps to ensure that TK and TCEs remain in the hands of the communities that created them. It also helps to prevent biopiracy, which is the unauthorized use of TK for commercial gain.
In conclusion, TK and TCEs are as old as the communities that created them, and they are continually developing and evolving. The challenge for the conventional intellectual property system is to adapt and keep abreast with the needs and changes of TK and TCEs. While it is true that the characteristics of TK and TCEs do not fit squarely with the requirements of intellectual property protection under the conventional system, protection under the current system is always an option while waiting for changes in legislation or policy. Thus, we encourage countries to work more on defensive protection and its development to protect TK and TCEs from exploitation.