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«Mututal Recognition Agreements and the Protection of Traditional Knowledge by Professor Paul Kuruk1 1. Introduction The legal protection of ...»

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Issue No.38

Mututal Recognition Agreements

and the Protection of

Traditional Knowledge

by Professor Paul Kuruk1

1. Introduction

The legal protection of traditional knowledge (TK) has emerged as an issue of global importance

propelled in large part by the increased interest of biotechnology companies in the genetic resources of

developing countries. In recent years, the international community has intensified its search for effective remedial measures to counter perceived negative effects on indigenous communities arising from the widespread commercial exploitation of traditional knowledge particularly in the pharmaceutical, agriculture industries, entertainment and retail market sectors.2 Indeed, indigenous groups have been unrelenting in their complaints about inadequate compensation, loss of community rights, misrepresentation of products and practices, and the unauthorised public disclosure and use of secret knowledge, images and other sensitive information pertaining to indigenous communities.3 Significant improvements in the regulatory environment would provide indigenous groups greater control over the use of traditional knowledge and ensure access to traditional knowledge on mutually acceptable terms that respect indigenous culture. This paper provides an overview of the current international, regional and national instruments on traditional knowledge, noting that, for the most part, they incorporate domestic measures and are of limited use in tackling cases of misappropriation that have international dimensions. After a review of the principle of reciprocity as a basis for recognising foreign rights, the paper examines recent arguments at the WTO for the protection of traditional knowledge under notions of reciprocity through a revision of the TRIPs Agreement to incorporate a disclosure requirement in applications for patents derived from traditional knowledge.

Prepared for the Commonwealth Secretariat by Professor Paul Kuruk. LL.B (Hons.), University of Ghana; LL.M., Temple University School of Law; J.S.D., Stanford Law School; Professor of Law, Cumberland School of Law of Samford University; Visiting Professor, Emory Law School; Vice-Chair, Commission on Environmental Law of the World Conservation Union; Executive Director, Institute for African Development (INADEV), Accra, Ghana. The views expressed are not necessarily shared by the Commonwealth Secretariat.

Within the pharmaceutical industry, traditional people’s knowledge and experiences of the medicinal properties of plants have played a crucial role in the development of drugs. Approximately 75 per cent of pharmaceutical products derived from plants in one year were reportedly discovered through the study of their traditional medical uses. KERRY ten KATE & SARAH A. LAIRD, THE


See generally, Paul Kuruk, Protecting Folklore Under Modern Intellectual Property Regime: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States 48 AMERICAN. UNIV. L. REV. 769, 770-775 (1999).

In the final section, the paper recommends the use of mutual recognition agreements, as a special application of the reciprocity principle, to overcome some of the enforcement difficulties noted. The paper describes the use of mutual recognition agreements in trade generally and discusses their potential use as a suitable alternative in the absence of a binding international instrument for the protection of traditional knowledge. The conclusion reached in the paper is that while mutual recognition agreements do not apply to non-parties and thus will have no effect in countries that refuse to subscribe to them, the common principles such agreements reflect could form the basis for and influence quite positively the development of a future international instrument for the protection of traditional knowledge.

2. Legal Regulation of Traditional Knowledge The current regulatory framework on traditional knowledge comprises various instruments dealing with folklore, cultural heritage, biodiversity and human rights. With respect to folklore, the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the World Intellectual Property Organisation (WIPO) have prepared two international instruments as guidelines in the development of national legislation on folklore: the Tunis Model Copyright Law adopted in 1976 and the Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions adopted in 1982. In 1989, the General Conference of UNESCO adopted a Recommendation on the Safeguarding of Traditional Culture and Folklore and called upon its member countries to take the necessary legislative steps to give effect to various identification, conservation, preservation, dissemination, protection and international cooperation measures outlined therein.

Subsequently, WIPO’s Performances and Phonograms Treaty 4 of 1996 enhanced the protection of folklore by extending neighboring rights to “actors, singers, musicians, dancers, and other persons who act, sing, deliver, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.”5 In relation to cultural heritage, UNESCO’s Illicit Trade Convention of 1970 protects cultural property against illicit import, export and transfer of ownership, while the World Heritage Convention of 1972 encourages international cooperation for the protection of the cultural and natural heritage of mankind through the development of a list of properties considered to have “outstanding universal value.” More recently, UNESCO adopted the Convention for the Safeguarding of Intangible Cultural Heritage6 of 2003 to remedy a perceived marginalisation of intangible cultural heritage under the World Heritage Convention.

The Convention on Biological Diversity of 1992 (CBD) adopted under the auspices of the United Nations Environmental Program (UNEP) requires signatory countries to “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.” 7 Like the CBD, the International Treaty on Plant Genetic Resources for Food and Agriculture adopted by the Food and Agriculture Organization in November 2001 (FAO Treaty) is concerned with the conservation and sustainable use of plant genetic resources for food and agriculture and calls on signatories to support farmers and local communities’ efforts to manage and conserve on-farm their plant genetic resources.

The FAO Treaty establishes a multilateral system both to facilitate access to plant genetic resources for food and agriculture, and to share, in a fair and equitable way, the benefits arising from the utilisation of these resources.

Human rights instruments, including the 1948 Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, as well as the International Covenant on Civil and Political Rights guarantee fundamental rights relating to, among other dimensions, culture, privacy, WIPO Performances and Phonograms Treaty, 1996.

–  –  –

Convention for the Safeguarding of Intangible Cultural Heritage, 2003.

Convention on Biological Diversity, Art. 8(j).

property and self-determination. Their provisions are relevant to the claims of indigenous communities inasmuch as they recognise collective rights to property and could be used by indigenous groups to support their rights to control and dispose of their cultural resources, including plants that may be commercial interest.

Complementing these international instruments are laws and model laws developed by a number of regional organisations, including the Organisation of African Unity (now the African Union), the Andean Community and the South Pacific. For example, the South Pacific Model Law protects the rights of traditional owners in their traditional knowledge and expressions of culture and innovation, including their commercialisation, subject to prior informed consent and benefit-sharing. Similarly, under the African Model Law for the Protection of Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources (Model Law) community rights in biological resources are recognised and enforced in accordance with the oral or written norms, practices and customary law of local communities. With respect to the Andean Community, Decision 486 on a Common Intellectual Property Regime obligates member states to safeguard and respect their biological and genetic heritage, together with the traditional knowledge of their indigenous, African American, or local communities. The Decision also bars from registration as trademarks that incorporate the name of indigenous, African American, or local communities, or of such denominations, words, letters, characters, or signs as are used to distinguish their products, services or methods of processing, or that constitute an expression of their culture or practice, unless the application is filed by the community itself or with its express consent.

At the national level, traditional knowledge has been protected through a number of statutory devices.

Some countries protect traditional knowledge within their copyright legislation by simply referring to expressions of folklore as a form of copyright work but without incorporating provisions that take into account the special character of folklore. A second group of countries goes further to include in their copyright legislation provisions specifically designed for folklore. Generally, the provisions are based, to differing degrees, upon the Model Provisions and relate to, inter alia, the scope of protection, the authorisation of utilisations of expressions of folklore, sanctions, remedies and jurisdiction. A third group of countries provide protection outside the intellectual property framework, usually under cultural heritage laws. In some of these countries, expressions of folklore are protected as part of the national heritage with special emphasis on the preservation, safeguarding and promotion of folklore rather than on legal protection. Yet another group of countries provides protection using a scheme that reflects a combination of intellectual property law and cultural heritage law. For example, under Panama’s law (Special Intellectual Property Regime on Collective Rights of Indigenous Peoples for the Protection and Defense of their Cultural Identity as their Traditional Knowledge), the rights of use and commercialisation of the art, crafts and other cultural expressions based on indigenous traditions must be governed by the regulation of each indigenous community approved and registered in the National Copyright Office of the Ministry of Education.

3. The Reciprocity Principle and Traditional Knowledge A. Issues of Enforcement While the current regulatory framework improves the protection of aspects of traditional knowledge, it nevertheless contains significant enforcement problems. For example, the CBD regime is premised on access to genetic resources based on the prior informed consent of contracting parties and on mutually agreed terms. In this sense, the CBD is essentially contract based. To the extent that existing regional instruments have been designed to assist in conforming national legal regimes to the CBD, such regional instruments also mirror the access- and benefit-sharing provisions of the CBD and are therefore also contract based. Although contract-based solutions for the protection of traditional knowledge are not inherently bad, they may be of limited use in cases that have international rather than domestic dimensions.

To begin with, the best drafted contract is meaningless if the party who breaches the contract moves out the state where the contract was entered into and establishes residence in another country.

Without cooperation from the second country, courts in the first country cannot acquire jurisdiction over that party to make him account for the breach. Similar issues will arise if the party moved out of the first country to avoid paying a judgment issued against him for breach of an access- and benefit-sharing contract. Without cooperation from the second country, it will be impossible to enforce the judgment.

Furthermore, if the party in breach of the contract were to acquire in the second country intellectual property rights related to the genetic resources obtained in the first country, again, without the second country moving cooperatively to revoke the intellectual property rights, the indigenous groups in the first country who have ownership claims in the resource in general would have no adequate legal remedies. Their only option might be to travel to the second country to initiate legal action there, but that could be an expensive strategy and full of uncertainties for the indigenous groups lacking of familiarity with foreign laws.

In all these cases, TK rights holders cannot sufficiently protect their rights if the country where the party has moved does not have laws that protect traditional knowledge. Clearly, some form of international cooperation would be critical under these circumstances for an effective protection of traditional knowledge. Matters would be improved considerably if there were in place a mechanism for recognising and enforcing the rights of foreign holders.

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