Reform is possible---empirics prove IP can be adapted to fit the needs of indigenous traditional knowledge

The initial tenor of the debate was essentially critical and sceptical of the relevance and appropriateness of the IP system for traditional knowledge systems. Critics assumed the IP system to be diametrically at odds with traditional knowledge systems, and argued that it was little more than a tool of misappropriation and illicit commodification: that IP is atomistic, concerns only private individual rights, takes a narrow, culturally specific approach, and lacks applicability to intergenerational and collective forms of innovation and creativity. This critical agenda saw traditional knowledge systems as in need of protection from IP, and ruled out the search for solutions within the IP system as inherently inappropriate. The second phase — building on a richer, broad-based dialogue about the essential principles of IP law and legal mechanisms — identified positive avenues for the fulfilment of the needs and expectations of indigenous peoples and other traditional communities. The 2007 recognition, in the UN Declaration on the Rights of Indigenous Peoples, of the right of indigenous peoples to ‘maintain, control, protect and develop their intellectual property over … cultural heritage, traditional knowledge, and traditional cultural expressions’ marked a significant insight into IP within the indigenous context. Partly this development entailed making practical use of IP mechanisms to provide immediate solutions, but at a policy level this shift in emphasis saw concerns about traditional knowledge acting as a point of pressure for reform, and for resituating the system — almost literally recentring the system on a wider geographical and social base to recognise the needs and context of knowledge-holders beyond the scope of those conventionally perceived as having an interest in the IP system. The traditional knowledge perspective provided a fresh perspective for the reconsideration, reform and refocusing of the IP system. The work of the WIPO IGC, drawing on the existing array of IP principles, adapting and applying them to traditional knowledge, and developing further cognate principles, is the epitome of this second stage.

The third phase, a kind of systemic consolidation of the second stage, is characterised by traditional knowledge forming part of the concrete interests that some countries bring to the table when they debate and negotiate on a fair and equitable IP system and seek to settle the conditions of international trade. For instance, the 2008 Economic Partnership Agreement between the CARIFORUM states and the European Union (EU) included a significant section on genetic resources, traditional knowledge and folklore. The later EU-Central America association agreement also recognised the significance of these issues, and the 2011 Multiparty Trade Agreement between the EU, Colombia and Peru included more detailed provisions. In 2008, a broad coalition of developing countries and European countries proposed that as part of the WTO’s Doha Work Programme, WTO members should agree to amend the TRIPS Agreement ‘to include a mandatory requirement for the disclosure of the country providing/ source of genetic resources, and/or associated traditional knowledge … in patent applications’. While the scope and practical impact of these measures is currently uncertain (and ongoing work on the link between the TRIPS Agreement and the CBD has not yielded substantive results to date), the immediate point to observe is that developing countries are now identifying interests in this domain as one element what, to them, should comprise an overall comprehensive deal on a host of trade issues.

This recalibration of interests can be seen from at least four perspectives:

• empirical: the evidence of patent statistics and the development of new standards, metrics and classification tools recognising aspects of traditional knowledge;

• jurisprudential: the forms of innovation, ‘skill in the art’, that are recognised by the patent system, and the assumptions about innovation and creativity that lie within ostensibly ‘technical’ standards;

• the practice of trade negotiations: the emergence of traditional knowledge as a concrete strategic trade interest;

• development policy: traditional knowledge systems as a contribution to sustainable, culturally appropriate development strategies.

Empirically, patent statistics provide evidence of a sustained increase in the efforts of researchers in the developing world to capture the benefits of traditional knowledge systems that are rooted in their own countries. Without entering into analysis of the nature and impact of such research programmes and patenting activities, they do at least illustrate how some developing countries are exercising their interests in their heritage of genetic resources and traditional knowledge systems. Jurisprudentially, the concerns that drive the traditional knowledge debate have had some influence on the character of IP law. Often cited in this context are the Australian Federal Court cases in the field of copyright which gave recognition to the customary law background and cultural context of indigenous artistic creativity, and the interests of the community that stands behind a traditional artist. We see more recently a series of initiatives to build recognition of traditional knowledge and traditional creativity directly into IP law. Examples include the 2005 revision to the Patent Law of India, which explicitly excludes from patentability certain forms of traditional knowledge out of concern that they are inappropriate subject matter for patents; and the New Zealand Trade Marks Act of 2002 which gave explicit protection to Māori culture under the broader principle of avoiding offensive registration of trade marks, with the guidance of a Māori Trade Marks Advisory Committee which forms part of the registration process.