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Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore: Twenty-Seventh Session
1.
At its Seventh Session, the Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore (‘the Committee’) agreed “that, immediately before the
commencement of the sessions of the Committee, half-day panel presentations
should be organized, chaired by a representative from a local or indigenous
community”. These panels have since been
organized for each Committee session convened since 2005.
2.
The theme of the panel at the Twenty-Seventh
Session is: “Intellectual
Property, Traditional Knowledge and Traditional Cultural Expressions: Indigenous Peoples’ 'right to maintain,
control, protect and develop their intellectual property' under Article 31 of
the United Nations Declaration on the Rights of Indigenous Peoples”
3.
The Annex contains the provisional program of
the panel.
[Annex follows]
PROVISIONAL
PROGRAM FOR THE PANEL SESSION
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Monday, March 24, 2014
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11.00 – 11.10
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Opening
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Chair – (to be
identified by the WIPO Indigenous Consultative Forum)
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11.10 – 11.40
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Mr. Pavel Sulyandziga,
President of Batani Fund and member of the United Nations Working
Group on the Issue of Human Rights and Transnational Corporations and other Business
Enterprises,
Moscow, Russia
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11.40 – 12.00
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Mrs.
Edith Bastidas, Legal Advisor of the Entidad Promotora de
Salud Indígena MALLAMAS,
Nariño, Colombia
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12.00 – 12.20
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Mr. Preston Hardison, Policy Analyst for The Tulalip
Tribes of Washington, Washington, United States of America
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12.20 – 12.40
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Mrs. Latifa Douch,
Member of Indigenous Peoples of Africa Co‑ordinating Committee (IPACC), Casablanca,
Morocco
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12.40 – 13.00
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Floor discussion
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13.00
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Closing of panel
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http://www.wipo.int/meetings/en/details.jsp?meeting_id=32089
Twenty-Seventh Session
Geneva, March 24 to April 4, 2014
GLOSSARY OF KEY TERMS
RELATED TO INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE
AND TRADITIONAL CULTURAL EXPRESSIONS
introduction
1. At its Sixteenth and Seventeenth Sessions,
held from May 3 to 7, 2010 and from December 6 to 10, 2010, respectively, the
Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore (“the IGC”) requested
the Secretariat to prepare, as information documents, three glossaries of key terms related to intellectual property and genetic resources, traditional knowledge and traditional cultural expressions[1] and to make them available to the IGC.
Property and Genetic Resources, Traditional Knowledge and Folklore (“the IGC”) requested
the Secretariat to prepare, as information documents, three glossaries of key terms related to intellectual property and genetic resources, traditional knowledge and traditional cultural expressions[1] and to make them available to the IGC.
2. At its Nineteenth Session, held from July 18
to 22, 2011, the IGC “invited the Secretariat to update the glossaries
available in documents WIPO/GRTKF/IC/19/INF/7 (‘Glossary of
Key Terms Related to Intellectual Property and Traditional Cultural Expressions’), WIPO/GRTKF/IC/19/INF/8 (‘Glossary of Key Terms Related to Intellectual Property and Traditional Knowledge’) and WIPO/GRTKF/IC/19/INF/9 (‘Glossary of Key Terms Related to Intellectual Property and Genetic Resources’), to combine them in a single document and to publish that glossary as an information document for the next session of the IGC.”[2]
Key Terms Related to Intellectual Property and Traditional Cultural Expressions’), WIPO/GRTKF/IC/19/INF/8 (‘Glossary of Key Terms Related to Intellectual Property and Traditional Knowledge’) and WIPO/GRTKF/IC/19/INF/9 (‘Glossary of Key Terms Related to Intellectual Property and Genetic Resources’), to combine them in a single document and to publish that glossary as an information document for the next session of the IGC.”[2]
3. Pursuant to that decision, and given that
some terms contained in the glossaries are related to all three themes, the
Secretariat consolidated the three glossaries into one, and updated some of the
definitions included therein, taking into account instruments and other materials
that had come into existence after the publication of the previous, individual versions
of the glossaries. In that respect, new
terms were added and defined, while other terms were eliminated for the sake of
conciseness. Some definitions were
redrafted.
4. The updated, consolidated glossary was made available as an information document
for the Twentieth, Twenty-First and Twenty-Second Sessions of the IGC, held from
February 14 to 22, 2012, from April 16 to 20, 2012, and from July 9 to 13, 2012, respectively,
as documents WIPO/GRTKF/IC/20/INF/13, WIPO/GRTKF/IC/21/INF/8, and WIPO/GRTKF/IC/22/INF/8, respectively. The revised version of the glossary was made available as information documents for the Twenty-Third, Twenty-Fourth and
Twenty-Fifth Sessions of the IGC, which took place from February 4 to 8, 2013, from
April 22 to 26, 2013, and from July 15 to 24, 2013, respectively. It is also made available for
the Twenty-Sixth Session of the IGC, which will take place from February 3 to 7, 2014. That version no longer contains any references to the texts being negotiated in the IGC, to prevent the glossary becoming outdated after each IGC session. The same version of the glossary is contained in the Annex to the present document.
for the Twentieth, Twenty-First and Twenty-Second Sessions of the IGC, held from
February 14 to 22, 2012, from April 16 to 20, 2012, and from July 9 to 13, 2012, respectively,
as documents WIPO/GRTKF/IC/20/INF/13, WIPO/GRTKF/IC/21/INF/8, and WIPO/GRTKF/IC/22/INF/8, respectively. The revised version of the glossary was made available as information documents for the Twenty-Third, Twenty-Fourth and
Twenty-Fifth Sessions of the IGC, which took place from February 4 to 8, 2013, from
April 22 to 26, 2013, and from July 15 to 24, 2013, respectively. It is also made available for
the Twenty-Sixth Session of the IGC, which will take place from February 3 to 7, 2014. That version no longer contains any references to the texts being negotiated in the IGC, to prevent the glossary becoming outdated after each IGC session. The same version of the glossary is contained in the Annex to the present document.
5. The glossary draws, as far as possible, from
previous glossaries of the IGC and from existing United Nations and other
international instruments. The document
also takes into account definitions and glossaries which can be found in
national and regional laws and draft laws, multilateral instruments, other
organizations and processes and in dictionaries. Further, definitions are based on working
documents of the IGC, other WIPO documents and documents of other work programs
of WIPO. That said, the proposed
definitions are not exhaustive. Other
terms may also be relevant to intellectual property and genetic resources,
traditional knowledge, and traditional cultural expressions and the terms
selected may also be defined in other ways.
6. The selection of key terms is based on
the terms used most frequently in the draft articles and other related
documents. The selection and proposed
definitions contained in the
Annex are without prejudice to any other glossary or definitions of key terms contained in previous documents of this IGC or in any other international, regional or national instrument or fora. The selection and proposed definitions of key terms are not intended to suggest that the selection of terms or their proposed definitions are necessarily agreed upon by participants in the IGC. This is an information document and the IGC is not requested to endorse or adopt either the selection of terms or their proposed definitions.
Annex are without prejudice to any other glossary or definitions of key terms contained in previous documents of this IGC or in any other international, regional or national instrument or fora. The selection and proposed definitions of key terms are not intended to suggest that the selection of terms or their proposed definitions are necessarily agreed upon by participants in the IGC. This is an information document and the IGC is not requested to endorse or adopt either the selection of terms or their proposed definitions.
7. The IGC is invited to take note of this document and the Annex to
it.
[Annex follows]
GLOSSARY OF KEY TERMS RELATED TO INTELLECTUAL PROPERTY AND GENETIC RESOURCES,
TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSIONS
Access and Benefit-sharing
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.” (Article 1).
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) 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.” According to Article 3, the Protocol “shall
also apply to traditional knowledge associated with genetic resources within
the scope of the Convention and to the benefits arising from the utilization of
such knowledge.”
For plant genetic resources for food and agriculture, the International Treaty on Plant Genetic
Resources for Food and Agriculture
of the Food and Agriculture Organization (FAO) requires in Article 1 the “fair
and equitable sharing of the benefits arising out of their use, in harmony with
the Convention on Biological Diversity for sustainable agriculture and food security.”
“Access” is defined in Article 1 of the Decision 391 on Access to
Genetic Resources of Andean Community (1996) as “the obtaining and use of genetic resources conserved in situ and ex situ, of their by-products and, if applicable, of their intangible
components, for purposes of research, biological prospecting, conservation,
industrial application and commercial use, among other things.”
Benefits
may include monetary and non-monetary benefits, including but not limited to
those listed in the Annex to the Nagoya
Protocol.[3] The steps involved in the process of
obtaining access to genetic resources and sharing of benefits may include
activities prior to access, research, and development conducted on the genetic
resources, as well as their commercialization and other uses, including
benefit-sharing.[4]
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.[5] 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 Dictionary[6]
provides that copyright holders have the exclusive right to prepare derivative
works, or adaptations, based on the protected work.
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.”[7]
Associated Traditional
Knowledge
The “Like-Minded Countries Contribution to the Objectives and Principles on the
Protection of Genetic Resources and Preliminary Draft Articles on the
Protection of Genetic Resources” (document WIPO/GRTKF/IC/19/11) provides the
following definition of “associated
traditional knowledge” at Article 1(2)(a):
“knowledge which is dynamic and evolving, generated in a traditional
context, collectively preserved and transmitted from generation to generation
including but is not limited to know-how, skills, innovations, practices and
learning, that subsist in genetic resources.”
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.[8]
Some national and regional laws for the protection of traditional
knowledge and traditional cultural expressions provide rights directly to
concerned peoples and communities. Many
rather vest rights in a governmental authority, often providing that proceeds
from the granting of rights to use the traditional knowledge or cultural
expressions shall be applied towards educational, sustainable development,
national heritage, social welfare or culture related programs.
Discussions on the issue have noted that the term could include
indigenous peoples, indigenous communities, local communities, traditional
communities, cultural communities, nations, individuals, groups, families, and
minorities.
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
Material
The term is defined in the European
Union Directive on the Legal Protection of Biotechnological Inventions as
“material containing genetic information and capable of reproducing itself or
being reproduced in a biological system.”[9] According to the United States Code of Federal Regulations, this term shall include
“material that is capable of self-replication either directly or indirectly.”[10] The Convention on Biological Diversity
(1992) uses the terms biological resources, genetic material and genetic
resources.
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.
Article 1 of the Decision 391 on
Access to Genetic Resources of Andean Community (1996) defines the term as
“individuals, organisms or parts of them, populations or any biotic component of
value or of real or potential use that contains a genetic resource or its
by-products.”
by-products.”
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.”[11]
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.[12]
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.
According to the
statement of the Food and Agriculture Organization (FAO) on biotechnology of
2000: “Interpreted in this broad sense, the definition of biotechnology covers
many of the tools and techniques that are commonplace in agriculture and food
production. Interpreted in a narrow sense,
which considers only the new DNA techniques, molecular biology and reproductive
technological applications, the definition covers a range of different
technologies such as gene manipulation and gene transfer, DNA typing and
cloning of plants and animals.”[13]
The term “modern biotechnology” is also defined in Article 3 of the Cartagena Protocol on Biosafety to the
Convention on Biological Diversity, adopted in 2000, as “the
application of:
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.”
The Organization for
Economic Cooperation and Development (OECD) uses a deliberately broad definition, covering all
modern biotechnology but also many traditional or borderline activities. Biotechnology is “the application of science and technology to living
organisms, as well as parts, products and models thereof, to alter living or
non-living materials for the production of knowledge, goods and services”
combined with a list of biotechnology techniques including inter
alia the terms “genetic
engineering”, “fermentation using bioreactor”, “gene therapy”, “bioinformatics” and ”nanobiotechnology”.[14]
Bonn Guidelines on Access to Genetic
Resources and Fair and Equitable Sharing of
the Benefits Arising out of their Utilization
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.[15] They cover procedural and regulatory aspects,
in particular, of prior informed consent, and identify monetary and
non-monetary forms of benefit-sharing.[16]
Clearing House Mechanism
According to a glossary used by the United Nations
Environment Program (UNEP), a Clearing House Mechanism (CHM) is a mechanism
which facilitates and simplifies exchange of information or transactions among
multiple Parties.[17] The
CHM of the Convention on Biological Diversity (1992) was established further to Article 18.3 of the
Convention. Its mission is to contribute
significantly to the implementation of the Convention through the promotion and
facilitation of technical and scientific cooperation, among Parties, other
Governments and stakeholders.[18]
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.”[19]
In the field of traditional medicine, for example, the Traditional
Medicine Team of the World Health Organization (WHO) distinguishes between
(a) codified systems of traditional
medicine, which have been disclosed in writing in ancient scriptures and are
fully in the public domain,
e.g. Ayurveda disclosed in ancient Sanskrit scriptures[20] or Traditional Chinese
Medicine (TCM) disclosed in ancient Chinese medical texts[21]; 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.[22].
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.[22].
Another distinction has been made, namely between (i) traditional
knowledge which has been codified, i.e., traditional knowledge which appears in
written form, and which is in the public domain; and (ii) traditional knowledge which is not codified
and which forms part of the oral traditions of indigenous communities.[23] The “List and Brief Technical Explanation of
Various Forms in which Traditional Knowledge may be Found”
(WIPO/GRTKF/IC/17/INF/9) discusses codified traditional knowledge and
non-codified traditional knowledge further.
Consultation
According to Black’s Law
Dictionary, consultation is the act of asking the advice or opinion of
someone.
One source indicates that
consultation refers to the process whereby people exchange views and
information. It is not just a one-way
process, but a process of sharing knowledge and opinions. Consultation means working together,
listening to what the other party has to say and acting upon it. According to some, consultation and consent
in indigenous communities are interrelated.
Through consultation, a third party user can come to understand what
requires consent and the correct people to whom to give it, and the people
giving consent can more fully understand what they are consenting to.[24]
The International Labour Organization (ILO) Convention 169 concerning Indigenous and
Tribal Peoples in Independent Countries (1989) states that consultations
should be undertaken “in good faith and in a form appropriate to the
circumstances, with the objective of achieving the agreement or consent to the
proposed measures” (Article 6(2)).
[2] Report
of the Nineteenth Session of the Committee (WIPO/GRTKF/IC/19/12).
[3] 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).
[4] Bonn
Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the
Benefits Arising out of their utilization, para. 23.
[5] WIPO Guide to the
Copyright and Related Right Treaties Administered by WIPO and Glossary of
Copyright and Related Rights Terms, WIPO, p. 264.
[6] The
edition used for this document is the 8th edition, by Bryan A. Garner.
[7] 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.
[8] Report
of the Seventeenth Session of the Committee (WIPO/GRTKF/IC/17/12).
[9] Article
2.1(a) 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.
[10] Section
1.801 of Chapter 37 of the Code of Federal Regulations (CFR) and USPTO Manual of Patent Examining
Procedure (MPEP): 2403.01.
[11] 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.
[12] See
document WIPO/GRTKF/IC/1/3, para. 16.
[13] FAO
Statement on Biotechnology, available at: http://www.fao.org/biotech/stat.asp.
[14] See
definition and full list-based definition, available at: http://www.oecd.org/sti/biotechnologypolicies/statisticaldefinitionofbiotechnology.htm.
[15] See
Bonn Guidelines, Articles 1, 7(a) and 17 to 21.
[16] See
Bonn Guidelines, Articles 24 to 50 and Appendix II.
[17] UNEP
Glossary of Terms for Negotiators of Multilateral Environmental Agreements,
page 49, available at http://www.unep.org/delc/portals/119/Glossary_terms%20_for_Negotiators_MEAs.pdf.
[18] Further information available at: http://www.cbd.int/chm/.
[19] 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.
[20] 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.
[21] 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.
[22] 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.
[23] Intervention
of the Delegation of Canada, Report of the Second Session (WIPO/GRTKF/IC/2/16),
para. 131.
[24] Terri JANKE,
Pathways & Protocols – A
Filmmaker’s guide to Working with Indigenous People, Culture and Concepts, p.
51.
