Traditional Knowledge and State Compliance

2020 ◽  
pp. 239-264
Author(s):  
Claudia Masoni
Keyword(s):  
International Economic ◽  
New Zealand ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Biological Diversity ◽  
Convention On Biological Diversity ◽  
Property Law ◽  
Biological Resources ◽  
State Compliance

The chapter analyses Indigenous traditional knowledge and traditional ecologic knowledge in the context of international intellectual property instruments (IP). In so doing, the chapter studies the major international intellectual property law regimes such as the Agreement on Trade Related Aspects of Intellectual Property Rights and the Convention on Biological Diversity to prove that such instruments are ill suited to protect Indigenous peoples' knowledge and the biological resources in their custody. The New Zealand case Wai 262 shows in detail how international economic pressures often trump any aim to create national sui generis IP instruments to safeguard Indigenous knowledge.

scholarly journals The Patentability of Maori Traditional Medicine and the Morality Exclusion in the Patents Act 1953

2001 ◽  
Vol 32 (1) ◽  
pp. 255 ◽  
Author(s):  
Susan Young
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Traditional Medicine ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Biological Diversity ◽  
Patent Law ◽  
Convention On Biological Diversity ◽  
International Obligations

Many indigenous peoples, including Maori, are offended by third parties 'appropriating' their traditional knowledge by means of intellectual property rights, such as patents. The author first surveys international debate about indigenous intellectual property rights in connection with the patenting of traditional indigenous medicine. The author examines the role of morality in New Zealand patent law and how this fits in with New Zealand's international obligations under the World Trade Organisation's TRIPs agreement and the Convention on Biological Diversity. The author examines whether the patenting of Maori traditional medicine can be prevented under the morality exclusion in the Patents Act 1953 and outlines five arguments which might be used to justify various levels of intervention in the patenting process in order to protect Maori control over their traditional knowledge.

Asian Borderlands and the Legal Protection of Traditional Knowledge and Traditional Cultural Expressions

2013 ◽  
Vol 47 (4) ◽  
pp. 1403-1433 ◽  
Author(s):  
CHRISTOPH ANTONS
Keyword(s):  
Intellectual Property ◽  
United Nations ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Legal Protection ◽  
Indigenous Communities ◽  
Cultural Property ◽  
World Intellectual Property Organization ◽  
Convention On Biological Diversity ◽  
Nuanced Understanding

AbstractTraditional knowledge related to biodiversity, agriculture, medicine and artistic expressions has recently attracted much interest amongst policy makers, legal academics and social scientists. Several United Nations organizations, such as the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity under the United Nations Environmental Programme (UNEP), have been working on international models for the protection of such knowledge held by local and indigenous communities. Relevant national, regional or provincial level legislation comes in the form of intellectual property laws and laws related to health, heritage or environmental protection. In practice, however, it has proven difficult to agree on definitions of the subject matter, to delineate local communities and territories holding the knowledge, and to clearly identify the subjects and beneficiaries of the protection. In fact, claims to ‘cultural property’ and heritage have led to conflicts and tensions between communities, regions and nations. This paper will use Southeast Asian examples and case studies to show the importance of concepts such as Zomia, ‘regions of refuge’ and mandala as well as ‘borderlands’ studies to avoid essentialized notions of communities and cultures in order to develop a nuanced understanding of the difficulties for national and international lawmaking in this field. It will also develop a few suggestions on how conflicts and tensions could be avoided or ameliorated.

Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part II

2014 ◽  
Vol 16 (1) ◽  
pp. 3-37
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Convention On Biological Diversity ◽  
Nagoya Protocol ◽  
Trade Law ◽  
International Trade Law ◽  
Traditional Cultural Expressions

Abstract In Part I of this two-part article, we explained why western assumptions built into intellectual property law make this area of law a problematic tool, as a way of protecting traditional knowledge (tk) and expressions of folklore (EoF) or traditional cultural expressions (tce) of indigenous peoples. Part II of this article aims to: 1) provide a brief review of the Convention on Biological Diversity (cbd) and the Nagoya Protocol, and examine the evolution of the intellectual property rights of indigenous peoples from the Agreement on Trade Related Aspects of Intellectual Property (trips Agreement) to the cbd to the Nagoya Protocol; and 2) examine possible core principles, inducted (rather than deduced) from actual practices already in place in the areas of patents, copyrights, and trademarks in relation to protecting tk and EoF. These explorations could allow for discussions regarding indigenous peoples, human rights and international trade law to become less adversarial.

Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part I

2013 ◽  
Vol 15 (3) ◽  
pp. 319-339 ◽  
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Property Rights ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Indigenous Peoples ◽  
Property Law ◽  
Cultural Expression ◽  
Intellectual Property Law ◽  
Traditional Cultural Expressions

Abstract This article is the first part of a two-part piece, which considers the intellectual property rights of indigenous peoples. After establishing pragmatic working definitions of who “indigenous peoples” are and what folklore (or “traditional cultural expression”) is, as compared with, but dialectically related to, “traditional knowledge,” this article does the following: 1) explains why western assumptions built into intellectual property law make this area of law a problematic tool for protecting traditional knowledge (TK) and expressions of folklore (EoF) or traditional cultural expressions (TCE) of indigenous peoples; and 2) creates a general sketch of human rights related legal instruments that could be and have been harnessed, with varying degrees of success, in the protection of the intellectual property of indigenous peoples.

scholarly journals Positive Protection: Protecting Genetic Resources Related to Traditional Knowledge in Indonesia

FIAT JUSTISIA ◽  
2018 ◽  
Vol 11 (2) ◽  
pp. 122
Author(s):  
Rohaini Rohaini ◽  
Nenny Dwi Ariani
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Genetic Resources ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Patent Law ◽  
Intellectual Property Right ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
International Pressure

Genetic Resources is a foundation of human life, as a source of food, industrial raw materials, pharmaceuticals, and medicines. From its utilization may provide a financial benefit to the provider and the user of it. Unfortunately, most of it obtained from developing countries through biopiracy, including Indonesia. Furthermore, in the early 1980s, access and benefit sharing (ABS) to genetic resources became an international issue. It leads to the adoption of the Convention on Biological Diversity (CBD) in 1992. However, since it was approved, the whole ideas of excellence of it could not be implemented, a problem on it still arises. Intellectual property right laws, in certain aspects, are possible for using to protect traditional knowledge from their utilization. However, at the same time, intellectual property regime also becomes “a tool” to legitimate of biopiracy practices. Due to massive international pressure, mostly in developing countries, it proposes two kinds of protections, which are positive protection and defensive protection. This paper will examine one of it, which is positive protection. By using the normative method and qualitative approach, this paper identified at least two kinds of positive protections that we can develop to protect genetic resources related to traditional knowledge, which are optimizing the patent law and developing the sui generis law. Furthermore, it can be done by some revision by adding new substances, an improvement on the articles, or even by doing the deletion on certain articles. Moreover, in order to develop the sui generis law, it identified several minimum elements that shall be contained on it, inter alia: the purposes of protection; scope of protection; criteria of protection; the beneficiaries of protection: the holder of traditional knowledge; the kind of rights to be granted; how the rights acquired; how to enforce it; how the rights lost or expired; and dispute resolution.  Keywords: Positive Protection, Genetic Resources, Traditional Knowledge.

scholarly journals Intellectual Property Rights (IPR) issues related to access and use of genetic resources

2019 ◽  
Vol 79 (01S) ◽  
Author(s):  
Pratibha Brahmi ◽  
Vandana Tyagi
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Genetic Resources ◽  
Intellectual Property Rights ◽  
Biological Diversity ◽  
Plant Genetic Resources ◽  
Genetic Material ◽  
Convention On Biological Diversity ◽  
Food And Agriculture ◽  
Food And Nutritional Security

Genetic Resources (GR) refer to genetic material of actual or potential value. Use of GR refers to the process of researching their beneficial properties and using them to increase scientific knowledge and understanding, or to develop commercial products. There is continuous search for newer resources to meet the future demands that arise with the emergence of new diseases, abiotic stresses, climate change, and enhanced demand for food and nutritional security. GR are exchanged and searched continuously for specific traits to improve yields and nutritional value in crops and animal genetic resources. Every nation is concerned with acquisition of diverse and superior germplasm for conservation and utilization. The rapid advancements in the fields of molecular biology, biotechnology and bioinformatics, led to the emergence of new legal, political and technological regimes regulating access to GR. Three international negotiations impacted the access to GR, these are the Convention on Biological Diversity (CBD), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as part of the Agreement establishing the World Trade Organization (WTO) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). The regulation regarding access to GR, increasing application of IPRs and the vast potential of biological wealth yet to be tapped through bio-prospecting and genetic engineering, has placed greater demands on nations to adjust to the changing scenario of GR management. Currently access to GR is under the provisions of CBD and access to GR is based on mutually agreed terms (MAT), subject to prior informed consent (PIC). In response to CBD, India enacted the Biological Diversity Act (BDA), 2002 and established the National Biodiversity Authority (NBA) in 2003. Access to PGR from India is therefore regulated by BDA, 2002. The Nagoya Protocol which entered into force from October 2014 defines the international regime within the framework of CBD to promote and safeguard the fair and equitable sharing of benefits arising from the utilization of genetic resources. The paper discusses these agreements in detail with reference to access and use of GR.

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