Protecting intellectual property rights regarding genetic resources, traditional knowledge, and expressions of traditional culture

In the modern age of scientific and technological advancement, protecting intellectual property rights has become one of the crucial issues, especially when it concerns genetic resources, traditional knowledge, and expressions of traditional culture.

These resources are not only valuable heritage of humanity but also a solid foundation for the sustainable development of society and mankind. However, in today’s world, with the proliferation of technology and rapid changes, protecting and maintaining these resources pose numerous challenges to the international community.

This necessitates timely attention and action from both legal frameworks and the international community to ensure that intellectual property rights are protected fairly and effectively, while respecting and safeguarding the cultural diversity of humanity. In this context, discussions on protecting intellectual property rights regarding genetic resources, traditional knowledge, and expressions of traditional culture become urgent and meaningful.

The following information is based on the WIPO platform (World Intellectual Property Organization):

Genetic resources, traditional knowledge, and expressions of traditional culture

Many indigenous peoples, local communities, and governments seek intellectual property (IP) protection for traditional knowledge (TK) and expressions of traditional culture (TCE) as intangible assets. These assets may include traditional medicine and environmental knowledge, as well as arts, symbols, and music.

Such genetic resources (GR) are not patented, but creations based on them may be patentable. The widespread use and digital transformation of GR and their technologies for innovation in scientific life generate a need for a comprehensive, unique approach to the interface between IP and GR.

Genetic resources

Genetic and other biological resources have been the sole object of intellectual property protection since the intellectual property system began to protect innovation in modern scientific life, starting from the mid-1970s. Examples include microorganisms, plant varieties, animal breeds, genetic sequences, information on nucleotide and amino acid sequences, traits, molecular events, plasmids, and vectors.

GR and innovation in scientific life are related and span across several branches of IP law and practice, including patents, trade secrets, copyrights, technology protection measures, as well as other legal domains. Therefore, IP issues related to GR need to be addressed in a customized, comprehensive, and practical manner.

When considering IP issues related to GR, WIPO’s work complements the approach and benefits-sharing mechanisms provided by the Convention on Biological Diversity (CBD) and the Nagoya Protocol, the International Treaty on Plant Genetic Resources for Food and Agriculture of the Food and Agriculture Organization (FAO), the Framework for the Pandemic Influenza Preparedness (PIP) of the World Health Organization, and other specialized benefit-sharing frameworks.

Traditional Knowledge

Traditional knowledge (TK) is the knowledge, wisdom, skills, and practices developed, maintained, and transmitted from one generation to another within a community, often as part of its cultural or spiritual identity.

Although there is still no official international definition of TK, it can be said that TK, in a general sense, includes the content of its own knowledge as well as expressions of traditional culture, including distinctive signs and symbols related to TK.

In a narrower sense, TK refers to the knowledge itself, especially knowledge derived from intellectual activities in a traditional context, and includes secrets, practices, skills, and innovations. Traditional knowledge can be found in various contexts, including agricultural knowledge, science, technology, ecology, and medicine, as well as knowledge related to biological diversity.

Traditional Knowledge and Intellectual Property

Innovations based on TK may benefit from protection through patents, trademarks, and geographical indications, or may be protected as trade secrets or confidential information. However, such traditional knowledge – knowledge that originates from classical sources and is often oral – is not protected by traditional intellectual property (IP) systems.

Although policy issues related to TK are extensive and diverse, IP issues are divided into two main themes:

Defensive Protection

Defensive protection refers to a range of strategies to ensure that third parties do not obtain incorrect or unjustified intellectual property rights over TK. These measures include modifying patent systems managed by WIPO (the international patent classification system and the Minimum Patent Cooperation Declaration).

Some countries and communities are also developing TK databases that can be used as evidence of prior art to defeat a patent claim over that TK. WIPO has developed a toolkit to provide practical support to TK holders in documenting TK.

Positive Protection Methods

Two aspects of positive protection of TK through intellectual property rights are being explored:

Preventing unauthorized use, and Encouraging the use of TK by the source community. Negotiations for an international legal instrument are underway in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore.

In some countries, specific sui generis legislation has been developed to address the positive protection of TK. In addition, providers and users may also enter into contractual agreements and/or utilize existing IP protection systems.

Expressions of Traditional Culture

Expressions of traditional culture (TCE), also known as “Folklore,” may include music, dance, art, design, names, symbols, performances, rituals, architectural forms, handicrafts, and storytelling, or many other artistic or cultural expressions.

Expressions of traditional culture:

• Can be seen as forms in which traditional culture is manifested;
• Are part of the identity and heritage of a traditional or indigenous community;
• Are transmitted from one generation to another.

TCE is an integral part of the cultural and social identity of indigenous and local communities, representing knowledge and skills, and conveying core values and beliefs. Protecting them involves promoting creativity, enhancing cultural diversity, and preserving cultural heritage.

Expressions of traditional culture and intellectual property

For many communities, TCE, traditional knowledge, and related genetic resources are part of an integrated heritage. However, as TCE raises specific legal and policy questions in the field of intellectual property (IP), they receive separate attention in many national and regional IP laws as well as in WIPO’s work.

TCE can sometimes be protected by existing systems, such as copyright and related rights, geographical indications, origin indications, and trademarks. For example, contemporary variations of folklore may be copyright protected, while performances of traditional songs and music may fall under WIPO’s Performances and Phonograms Treaty and the Beijing Treaty on Audiovisual Performances.

Trademarks can be used to identify indigenous art, as done by the Maori Arts Society in New Zealand, Te Waka Toi. Some countries also have specific laws to protect folklore. The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore is negotiating international legal protection for TCE.

(Information from WIPO)

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