ICC Paper on Protecting Traditional Knowledge
Submission to meeting of WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore – September 19 to September 23, 2016.
Traditional knowledge (TK), which has generally been built up over generations, is part of the cultural identity of many indigenous peoples. Over the past few years, interest has grown in the protection of TK against misuse and misappropriation.
This may require a new internationally recognised intellectual property right – or an equivalent measure. ICC supports the on-going discussions at WIPO in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to find a balanced solution for the protection of TK.
As a general rule, public knowledge should be free for all. Intellectual property rights are special exceptions, specifically justified. Examples are patents, designs, copyright, plant variety rights, trade secrets and the like. Indigenous peoples have laws and customs that apply within their own communities, but these may not be recognised elsewhere. Why should they not be? In order for such rights (or some of them) to be recognised, what is needed?
In principle, there is no reason why an intellectual property right in traditional knowledge should not be accepted into the canon of intellectual property law. However, for it to work and to be widely accepted outside its traditional context, it must be consistent with international practice. A new IP right is possible – several have been devised in the past. They need not interfere with existing systems: two or more quite different IP rights may govern a single object or action. There is room for a new IP right in traditional knowledge, provided it is appropriately balanced in essential aspects.