Reclarification of TRIPS to include sui generis protection for TK spills over into international protection

Traditional Knowledge (TK) plays an important role in the world economy because a wide range of medicinal plants, herbal formulations, and products based on agriculture, forestry, arts and crafts are traded internationally and have considerable economic value. TK is also used as an input into modern industries such as biopharmaceuticals, cosmetics, dyes, pigments, chemicals, textiles, design, pesticides, farming and agro-industries, to mention a few. A large proportion of this value added is captured by companies leveraging their scientific and technological capabilities through trade using worldwide marketing networks. An international consensus on the scope of IPR protection for TK remains elusive. Criteria for coverage and the terms of protection for TK are neither free from controversy, nor imminent. Thus, there is a need to examine the feasibility of ‘sui generis’ 2 protection of traditional knowledge. This is explicitly acknowledged in paragraph 19 of the Doha Ministerial Declaration as one of the important issues to be discussed by the TRIPS Council during the current round of WTO negotiations. If TRIPS is clarified or revised and supplemented to cater to protection of traditional knowledge, or if the WIPO Inter Governmental Committee on traditional knowledge, genetic resources (GR) and folklore, with its renewed mandate of September 2003, succeeds in securing commitments towards an international treaty, a way forward may be established for international consensus on protecting, developing and trading in traditional knowledge. Meanwhile, a number of countries including Brazil, China, India, Panama, Peru, Philippines, Portugal and the African Union countries have taken steps towards the design and development of national ‘sui generis’ protection systems for traditional knowledge.