Introduction The legal regimes that govern
The legal regimes that govern the relationship between intellectual property,
traditional knowledge, and biodiversity remain sources of significant concern in
international law. Difficulties arise in efforts to reconcile legal and policy norms at the
intersection of the three regimes. Such difficulties generally stem from the shortcomings
of globally recognized forms of intellectual property rights to accommodate the
epistemological underpinnings of traditional knowledge and biodiversity.
In considering the role of intellectual property in the search for the protection of
traditional knowledge in international law, much attention has been devoted to the
contradiction between mainstream intellectual property rights, mainly the patent regime
on the one hand, and traditional knowledge systems on the other. Indeed, the incongruity
between intellectual property rights and traditional knowledge systems is widely
acknowledged. Despite this acknowledgment, recent attention has focused on making the
intellectual property system work for indigenous peoples and local communities4 who the
international community considers custodians of biodiversity.
The shift in outlook on the role of intellectual property has coincided with the widely
accepted view that there is a need to reorient the focus of intellectual property from the
narrow purpose of providing individuals with economic incentives to “spur innovation” to
broader objectives of serving “societal interests and development-related concerns.” If the
current “globalization of [intellectual property] is going to have legitimacy,” it is held,
4 See, for example, David R. Downes, “How Intellectual Property Could Be A Tool to Protect Traditional
Knowledge” (2000) 25 Colum J Envtl L 253 at 258; Madhavi Sunder, “IP3” (2006) 59 Stanford Law
Review; Madhavi Sunder, “The Invention of Traditional Knowledge” (2006) 70 Law & Contemp Probs 97
[Sunder, “Invention”]; Coenraad J. Visser, “Making Intellectual Property Laws Work for Traditional
Knowledge” in Finger, J. M. & Philip Schuler, eds, Poor People's Knowledge: Promoting Intellectual
Property in Developing Countries (Washington: World Bank, 2004); Terri Janke, Minding Culture: Case
Studies on Intellectual Property and Traditional Cultural Expressions (Geneva: World Intellectual Property
Organization, 2003) at 36, online: <http://www.wipo.int/tk/en/studies/
cultural/mindingculture/studies/finalstudy.pdf >; Daphne Zografos, “Can Geographical Indications be a
Viable Alternative for the Protection of Traditional Cultural Expressions” in Fiona Macmillan & Kathy
Bowrey, ed, New Directions in Copyright Law (Cheltenham: Edward Elgar, 2006); Brad Sherman & Leanne
Wiseman, “Towards an Indigenous Public Domain?” in P. Bernt Hugenholtz & Lucie Guibault, eds, The
Future of the Public Domain (The Hague: Kluwer Law International, 2006).
“issues of recognition and redistribution, development and sustainability … must be
emphasized.”
This thesis provides a general insight on the international law and policy concerning
intellectual property, biodiversity, and traditional knowledge, specifically, to assess the
applicability of a special form of intellectual property – geographical indications – to
protect traditional knowledge-based agricultural products. The thesis affirms that
“creativity” in the field of traditional knowledge exists in varied forms. Intellectual
property may accommodate aspects of such “creativity” if measures to protect traditional
knowledge focus on the flexibility and diversity of the intellectual property system. A
well-designed protective system for traditional knowledge ought to serve the needs of
diverse communities who hold traditional knowledge, the diversity of different categories
of traditional knowledge, and the various ways of using the knowledge. For this reason,
the thesis hypothesises that the search for an appropriate model to protect traditional
knowledge should involve identifying different modalities, including those based on
intellectual property, to fit the nature and use of traditional knowledge in particular
contexts.
As part of its inquiry, the thesis aims to determine whether, and how, generalisations
about traditional knowledge and its relation with intellectual property obscure
opportunities for a broader role for intellectual property to meet the needs and interests of
indigenous peoples and local communities in the world. In the broad spectrum of
international regimes on intellectual property, traditional knowledge, and biodiversity, the
thesis’s scope of inquiry is limited to assessing the applicability of geographical
indications as a legal mechanism for protecting traditional knowledge-based agricultural
products. The primary goal is to examine the possibility of using geographical indications
as a legal means by which indigenous peoples and local communities in biodiversity-rich
territories may control and protect their traditional knowledge-based products to achieve
greater and effective participation in the global economy. The research investigates how
geographical indications could address some of the concerns that the noticeably alarming
exploitation of TK and its underlying biodiversity in the global economic order brings.
It is conceded from the outset that geographical indications – or any other protective
regime for that matter – cannot fully address the socio-cultural, environmental, and
economic problems that result from the lack of protection for traditional knowledge. For
this reason, the thesis hypothesizes that in relevant circumstances, properly crafted
systems of geographical indications may be utilized as part, or independently, of an
overarching modality for protecting traditional knowledge. Such a circumstance can be
found in the use of geographical indications to protect products that result from
agricultural knowledge and practice: Traditional knowledge-based agricultural products
(TKBAPs).
The following Section introduces the subject of the thesis. It presents a general
overview of intellectual property, traditional knowledge and biodiversity, and provides
insight into the interface between them. The overview serves as background for the
discussion of the relationship between the three regimes in subsequent Sections and
Chapters.
1.2 GENERAL BACKGROUND: RELATIONSHIP BETWEEN INTELLECTUAL
PROPERTY, TRADITIONAL KNOWLEDGE, AND BIODIVERSITY
1.2.1 INTELLECTUAL PROPERTY
In the words of Fisher, the term “intellectual property” refers to “a loose cluster of
legal doctrines that regulate the uses of different sorts of ideas and insignia.” Patents,
copyrights, and trademarks are conventional forms of intellectual property (IP). Most
forms of IP grant limited monopolies to persons or groups of persons credited with
“particular kinds of authorship” or innovation under certain conditions. The dominant
rationale for the protection of intellectual property rights (IPRs) in general, and patents in
particular, is “to spur innovation” by rewarding the individual through the benefits of
monopoly rights over the commercial use of the invention for a limited period.
Patents protect inventions that fulfil various criteria, central among which are the
criteria of inventiveness and novelty.12 In copyrights, authors gain rights over, among
others, their literary and artistic works. The content of the rights includes, for example, the
rights to reproduce the work and to perform it in public. In both patents and copyrights,
the rights holders acquire monopoly for a limited period. 13 Similarly, trademark law
grants right holders a monopoly over the use of marks that distinguish their goods and
services from the goods and services of others. The initial registration of trademarks for a
limited duration is, unlike patents and copyrights, renewable indefinitely.
Aside from the familiar forms outlined above, other forms of IP protection exist for
any of the following reasons: To accommodate the uniqueness of certain products; to
respond to ongoing technological changes; and to provide IP protection that is grounded
on distinct considerations. These categories of IP can be found in legislation for the
protection of geographical indications, unfair competitions, trade secrets, integrated
circuits, databases, and utility models. In almost all these categories, the owners of IP
acquire legally enforceable power to prevent other parties from using a protected content,
or to set the conditions on which other parties can use such content.
International Patent System: Towards a Historiography of the Role of Patents in Industrialization” (2003) 5
Journal of the History of International Law 403.
12 See Nuno Pires de Carvalho, The TRIPS Regime of Patent Rights (The Hague: Kluwer Law
International, 2010) at 277.
13 For example, the Agreement on Trade-Related Aspects of Intellectual Property recognizes the
term of protection for copyright holders to be “no less than 50 years from the end of the calendar year of
authorized publication, or, failing such authorized publication within 50 years from the making of the work,
50 years from the end of the calendar year of making.” The Agreement requires the protection of rights to
patents for the duration of twenty years from the filing date. See Agreement on Trade-Related Aspects of
Intellectual Property Rights, 15 April 1994, 1869 U.N.T.S. 299: 33 I.L.M. 1197[Hereinafter, “TRIPS
Agreement”] at Art. 18 & Art. 33.
1.2.1.1 Justifications for the Protection of Intellectual Property
The protection of the conventional forms of IP is justified under a wide range of
theories. IPRs defy a unified theory for a number of reasons. Distinct grounds justify
their recognition in different jurisdictions. In addition, IPRs are used in diverse areas in
rapidly emerging frontiers of knowledge. The theoretical landscape in IPRs continues to
deepen and widen as the importance attached to IP continues to rise on multiple fronts.
Extensive discussion of the theoretical and philosophical bases of IP protection is
outside the objectives of this thesis. A brief overview of the theoretical foundation of
IPRs, however, is helpful to indicate the increasing significance and value attached to
IPRs in today’s world. In general, two dominant justifications underpin the philosophical
roots of existing IP systems: Utilitarianism and natural rights/labour. An emerging
approach often used to address drawbacks in the pursuit of identifiable policy objectives
in all areas of IP comes under the label of “social planning theory.”
By far, the most common argument to justify IPRs, “at least in Anglo-American law,”
rests on utility: IPRs are protected “to induce innovation and intellectual productivity.”
According to this theory, if the law does not protect IPRs, there will not be enough
incentive to innovate, and thus, society will be without the benefits of innovation.
The utilitarian view argues that to maximize benefits to society, the lawmaker must
strike a balance between the “exclusive rights” of the individual and the interest of the
public. IP law aspires to strike a balance between the rights of the individual that provide
incentives to engage in “the creation of inventions and works of art” on the one hand, and
“the partially offsetting tendency of such rights to curtail widespread public enjoyment of
those creations,” on the other. For this reason, “exclusive rights in intellectual creations”
are limited in duration and scope, and are balanced against right holders’ economic
aspirations and power.
The utilitarian justification for IP protection has come under serious scrutiny in recent
times. First, the desire for financial gain – the major constitutive representation of
“rewards” by IPRs – does not necessarily motivate all inventions and creativity. More
importantly, accounts of significant creativity and innovation that are not necessarily
linked to IPRs undermine the incentivizing role of IPRs in stimulating innovation or
creativity.
A more likely effect of IPRs is their incentive for “commercialisation of inventions.”
The effect of IPRs in promoting the commercialisation of inventions and in maximizing
the profitability of inventions is distinguishable from, and should not be conflated with,
“the promotion of inventiveness and creativity” as presumed by the utilitarian logic. By
incentivising “commercial success” and the “profit motive” based on the logic of market
responsiveness to “invention,” therefore, the reward rationale of IPRs “shifts creative and
inventive efforts outside the priorities of the larger society.” This effect of IPRs negates
Influence Equity?” cited in David R. Downes, “How Intellectual Property Could Be a Tool to Protect
Traditional Knowledge” (2000) 25 Colum J Envtl L 253 at 260.
the utilitarian proposition that the grant of exclusive monopolies stimulates inventiveness,
and thus, “maximizes the net social welfare.”
Another theory of IP is often associated with John Locke, and is loosely derived from
the writings of Hegel and Kant; the natural rights theory. The basic premise of this theory
is that “everyone has a natural property right in his or her own ‘person’ and in the labour
of his or her body.” The natural rights theory justifies the establishment of IPRs on the
ground that a creator has projected his/her labour into his work, and, that the law should
protect this personal exertion. In short, the theory of natural rights proposes that “a person
who labours upon resources that are either unowned or ‘held in common’ has a natural
property right to the fruits of his or her efforts – and that the state has a duty to respect and
enforce that natural right.”
This theory, too, has been criticized on numerous grounds. First, the logical extension
of the basic premise of exclusive rights over one’s labour suggests exclusive ownership of
the resulting property. Realistically, the exclusivity is achieved in corporeal tangibles, but
infeasible in ideas which are currently the only proper subjects of IPRs. Second, by
situating IPRs in the domain of purely private rights rather than the government privileges
they have historically been, the theory suggests that IPRs are inherent and inalienable
natural rights of individuals. Rights over IP works are, in most cases, subjected to and
shaped by normative and regulatory processes, which are informed by socio-economic
considerations. The considerations of ordinary social policy and welfare necessitate a
number of exceptions and qualifications, such as limitations on patentable subjects,
compulsory licensing, duration of patents, and fairdealing exceptions. The inherently
private nature of rights under the rationale of labour theory would make it impossible to
provide such exceptions and qualifications to IPRs.
Social-planning theory is the latest and newest theory used to justify IP. Not yet fully
developed even in its label, this theory “is not as well known as others.” Nevertheless, the
social-planning theory is distinguished from other theories of IP by its emphasis of
desirable objectives for IP law and policy in “ought terms.” The theory aspires to rectify
various shortcomings of the mainstream theories of IP as to their pursuit of certain public
policy goals. Proponents of the social planning theory view IP as a strategic instrument
that “advances a balanced cultural and a balanced competing stakeholders’ vision… ‘in
the processes of social dialogue’.”
According to Fisher, the social planning theory proposes that “property rights in
general – and intellectual-property rights in particular – can and should be shaped so as to
help foster the achievement of a “just and attractive culture” that is, “a just and attractive
society.” Fitzgerald outlines the essence of this theory as follows:
If we live in an information based economy, culture and society, the process
of propertizing information must be seen as being inherently concerned with
the way we live, think, communicate and construct knowledge....far beyond
questions of economics to key cultural and social issues which the process of
propertizing information must now accommodate.
To some extent, the social planning theory approach coincides with
utilitarianism in its “teleological orientation” (justifying IP protection in an attempt
to maximize net social welfare). However, it differs in its willingness to “deploy
visions of a desirable society richer than the conceptions of ‘social welfare’” as set
out by proponents of the utilitarian theory. Beyond the achievement of economic
goals, therefore, the social planning theory depicts IP as a thematic context for the
recognition and promotion of cultural and social interests to achieve “economic and
cultural empowerment and disempowerment of nations and peoples.”
Despite the growing interest that the theory of social planning has garnered
among academics and IP policy experts, it has its own limitations. First, as
Oguamanam notes, the theory places “too much emphasis on the amorphous
concept of culture,” as if culture is the only ultimate goal of IP law and policy. The
theory is also criticised for its “inherently paternalistic” vision in its prescription of
what is desirable, in contrast to “the putative neutrality and objectivity” of the
dominant theories of IP.
Although these are the general theories that offer the readiest justifications for IPRs,
several other theories are also cited to justify various forms of IPRs. As discussed in later
parts of this thesis, specific theories are found in the realm of trademarks and
geographical indications, although each may, somehow, be inspired by one or another of
the overarching theories reviewed in this section.
1.2.1.2 Historical Account
The historical record is that the notion of rewarding originators of ideas for their
contributions can be traced back to the fourth century B.C. —at the time when Aristotle
and Hippodamus of Miletus debated the latter’s call for “a system of rewards to those who
discover useful things.” Indeed, evidence also suggests that individuals in ancient
societies recognize the need to protect “human thought (intellectual property) as distinct
from divine inspiration which could not be owned.”
The different forms of IP currently recognized in most jurisdictions have different
territorial and temporal origins. Although the roots of some components of IP existed in
antiquity, a fully developed systematic protection of IP through government machinery
emerged during the European Renaissance in the medieval period. Notable among the
early IP laws were the patent law of the Venetians in 1474, the Statutes of Monopolies of
1623 in England, and the Patent Act of the US in 1790. In general, the development of
copyrights and trademarks in most jurisdictions follows similar trends.
Simplicity and brevity characterize most of the IP legislation in the past. The scope of
protection they offered was limited to a simple recognition of “the rights of the inventor,”
though the subject matter of protection included mainly machines and mechanical
devices. Discoveries, principles of nature, and natural products were all excluded from
patentability.
The early forms of IP were reformed, however, with the discovery of technical
capabilities in the agricultural sector in the early twentieth century. The advent of
“specialized” and “scientific” plant breeding tools in the twentieth century’s science
laboratories led to the expansion of IPRs protection to useful plant life forms – a
phenomenon that emerged predominantly in the United States (US). The last quarter of
the twentieth century heralded the emergence of more sophisticated technological
applications of recombinant DNA and DNA sequencing procedures in commercial crop
production.
The increase in the application of biotechnology expanded the subject matter of
patents, and, consequently, increased the commercial significance of IPRs in the areas of
pharmaceutical development and agricultural production. The incorporation of IPRs
norms in international treaties has prompted multinational private actors to engage in
diverse “technological innovations” in these areas. Innovations in the agricultural sector
mostly resulted in the globalization of production practices and protocols that were,
otherwise, based on “local conditions of culture and climate.”
The rapid expansion of digital technology increased the importance and expanse of the
IPRs, ushering in an era that measures economic activities by the extent of production,
distribution, and use of knowledge and ideas: The global knowledge economy. As
instruments to “control … information and ideas,” the regulation of IPRs attracted
significant interest in multiple fronts of national and international law and policy-making
in the global knowledge economic order. The following Section provides background
information on the relationship between IPRs and traditional knowledge (TK) by
describing the nature and meaning of the global knowledge economy.
1.2.2 THE GLOBAL KNOWLEDGE ECONOMY
As the discussion on the historical evolution of IP demonstrates, the scope and subject
matter of IP protection continues to expand to accommodate a range of “inventions and
creativity” in a markedly different era of technological and scientific advancement. The
phenomenon of the global knowledge economy (GKE) best explains the dynamics of IP
in this scenario.
The term “knowledge economy” describes the system of knowledge generation and
exchange in today’s economy. In the GKE, economic activities are conducted with the
help of computer-driven digital technologies, “often with special interest in data mining
and biotechnology or biological/genetic engineering.” Intangible assets of knowledge and
information replace raw materials, labour, and capital as significant factors of production.
In short, GKE signifies “an epochal transformation” from an economic model in which the
principal source of wealth was tangible assets, to a new economic model in which “the
principal component of value creation, productivity, and economic growth is knowledge
and intellectual capabilities.”
The emergence of GKE is attributable to two major factors: The rise of knowledge
intensive economic activities, and increased globalization of norms that guide such
activities. The first factor arises from the growth of computer-driven information and
communication technology (ICT), and the emergence of advanced biotechnological
applicability in most spheres of economic activity. Combined with advancements in
biotechnology, the growth in ICT has ushered in an unprecedented ability to manipulate
biological components and organisms (plant, animal, and human genetic materials) for
research and development in the areas of medical, pharmaceutical, and agricultural
activities.
The second factor behind the emergence of the GKE relates to the rapid globalisation
of norms and practices that govern the different spheres of economic activity. Unlike the
territoriality of the past economic dynamics, the current economy is characterised by an
unprecedented pace of global integration of the norms that regulate international trade,
intellectual property, and technology
Common to the factors of knowledge intensity and globalization is the Internet
phenomenon that symbolizes the global communications revolution. Advancement in
communications has made it possible “to manipulate, store and transmit large quantities
of information” at marginal cost. This, in turn, has facilitated the pervasive application of
knowledge in all stages of economic activities, from research and development to
production, marketing and distribution in both goods and services.
The ability to generate, manage, exchange and transfer knowledge in the GKE has led
to a situation in which science-based technologies, such as biotechnologies, product and
process chemistry, and new methods for designing and producing pharmaceuticals have
become the prime movers of innovation and economic growth. It is against this backdrop
that attention was drawn to a category of knowledge that has distinctive social and
intellectual characteristics, and which exists among indigenous peoples and local
communities (ILCs), with deep historical and cultural roots: traditional knowledge (TK).
TK attracted attention in multiple forums of IP law and policy in the wake of the
increased use of biodiversity as a basis for “inventions and creativity” through
biotechnological methods. As the discussion in Chapter Two indicates, TK is intrinsically
linked to and is often embodied in biodiversity.
1.2.3 THE INCREASING ATTENTION TO TRADITIONAL KNOWLEDGE AND BIOLOGICAL
RESOURCES
Interest in TK emerged in the context of the biotechnological revolution following the
discovery of methods of DNA sequencing. As well, recombinantly producing protein
through biotechnological progress and scientific knowledge further spurred TK’s
commercial applicability on multiple fronts, mainly in the agricultural and pharmaceutical
fields. Researchers in the agricultural and pharmaceutical industry continue to utilize the
leads provided by TK to use biological resources as a basis for “endeavours in search of
cures for diseases and ways and means to enhance food security.”
The attention given to TK in international and national policy-making forums arose
from the need to prevent its misappropriation in the use of biological resources in
scientific endeavours. TK has paramount importance in the utilization and the
preservation of biological resources. The peculiar relationship TK has with biological
resources can be gleaned from the fact that the overarching international legal framework
in the field of environmental protection and biodiversity conservation – the Convention
on Biological Diversity (CBD) –– explicitly addresses the protection of TK as a means of
preserving biological resources.
The ways in which rights over intangible assets are allocated and regulated peculiarly
distinguish the key economic activities that define the GKE. Ownership of
knowledgebased assets, which lies at the heart of the GKE, is governed by IP rules that
have acquired prominence in global trade regulation over the last twenty years. IPRs lie at
the core of the GKE, and have a catalyzing role in facilitating its success. The object of
IPRs has expanded, transcending settled boundaries, in order, broadly, to regulate rights
over innovation and creativity. In the course of regulating the allocation of rights over
knowledge, however, the globally-recognized IPRs norms fail to recognize and protect the
contribution of TK. This has opened the way for rampant misappropriation, misuse and
exploitation of TK beyond its traditional context – a phenomenon known as
biopiracy.
The term “biopiracy” describes the manner in which multinational corporations from
industrialized countries “claim ownership of, free ride on or otherwise take unfair
advantage of … genetic resources and traditional knowledge.” Bengwayan defines
biopiracy as:
The manipulation of intellectual property rights by those intending to have
exclusive control over genetic resources and traditional knowledge without
giving adequate recognition or remuneration to the original possessors of
these resources.
The rise of digital technologies and, as a result, the boom in inventions in
biotechnology is a driving force in the widespread appropriation of TK in medicinal,
agricultural, and commercial use of TK and biodiversity resources. Changes in the
jurisprudence of the IPRs system, which expanded the scope and nature of the rights,
especially patent rights, play a critical role in perpetrating biopiracy.
1.2.4 THE ROLE OF INTELLECTUAL PROPERTY IN THE PROTECTION OF TRADITIONAL
KNOWLEDGE
The relationship between IPRs and TK has become apparent with realization of the
role of TK in providing leads to the utilization of biological resources through
technological advances. IPRs are “one, or even the principal” ways through which the
potential value of genetic resources is captured. They are often used to secure the
“functional utility of genetic resources” derived from TK. In this respect, the issue of TK
has brought to the IP system questions such as:
What forms of respect and recognition of TK would deal with concerns about
TK and give communities the tools they need to safeguard their interests? Is
the IP system compatible with the values and interests of traditional
communities – or does it privilege individual rights over the collective
interests of the community? Can IP bolster the cultural identity of ILCs, and
give them greater say in the management and use of their TK? Has the IP
system been used to misappropriate TK, failing to protect the interests of
ILCs? What can be done – legally, practically – to ensure that the IP system
functions better to serve the interests of traditional communities?
The major challenge to efforts to extend legal protection to TK relates to difficulties
over how to categorize TK in an appropriate protective legal regime under the IP
framework. The appropriation of TK through IPR systems usually takes the form of the
establishment of rights by external parties, the physical element of a biological resource
usually forming the basis for “invention.” A biological resource within which TK is
embedded is sometimes understood in its material sense. Biological resources are
considered objects of tangible property protection under a traditional property rights
regime and, thus, inappropriate subject matter for IPRs protection.
The material legally categorized as a “biological resource”, and thus, an object of the
traditional property regime is, however, at once, “multifaceted and polyvalent,” as it is
“perceived in dramatically different ways, and valued not merely differently but according
to altogether different value systems.” In the worldview of many ILCs, the physical
material is valued for its immediate attributes (such as a seed that serves as food to satisfy
hunger, or a leaf that delivers compositions to provide medicinal effects). More
importantly, ILCs value the resource “for its intangible information content (the seed’s
capacity to pass on the information necessary to grow a crop, or the plant’s coding for a
therapeutic protein).” Beyond its information content, the physical material of the
biological resource usually has cultural and aesthetic (and spiritual) value to most ILCs.
In this context, the resource is technically known as “biodiversity.” Biodiversity
embodies “valuable information” and cultural values, and thus, ILCs perceive it as a form
of intangible asset.
As an intangible asset, the protection of IP should ideally avail biodiversity and the TK
integrated with it. IPRs protect intangible subject matter, and being intangible,
biodiversity and its underlying knowledge systems may ordinarily be considered matters
for IP protection. However, it has become difficult to envisage IP protection for TK and
biodiversity under existing IPRs regimes. This reinforces the view that TK systems are
found in social and cultural contexts that are distinct from the kinds of subject matter that
modern IPRs are designed to protect.
1.3 SCOPE OF THE STUDY
The thematic focus of the present inquiry spans the areas of IP, TK, and biodiversity.
Other policy contexts in which the protection of TK is discussed – such as in relation to
preserving cultural heritage, and human rights – are not discussed in this thesis. While
mindful of the diversity in the categories of knowledge forms embedded within
“traditional knowledge”, the specific theme of inquiry here is limited to tangible products
of TK in agriculture, mainly knowledge in agriculture for food. In fact, many ILCs do not
distinguish between resources for food, medicine, and health; for most, foods are
medicines and vice versa. Non-agricultural products of TK are excluded from the scope of
the present inquiry.
Although the interplay of the IP regime with TK and biodiversity forms the mainstay
of this research, GIs, as related to TKBAPs, are the specific themes of inquiry. Given the
various means of protecting GIs in different jurisdictions, the analysis looks into GIs in
their varied forms. In the context of current debates in the World Trade Organization’s
Trade-Related Aspects of Intellectual Property (TRIPS) Council, however, the scope of
analysis regarding GIs is delimited to elucidating existing regulatory frameworks and to
addressing the issues on the current negotiation agenda regarding the extension of the
higher level of GIs protection to all products. The thesis does not necessarily address the
desirability of establishing a multilateral register system of GIs that is currently being
considered in the negotiations. Beyond these limitations, however, relevant issues are
addressed in assessing the applicability of GIs for protecting TKBAPs.
1.4 RESEARCH METHODOLOGY
The analysis in this thesis uses a combination of doctrinal, comparative, and
interdisciplinary methods of legal research. Given the meta-legal questions raised,
methods rooted in economic sociology and development economics are also utilized.
Doctrinal method comes in handy for elucidating the international legal framework to
protect TK, and in describing the current state of the law of GIs in international law and in
some domestic jurisdictions. This analysis involves a review of the relevant international
treaties, national legislation, policy guidelines, and jurisprudence. It encompasses legal
and institutional issues related to GIs in national and international contexts, and a
normative consideration of IP policy in general.
I adopt a comparative approach to examine existing and proposed modalities for
protecting TK and TKBAPs in various forums of international law-making. The same
approach is used to examine the protection of GIs in different legal systems, mainly, those
of the European Union (EU), the US and some developing countries.
The thesis discusses GIs with reference to the social, cultural, environmental, and
economic contexts of their adoption as tools to protect TKBAPs. The conventional
theoretical bases of IP may not provide justifications for the use of GIs to protect
TKBAPs. In general, theories in the field of IP do not account for the contributions of TK
systems to social, cultural, environmental and economic objectives. Even if few theories
do, their application may be limited in regard to GIs. This is because GIs constitute a new
breed of IP instruments to be linked to the protection of TK. Thus, the thesis moves
beyond the confines of conventional IP theories to establish sufficient and appropriate
justifications that support the recognition of GIs as proper instruments to protect
TKBAPs.
Consequently, I examine relevant theoretical literature in the fields of rural and
economic sociology, with references to development economics as well. Hence,
methodologically, this thesis falls within the framework of interdisciplinary scholarship.
My forays into sociology and economics do not arise from expertise in those fields, nor
indeed, in the social science disciplines in general. I approach the analysis as a legal
scholar interested in assessing the potential of GIs as a means to overcome the
shortcomings of the current IP regime and to protect the knowledge systems of ILCs in
the specific context of TKBAPs.
The approach is not to promote GIs as solutions to the socio-cultural, environmental,
and economic problems associated with the lack of protection for TK. The research
investigates the circumstances by which GIs may address some of the concerns that the
noticeably alarming exploitation of TK in the global economic order brings. The inquiry
adopts an instrumentalist perspective of IP to assess the role of GIs in responding to
challenges in a specific category of TK: Challenges in relation to TKBAPs.
1.5 THEORETICAL FRAMEWORK
Due to the cultural nature of TK and TKBAPs, assessing the instrumentality of GIs as
a composite modality to protect TKBAPs requires consideration within a frame of
analysis that accommodates the social and historical contexts of cultural proprietorship in
the IP framework. The thesis aspires to achieve this by expanding the existing
justifications for GIs protection to provide proper philosophical foundations for GIs-based
proprietary claims to the rights of ILCs.
The existing justification for the protection of GIs rests on an economic theory and its
utilitarian view of IP. The first strand of justification identifies with the basis for
protecting trademarks: “[T]hey are protected so as to reduce [confusion] and limit
consumers’ search costs in the marketplace.” GIs protection is also justified on “Shapiro’s
model on reputation” which is concerned with “the decision of a firm regarding the
quality of products to produce with a view to maximising profits, assuming perfect
competition but imperfect consumer information.” Secondly, therefore, GIs are protected
because they serve as incentives for businesses to produce consistently highquality goods
and services with a view to build their reputation.
Existing rationales for the protection of GIs, therefore, emphasize the economic role of
GIs’ contribution to minimize the “search costs of consumers.” They adopt a utilitarian
interpretation of benefits that accrue to owners of GIs “as incentives for product qualities
and reputation linked to a precise geographical area.” Applied to TKBAPs, the rationales
do not leave room for considering the cultural values inherent in the identification of such
products; they neglect cultural components embedded in the traditional agricultural
economy of ILCs.
Given the holistic nature of TK, GIs can and should serve as instruments of culturally
sensitive measures to satisfy the economic needs of ILCs, only if frameworks for cultural
consideration supplement the purely economic explanations currently provided for their
utility. GIs are mostly associated with “cultural heritage” in the domestic frameworks of
most countries, and they are applied to items of cultural sensitivity to most ILCs.101 Thus,
the instrumentality of GIs to protect TKBAPs should be grounded in a theory that
explains the interdependence and interaction between cultural and economic factors.
The thesis aspires to provide a framework for the recognition of the cultural
dimensions of products protected through GIs under the ambit of the social-planning
theory of IP.102 To accomplish this, the thesis explores the theories of cultural economy
and embeddedness in the context of an emerging rights-based approach to development.
The theory of cultural economy has its origin in “the sociological thought about the
relationship between economy and culture.”103 Considered as “a new epistemic approach
Aylward, “Towards a Cultural Economy Paradigm for the Australian Wine Industry” (2008) 26:4
Prometheus 373 at 379; also see Chapter 2 Section 2.4 & 2.6, below, for more on the role of culture in the
traditional agricultural production system of ILCs
101 See Chapter 5 Section 5.5.3, below, for a more detailed analysis of the rationales for GIs
protection on grounds of cultural protection. In a memo titled “Why Do Geographical Indications Matter to
Us?” for example, the EC remarked that “GIs are key to EU and developing countries cultural heritage,
traditional methods of production and natural resources.” See European Commission, “Intellectual Property:
Why Do Geographical Indications Matter to Us?” Background Note 01/04 (2003) online: <
http://ec.europa.eu/trade/issues/sectoral/intell_property/argu_en.htm>.
102 See Chapter 5 Section 5.10, below, for a more detailed analysis of the application of GIs on
grounds of “just and attractive society” under the social-planning theory perspective.
103 Often, researchers in economic sociology and cultural geography as well as scholars in the field of
economics use the term “cultural economy” interchangeably with terms representing related concepts, such
as “creative economy” and “cultural industries.”) For the use of the term in the field of geography, see A.J.
Scott, The Cultural Economy of Cities (London: Sage, 2000); Paul du Gay & Michael Pryke, eds, Cultural
Economy: Cultural Analysis and Commercial Life (London: Sage, 2002).
to the study of social relations,” the theory of cultural economy is described as “an
attempt to revalorize place through its cultural identity.” It is also described as a
theoretical reflection of “economic activities which are explicitly based on locally
embedded resources, skills and knowledge.” While combining two words that represent
arguably distinct territories (i.e. “culture” and “economy”), the term “cultural economy”
explains “the cultural construction of economic processes and patterns.” The cultural
economy theory “examines economies as they are embedded in and constructed by
cultural systems that are larger and more powerful than particular individuals and
particular historical moments.”
The theory of embeddedness has its roots in the works of Karl Polanyi, a critic of
traditional economic thought who, in his most influential book on the subject, The Great
Transformation, argues that “the human economy ... is embedded and enmeshed in
institutions, economic and non-economic. The inclusion of the noneconomic is vital.”
Theorizing on the concept of “embeddedness,” Polanyi notes, “free market capitalism
must be subject to social and environmental constraints if it is not to destroy the basis of
the economy itself.”110 Contrary to the belief among political economists that economic
and social relations are separate phenomena and that analysis of individual behaviour can
easily be based on economic terms, the theory of embeddedness holds that “the behaviour
and institutions to be analyzed are so constrained by ongoing social relations that to
construe them as independent is a grievous misunderstanding.”111
The thesis utilizes these thoughts in the context of a rights-based approach to
development. This approach challenges “market-driven orthodoxy,… [and] brings human
rights standards to bear upon the practices of international financial institutions, trade
regimes, and corporations, as well as governments.” 112 Ordinarily, the concepts of
development and human rights exist independently. Development goals used to focus on
“material conditions that allow people to benefit from economic processes,” whereas the
goals of human rights are construed as “normative constraints on power relations to
ensure human dignity and elimination of repressive and oppressive processes.”113
A human rights-based approach to development integrates the two by providing a
framework of human development “that is normatively based on international human
110
Elizabeth Barham, “Translating Terroir: The Global Challenge of French AOC Labelling” (2003) 19:2
Journal of Rural Studies 127 at 130 quoting ibid. [Barham, “Translating”]; see also Marianne Penker,
“Mapping and Measuring the Ecological Embeddedness of Food Supply Chains” (2006) 37 Geoforum
368379; Martin Hess, “‘Spatial’ Relationships? Towards A Reconceptualization of Embeddedness”(2004)
28 Progress in Human Geography 165-186.
111
Mark Granovetter, “Economic Action and Social Structure: The Problem of Embeddedness” (1985)
91American Journal of Sociology 481 at 482.
112 Aylwin et al, supra note 7 at 8.
113
See Stephen P. Marks, “Health, Development, and Human Rights” in Anna Gatti & Andrea Boggio, eds,
Health and Development: Toward a Matrix Approach (Hampshire: Palgrave Macmillan, 2008) at 120.
rights.” In 1979, the Secretary-General of the United Nations (UN) Commission on
Human Rights succinctly described the relationship between human rights and
development as follows:
[T]he central purpose of development is the realization of the potentialities of
the human person in harmony with the community; the human person is the
subject not the object of development; both material and nonmaterial needs
must be satisfied; respect for human rights is fundamental; the opportunity for
full participation must be accorded; the principles of equality and
nondiscrimination must be respected; and a degree of individual and
collective self-reliance must be achieved.
Entrenched in the policy framework of human rights norms as a matter of “general
consensus,” the rights-based approach to development continues to influence policy
dialogue and academic discourse in the development paradigm. Marks identifies seven
ways in which human rights thinking is applied to development: the holistic approach; the
rights (human rights) based approach; the social justice approach; the capabilities
approach; the right to development approach; the responsibilities approach; and the
human rights education approach. In terms of the capabilities approach under which IP
largely falls, the goal of development is to expand human capabilities.
The concept of development as capacitation gained widespread acceptance following
Amartya Sen’s work on capacities and entitlements. The idea of “enlargement of peoples’
choices” is the core definition of development in the Human Development Reports of
United Nations Development Program (UNDP). In this view, the point of development is
that, above all, it is enabling. Amartya Sen notes that “[l]ife is more than making a living,
economic development is in the end about enjoying life.”
Under the capabilities paradigm, the concept of entitlement accounts for the link
between human rights and development. Amartya Sen’s entitlement approach draws
attention to “those things that a person is in control of, or has command over, in life” to
eventually contribute to the expansion of human autonomy and choice. Thus,
development is measured based on an individual’s ability to choose and achieve a desired
lifestyle through a balancing of freedoms that range from “basic needs, such as the right
to life and health, to more expansive freedoms of movement, creative work, and
participation in social, economic, and cultural institutions.” On this reasoning,
rightsbased development requires the recognition of “rights to take part in cultural life, to
enjoy the benefits of progress in the arts and sciences, to have minority and indigenous
cultures protected, and to preserve and protect cultural heritage…”
The protection of GIs as a means of empowering ILCs to participate in the global
economy is justified in this thesis through the framework of the social planning theory of
IP. The thesis argues that the protection of TKBAPs through GIs contributes to the
achievement of “a just and attractive culture,” that is, “a just and attractive society,” by
empowering ILCs to choose their way of life in cultural participation. The establishment
of GIs rights enables ILCs to engage in the creation, development and marketing of the
results of their TK as part of exercising their cultural life and as a means of maintaining
their survival and group identity.127
Only recently has the proposition of GIs as a means of protecting TK become the
focus of literary attention. Even so, contemporary scholarship is divided on the question
whether GIs can be used as a legal framework to protect TK and TK-based resources. The
discussion in the following Section reviews this literature to identify the gap it leaves in
its consideration of the issue, and which this thesis addresses.
1.6 THE INSTRUMENTALITY OF GEOGRAPHICAL INDICATIONS IN PROTECTING
TRADITIONAL KNOWLEDGE: LITERATURE REVIEW
The inquiry as to the instrumentality of GIs for purposes of protecting TKBAPs is
conducted in this thesis in light of the current international legal framework that governs
the protection of GIs. The scope and extent of protection that GIs afford determines
whether their protection covers TK and TK-related resources. The agenda on the scope
and extent of GIs’ protection in current discussion and in negotiations in the World Trade
Organization revolves around the initial treatment of GIs under the Agreement on Trade
Related Aspects of Intellectual Property Rights (TRIPS Agreement). The main question
relates to extending “additional protection” accorded to wines and spirits to other
agricultural goods.
As the discussion in Chapter Five of the thesis shows, current outlooks regarding this
and related questions is divided between two opposing views: Proponents of a strong and
broad GIs protection, mainly the European Council, on the one hand, and on the other,
other countries that seek a narrow and flexible standard of GIs protection. The former
seek strong GIs protection for a wide range of agricultural and other goods, whereas the
latter oppose according additional protection other than what the TRIPS Agreement
already provides for wines and spirits.130
It is in this context that the discourse on the instrumentality of GIs to protect TK arose.
Among previous attempts to assess the applicability of GIs to protect TK, a leading
academic study by Kur and Knaak notes that:
[T]he indication for a product is the subject matter of this protection, not the
product itself. For this reason tradition-based innovations and creations, as
indicated in the WIPO Report on fact-finding missions on Intellectual
Property and TK, cannot enjoy protection per se by means of geographical
indications. The Protection of GIs may apply to signs indicating these
innovations and creations.131
This view highlights the issue as to the nature of protection GIs afford: Does the
protection in GIs extend to the denotation of a geographic location, or does it extend to
the connotation of some or other uniqueness such as quality, reputation, or characteristics
as well? If GIs simply denote a geographical location, nothing more than the ordinary
130
See Office of the United States Trade Representative (USTR), “US and Other Trade Partners Present
Positions and Proposals to Prevent Unauthorized Use of Geographic Names”, USTR Press Release 20
September 2002 online: <
http://www.ustr.gov/Document_Library/Press_Releases/2002/September/US_Other_Trade_Partners_Presen
t_Positions_Proposals_to_Prevent_Unauthorized_Use_of_Geographic_Names.html>; Trade Negotiations
Committee, Draft Modalities for TRIPS Related Issues: Communication from Albania, Brazil, China,
Colombia, Ecuador, the European Communities, Iceland, India, Indonesia, the Kyrgyz Republic,
Liechtenstein, the Former Yugoslav Republic of Macedonia, Pakistan, Peru, Sri Lanka, Switzerland,
Thailand, Turkey, the ACP Group and the African Group (19 July 2008), TN/C/W/52.
131
Annette Kur & Roland Knaak, “Protection of Traditional Names and Designations” in Silke von
Lewinski, ed., Indigenous Heritage and Intellectual Property (The Hague: Kluwer Law International, 2004)
at 227.
trademark regime would be required to protect the rights of individuals who want their
products to be identified by the geographic sign or name.
Kur and Knaak are also pessimistic about the potential of GIs to protect TK. They
assert:
[A]s to geographical indications of indigenous communities, the general
provisions of the TRIPS Agreement are clearly not sufficient to offer adequate
protection. The general protection pursuant to the TRIPS Agreement is too
limited in its scope because ... it depends on the opinions of the public in the
country where protection is claimed. Under this rule, GIs of indigenous
communities being unknown as such to the public of certain countries are
unprotected in those countries.
According to Blakeney, this assessment makes assumptions relating to “the ignorance
of persons about indigenous communities.” Contrary to this assumption, however,
Blakeney points out the growth of “ethno-marketing” as a testimony to increased
awareness – among consumers – of “indigenous communities and what they have to
offer” to the global economy. However, Blakeney, Kur and Knaak all agree that the
problem of non-publicity about “GIs of indigenous communities” can easily be
“overcome by the establishment of a register for GIs.”
Another view against the use of GIs to protect TK arises from the strong influence that
market forces in the global economy have on cultural activities. Due to this, doubts arise
as to the effectiveness of GIs to serve as instruments of cultural protection. In line with
this perspective, Broud contends that, first, market forces involved in the agri-food sector
are “so pervasive that GIs cannot in and of themselves, as legal agents, prevent market
influence on local culture, leading to degrees of cultural transformation and international
cultural homogenization.” He notes that in the fields of agricultural production and
consumption, GIs cannot withstand the cultural influence of markets, concluding that; “it
is not GIs that uphold culture, but rather culture that upholds GIs.” Even in circumstances
where GIs “signify local idiosyncratic culture, reflecting a deeply inbred relationship
between society and a uniquely local food and wine product,” Broude argues that the local
identity in GIs “represents legally ‘invented traditions’ and ‘imagined local
communities’.”
Secondly, it is argued that the primary motive for GIs based agricultural strategy (for
example, the French wine production tradition through the system of Appellations of
Origin) has, historically, been economic. 141 GIs are considered mere instruments of
international trade policy and as such – the argument runs – TK-related rationales for “the
protection of culture does not trump international norms in the area of trade.” 142 On this
ground, Broude urges negotiators in the WTO to “recognize and treat GIs for what they
are: Legal tools for granting commercial advantages to certain products, sectors, and
regions.”143 Thus, GIs are considered mere economic tools that cannot serve cultural
policy related to the protection of TK.
Raustiala & Munzer advance an argument against the extension of GIs to TK related
agricultural products based on a philosophical rationale about GIs protection. In an
assessment of the broader roles that GIs are meant to serve in protecting TK, they observe
that:
[W]hile economic concerns plainly loom large in the debate over GIs, the
effort to entrench GI protection in international law also draws strength from
more diffuse concerns about authenticity, heritage and locality in a rapidly
integrating world. To assert the necessity of GI protection is, in part, to assert
the importance of local culture and tradition in the face of ever-encroaching
globalization. The GI question is as a result linked to larger, politically
sensitive debates about the proper level of protection for farmers and rural
perhaps… ‘Invented tradition’ is taken to mean a set of practices, normally governed by overtly or tacitly
accepted rules and of a ritual or symbolic nature, which seek to inculcate certain values and norms of
behaviour by repetition, which automatically implies continuity with the past… however, insofar as there is
such reference to a historic past, the peculiarity of 'invented' traditions is that the continuity with it is largely
factitious;” see ibid. at 656 citing Eric Hobsbawm, “Introduction: Inventing Traditions” in Eric Hobsbawm
& Terence Ranger, eds, The Invention of Tradition (Cambridge: Cambridge University Press, 1992 ) at 1-2.
141 Broude, supra note 138 at 674 nn.
149.
142
Ibid
32
Ibid.
143
.
communities, the degree to which international law ought to trench upon
questions of culture and tradition, the necessity of intellectual property rights
and, above all, the importance of economic competition.
Because GIs are “geographic indications” (fixed natural attributes), they argue,
“human innovation” and “incremental improvements” do not factor as rationales for a
right which may be “debated in terms of ‘piracy’ and misappropriation” (i.e. a debate
which presupposes the existence of property rights). They argue, “property rationales
grounded in moral rights or desert attributable to individuals … suggest that individuals,
not regions, ought to enjoy GIs.” The more GIs rights are justified with reference to
“human innovation, incremental improvements in quality, and the like,” the argument
runs, “the less attributable the characteristics of the GI-protected good are to the local
area.” Thus, Raustiala & Munzer argue that GIs identify a geographic location with
“natural features” instead of “human factors,” and as long as they are identified like this,
“GIs closely resemble trademarks.”
Therefore, Raustiala & Munzer equate the scope of protection GIs should offer with
that of trademarks. In this context, the authors find a heightened level of protection for
GIs in existing legal frameworks unjustified. Consequently, they conclude that proposals
to extend the protection of GIs to include TK and related resources are “unwarranted and
… well beyond what any existing theory of property can support.” They reject “the
Ibid
33
conceptual core of GIs,” that protection should be extended to address concerns about
“authenticity, heritage, and locality in a rapidly globalizing world.”
In an optimistic assessment of the potentials of GIs to protect TK, however, Panizzon
& Cottier observe that:
Traditional Knowledge (TK) and Geographical Indications (GIs) share a
common element insofar as they both protect accumulated knowledge typical
to a specific locality. While TK expresses the local traditions of knowledge,
GIs stand for specific geographical origin of a typical product or production
method. GIs and TK relate a product (GIs), respectively a piece of
information (TK), to a geographically confined people or a particular region
or locality.
They point out that GIs “may substitute for IP protection of TK” in circumstances when
“even a sui generis right may not provide sufficient protection.”
In his book, Intellectual Property Rights and Food Security, Blakeney also notes that
the protection of GIs has gained a certain moral authority that weighs in favour of
developing countries that seek “the freedom to exploit their available knowledge”, in light
of “the dominance of industrialized countries regarding access to knowledge, medicines
Ibid
34
and the distribution of transgenic plant products.” 153 In a separate contribution with G.
Evans, Blakeney remarks that:
[I]t is a matter of historical irony that notwithstanding the ancient provenance
of GIs, current developments in the institution are a local reaction to the
industrialization and globalization of agricultural production, where the global
market place provides opportunities for the diversification of agricultural
products and foodstuffs.154
Blakeney points to a recent dispute that involved Basmati – the Indo-Pakistani
traditional rice product – over which a Texas based multinational company, RiceTec,
acquired patent rights on Basmati strains and agricultural techniques that include an
exclusive marketing of the resulting product under the brands, Taxmati, Kasmati, and
Jasmati.155 He laments that the dispute would have easily been resolved “had GIs regime
been in place in the countries in which protection for these brands was sought.”156 In an
assessment of the potential benefits of GIs in light of biotechnological advances in life
sciences, which have been criticised for their negative effect on biodiversity resources, he
observes that “GI systems contribute to the preservation of natural resources [by]
153 Blakeney, Food Security, supra note 134 at 184.
154
Michael Blakeney & G. Evans, “The Protection of Geographical Indications after Doha: Quo Vadis?”
(2006) 9 JIEL 575 at 575-576.
155
To read about the “Basmati incident,” see Jamil Uzma, “Biopiracy: The Patenting of Basmati by
RiceTec” Publication of the Commission on Environmental, Economic and Social Policy-South Asia &
Sustainable Policy Development Institute (October 8 1998), online:
<www.iucn.org/themes/ceesp/publications/art-mono/basmati.doc>.
35
156 Michael Blakeney, “Proposals for the International Regulation of Geographical Indications” (2001) 4 J
World Intell Prop 629 at 647 [Blakeney, “Proposals”].
fostering agricultural policy,” thereby, offering “the potential of ‘appropriate flanking
policies’.”
Biber-Klemm, et al, outline a number of issues on the link between GIs and TK, while
noting the “limited discussion” in the TRIPS Council “with regard to the use of GIs as a
tool for the protection of traditional knowledge.” They conclude that “from the
perspective of TK, GIs are of specific interest.” Similarly, Taubman, Director of IP
Division at the WTO, affirms that:
[R]ecognizing the past cumulative innovation and distinctive know-how
embedded in traditional products, GIs forge a link between the conventional
mainstream trade interests associated with agricultur[al] commodities,
contemporary conceptions of a ‘knowledge economy’ ...., and growing
recognition of TK as a distinctive element of the very personality of
communities.
As he puts it, “GIs, uniquely in IP law, unite global protection systems with an
intrinsically, necessarily, localized basis of protection, linking cultural diversity and the
local environment with global markets: thinking locally, acting globally.” Noting that
“the current GI debate has an important cultural side,” Chesmond similarly argues that
“the protection of GIs does constitute protection of culture on the grounds of tradition,
heritage, history, and identity.” She points out that “the most persuasive cultural
protection argument in the GIs debate lies with the ability of food sources and products to
play an important role in the construction of national identities.”
36
Gervais agrees that GIs may be useful protective tools “for at least some forms of
traditional knowledge.” Because “many traditional goods with a specific geographical
origin” come from developing countries, he concludes that “the protection of geographical
indications has normative heft in countries that are ‘TK-rich’.”
At an institutional level, the FAO Committee on Commodity Problems’
Intergovernmental Group has summarized the positive effects of properly managed GIs
as:
[H]elping producers obtain premium prices for their products; providing
guarantees to consumers regarding product quality; developing the rural
economy; protecting local knowledge and strengthening local traditions; ....
other wider economic and social benefits,... for example reduction of rural to
urban migration, and the protection of rural environments and ecologies.
The foregoing shows that there is a burgeoning literature on the subject of GIs in
general and that there is growing interest in assessing the potential of GIs to protect TK in
particular. Even so, most of the work fails to provide detailed analysis of the link between
TK and GIs in the context of the diverse needs and expectations of ILCs. The literature
reveals very little in the way of establishing foundations for proprietary claims in GIs to
accommodate a broader role for IP in protecting TK through GIs. In addition, answering
the question as to whether GIs can and should be utilized to protect TK necessarily
grapples with the ideological divide between the US and the EU commentators on the
purpose and philosophical foundations of GIs. These weaknesses provide opportunities
for the contributions that the analysis of this thesis is intended to make.
37
1.7 CONTRIBUTIONS OF THE THESIS
The thesis aspires to contribute to the body of substantive knowledge concerning the
modalities of protecting TK, with a focus on the applicability of GIs to protect TK and
TK-based products. Despite the general view that the protection of TK may somehow be
achieved through IPR modalities, the mass of literature on the subject focuses on
modifications and amendments to the patent system or other regimes of the conventional
IPRs to protect TK. As a result, “[n]ot much attention has been paid to the role GIs might
make in protecting TK.” Raustiala & Munzer agree that “the conceptual underpinnings of
GIs have not been rigorously examined” in the debates about their international
protection. The thesis contributes to closing this gap, as the existing literature, though
copious, is still thin on this aspect of the subject.
Nevertheless, the foregoing literature review reveals a recent surge of interest in the
utility of GIs to protect TK. As will be shown in later parts of this work, a host of interest
groups have called for a wide recognition and enforcement of GIs at international,
regional, and national levels on the ground that this would help the protection of TK to
benefit TK-rich countries and communities. Compounded by the introduction of national
GIs legislation in many developing countries that hope to protect TK and benefit from it,
these calls have created much enthusiasm about GIs. Nevertheless, the composite
scholarly endeavour has not comprehensively examined the promise of GIs in light of the
needs and expectations of the communities for whom the protection of TK holds a
particular importance, namely, ILCs. In this respect, the thesis provides an analysis of the
links between TK and GIs. The analysis considers whether the attention given to GIs in
38
international negotiations and discussion as means of protecting TK can satisfy the urgent
need to accommodate the interests of ILCs in the global economy.
Overall, the thesis contributes to the discourse on the need for and the significance of a
properly crafted international framework of GIs for the recognition and protection of TK
and TKBAPs. It also contributes to the shaping and development of existing and future
GIs-based legal and policy frameworks to protect TK in the context of developing
countries.
1.8 RESEARCH QUESTIONS
As unique and novel as the approach to protecting TK through forms of IP may seem,
the fact that IPRs are generally held as antagonistic to TK demands that any inquiry into
the potentials of GIs to protect TKBAPs should address a number of policy and legal
questions. 174 This thesis seeks to provide answers to some important questions that
Circulation and Trading of Wines, No. 2-75-321, 12 August 1977 (25 Shaban 1397)
http://www.wipo.int/wipolex/en/details.jsp?id=2978&tab=2; Law Concerning Distinctive Signs of Origin
and Quality for Foodstuff, Agricultural and Fishing Products, No. 25-06 , 23 May 2008; Morocco Food and
Agricultural Import Regulations and Standards – Narrative FAIRS Country Report, GAIN Report Number
MO9012; Law 25-06 of 23 May 2008 Concerning Distinctive Signs of Origin and Quality for Foodstuff,
Agricultural and Fishing Product; Morocco Food and Agricultural Import Regulations and Standards –
Narrative FAIRS Country Report; Date:7/24/2009 GAIN Report Number:MO9012; See Ghanaweb,
“Parliament Passes Four Bills” (12 December 2003) online: <http://www.ghanaweb.com/
GhanaHomePage/NewsArchive/artikel.php?ID=48134>; also see Broude, supra note 138 at 629 ff; also see
discussion below Chapter 4 Section 4.8.
174
See Sanjeev Agarwal & Michael J. Barone, Emerging Issues for Geographical Indication Branding
Strategies, MATRIC Research Paper 05-MRP 9 (2005); Sunder, “Invention”, supra note 4 at 97; Munzer &
frequently arise in connection with the effort to assess the instrumentality of GIs to protect
TKBAPs. Questions on the use of GIs to protect TKBAPs are, thus, contextualized within
the general framework of international regimes governing IPRs, TK and biodiversity. In a
39
way, these questions are corollary to the primary research question, which is whether, and
how, GIs can serve as an appropriate legal tools to protect TKBAPs.175
The thesis addresses issues on the general theme of inquiry by looking into the
imperatives for the legal protection of TK. The discussion explores efforts to protect TK
and TKBAPs in international law; identifies the modalities and gaps in existing and
proposed approaches; and examines how best the gaps in these modalities can be
addressed. Regarding the specific inquiry on the applicability of GIs to protect TKBAPs,
the thesis explores:
x How GIs are protected in different jurisdictions: Here, I investigate the protection of
GIs in international, regional and domestic legal systems. In addition, I examine
the legal and policy bases for GIs protection. I discuss the disputes that arise from
differences between the EU and the US in the form of and philosophical
underpinnings for GIs protection.
Raustiala, supra note 18; see Chapter 3 Section 3.2.2.2, below, for discussion of the relationship between IP
regimes and TK; Oguamanam, “Localizing”, supra note 1 at nn 1; see also Chapter 2 Section 2.7, below, for
discussion of the form and nature of GIs as IP rights.
175 These primary and corollary research questions derive from the respective specific and general
propositions that underlie this thesis. See Section 1.1 above. The general proposition in this thesis concerns
the search for an appropriate modality to protect TK. The discussion from Chapter Two to Chapter Four
focuses on this general proposition as a foreground for the specific inquiry in Part Two of the thesis, that is,
the applicability of geographical indications as a legal mechanism for protecting TKBAPs. Thus, this thesis
addresses two propositions to varying degrees in Part One and Part Two. In conducting the analysis from the
two angles, I use the phrase “specific focus of the thesis” or “primary inquiry” to refer to the issues set forth
in this Section regarding the instrumentality of GIs for protecting TKBAPs.
x The justification for the choice of GIs to protect TKBAPs: In this regard, the
discussion and analysis focus on the structural and functional suitability between
GIs and TK systems, and present theoretical frameworks that support the use of
GIs to protect TKBAPs.
40
x The significance of GIs in the pursuit of a range of policy objectives in protecting
TKBAPs. This issue relates to the utility of GIs as legal instruments for the
realization of economic, ecological and socio-cultural ends. The thesis addresses
this by looking at the challenges and opportunities for using GIs in developing
countries in light of concerns generally raised about the administration and
enforcement of modern IPRs in developing countries, namely, the economic
benefits and costs of adopting GIs. The discussion examines how GIs may be
designed to suit local contexts and circumstances in developing countries to
overcome challenges in implementation. It also explores how properly designed
systems of GIs may be used to pursue broad objectives for the protection of
biocultural diversity, achievement of food security, and prevention of biopiracy.
The thesis discusses the issues identified above thematically. Responses advanced refine
the research questions and confirm the general and specific hypotheses that their
underlying issues postulate in two ways: First, in regard to the role of IP in the protection
of TK; and second, in terms of the applicability of GIs to protect TKBAPs.
1.9 STRUCTURE OF THE THESIS
The rest of this thesis is divided into two parts that correlate with the thematic focus
of the inquiry. Part One comprises three Chapters that deal with the protection of TK.
Chapter Two is essentially definitional; it clarifies the basic concepts of TK, biodiversity,
and geographical indications. It also throws some light on the use of key terms, and offers
insights into the link between GIs and TK.
41
Chapter Three highlights some of the challenges and difficulties that ILCs face, most
of which are associated with the lack of protection for TK systems and their underlying
biodiversity. This context-setting Chapter considers various aspects of the impacts of the
changing trends in global economic conditions to make a case for protecting TK and
TKBAPs. It also develops the building blocks for the arguments in the second part of the
thesis through its discussion of the factors relevant to assessing the applicability of GIs to
protect TKBAPs.
Chapter Four probes existing and evolving legal mechanisms to protect TK and
TKBAPs in different regimes of international law. This Chapter identifies the dominant
initiatives and diverse modalities for protecting TK, with an eye to comparing and
contrasting them with GIs in responding to the needs and expectations of ILCs. The merits
and demerits of different approaches are considered in light of their potential to address
the inadequacies of the existing IPRs system that are identified in Chapter Three.
The discussion underscores the need for increased focus on the importance and the role of
IP to protect TK in particular contexts. The Chapter also identifies and reviews the works
of national and international forums in which GIs receive attention as IP instruments to
protect TKBAPs.
The second part of the thesis dwells on the specific theme of inquiry, that is,
applicability of GIs to protect TKBAPs. Chapter Five examines the regulation of GIs in
national and international legal frameworks. The fundamental objective of this Chapter is
to place GIs in their historical, institutional, and legal contexts. The discussion also
42
explores features and characteristics of GIs that factor into their protective functions for
TK and TKBAPs.
Chapter Five also broaches the question whether GIs satisfy the peculiarity of TK. The
discussion conceptualizes GIs as proprietary rights that may be justified through
theoretical insights derived from the social planning theory of IP, complemented with the
theories of embeddedness, cultural economy, and a rights-based approach to development.
In conclusion, the Chapter argues that a GIs framework conceptualized in the foregoing
manner serves a protective function that takes into account the contributions of TK
systems in economic and cultural contexts.
Chapter Six closely examines the relevance of GIs to protect TKBAPs by focusing on
the implementation aspects of GIs in the context of developing countries. The analysis in
this Chapter addresses concerns and practical issues that determine the applicability of
GIs to protect TKBAPs. The topics covered in Chapter Six assess the roadblocks,
challenges, and potentials of adopting GIs in developing countries as instruments to
protect TKBAPs. Secondary data from previous experiences in developing countries on
the use of GIs is employed to illustrate the analysis. In this regard, the discussion shows
that the practical difficulties of implementing GIs are not insurmountable depending on
the policy contexts of their implementation.
In general, Chapter Six examines the role of GIs as vehicles to pursue socioeconomic,
cultural and ecological objectives which enable ILCs to resist the impacts of global
economic pressures, identified in earlier Chapters. The discussion also draws attention to
43
limitations in regard to the system of GIs, and also in regard to the adoption of GIs as
instruments for protecting TK.
Finally, Chapter Seven concludes the thesis. It summarizes the main points established
through the analysis in preceding Chapters, discusses outstanding problems, and identifies
possible directions for future research. It affirms that the search for a method to protect
TK should respond to the needs and expectations of traditional communities with respect
to the different areas of TK practice. While acknowledging the significance of variations
of sui generis modalities as effective policy options to protect TK, the thesis argues that
GIs may be used to protect products of TK in agricultural practice.
It also finds that GIs can be preferred options for protecting TKBAPs in circumstances
where other modalities of protection cannot address the concerns of ILCs in respect to
their participation in international trade. If conceptualized as a form of IP that is
structurally and functionally suited to the attributes of TK, the protection offered by GIs
serves the expectations of ILCs in TK protection and may be used to their advantage in
economic, biodiversity and socio-cultural terms. Based on these points, the thesis
recommends how GIs could be used to protect TKBAPs at the international and national
levels of regulation.
In terms of issues under consideration at the international level, the thesis adopts the
position that enhanced protection for GIs is intrinsically linked to negotiations and
discussion for the international protection of TK. As such, it calls for the consideration of
a GIs model to serve as an instrument for protecting aspects of TK in current negotiations
under the auspices of the WIPO. It also recommends that this must be accomplished in
44
cooperation with the WTO, the Convention on Biological Diversity (CBD) and the Food
and Agricultural Organization (FAO). The recommendation is justified on the ground that
higher level of GIs protection for agricultural products at the international level could
bring a degree of balance in the approach to the implementation of global IPRs, as it gives
developing countries an opportunity to protect TKBAPs.
At the national level, it is recommended that the use of GIs as instruments for
protecting TKBAPs should be carefully weighed from two perspectives. First, a decision
to use GIs should assess how GIs could be utilized to protect TKBAPs without
compromising TK systems and their underlying biodiversity. This is best accomplished in
light of immediate challenges and long-term opportunities associated with introducing,
establishing, and enforcing GIs rights in specific contexts. Once countries decide to
implement GIs within their jurisdictions, the second consideration concerns the choice of
a legal means for protecting GIs. As to this, the thesis argues that the flexibility inherent in
providing a means of GIs protection, as allowed by the TRIPS Agreement, offers
alternative approaches to implementing GIs to suit different circumstances. The suitability
of GIs for protecting TKBAPs, and the choice of a legal means for protecting GIs, should
be determined on a case-by-case basis. Finally, Chapter Seven identifies limitations of the
thesis, and concludes, overall, that GIs should be utilized to supplement overarching
measures to protect TK.
45
PART ONE: TRADITIONAL KNOWLEDGE, TRADITIONAL KNOWLEDGE-
BASED AGRICULTURAL PRODUCTS AND THE SEARCH FOR PROTECTION
CHAPTER 2 TRADITIONAL KNOWLEDGE, BIODIVERSITY, AND
INTELLECTUAL PROPERTY: DEFINITION AND CONCEPTUAL
BOUNDARIES
2.1 INTRODUCTION
This Chapter provides background information and working definitions for essential
concepts. The discussion delineates the concepts of TK, GIs, biodiversity and TKBAPs as
they are employed throughout this thesis. In doing so, the discussion presents the general
and specific frames for this work. To this end, the Chapter is organised as follows.
Section 2.2 clarifies the concept of TK first, in terms of choice of terminologies, and
then along key themes such as identity of knowledge holders; categories of TK; essential
characteristics of TK; and subject matters of TK. Section 2.3 and Section 2.4 present
overviews of the concepts of biodiversity and agro-biodiversity. These two Sections
46
examine the relationship, interdependence, and integration between the concepts of
biodiversity, genetic resources, and TK that any protection system for TK should account
for.
Section 2.5 outlines the constitutive elements of “traditional knowledge-based
agricultural products,” and discusses such technical terminologies as landraces, wild
species, farmer varieties, handicrafts, and cultivars, which are all elements of TKBAPs.
The discussion contrasts these concepts with more familiar concepts of plant genetic
resource for food and agriculture, and genetically modified crops. Similarly, Section 2.6
deals with conceptual dimensions of “geographical indications.” The Section identifies
and analyzes definitional issues and their juristic implications for the relationship between
TK and GIs. Finally, a brief introduction is provided regarding the link between GIs and
TK, and the context for the use of certain technical terms in the thesis is explained.
2.2 DEFINING TRADITIONAL KNOWLEDGE
The term “traditional knowledge” is a shorter form of “traditional knowledge,
innovations and practices” under the CBD, or of “Traditional Knowledge, Innovations and
Creativity” in WIPO’s Report of Fact-finding Missions (FFM) on Intellectual Property
and Traditional Knowledge. A systematic investigation of TK as a subject in various
disciplines started only in recent times – following its application on many fronts of
scientific and technological development. TK’s existence, however, is acknowledged to be
“… as old as the history of man’s search for ways and means of dealing with his
environmental circumstances” to satisfy the human needs of food, shelter and clothing.
47
The definitional landscape of “traditional knowledge” poses various theoretical and
methodological dilemmas due to the complexity of issues surrounding the term. The
WIPO FFM report highlights the need for terminological clarity in defining “traditional
knowledge,” noting that “[l]ack of terminological clarity [on TK] can confuse and obscure
what is already, terminology aside, a complex enquiry.” Subsequent efforts for legal and
policy considerations of TK in international law have confirmed this need.
There is not a widely acceptable definition of TK. However, precision in the definition
of TK may involve consideration of three distinct elements of the concept: 1) Choice of an
appropriate term or terms; 2) Identification or description of the subject matter to be
covered by the term or terms selected; and 3) Determination of the scope of that subject
matter represented by the term. The following sub-sections explain each of these
descriptive elements of TK.
2.2.1 CHOICE OF TERMINOLOGY
With respect to the choice of terminology, “traditional knowledge” closely relates to a
wide range of concepts. WIPO remarks: “[T]here is . . . a diffuse range of potentially
overlapping terms in current use in international, regional and national discussion”
regarding TK in a wide range of areas. Depending on the context, the relevant literature
and some international instruments adopt the following alternative terms: “indigenous
knowledge,” “tribal knowledge,” “local knowledge,” “folk knowledge,” “community
knowledge,” “traditional ecological knowledge,” and various others.
48
The term “tribal knowledge” is derived from the phrase “indigenous and tribal
peoples” under the International Labour Organization (ILO) Convention, and has not been
defined in any international instrument. Generally, the term has limited acceptance in the
literature for its “derisive implications of primitivism and racial inferiority.” Likewise, the
use of “folk” in “folk knowledge” has raised objections for the negative connotation of
being associated with the creations of lower or superseded civilizations. Against these
objections, the term has recently been used to refer to artistic heritage developed by a
community, with a specific mention of the “literature, music, dance, games, mythology,
rituals, customs, handicrafts, architecture and other arts” (thereby excluding TK of plants
and animals in medical treatment and food). In this sense, the category of knowledge
implied by “folk knowledge,” or sometimes referred to as folklore, refers to knowledge
currently represented by the term “traditional cultural expressions” (TCEs).
Related to the term TCEs is “cultural property” and “cultural heritage.” Often used
interchangeably, the terms “cultural property” and “cultural heritage” mostly relate to
tangible properties which may be chattels or related to land. Unless qualified with the
word “intangible,” the subject matter of “cultural property” and “cultural heritage” do not
feature in discussion regarding IP.
The African Group in its submission to the WIPO has officially adopted the term
“community knowledge” to refer to TK. The term does not seem to recognize some facets
of the knowledge, as the use of “community” knowledge may imply that TK is the same
with other values and assets that ordinarily exist in a community.
49
In addition, the term “local” in “local knowledge” might not properly describe the
concept. It may seem to present this category of knowledge as a mere “place-based”
resource that does not easily lend itself to dialogues and cultural commitments beyond
those incorporated within the practices of the community itself. The tremendous boom
in the commercial application of tradition-based genetic resources in modern
biotechnology has proved that TK is a dynamic system constituted within particular
communities, histories, institutional settings, and expert cultures, as is Western scientific
knowledge. TK cannot be considered mere localized phenomena, as “it extends across
cultures, histories, and geographical spaces, as well as across time.” In addition, the term
“traditional ecological knowledge” may imply that the knowledge relates only to ecology,
rather than seeing this knowledge as all encompassing.
The term “indigenous knowledge” is most often used interchangeably with TK.
Beyond interchangeability, however, there are significant policy and legal implications in
the choice of terminology between TK and “indigenous knowledge.” Some avoid the use
of the term “traditional knowledge” and prefer, instead, “indigenous knowledge” on the
ground that “traditional” implies that the knowledge “is not ‘science’ in the formal sense
of a systematic body of knowledge that is continually subject to empirical challenges and
revision.” Others prefer the term “indigenous knowledge” over “traditional knowledge”
on the ground that “traditional” denotes the colonial attitudes of “simple, savage, and
static society.”
Fundamental to the distinction between the terms “traditional knowledge” and
“indigenous knowledge,” is a distinction between “knowledge held in diverse local and
50
traditional contexts,” and “the knowledge systems of peoples identified as having distinct
indigenous status,” respectively. The term “indigenous knowledge” bears “significant
normative implications” that, beyond mere reference to the knowledge itself, “embrace
the cultural and legal identity and character of the community as such.”
Indeed, the identity and characteristic of the community that holds the knowledge
necessarily determines the definition and scope of TK. In addition, any system of legal
protection for TK and TK-related resources should specify the identity of communities
that are entitled to the benefits of the use of the knowledge, so that other parties are
properly excluded from the rights and benefits that flow from the use of the knowledge.
For this reason, the following sub-section examines and specifies the identity of
communities considered rights holders in the protection of TK and TKBAPs for the
purpose of this thesis.
2.2.2 IDENTIFICATION OF THE KNOWLEDGE HOLDERS: INDIGENOUS PEOPLES AND
LOCAL COMMUNITIES
The task of defining the term “indigenous peoples” has evoked considerable
discussion, but without a clear definition. Whether efforts to protect TK should determine
what constitutes TK based on the identity of the community that holds the knowledge
depends, largely, on what distinguishes people as “indigenous.” Daes points out that “the
concept of ‘indigenous’ is not capable of a precise, inclusive definition that can be applied
in the same manner to all regions of the world.”
The concept of “indigenous peoples” has its origin in the experience of colonialism,
whereby “the aboriginal peoples of a given land were marginalized after being invaded by
51
colonial powers, whose peoples are now dominant over the earlier occupants.” Based on
this understanding, the ILO Convention defines indigenous peoples as those who have:
[D]escent from the populations which inhabited [a] country, or a geographical
region to which the country belongs, at the time of conquest or colonization or
the establishment of present state boundaries and who, irrespective of their
legal status, retain some or all of their own social, economic, cultural and
political institutions.
Mugabe notes that this definition lays down four “vital factors of time, geographical
space, resilience, and territorial occupation” in the determination of who “indigenous
peoples” are. The “time” and “geography” factors in the definition of indigeneity warrant
particular attention, as these are key dimensions that determine the scope and category of
people to be recognized as “indigenous peoples.”
The time-based dimension of ILO’s definition relates to its requirement that people
who qualify for recognition as “indigenous peoples” should retain “social, economic,
cultural, and political institutions” that were present at “the time of conquest,
colonization…” This is problematic, as the requirement of “retention” overly restricts the
group of people to regard as “indigenous.” The requirement effectively excludes
“indigenous peoples and persons whose institutional bearing and identity were disrupted
by colonialism and conquest.” The geographical limitation of the ILO definition,
concerning the reference to “descent from the populations which inhabited [a] country, or
a geographical region to which the country belongs,” directly points to “the Americas,
Russia, the Arctic, and many parts of the Pacific.” This requirement, however, does not
make sense in relation to other parts of the world, in particular, most parts of Asia and
Africa where settlers of European descent do not displace the whole population during
52
colonialism. In many parts of Africa and Asia, issues of indigenous peoples’ rights arise in
relation to the suppression of marginalized groups by dominant groups, and not only by
outside settlers as the ILO definition presupposes.
Thus, to separate Africans and Asians into indigenous and non-indigenous peoples
based on those standards, and to recognise the rights of indigenous peoples based on such
division, creates “separate classes of citizens … with different rights.” Due to objections
raised on these grounds, the 2007 Declaration on the Rights of Indigenous Peoples failed
to endorse ILO’s definition of “indigenous peoples” that was earlier included in the earlier
draft of the document.
Indeed, any formal definition of “indigenous peoples” brings the danger of excluding
certain groups, and thus, legal and policy initiatives tend to leave the term open-ended and
as widely applicable as possible. The universal view is that no such definition is sine qua
non for the recognition and protection of indigenous peoples’ rights, and, that
communities should be entitled to determine their own identity. The approach that allows
“self-identification” agrees with the perspective of most indigenous peoples who reject
the idea of a formal definition of “indigenous peoples” at the international level. Indeed,
indigenous peoples assert the right to self-definition as an element of selfdetermination.38
For this reason, policy deliberations and legal analyses of the topic at the international
level are mostly geared towards setting wide criteria that accommodate the right of
indigenous peoples themselves to define what and who is indigenous.39
However, even the widest possible understanding of “indigenous peoples” may
exclude certain communities who engage in the creation and maintenance of TK from the
53
category of “indigenous peoples.” The term “indigenous knowledge” may refer to the
knowledge that belongs to “indigenous peoples” understood in the manner described
“Indigenous Peoples, Indigenous Knowledge and Indigenous Resources in International Law” in Silke von
Lewinski, ed, Indigenous Heritage and Intellectual Property, Genetic Resources (The Hague: Kluwer Law
Int., 2008) at 11.
38 In consideration of the problematic approach of ILO’s definition, the Report of the Working Group of
Experts on Indigenous Populations/Communities of the African Commission on Human and Peoples’ Rights
emphasizes that the concept of indigenous must be understood in wider context:
The focus should be on more recent approaches focusing on self-definition as indigenous and
distinctly different from other groups within a state; on a special attachment to and use of
their traditional land whereby ancestral land and territory has a fundamental importance for
their collective physical and cultural survival as peoples; on an experience of subjugation,
marginalization, dispossession, exclusion or discrimination because these peoples have
different cultures, ways of life or modes of production than the national hegemonic and
dominant model.
See African Commission on Human and Peoples’ Rights & International Work Group For Indigenous
Affairs, Report of the African Commission’s Working Group of Experts on Indigenous Populations/
communities (Copenhagen: Skolens Trykkeri, 2005) at 92; also see Elsa Stamatopoulou, “Indigenous
Peoples and the United Nations: Human Rights as a Developing Dynamic” (1994) 16 Human Rights
Quarterly 58-81.
39
See Erica-Irene A. Daes, Working Paper on the Concept of “Indigenous People” (Prepared for the
Working Group on Indigenous Populations, 1996) UN Doc E/CN.4/Sub.2/AC.4/1996/2 in supra note 37 at
8; José Martínez Cobo, Study of the Problem of Discrimination against Indigenous Populations, 1986/7, UN
Doc E/CN.4/ Sub.2/1986/7, para. 379.
above, rather than to local, popular, or informal knowledge in general. For this reason,
WIPO realizes that “indigenous knowledge” is not necessarily TK.
The literature and international instruments usually refer to the categories of people
that may not fit the criteria for indigenousness as “local communities.” The term
“communities embodying traditional lifestyles” in the CBD is, for example, understood to
refer to “both farming communities and indigenous peoples.” The CBD prefers the term
“indigenous peoples and local communities” instead of just “indigenous peoples,” on the
ground that the former ensures that communities who maintain traditional lifestyle are
54
included even if they are not considered indigenous – “especially considered to be the
case in Africa.” Non-indigenous communities constitute the majority and are holders of
indigenous knowledge in many developing countries.
Seemingly for this reason, the Rio Declaration also refers to the notion of “indigenous
peoples and local communities” instead of just “indigenous peoples.” In a similar
manner, the CBD refers to “traditional knowledge, innovations and practices of ILCs,”
whereas the International Treaty on Plant Genetic Resources for Food and Agriculture
mentions the “enormous contribution that the local and indigenous communities and
farmers of all regions in the world [have made] for the conservation and development of
plant genetic resources.”
As Biber-Klemm, et al, observe, however, the difference between “indigenous
peoples” and “local communities” is, “in any case…rather fluid.” 48 The term “local
community” is defined as “a human population in a distinct geographical area, with
ownership over its biological resources, innovations, practices, knowledge, and
technologies governed partially or completely by its own customs, traditions, or laws.”4
Consistent with this definition, “local communities” may be understood as “farming
communities in subsistence farming systems, which do not correspond to the definition of
‘indigenous’” as described above, or those who “do not wish to use [the indigenous] line
of argument to their end.”
While previous efforts have illuminated the discussion on the knowledge of
indigenous peoples in terms of the rights of minorities over their resources, the discussion
55
regarding the knowledge of local farming communities has been less intense. The rights
of local communities are mostly conducted “rather in the context of the participatory
rights as enshrined in the Farmers’ Rights” under the provisions of the International Treaty
on Plant Genetic Resources for Food and Agriculture. The interest of local farming
communities is “less noticeable” in international debates, for they “seem to be much less
organized and politically involved than the indigenous peoples.”
In spite of the different contexts in which the interests of “local communities” and
“indigenous peoples” surface in international forums, knowledge held by “local
communities” coincides with the knowledge system of “indigenous peoples” in the
narrower context of agricultural knowledge. Biber-Klemm, et al, summarise key common
features of the knowledge of “indigenous peoples” and of “local communities” as follows:
In both types of knowledge, the information is frequently not perceived as the
creation of individuals, but is understood as the achievement of a specific
community, having evolved – and continuing to evolve – in cumulative steps
over many generations. It is managed and exchanged according to the
customs and customary laws of the community. A close interaction exists
between TK of any one kind and the surrounding ecosystem. TK plays a key
role in the preservation and sustainable use of the diversity of wild and
domesticated plant varieties and animal species. In turn, it depends on the
surrounding environment in which it has been created. It is a crosscutting
issue that is embedded in the culture of a people. Thus its existence is
dependent on, and determined by, the maintenance of this culture from one
generation to the next.54
Given the common grounds between the knowledge systems of “indigenous peoples”
and “local communities,” therefore, their protection and recognition should be integrated,
complementary, and mutually supportive. Consonant with the use of the concept in the
thesis, the term “traditional knowledge” includes the knowledge of both indigenous and
56
non-indigenous communities such as farming communities who, as required by the CBD,
rely on “traditional systems” of production.
2.2.3 SUBJECT MATTER OF TRADITIONAL KNOWLEDGE
The content of TK is described in various forums in different ways, depending on the
importance attached to some of its aspects. Among various efforts to define TK, for
example, the WIPO FFM report provides that TK is a subset of heritage, comprising of:
[T]radition-based literary, artistic or scientific works; performances;
inventions; scientific discoveries; designs; marks; names and symbols;
undisclosed information; and, all other tradition-based innovations and
creations resulting from intellectual activity in the industrial, scientific,
literary or artistic fields.
This description expresses TK in terms of IP by characterising it as a subset of
“innovations and creations resulting from intellectual activity.” By defining
“traditionbased” as “knowledge systems … that have generally been transmitted from
generation to generation, [and] are generally regarded as pertaining to a particular people
or its territory,” the FFM report suggests that TK should necessarily be transmitted
through generations, and that it pertain to a particular people or territory.
In addition, WIPO defines TK as “ideas developed by traditional communities and
indigenous peoples, in a traditional and informal way, as a response to the needs imposed
by their physical and cultural environments.” It states: “Those ideas contrast with the
respective expressions, such as folk tales, poetry, and riddles, folk songs and instrumental
music, dances, plays, etc.” This definition acknowledges the traditional dichotomy
57
between technical content of ideas covered under “industrial property” protection, and
expressions of ideas which have invariably been addressed from a copyright
perspective.
WIPO’s definition is significant for a number of reasons. First, TK is identified in
relation to “traditional communities and indigenous peoples.” This identification relates to
“authorship, rather than ownership.” Thus, the definition allows the recognition of
individuals, as long as this recognition is based on “customary laws and principles
applicable to particular situations.” Second, the WIPO definition affirms that an “idea” is
categorized as TK if it is created in a traditional and informal way.
The requirement of “traditionality” indicates the method of making TK; it should be
developed through “the rules, protocols and customs of a certain community.” This allows
for the recognition of orally transmitted, or documented / codified TK (for example,
through contemporary efforts of documenting TK to protect its
misappropriation and misuse).
Similar to WIPO, the CBD Secretariat describes TK as:
[T]he knowledge, innovations and practices of ILCs around the world.
Developed from experience gained over the centuries and adapted to the local
culture and environment, Traditional Knowledge is transmitted orally from
generation to generation. It tends to take the form of stories, songs, folklore,
proverbs, cultural values, beliefs, rituals, community laws, local language,
and agricultural practices.
58
This definition mainly reflects the position of CBD on TK in relation to global
environmental concerns. Accordingly, it emphasises TK as a foundation of “a living,
dynamic body of traditions and practices” that is derived from intimate interaction with
“local culture and environment.” This is consistent with the CBD’s understanding of the
utility of TK to biodiversity conservation as can be evinced from its reference to TK as
“knowledge, innovations, and practices, relevant for the conservation and sustainable use
of biological diversity.” Biber-Klemm rightly points out that this definition implies, first,
that the CBD is concerned with TK in relation to biological resources; second, that the
protection should be limited to knowledge, innovations and practices which first originate
in ILCs embodying traditional lifestyles and which are relevant for the conservation and
sustainable use of biological diversity.
WIPO’s definition provides a relatively wider context for the subject matter of TK in
its technical content as well as its various expressions. For this reason, the thesis adopts
WIPO’s definition in the analysis of legal mechanisms to protect TK.
Legal and policy efforts related to TK put emphasis on the characterisation of various
elements of TK, in order to minimize the difficulty of providing a concise definition that
delineates exact features and parameters. An unrealistic expectation for settled
understanding of the concept may, in itself, limit the potential for consensus on the main
agenda of protecting TK. For this reason, full recognition of major features that
distinguish TK from other knowledge systems is necessary in legal and policy discussion
for a protective regime of TK. The following Section gives a brief overview of some
features of TK.
59
2.2.4 ESSENTIAL CHARACTERISTICS OF TRADITIONAL KNOWLEDGE
A CBD study identifies three dimensions that any protection regime for TK needs to
acknowledge:
[A] cultural aspect (it reflects the culture and values of a community) a
temporal aspect (it is passed on through the generations, and slowly adapts to
respond to changing realities) and a spatial aspect (it relates to the territory or
the relationship which a community has with its lands and waters traditionally
occupied or used).
The cultural dimension of TK is a major distinguishing feature. TK refers to
“traditional norms and social values as well as to mental constructs that guide, organize
and regulate the people’s way of living and making sense of their world.” The foremost
preconception in understanding the notion of TK in this respect relates to the word
“tradition.” The use of the term “tradition” in relation to TK has sometimes been
construed as denoting “practices or beliefs and values that are ‘in the past,’ unchanging,
and static.” This is attributed to the fact that “[n]on-Western knowledge frameworks,
epistemologies, and epistemic schools were thoroughly ridiculed as ‘folk knowledge’,
‘quackery’, ‘black-magic’ and ‘voodoo.’”
In a more objective conceptualization of TK, the “traditional” aspect of TK does not
relate to “its object, nor its subject matter or content, nor its age or antiquity.” 73 The
“traditional” context of TK only implies that the customary rules and protocols that
govern its creation, use, preservation, and passing down are “deeply rooted in their
traditional location and community setting.” 74 Thus, the word “traditional” in TK suggests
that norms, social practices, and values that underpin TK are “intrinsically local and
60
innate to a traditional community.” 75 In their often cited observation, the Four Directions
Council, an organization representing the First Nations of Canada, points out that “what is
‘traditional’ about [t]raditional [k]nowledge is not its antiquity but … the social process of
learning and sharing knowledge, which is unique to each indigenous
culture.”76
In addition, the fact that TK is developed in a traditional manner does not mean that
TK is neither sophisticated nor systematic.77 TK often constitutes a “‘technical’ insight or
“Given the dominance of the Western paradigm of “science,” there is a tendency to ethnicize and consider
as culture-specific, unsophisticated and inferior, non-Western paradigms of knowledge.”
73 Supra note 21 at
59.
74
WIPO, Elements of A Sui Generis System for the Protection of Traditional Knowledge
(Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore, Fourth Session, Geneva, December 9 to 17, 2002) WIPO/GRTKF/IC/4/8 at para 27.
75
Ibid.
76
Four Directions Council, “Forests, Indigenous PeoplesP and Biodiversity, Contribution of the Four
Directions Council to the Secretariat of the Convention on Biological Diversity, 15 January 1996” as quoted
in D. A. Posey & G. Dutfield, “Mind the Gaps: Identifying Commonalties and Divergencies Between
Indigenous Peoples and Farmers Groups” (Draft paper presented to the 5th Global Biodiversity Forum,
Buenos Aires, 1-3 November 1996) at 3.
77 See Nuno Pires de Carvalho, “From the Shaman’s Hut to the Patent Office: A Road Under Construction”
in Mcmanis, “Biodiversity and the Law”, supra note 2 at 8 (arguing that “several traditional communities
and Indigenous peoples do possess vast and articulated systems of knowledge…there is indeed TK that is
extremely sophisticated and complex”).
wisdom gained and developed…through years of careful observation and experimentation
[by ILCs] with the natural phenomena around them.” Unlike formal knowledge, usually
generated in laboratories or other places of systematic research and development through
“formal processes of invention and innovation,” TK’s creation and use involves “an
incremental, ‘trial and error’ method.” Like formal science, TK involves “careful
61
observation, experimentation, and validation,” albeit in an altogether different context and
setting.
Although “traditionality” relates to TK’s socio-cultural roots, societies and
sociocultural milieus constantly change as they continue to adopt new technologies and
practices. This makes it difficult to determine the amount and extent of change in the
method of knowledge production that may be required to label TK “traditional.” This
brings up a related feature of TK: That “traditional” does not imply that the knowledge is
“inert or ossified.”
While the tradition of learning and teaching is old, and the knowledge derived from
this process may have originated a long time ago through intergenerational transmission,
it is wrong to assume that TK’s process of knowledge creation and innovation is frozen in
time. WIPO emphasizes that TK is “a vital, dynamic part of the contemporary lives of
many communities today.” The contemporary aspect of TK is maintained, as it evolves to
respond to the challenges posed by the social environment of individuals and communities
through the process of local-level decision making and innovation, in its use to meet the
demands of contemporary life, such as natural resource management,
nutrition, food preparation, and health.
The innovation and creativity in TK is not static but “essentially dynamic,” as
communities continue to adapt the knowledge that they inherited in an incremental
fashion in order to respond to their “evolving needs and shared intellectual life.” TK has
“consistently shown its capacity to incorporate new ideas, technologies and categories”
through the process of cultural and social transformation among and between
62
communities (inter-generationally and trans-generationally).
TK is also characterised by its embodiment in cultural and spiritual contexts. This
feature essentially distinguishes TK from simply useful information. Van den Daele
characterizes TK as “embedded knowledge,” that is, knowledge that, besides its useful
information, has social and cultural meanings. In contrast, “Western scientific
knowledge” is often uncritically characterised as disembedded and disembodied; it is
“‘information’ which is global and impersonal, in contrast to knowledge as ‘culture’
which is local and personal.” As information, TK “can be easily communicated beyond
its original context”; yet, the inherent qualities that mark its traditionality (the social and
cultural constituents) “begin to break down once it leaves the community” because these
elements “are much less readily transmitted.”
Another distinctive feature is that TK is, in most cases, communally owned. Within the
realm of communality, however, the system of TK may exhibit various types of ownership
rights. The community as a whole, or individuals, elders, women, clans, lineages, etc.,
may have ownership rights, which usually vary in their extent from one group to another.
Locally specific systems of jurisprudence among ILCs govern the classification of
knowledge as well as the procedures of its transfer and the modes of its utilization.
Based on local jurisprudence and existing spiritual and cultural protocols, Barsh
confirms that “some categories of knowledge may be attached to individual specialists,
and other categories of knowledge to families, clans or the tribe or nation as a whole.”
For example, Gupta recounts models of individual ownership of traditionally generated
63
knowledge in the case of “grassroots-innovations.” Similarly, many of the attributes of
individual ownership are manifested in the methods African shamans handle their
knowledge and wisdom.
Finally, the unique land-based feature of TK distinguishes it from other systems of
knowledge. According to WIPO, TK is “generally regarded as pertaining to a particular
people or its territory....” Because of long-term association with a particular ecosystem,
the communities who own TK have developed specific conservation ethics. Customary
laws and protocols that are a basis for the creation, development, and survival of TK are
“conceived as integral to the land and environment itself.” TK is intrinsically intertwined
with the land that most ILCs occupied for millennia, with the accompanying local
environment and ecology forming an integral part of their daily lives. For most
ILCs, TK “is of a piece with the landscape, with ancestral territories, and with cultural
heritage, as inherently cultural creations in which their intellectual creations are
inseparably embedded.”
The territorial features of TK relate to the primary focus of this thesis, i.e. assessing
the instrumentality of GIs to the protection of TKBAPs. Given the centrality of
“placeness” to the agricultural economy of most ILCs, the protection scope of GIs may
cover TK that is embedded in an agricultural landscape. The physical and human
dimensions of “territoriality” constitute fundamental elements in the definition of GIs.
64
2.2.5 CATEGORIES OF TRADITIONAL KNOWLEDGE
Beyond a description of general features, the substance of TK that is the subject of
analysis in this thesis can be elucidated through a categorization of the diverse forms of
TK. In recognition of the diverse nature, function and purpose of TK, various
international forums address its protection in different areas of international law and
policy-making. These areas include the governance of agricultural resources, the
conservation of biodiversity, the protection of the human rights of indigenous peoples,
the combat of desertification,105 the promotion of appropriate medicine,106 and the
preservation of cultural diversity.107 In discussion regarding the legal protection of TK in
most of these forums, emerging practice distinguishes TK as a descriptive broader concept
(lato sensu), from TK in a stricter legal and policy sense (stricto sensu).108
TK stricto sensu refers to “the content or substance of knowledge – what is known –
and distinguished, for example, from its distinctive form of expression and from the
genetic resources that are frequently intertwined with TK.”109 In this sense, TK stricto
sensu encompasses the technical knowledge itself which is not limited to a specific field.
However, the realization of the intrinsic integration between genetic resources and TK
has necessitated the consideration of the two in the same policy and legal framework.
Genetic resources in the form of biodiversity are themselves the embodiment of TK and
105 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought
and/or Desertification, Particularly in Africa, 17 June 1994, 33 I.L.M. 1328, Art. 16 (g) [“UNCDD”].
106
WHO, Declaration of Alma-Ata (International Conference on Primary Health Care, Alma-Ata, 6-12
September, 1978).
65
107 WIPO, Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit
Exploitation and Other Prejudicial Actions, reprinted in 16 Copyright Bull 62 (1982) [Model provisions];
Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR, 3d Sess., Supp. No.13, UN Doc.
A/810(1948) Art. 27; the International Covenant on Economic, Social and Cultural Rights, 19 December
1966, 993 U.N.T.S. 3, Can TS 1976 No. 46, 6 I.L.M. 360, Art.15.
108
WIPO, Consolidated Survey of Intellectual Property Protection of Traditional Knowledge,
WIPO/GRTKF/IC/5/7 (Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore, Geneva, July 7-15, 2003) online:
<www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf.../ wipo_grtkf_ic_ 5_7.doc>, para. 9.
109
Supra note 21 at 69. The WIPO IGC describes TK strict sensu as “content or substance of knowledge
resulting from intellectual activity in a traditional context, [including] the know-how, skills, innovations,
practices and learning that form part of traditional knowledge systems, and knowledge embodying
traditional lifestyles of indigenous and local communities, or contained in codified knowledge systems
passed between generations. It is not limited to any specific technical field, and may include agricultural,
environmental and medicinal knowledge, and knowledge associated with genetic resources.” WIPO,
Glossary of Key Terms Related to Intellectual Property and Traditional Knowledge (Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Second
Inter-sessional Working Group, Geneva, February 21 to 25, 2011) WIPO/GRTKF/IWG/2/INF/2 at 23.
in the worldview of most ILCs, as explained above; there cannot be a distinction between
TK and biodiversity as intangible and tangible components. In this context, any
distinction between genetic resources and TK at legal and policy levels would only be
superficial.
The distinction between TK stricto sensu and TK lato sensu is pertinent in relation to
the distinct forms of expressions of TK – signified by the well-established concept of
“expressions of folklore.” The term “folklore” refers to “characteristic elements of
traditional artistic heritage developed and maintained by a community or by individuals
reflecting the traditional artistic expectations of such a community.” In earlier times, the
term “expression of folklore” was used to refer to the artistic heritage developed by
communities with specific reference to their “literature, music, dance, games, mythology,
rituals, customs, handicrafts, architecture, and other arts.” To avoid the perceived
pejorative connotation of “folklore”, “expressions of folklore” is, in current use,
66
juxtaposed with “traditional cultural expression” (TCEs) as in the phrase “traditional
cultural expressions and folklore.”
Therefore, TCEs, as distinguished from TK stricto sensu, refer to the expressions of
ideas by ILCs in the exercise of their cultural life, which – for lack of precise definition –
are identified through characteristics and general criteria of the forms of expression.113 In
short, the expressions of TK are “akin to copyrightable subject matter (e.g., as
performances and designs).”114
The distinction between TK stricto sensu and TCEs has often been criticised on the
ground that cultural expressions cannot be separated from the social and natural
113
The tangible and intangible forms of TCEs include, for example, verbal expressions or symbols (stories,
epics, legends, tales, poetry, riddles, etc.); musical expressions (songs, instrumental music); expressions by
action (dances, plays, ceremonies, rituals, other performances); tangible expressions (drawings, designs,
paintings, including body painting carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware,
jewellery, baskets, needlework, textiles, glassware, carpets, costumes, musical instruments); intangible
expressions reflecting traditional thought forms; architectural forms. Janice T. Pilch, Traditional Cultural
Expression Library Copyright Alliance: Issue Brief (2009) at 1-2. Online:
<http://wo.ala.org/tce/wpcontent/uploads/2009/10/pilchissuebrieftce.pdf>; see also C. B. Graber & M.
Murri-Nenova, eds, Intellectual Property and Traditional Cultural Expressions in a Digital Environment
(Cheltenham: Edward Elgar, 2008).
114
See Emanuela Arezzo, “Struggling Around the Natural Divide: The Protection of Tangible and
Intangible Indigenous Property” 25 Cardozo Arts & Ent L J 367 at 371; According to the WIPO
Intergovernmental Committee:
‘Traditional cultural expressions’ or ‘expressions of folklore’ are any forms, whether tangible
and intangible, in which traditional culture and knowledge are expressed, appear or are
manifested, and comprise the following forms of expressions or combinations thereof: (i)
verbal expressions, such as: stories, epics, legends, poetry, riddles and other narratives;
words, signs, names, and symbols; (ii) musical expressions, such as, songs and instrumental
music; (iii) expressions by action, such as, dances, plays, ceremonies, rituals and other
performances, whether or not reduced to a material form and, (iv) tangible expressions, such
as, production of art, in particular, drawings, designs, paintings (including body-painting),
carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, baskets,
needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and
architectural forms; which are: (aa) the products of creative intellectual activity, including
individual and communal creativity; (bb) characteristic of a community’s cultural and social
identity and cultural heritage; and (cc) maintained, used or developed by such community, or
by individuals having the right or responsibility to do so in accordance with the customary
law and practices of that community.
67
See WIPO, The Protection of Traditional Cultural Expressions/ Expressions of Folklore: Draft Objectives
and Principles (Intergovernmental Committee On Intellectual Property and Genetic Resources, Traditional
Knowledge And Folklore, Tenth Session, Geneva, November 30 to December 8, 2006)
WIPO/GRTKF/IC/10/4, Annex.
environment in which they are produced. Indeed, TK and its forms of expression are
inseparable. In the internal context of ILCs, for example, “the same body of customary
law is likely to apply to both TK and TCEs.” In recognition of this, WIPO recommends a
“holistic approach” in which the protection of TK and TCE are complementary and
mutually supportive.
Within the holistic context of TK and TCEs, however, a distinction between the two
components is necessary for determining the appropriate subject matter of legal protection
in a particular instrument, and for the choice of the appropriate legal tool that provides
effective protection against appropriation by third parties. Regarding legal protection of
TK externally, it is impractical to achieve effective protection in a holistic context.
First, the legal and policy domain of protecting TCEs is distinct from that for TK (and
its intrinsic components, genetic resources). The former is directly concerned with State’s
“cultural and artistic policy,” a policy and legal domain distinct from a State’s branch that
deals with environmental and biodiversity protection, in the latter. Secondly, as WIPO
notes, “some legal tools are most useful in preventing third parties from misappropriating
TK [stricto sensu]” whereas “other legal tools are more effective against misuse of
TCEs.”
The distinction between the two components of TK is discernable in current
international law and policy on TK. For example, the CBD deals with TK in relation to
genetic resources and biodiversity, thereby, excluding TK embedded in artistic and literary
68
forms of expression. Similarly, UNESCO is mainly concerned with TCEs and intangible
cultural heritage issues that are not mostly related to biological resources, whereas WIPO,
as an overarching global authority on IP policy, addresses TK in all categories where IP is
implicated.
Distinctions can still be made based on a number of factors, such as “the degree of
publicity” the knowledge has within a community or society, or depending on the way
ILCs deal with certain aspects of their knowledge. According to the distinction between
TK stricto sensu, and TCEs – as explained above – the subject of TCEs lies outside the
scope of inquiry in this thesis. Accordingly, attention will focus on TK stricto sensu and
genetic resources that are intrinsic to it.
2.3 GENETIC RESOURCES, BIODIVERSITY AND TRADITIONAL KNOWLEDGE
Art. 2 of the CBD defines “genetic resources” as “genetic material of actual or
potential value.” 122 The same article provides that “genetic material” includes “any
material of plant, animal, microbial, or other origin containing functional units of
heredity.” 123 The Convention does not clarify the meaning of “value” – whether
economic, cultural or spiritual value.
The CBD also defines “biological resource” as “genetic resources, organisms or parts
thereof, populations, or any other biotic component of ecosystems with actual or potential
use or value for humanity.”124 The term “biological resource” refers to those resources that
exist in natural or crude form and to whole organisms. “Genetic resource,” on the other
hand, refers to genetic materials that are obtained only after going through a process, such
69
as isolation from a particular biological resource, and assessment and testing is made for
“actual or potential value.”
knowledge that is generally known, the protective need of the community may rest on “the relatively free
access to knowledge, but with compensation for the holders and/or sharing of benefits resulting from its
use.” See supra note 42 at 160.
122 CBD, supra note 1 at Art. 2.
123 Ibid., para. 9.
124 Ibid., para. 2.
Both “biological resources” and “genetic resources,” however, refer to organic beings
or biological organisms that are economically useful to humanity. Thus, the definition of
biological resources under the CBD includes genetic resources. Because most
biodiversity-rich countries – where TK is most abundant – do not have the capacity to
isolate genetic components of biological resources, TK is associated with resources in
their “biological” state. Thus, TK in genetic resources (GRs) is better understood as TK
related to the utilization and management of biological resources.
TK and biological resources are separate concepts in their ordinary understanding. TK
is an intangible asset while biological resources are corporeal. As any other resource of
material value, genetic compositions of biological resources “represent a set of codes,
with each piece carrying specific information that deal with a certain function.” TK
represents the information that forms the relationship between the set of genetic codes – in
the context of ILCs, biological resource – and its function. This connection enables a
certain biological resource to acquire value – medicinal, agricultural, cultural values. In
the eyes of modern science, the set of genetic codes in a biological resource and the
70
information (information aspect of TK) about its functionality exist in separate
compartments. As a result, the biological resource is treated as “raw material “while the
TK component is often discounted.
Although the distinction between the information (knowledge component) and the
material that the information applies to occupies a highly specialized niche in the Western
epistemological tradition, it is alien to communities outside this tradition. The distinction
between the material – most of the times a biological resource – and its intangible aspect
is blurred in ILCs’ context. Thus, such a distinction in the context of TK is perceived as
“not only inappropriate” but also “denaturaliz[ing of] traditional knowledge.”
The absence of a distinction between the material and the knowledge element is
peculiar to TK, because TK is “typically conceived in fully holistic terms,” as opposed to
the “reductionist” tendencies of “Western” or conventional science. A major difference
between occidental science and TK arises from the fact that unlike the former, TK cannot
be compartmentalised “but remains inseparable from the cohesive whole, from a way of
being and of coming to learning.” TK is more often characterised as “tangible systems of
knowledge, meanings, values and practices” than as a discrete, stand-alone entity. TK is
mostly concerned with contextual application in multiple and diverse realms of life –
agricultural, environmental, medicinal, and spiritual – of ILCs. The application of TK for
the explotation of biological resources in a traditional system of land and other resource
management practices contributes to the creation and sustenance of biodiversity. In order
to clearly delineate the definitional boundaries of TKBAPs, the following Section
discusses concepts of traditional agricultural knowledge and agrobiodiversity.
71
2.4 TRADITIONAL AGRICULTURAL KNOWLEDGE AND AGRO-BIODIVERSITY
Traditional agricultural knowledge refers to the category of knowledge that plays
important roles in resource management and environmental decision-making by ILCs in
the context of agriculture. Within the scope of the contemporary discourse for the
recognition and protection of the rights of indigenous peoples, the focus on agricultural
knowledge highlights the need to address the issue of TK from the perspective of farming
communities around the globe. The Peoples Plan of Action — the statement of NGOs on
the occasion of the FAO’s Fourth International Technical Conference on Plant Genetic
Resources 1996 points out that:
[A]ll agricultural biodiversity from time immemorial has been cultivated,
developed, maintained and improved by farmers familiar with local soils,
water cycles, climate, and other fundamental aspects of each particular
ecosystem. The knowledge of farmers and indigenous peoples is human
knowledge at its best, and forms an important aspect of the intellectual and
biological wealth of the South.
TK’s role among farming communities can be observed in two contexts: First, TK may
be “associated to a biological resource” in such circumstances as in the case of
“information on the effects of medicinal plants or on the specific qualities of a crop.” In
this case, TK is developed and maintained on the use of a naturally occurring resource, or
a crop variety that farmers select and raise for its medicinal properties. Such
agromedicinal resources play key roles in the daily lives of ILCs. The World Health
Organization estimates that 25% of modern medicines are derived from plants first used
traditionally.
72
Second, TK can be “integrated into a biological resource” in such cases as “cultivated
crop varieties and domesticated animals.” In this respect, TK is utilized to develop a
biological resource that is distinct from a naturally occurring species. These contexts of
TK represent the diverse ways in which ILCs in the farming sector create, utilize, and
maintain TK. In the latter case, the biological resource cannot be separated from the
knowledge that gave rise to its development for the reasons stated by the Secretariat of the
CBD:
Firstly, thousands of traditional crop varieties … are themselves the product
or embodiment of knowledge of past and current generations of farmers
which have developed, conserved and improved them. Secondly, according to
the worldview of many indigenous societies, knowledge and resources, i.e.
the intangible and tangible components, cannot be separated. …Thirdly, the
maintenance and creation of knowledge depends on the customary use of
biological resources and their informal exchange between individuals and
communities.
The interrelationship between agriculture and biological resources is complex. On the
one hand, some consider agricultural activities major causes for the transformation of
ecosystems, and sometimes, for the destruction of biological resources. Intensified
agricultural operations and forest extractions result in accelerated loss of biological
resources because these activities often focus on short-term economic gain. As a result,
agricultural activity is a major factor in the loss of balance between humans and the
environment in which they live.
The balance between human activities and the environment on which they depend is
not a difficulty that arises in every agricultural system, however. The negative ecological
and biodiversity effects of agricultural practices mainly relate to the emergence of
73
“complex civilisations, living and expanding their dominant reach beyond the confines of
local ecosystems.” Compared to other agricultural practices, traditional agricultural
practices appear to have more positive effects, as these practices contribute to conserve,
foster, and even create biodiversity. Traditional agriculture creates “open habitats” which
support “many species that would normally be absent in those locations or occur at lower
densities.” The role of traditional agriculture in sustaining biodiversity and ecosystem is
best illustrated by the special relationship that cultural distinctness has with biological
diversity in a particular region, currently recognized in a number of
international instruments.
Rural agricultural strategies aspire to overcome the conflicted relationship between
agriculture and biodiversity through agricultural policies directed at integrating the
maintenance of biodiversity with ecological and socio-economic sensitivity. In this
respect, the recognition of the interaction between “environment, genetic resources and
the management systems and practices used by culturally diverse peoples” has resulted in
the development of the concept of “agro-biodiversity.”
The term “agro-biodiversity” evolved in the literature in the wake of exponential
growth in the biodiversity discourse from the 1980s. 145 Also known as agricultural
biodiversity, agro-biodiversity is a broad category of biodiversity that is of particular
relevance to food and agriculture. The CBD describes it as encompassing:
[T]he variety and variability of animals, plants and microorganisms, at the
genetic, species and ecosystem levels, which are necessary to sustain key
functions of the agro-ecosystem, its structure and processes for, and in support
of, food production and food security.146
74
While agro-biodiversity is associated with the physical activities of cultivating crops
and rearing animals, superimposed on it are a “… complex set of biological processes
from the level of genes to ecosystems, and socioeconomic processes ranging from the
decisions of individual farmers to forces of globalization.”147 Because agro-biodiversity is
fundamentally shaped and conserved through human agricultural activities, FAO
[T]he variety and variability of animals, plants and micro-organisms that are used directly or
indirectly for food and agriculture, including crops, livestock, forestry and fisheries. It
comprises the diversity of genetic resources (varieties, breeds) and species used for food,
fodder, fibre, fuel and pharmaceuticals. It also includes the diversity of non-harvested species
that support production (soil micro-organisms, predators, pollinators), and those in the wider
environment that support agro-ecosystems (agricultural, pastoral, forest and aquatic) as well
as the diversity of the agro-ecosystems.
See FAO, Agricultural Biodiversity, Multifunctional Character of Agriculture and Land Conference,
Background Paper 1 (Maastricht: FAO, 1999) online: FAO
<ftp://ftp.fao.org/docrep/fao/007/y5609e/y5609e00.pdf>; see also UK Agricultural Biodiversity Coalition,
“What Is Agricultural Biodiversity?”Online: <http://www.ukabc.org/>
145
Franziska Wolff, “Legal Factors Driving Agro-biodiversity Loss” (2004) Environmental Law Network
International at 2.
146 CBD Executive Secretary, Review of Implementation of Article 10 of the Convention (Sustainable
Use of Biodiversity) and Application of the Addis Ababa Principles and Guidelines (Subsidiary Body On
Scientific, Technical And Technological Advice Fourteenth Meeting, Nairobi, 10-21 May 2010)
UNEP/CBD/SBSTTA/14/7 at 4; see also Niels P. Louwaars, “Seed Policy, Legislation and Law: Widening a
Narrow Focus” (2002) 4 Journal of New Seeds.
147 Louise E. Jackson et al, “Biodiversity in Agricultural Landscapes: Investing without Losing
Interest” (2007) 121 Agriculture, Ecosystems & Environment 193 at 193.
concludes that “local knowledge and culture can therefore be considered as integral parts
of agro-biodiversity.”
Agro-biodiversity, therefore, includes not only “a wide variety of species and genetic
resources,” but also the systems and practices that guide the modes through which
agricultural communities produce and manage crops. As a result, agro-biodiversity is not
simply the bounty “of nature, guided by nothing but [p]rovidence.”
75
In policy discussion regarding the conservation and preservation of agro-biodiversity,
scholars affiliated with the plant breeding industry tend to adopt a narrow understanding
of agro-biodiversity that emphasises genetic variation as an element of agrobiodiversity.
Accordingly, they consider an increase of genetic diversity between crop varieties as a
prime vehicle to increase agro-biodiversity, and thus, focus on ex-situ conservation
techniques targeted at “economically strong crops” in the context of commercially-grown
crops.
Other analysts with agricultural or ecological background, however, tend to consider
genetic diversity within and between crops as important. They pay more attention to the
social construction of agro-biodiversity as an integral element of sustainable agricultural
production, and thus, they focus on the interaction between the different categories of
agro-biodiversity. Some authors do not include commercially-grown artificial crop
varieties in agro-biodiversity, “because [artificial crop varieties] cannot fulfil the full
range of societal values that native biodiversity does.” Such an understanding provides a
convenient policy framework to appropriately deal with the challenges agro-biodiversity
faces, and serves as a basis to implement the most preferred strategy of in situ
conservation.
While recognizing agro-biodiversity in the context of genetic diversity within and
between crops, the analysis in the thesis focuses on agro-biodiversity in the second
context. The thesis adopts the narrower dimension of agro-biodiversity whenever it refers
to the term, because the inquiry is primarily concerned with understanding the role of GIs
in the cultural and ecological contexts of products of agricultural practices. Intrinsic to
76
this approach to agro-biodiversity is cultural and local knowledge of biodiversity and
management, which forms the basis for exploitation of biological resources. The
intrinsicness of knowledge to agro-biodiversity attests to the embeddedness of
sociocultural factors and processes in agro-biodiversity, and vice versa. Agro-biodiversity
can, therefore, be distinguished from varied types of biological resources in the category
of plant genetic resources for food and agriculture (PGRFA), a term most often used in
international legal and policy discussion and negotiations related to agriculture.
2.5 PLANT GENETIC RESOURCES FOR FOOD AND AGRICULTURE, CULTIVARS
AND GENETICALLY MODIFIED ORGANISMS
The term PGRFA is commonly understood as a generic expression for materials that
grow both in traditional and industrial agricultural fields. The use of the term
encompasses such crops as cultivars, crops in national or international gene banks,
GMOs, landraces, wild species, and farmers’ varieties. In this description of crops,
PGRFA describes similar but biologically diverse populations that contrast in terms of
their histories and agricultural habitats
Cultivar refers to a plant variety “that had been selected for a particular attribute or
combination of attributes and that is clearly distinct, uniform, and stable in its
characteristics and that, when propagated by appropriate means, retains those
characteristics.” Sometimes called “high-yielding varieties” (HYVs) or “hybrids,”
cultivars are distinguished from other varieties by their “distinctive properties for which
[they are] uniform and breed true.” They are usually developed by professional plant
breeders who work in private companies or in publicly funded research institutes through
77
a formal breeding program (sometimes referred to as “scientific breeding”), and they
“typically have a high degree of genetic uniformity.” Distinguished from cultivars are
genetically modified organisms (GMOs), which are organisms that have undergone
advanced procedures of “selective transfer of genes from another organism (even another
natural species)” (in contradistinction to the technologically supported procedures of
breeding through cross-fertilization).
PGRFA does not allow for use in legal and policy analysis concerning problems of
genetic erosion, conservation of biodiversity and farming communities’ control of
resources due to the general inclusivity of the terminology. Thus, the term TKBAPs is
adopted as a reference for analysis in this thesis to specifically refer to biodiversity
resources for food and agriculture. The term also refers to products derived from
biodiversity that relate to informal agricultural activities of ILCs.
2.6 TRADITIONAL KNOWLEDGE-BASED AGRICULTURAL PRODUCTS
TK is a contextual system of knowledge, meanings, values, and practices that are
deeply embedded in the cultures of ILCs. Although TK encompasses intangible assets of
information in the main part, it is mostly embedded in tangible resources that result from
the practising of the knowledge in the daily lives of many ILCs. Indeed, Yu points out that
“intangible cultural heritage is [often] manifested in tangible forms.” Because the
intangible product is separated from its intangible element with no attention to the latter,
products of TK are mostly considered as mere commodities devoid of intangible values to
warrant legal protection.
78
A reference to the information element of TK with little attention to tangible products
that arise from the practice of the knowledge in the context of biodiversity would
artificially separate the knowledge from the resources to which it is integrated. Treating
biodiversity separately from TK this way may result in increased incidence of biopiracy
through the establishment of IPRs over the products of ILCs’ intellectual efforts.
Legal and policy initiatives to protect TK among ILCs should therefore maintain
integrity between their knowledge and the tangible manifestations thereof. Consistent
with this observation, I use the phrase TK-based agricultural products (TKBAPs) to refer
to a range of tangible products in the agricultural field that emanate from a part or the
totality of agricultural knowledge and practices held by ILCs. As such, ethnographic and
metaphysical aspects of TK as well as their tangible expressions that are not essentially
related to agricultural products, are not within the ambit of this project.
The term “agricultural products” has various shades of meaning the scope of which
differs according to the domestic legislation of each country. In the standard definition
found in regional and international legal frameworks, agricultural products are understood
as “products of the soil, of stock-farming and of fisheries and products of first-stage
processing directly related to these products.” This definition stands fairly well to the use
of the term in relation to products of most ILCs that engage in agricultural production. It
includes not only primary agricultural products, but also processed products derived from
them. Components of primary products include, in the main part, landraces, wild species,
and farmer varieties. The scope of “products of first-stage processing directly related to
these products” includes, on the other hand, handicrafts and food products such as cheese,
79
wine, yogurt, sauerkraut etc. To offer a better understanding of the features and potentials
that can be preserved through possible use of GIs as a protective regime, the following
sub-section provides detailed descriptions of primary products in the TKBAPs category.
In addition, a short overview of “handicrafts” is warranted due to the peculiar significance
they have to most indigenous peoples, as distinguished from other products of “first-stage
processing,” namely, food products.
2.6.1 PRIMARY PRODUCTS: LANDRACES, WILD SPECIES, AND FARMERS’ VARIETIES
The term “landrace” generally refers to seeds adapted to local growing conditions
through natural adaptation, usually with no formal selection. The term has been adopted
as a generic one to refer to all farmers’ varieties, including those that are “bred and
maintained through active seed selection on-farm.” In general, landraces may be
characterised as farmer-developed varieties of crop plants which are heterogeneous,
adapted to local environment conditions, have their own local names, and have not been
improved by formal breeding programs. In most cases, landraces are conserved and
maintained as “a part of the cultural heritage of a region or country.”
Landraces constitute an element of TKBAPs due to the peculiar attributes that
distinguish them from other primary agricultural products. These include their historical
origin, recognizable identity, genetic diversity, adaptability, and absence of formal or
artificial selection. The historical attribute of landraces refers to “temporal and spatial
components of where a landrace was first developed.” Unlike modern varieties which are
characterised by an ephemeral life span, landraces have a relatively long history of human
use. They are generally “associated with one specific geographical location” that is mostly
80
attributed as “autochthonous or endemic,” and they often are named after the location.
This description applies to most agricultural products that have a rich tradition behind
them, such as Basmati rice and Roquefort Cheese, produced in the Indian region of
Punjab and the French district of Roquefort, respectively.
The second attribute of landraces relates to their recognizable identity: That they are
“recognizable morphologically, farmers have names for them and different landraces are
understood to differ in adaptation to soil type, time of seed, date of maturity, height,
nutritive value, use and other properties.” In most cases, landraces are recognized for
particular qualitative traits from which they derive their names (in other times, names may
be determined by other factors, such as “use or origin”).
Thirdly, landraces are characterised by “lack of formal genetic improvement.” In
contrast to modern varieties which result from a formal crop improvement process,
landraces have undergone “different forms of selection” by farmers. In landraces,
continuous selection by farmers for “desired characters,” mostly intuitive, replaces
“scientific selection” by industry in the case of modern varieties.
Fourth, as FAO notes, landraces are characterised by “high levels of genetic diversity.”
The diversity of landraces may have two dimensions: Diversity between species, and
within species. Diversity between species results from “heterogeneity in space and
reproductive isolation,” while diversity within species often results from “short-term
variations between seasons and … longer-term climatic, biological, and socio-economic
changes” in the practice of traditional agricultural activity. Thus, landraces are balanced
81
populations – “variable, in equilibrium with both environment and pathogens and
genetically dynamic.”
In addition, landraces are distinguishable by their genetic adaptability to “local
environmental and agro-ecosystem conditions and practices.” The continued cycles of
“local planting, harvesting and farmer selection” of landraces has made them, “not only
adapted to their environment, both natural and man-made but …also… to each other.”
Related to landraces’ attribute of adaptability is their ability of “yield stability” in
marginal environmental conditions.
Finally, their unique association with traditional farming systems identifies landraces.
As Villa, et al, put it, “traditional farming systems involve traditional cultivation, storage,
and use practices, and integrated with these practical skills is incorporated TK about
landrace identification, cultivation, storage and uses.” Although earlier conception of
landraces was that qualities of particular landraces are the result of natural factors, at
present, it is understood that they resulted from an evolutionary process over a period in
which “one or more human communities are involved.” Farmers’ practice of sowing,
harvesting and selecting seeds, through which landraces are developed and maintained,
contrast with “modern agricultural techniques” characterised by large scale production
and intensive agro-chemical inputs.
Usually lumped together under “landrace” are such specific categories of crops as wild
species and farmers’ variety,” also referred to as “folk variety.” Such a broad
categorization precludes clear-cut definitions, making it difficult to describe farmers’
82
seeds with sufficient accuracy for purposes of adopting legal and policy measures for their
protection. Therefore, it is worth noting that landraces relate to, but are distinct from, a
number of other crop products, namely, wild species and farmers’ varieties. Wild species
are agro-biodiversity resources that are “used by humans in their wild state – such as
timber, medicinal plants and rattans taken from the forest – or which are removed from
the wild but kept in a genetically unaltered state.” The term “wild” should not imply
absence of human influence and management of these resources. Though considered to be
wild, they are “actually carefully nurtured by people,” albeit less intensively than those
cultivated in their fields.
Farmers’ variety is often (and mistakenly) used to refer to “landrace,” and viceversa.
In its technical use, “farmers’ variety” refers to those “cultigens that are comparatively
homogeneous and stable for specific trait(s) for which they have been evolved by the
farmers/communities.” Unlike landraces, therefore, farmers’ varieties may fulfil the pre-
requisites of uniformity, stability, and distinctness. The basic difference between “farmers’
varieties” and “landraces” is that “farmers’ varieties” are specialized groups of landraces
developed by innovative farmers or communities who have, “in their acumen, selected or
genetically manipulated” the crops through intervention for specific qualities or
characters. In this sense, they resemble cultivars. Unlike cultivars, however, farmers’
varieties are developed through an informal way of continued use of farmers’ knowledge
over many generations.
83
2.6.2 HANDICRAFTS
The technical definition of “agricultural products,” as seen above, includes products
derived from primary agricultural products. Among other agricultural products, GIs are
credited with the protection of different kinds of handicrafts. The term handicraft refers to
hand-made articles, mostly derived from primary agricultural products which are
produced by craftsmen with or without tools, simple instruments or implements operated
by the craftsman by hand.As one study observes:
One general problem that we face in studying this [handicraft] sector is the
fact that there is really no separate product classification for handicrafts…
Because there is no universally accepted definition of the term ‘handicraft’, it
has been used to refer to a very wide range of items, including a broad
spectrum of ‘gift items,’ house ware, home furnishings, products of craft
industries, and fashion accessories.
Not all kinds of handicrafts are traditional in nature. Traditional handicrafts are
distinguished from “industrial handicrafts” in that the former is ingrained in cultural roots.
According to the Indian Task Force on Handicrafts, “handicrafts are items made by hand,
often with the use of simple tools, and are generally artistic and/or traditional in nature.”
Garg, et al, provide a conventional list of items that may be included in the category of
handicrafts: “[S]uch products as woodwork, jewellery, baskets, needlework, textiles,
glassware, carpets, costumes, beadwork, leatherwork, and the use of local herbs
and plants for traditional medicine and cosmetics.”
According to this list and the description that preceded it, traditional handicrafts may
lie within the scope of a particular category of TK identified as TCEs.201 Some traditional
84
handicrafts have, in the eyes of their makers, exclusive spiritual and cultural significance.
Others (such as leather quirts, textiles) may primarily have economic functions.
While it is clear that TKBAPs, like traditional handicrafts, are associated with the
cultural and spiritual well-being of most ILCs, the thesis addresses TKBAPs in their
significance as a means of supporting the livelihood of these communities, essentially an
economic aspect of cultural life. Traditional handicrafts remain cultural expressions, and
thus, fall outside of the scope of inquiry in this thesis, as long as – in the eyes of ILCs –
they serve the sole purpose of cultural expression or spiritual invocations.
2.7 GEOGRAPHICAL INDICATIONS DEFINED
The term “geographical indications” (GIs) is relatively new. It emerged on the
international scene as the center of three highly debated subjects in international
negotiations: IP, international trade and agricultural policy. In its ordinary use, the term
refers to signs that are deployed in connection with goods to indicate their geographical
derives from their distinctive features, which can be utilitarian, aesthetic, artistic, creative,
culturally attached, decorative, functional, traditional, religiously and socially symbolic and
significant.
UNESCO/ITC, International Symposium on Crafts and the International Market: Trade and Customs
Codification (Manila, October 1997) CLT/CONF/604/7.
201 As previously indicated, the definition of TCEs is sufficiently broad to encompass handicrafts. See above
Section 2.2.1.
origin. Typical examples of wellknown GIs from industrialized countries include
Roquefort cheese, Idaho potatoes, Champagne, and Port wine. Widely known GIs from
85
developing countries include Basmati rice, Aranyik knives, Darjeeling tea, and Pisco
liquor.
Beyond illustrative listing of relevant products, it seems difficult to find an allinclusive
definition for GIs. The use of GIs in the literature reflects differences in the understanding
of their nature. Various terms are used to refer to GIs, whereas the use of “geographical
indications” itself tends to be ubiquitous. Reflecting on the diverse use of terms in relation
to GIs, WIPO remarks that “there is probably no category of intellectual property law
where there exists such a variety of concepts of protection as in the field of geographical
indications.” A clear understanding of GIs can be established through a study of some of
these concepts along with a clarification of the status of GIs in the current IPRs regime.
The latter involves a description of the features and nature of GIs, as compared to the
conventional forms of IPRs.
In regard to terminology, the discussion in this Section begins with an overview of two
interrelated concepts recognized in the earliest international treaties: “appellations of
origin” (AO), and “indications of source.” The Paris Convention for the Protection of
Industrial Property, the first international treaty on IP, uses the term “appellations of
origin” without providing a formal definition. Art. 2 of the Lisbon Agreement for the
Protection of Appellations of Origin and their International Registration, however, defines
Appellation of Origin (AO) as: “…geographical name of a country, region, or locality,
which serves to designate a good originating therein, the quality and characteristics of
which are due exclusively or essentially to the geographical environment, including
natural and human factors.” The Lisbon Agreement also defines “country of origin” as
86
“the country whose name or the country in which is situated the region or locality whose
name constitutes the appellation of origin which has given the good its reputation for the
quality and characteristic.”
Thus, an AO is always a name that designates a country, region, or locality. In
addition, goods bearing the name should exhibit quality and characteristics attributable to
the designated area of geographical origin, such as Champagne wine and Roquefort
Cheese, produced in the French districts of Champagne and Roquefort (known for their
sparkling and nutritive qualities respectively).
“Indications of source” are mostly utilized to comply with customs regulations. They
are covered under the1891 Madrid Agreement for the Repression of False or Deceptive
Indications of Source of Goods. Although the Agreement provides no definition, Article
1(1) clarifies the notion, stating:
[A]ll goods bearing a false or deceptive indication by which one of the
countries to which this Agreement applies, or a place situated therein, is
directly or indirectly indicated as being the country or place of origin shall be
seized on importation into any of the said countries.
The language used in this provision illustrates, first, a clear emphasis on the link
between the “indication” and the “geographical origin” of the product, which may be a
certain country or a place in a country. In addition, the indication in “indications of
source” need not necessarily be a geographical name. Words or phrases that directly
indicate geographical origin or phrases, symbols or iconic emblems indirectly associated
with the area of geographical origin may constitute an indication of source. Third, unlike
87
AO, an indication of source need not represent a particular distinctive or renowned quality
associated with the product’s origin. Therefore, indications of source simply designate the
geographical place of origin of a product.213
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement), is the first to make use of the term “geographical indications” in a binding
treaty.214 Art. 22.1 of the Agreement provides the most extensive definition of GIs. It states
that for its purpose, GIs are “… indications which identify a good as originating in the
territory of a Member, or a region or locality in that territory, where a given quality,
reputation or other characteristic of the good is essentially attributable to its geographical
origin.” This definition mimics that offered by WIPO, as it encompasses pre-existing
notions of “indications of source” and of “appellations of origin.”215
The inclusion of GIs in the TRIPS Agreement raises the question whether GIs are part
of the conventional IPRs regime. As a primary international agreement setting out
minimum standards for “trade-related” intellectual property rights, 216 the TRIPS
Agreement declares that IPRs are private rights.217 In its “general provisions and basic
WIPO, Model Law for Developing Countries on Appellations of Origin and Indications of Source (Geneva:
WIPO, 1975).
213 WIPO defines indications of source as “any name, designation, sign or other indication which refers to a
given country or to a place located therein, which has the effect of conveying the notion that the goods
bearing the indication originate in that country or place.” WIPO, Introduction to Intellectual Property:
Theory and Practice (London: Kluwer Law International, 1997) at 18.145.
214
The TRIPS Agreement is the first multilateral text to deal with “geographical indications” in a
groundbreaking manner. See Daniel Gervais, The TRIPS Agreement, Drafting History and Analysis, 2nd ed.,
(London: Sweet and Maxwell, 2003) at 293. [Gervais, “Drafting History”]
215 See Chapter 5 Section 5.3, below, for discussion of the concept of “geographical indications” in
the
WIPO context; see also WIPO International Bureau, “WIPO Introductory Seminar on Intellectual Property:
88
General Introduction to Intellectual Property Rights” (Paper Presented at a conference organized by the
WIPO in cooperation with the Ministry of Commerce and Industry and the Sultan Qaboos University
(SQU), Muscat, Oman, April 19, 2004) WIPO/IP/MCT/APR/04/2, para. 5.
216 See Chapter 4 Section 4.3.1 below, for discussion on the status of the TRIPS Agreement as a
global instrument of intellectual property rights.
217 The preamble to the TRIPS Agreement emphasises that “intellectual property rights are private
rights” available to legal persons, implying that such rights are generally owned by individuals or
corporations, and not by communities, states or nations. See TRIPS Agreement, note 13, Chapter 1,
preamble; S. K.
principles,” the TRIPS Agreement also confirms that “intellectual property” refers to all
categories of intellectual property.218 Given that Section 3 of the Agreement addresses GIs,
they are ipso facto considered part of IPRs. Therefore, the TRIPS Agreement considers
GIs private property rights in the same way as other IPRs.219
In spite of the TRIPS Agreement’s categorization of GIs as “private rights,” GIs seem
a poor fit with conventional private property rights for a number of reasons. 220 In this
regard, it is important to distinguish GIs from trademarks, a category of conventional
IPRs that are most similar to GIs in function.221 Trademarks primarily identify individual
commercial actors that offer goods and services in the market.222 Due to the primary
recognition of individual persons as rights holders, trademarks bear the hallmarks of IPRs
as private property.223
Sreedharan, “Reconciling TRIPS with the Convention on Biological Diversity – Indian Perspective” (2004)
2 Business Briefing at 1.
218 See TRIPS Agreement, note 13, Chapter 1, Art. 1 (2) (stating that “For the purposes of this
Agreement, the term ‘intellectual property’ refers to all categories of intellectual property that are the
subject of Sections 1 through 7 of Part II”).
219 It is notable that the TRIPS Agreement qualifies its general statement on the private nature of IPRs
as being “for the purposes of this Agreement.” See TRIPS Agreement, ibid.
220
See Chapter 3 Section 3.2.2.2 and Chapter 5 Section 5.8 below, for discussion of the defining
characteristics of conventional IPRs vis-à-vis GIs.
221
89
See Chapter 5 Sections 5.5 & 5.6, below, for distinction between trademarks and geographical
indications; also see Burkhart Goebel, “Geographical Indications and Trademarks: The Road from Doha”
(2003) 93 TMR 964.
222 There are circumstances in which trademarks may be used to identify a geographical area of
production of the products to which they are applied. However, the use of geographical names as
trademarks occurs in exceptional circumstances, whereby the name has acquired a “secondary meaning.”
See Chapter 5 Section 5.5.1, below; see also Dev Gangjee, “Quibbling Siblings: Conflicts between Trade
Marks and GIs” (2007) 82 Chicago-Kent L Rev 1253.
223 This feature of trademarks does not change even in circumstances of collective marks and
certification marks because, in both cases, rights holders are necessarily required to form a juridical person.
In certification marks, the rights holder is a collective organization which certifies that individual traders
that
On the other hand, the “substance of the concept” of GIs is that they are “used to
demonstrate a link between the origin of the product to which it is applied and a given
quality, reputation or other characteristic.” 224 In this respect, GIs mainly designate
products originating from places, towns, regions or countries, instead of from specific
private individuals.225 The place-based nature of GIs rights allows ILCs to establish
collective rights over traditional resources in a defined geographical area, without a need
to identify particular rights holders. The amenability of GIs to the tradition of collective
production and collective decision-making is an important factor that does not allow for
the categorization of GIs as private property rights.226
Second, rights holders do not own GIs in the same context that they own trademarks.
In the protection of GIs, “ownership” mainly relates to protection based on a spatial tie
that allows for the exercise of TK-based systems and practice in a collective and
participatory process in a geographical area.227 In trademarks, and in most other IPRs,228
use the mark meet specified standards. In collective marks, the rights holder is usually an association or a
cooperative which owns the mark on behalf of its members. In both cases, ownership of the marks or
indications is attached to individuals that must be incorporated to form a legal person. See Chapter Section
5.5 & 5.6, below; also see Daniel J. Gervais, “The Internationalization of Intellectual Property: New
Challenges from the Very Old and the Very New” (2002) 12 Fordham Intell Prop Media & Ent LJ 929 at
953 [Gervais, “Internationalization”]; Elisabeth Barham, “Localization within Globalisation: Better
Protecting Geographical Indications to Favour Sustainable Development” (Comments offered for the 2004
90
Annual WTO Public Symposium ORIGIN Round Table on Geographical Indications, Geneva, 27 May
2004) [Barham, “Localization”] .
224
WIPO, The Definition of Geographical Indications (Standing Committee on the Law of Trademarks,
Industrial Designs and Geographical Indications, Ninth Session, Geneva, November 11 to 15, 2002)
SCT/9/4, para. 3.
225 See Chapter 5 Section 5.5.1, below, for more
discussion on this.
226 See text accompanying infra note 193, Chapter 5.
227 See ibid, for discussion of the collective dimension
of GIs.
228
See GRAIN, “The TRIPS Review at A Turning Point?” (2003): online:
<http://www.grain.org/es/article/entries/104-the-trips-review-at-a-turning-point>
however, “protection” means enforcing private and exclusive economic control in order to
prevent others from using or reproducing the mark in relation to products.229 The
protection of GIs does not necessarily exclude other persons or groups from the use of the
GIs. Rather, all producers in the area to which the GI refers have the right to use the
indication for products that originate from the area (subject to relevant standards of
production).230 Therefore, “property” in the context of GIs is construed in a strict sense of
“rights to something rather than to the thing that is ‘owned’” (and thus always
exclusionary, in a private property context).231
229 For discussion of the common characteristics of the rights known as intellectual property rights,
see Gervais, “Internationalization”, supra note 223 at 953. In light of the characterization of IPRs as private
rights, it is important to note that this thesis makes a technical distinction in the use of the terms IP and
IPRs. IPR is a bundle of legal rights recognized for creations and innovations that receive a measure of legal
protection. IPRs may, therefore, refer to only aspects of knowledge that fulfill the requirements of existing
IP law including, in the context of this thesis, the TRIPS Agreement’s description of IPRs as “private rights”
that have individuals as rights holders. In general, IP can be considered as referring to “anything coming
from the working of the human brain,” irrespective of the identity of the knowledge holder.
In clarifying IP as a legal concept in a comment on WIPO’s FFMs, the Future Harvest Centres,
supported by the Consultative Group on International Agricultural Research (CGIAR) remark that “IP is a
set of tools, a means by which we attempt to achieve certain objectives.” The Future Harvest Centres
identify societal, environmental and cultural objectives that may be achieved through an IP system for
protecting TK. Similarly, the thesis assesses the “instrumentality” of IP for protecting TK and TKBAPs. See
description of “intellectual property” in international treaties infra note 244; WIPO, Intellectual Property
91
Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on
Intellectual Property and Traditional Knowledge (1998-1999) (Geneva: World Intellectual Property
Organization, 2001) at 209. See technical distinction between the use of the terms IP and IPRs in Nicola
Lucchi, “Intellectual Property Rights in Digital Media: A. Comparative Analysis of Legal Protection,
Technological Measures, and New Business Models under EU and US Law” (2005) 53 Buff L Rev 1111 at
nn.4; Ian J Lloyd, Information Technology Law, 4th ed, (Oxford: Oxford University Press, 2004) at 282.
230 See Chapter 6 Section 6.4.1 below, for discussion of conditions for the protection of GIs; also see
Chapter 5 Sections 5.5 & 5.6, below, for distinction between trademarks and geographical indications; also
see Burkhart Goebel, “Geographical Indications and Trademarks: The Road from Doha” (2003) 93 TMR
964.
231 Darrell Addison Posey & Graham Dutfield, Beyond Intellectual Property: Toward Traditional
Resource Rights for Indigenous Peoples and Local Communities (Ottawa: IDRC, 1996).
Third, GIs differ from trademarks and other conventional IPRs in that they are not
freely transferable. The non-transferability of GIs is a fundamental distinguishing feature
because the justification for most forms of conventional IPRs lies in the subject matter
being freely transferable with minimum transaction costs. As opposed to most IPRs, GIs
are not transferrable through assignment, mortgage or licensing, even if similar goods are
manufactured outside the area that the GI designates.
As the above discussion shows, GIs lack the defining attributes of most IPRs. In
addition, GIs have unique features that distinguish them from the conventional forms of
IPRs. In their evolution in national jurisdictions, GIs have historically been considered a
special form of IP that have relevance for public policy objectives in agricultural
development. GIs are conceptualized as “publicly-oriented” rights that have particular
92
relevance for preserving cultural heritage and conserving agricultural systems for multiple
benefits.236
As the discussion in Chapter Five regarding GIs in the EU shows, the “public
property” nature of GIs relates to their use for protecting the collective interest of
tradition-based agricultural producers, preserving cultural heritage, and conserving
agricultural systems for multiple benefits. On these grounds, public authorities play active
role in efforts to enforce and defend GIs rights, beyond their traditional role of setting up
legislative, regulatory and institutional frameworks.
236 See Daniele Giovannucci, et al, Guide to Geographical Indications: Linking Products and their Origins
(Geneva: International Trade Centre, 2009) at 20, 15-16 & 36; FAO and SINER-GI, Linking People, Places
and Products: A Guide for Promoting Quality Linked to Geographical Origin and Sustainable
Geographical Indications (Rome: FAO, 2009) at 185; Barham, “Localization”, supra note 223; also see
Chapter 6 Sections 6.5, 6.6, 6.7 & 6.8. For opposing views on the public aspect of GIs, see Jim Chen, “A
Sober Second Look at Appellations of Origin: How the United States Will Crash France’s Wine and Cheese
Party” (1996) 5 Minn J Global Trade 29; Amy P. Cotton, “123 Years at the Negotiating Table and Still No
Dessert? The Case in Support of TRIPS Geographical Indication Protections” (2007) 82 Chi-Kent L Rev
The “public property” nature of GIs is reiterated in a survey of national laws
undertook by the International Association for the Protection of Intellectual Property
(AIPPI). The majority of countries that participated in this study confirmed that GIs are
not generally associated with private ownership.239 The “public property” nature of GIs
seems to be recognized in the US as well, at least as far as domestic GIs for wines are
concerned. In view of the foregoing discussion, the categorization of GIs as private
property rights seems to reflect the disagreement generated during the negotiation for the
inclusion of GIs in the TRIPS Agreement.
93
239
The summary of responses from the study indicates that “the majority of Group Reports (Australia,
Belgium, Brazil, Estonia, Germany, Latvia, Luxembourg, Malaysia, Peru, Portugal, Republic of Korea,
Singapore, Switzerland, and UK) note that the registration of a GI does not confer a property right [and that]
there is generally no individual ‘proprietor’ or ‘right holder.’” AIPPI Working Committee, Summary Report
on Question Q191: Relationship between Trademarks and Geographical Indications 3 (2006) online: AIPPI
< https://www.aippi.org/download/commitees/191/SR191English.pdf>; also see supra note 222.
Despite their inclusion as a category of IP in the TRIPS Agreement, some express
doubts regarding the status of GIs as a form of IP. In the absence of authoritative
definitions in international treaties for what constitutes “intellectual property,” the
involvement of “intellectual input” is a common denominator in a list of the subject
matters protected by IP law. As such, whether GIs are a form of IP is often determined
based on the question whether human factors of production (i.e. skills and knowledge in
the process of production) contribute to the “given quality, reputation, or other
characteristic” of a product that is the subject matter of GIs protection. It is sometimes
argued that the subject matters of GIs, TKBAPs in most cases, lack the “intellectual
process” that is prerequisite for IP protection. Focusing on the geographic aspect of GIs,
some believe that GIs do not accommodate “human innovation” in the making of relevant
products to justify the recognition of GIs as a form of IP.
94
Other parts of this thesis address the recognition of the “traditional knowledge”
element of most TKBAPs as “intellectual inputs” in the protection of IP in general, and of
GIs in particular.247 Suffice to say in this Section that the recognition of indications of
source and AOs in IP treaties administered by WIPO shows that GIs have acquired the
status of a distinct form of IP. 248 WIPO initially adopted the term “geographical
indications” to describe the subject matter of a new treaty for the international protection
of IP concepts represented by indications of source, and AO. Although the TRIPS
Agreement characterizes all IPRs as “private property,” Art. 22 of the Agreement
247 See Section 2.8, below, for discussion of traditional knowledge as an element of the subject matter of
GIs; Chapter 4 Section 4.7, below; Chapter 5 Section 5.10, below, for discussion of normative justifications
for the recognition of TK as embedded and embodied in TKBAPs.
248
In a pre-TRIPS era, three multilateral treaties administered by WIPO contain provisions for the
protection of geographical indications. These are the Paris Convention for the Protection of Industrial
Property, the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods,
and the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration.
See Chapter 5 Section 5.3 below, for discussion of the evolution of GIs in international regimes; see Madrid
Agreement, supra note 209; “Paris Convention”, supra note 204; Lisbon Agreement, note 128, Chapter 1.
The EU officially recognizes GIs as “a type of intellectual property.” See European Commission,
“Geographical Indications” online: European Commission: Trade
<http://ec.europa.eu/trade/creatingopportunities/trade-topics/intellectual-property/geographical-
indications/>. Although Canada protects GIs through a trademark-based protection, the Agriculture and
Agri-Food Canada recognizes GIs as “a distinct form of intellectual property,” and acknowledges that they
are “a type of intellectual property, as are patents, trade-marks and copyright.” See Agriculture and Agri-
Food Canada, “Means of Protection of Geographical Indications in Canada” online: Agriculture and Agri-
Food Canada < http://www.agr.gc.ca/itpd-dpci/to-su/4945-eng.htm>. Also see FAO and SINER-GI, supra
note 236 at 185 (concluding that “[a]s an intellectual property right, a geographical indication can be
considered a collective or public good”); Rangnekar, “Intellectual Properties” supra note 244; Dwijen
Rangnekar, Geographical Indications and Localization: A Case Study of Feni, CSGR Report (2009) online:
<www.esrc.ac.uk/my-esrc/.../4fcff116-d65b-4ed1-8540-9e10c2dfcca9>[Rangnekar, “Feni”]; Barham,
“Localization”, supra note 223; Eleanor Meltzer, Geographical Indications: Point of View of Governments
(Worldwide Symposium on Geographical Indications, Organized by the World Intellectual Property
Organization & the United States Patent and Trademark Office, San Francisco, California, July 9 to 11,
2003) WIPO/GEO/SFO/03/3 at para 5; Laurence Bérard, Marie Cegarra & Marcel Djama, Biodiversity and
Local Ecological Knowledge in France (Nancy: Editions Quae, 2006) at 231; Alberto Francisco Ribeiro De
Almeida, “Key Differences between Trade Marks and Geographical Indications” (2008) 30 European
Intellectual Property Review 406 at 411 (noting that “after the TRIPS Agreement, geographical indications
can live with autonomy inside the intellectual property law”).
95
recognizes GIs in the same context as that developed in the WIPO process. For
definitional purposes, therefore, it is essential to clarify the scope of GIs in reference to
AOs and indications of source.
GIs are similar to AOs in that both associate the quality of a good to a geographical
location that an indication identifies. Whereas Art. 2 of the Lisbon Agreement defines
AOs as “the geographical name ... which serves to designate a product …,” Art. 22.1 of
the TRIPS Agreement defines GIs as “indications which identify a good …” The
definition of GIs may include indirect references to geographical locations, such as
pictorial symbols – as long as they can identify a good with “a given quality, reputation or
other characteristic” as originating in a territory, region or locality in the territory. Thus, in
terms of scope, GIs are wider than “appellations of origin” because GIs are not restricted
to the name of geographical locations. The “territory” requirement in GIs may also be
fulfilled using terms that are suggestive of a geographical origin but are not in themselves
place names. These are sometimes referred to as “indirect geographical indications.”252
Unlike AO, GIs are not restricted to products that have a quality and characteristics
due to natural and human factors associated with the geographical environment of their
place of origin. They may include goods that have a given quality, reputation or other
characteristic, which is essentially attributable to its geographical origin. The alternative
listing of “quality, reputation or other characteristic,” as opposed to cumulative and
restrictive requirement of “quality and characteristics” for AOs in the Lisbon Agreement,
indicates that in GIs, each one of the factors – “quality,” “reputation” or “characteristic” –
is on its own an adequate condition for the grant of protection. In AOs, a combination of
96
natural and human factors forms the basis for the requirement of the product’s distinctive
quality and characteristics.253
The determination of “quality” is a subjective notion, which depends on individuals’
appreciation. It is difficult to find an exhaustive list of criteria that takes into account the
cultural diversity of the international community to determine a universally acceptable
quality. Accordingly, domestic authorities determine “quality,” taking into account
Greece. The name “Feta” derives from Italian, and it means “slice” or “piece.” See ECJ, Kingdom of
Denmark and Federal Republic of Germany v. Commission of European Communities (‘Feta II’) C-465/02
and C-466/02, [2005] online: <http://www.curia.eu.int/>.) In a questioner for a study sponsored by the
WTO, Australia stated that geographical indications indirectly linked to a specific region may, either
expressly or impliedly, be included in the Australian Food Standards Code Spirit Standard. The same study
indicates that the EC system for the protection of GIs for agricultural products and foodstuffs provides that
certain traditional non-geographical names designating an agricultural product or a foodstuff originating in a
region or a specific place can also be considered as designations of origin. Also, according to the study, the
common Andean regime contained in Decision 344 includes within its definition of “appellation of origin”
names which, without being that of a specific country, region or place, relates to a specific geographical
area. See Council for Trade-Related Aspects of Intellectual Property Rights, Review under Article 24.2 of
the Application of the Provisions of the Section of the TRIPS Agreement on Geographical Indications:
Summary of the Responses to the Checklist of Questions, IP/C/W/253, (4 April 2001), para. 34.
252 Council for Trade-related Aspects of Intellectual Property Rights, Ibid.
253 See WIPO, The Definition of Geographical Indications (Standing Committee on
the Law of Trademarks, Industrial Designs and Geographical Indications, Ninth Session,
Geneva, November 11 to 15, 2002) SCT/9/4, para. 21 [emphasis added].
specific factual circumstances of the good. As WIPO confirms, the term “quality” appears
less to imply a certain quality of the product – qualitative criterion – than a characteristic
– legal criterion, which allows the distinguishing of the product because of its
geographical origin. In this respect, a precise description of the product or of the method
for obtaining it may determine “quality.”
GIs are not restricted to products having quality. They also apply to products that
enjoy a given reputation. As Rangnekar notes, the separate reference to “reputation”
allows for the possibility of protecting reputable goods that may not have a particular
97
quality or characteristics and, thus, may not have qualified for the protection of an
appellation of origin. These factors must contribute to the distinctiveness of the product,
i.e., its capacity to distinguish itself from other products, and the reputation must be
assessed, inter alia, from the consumer’s perception of the indication. The next Section
discusses the significance of “reputation” in GIs to protect TKBAPs.
It is important to note that both AOs and GIs involve the protection of a reputation.258
In case of AOs, the reputation is a consequence of the “quality and characteristic” that the
product exhibits by virtue of its geographical origin and the consumer preference
associated with it, as represented by the common law conception of “goodwill.”259 In GIs,
however, reputation may not necessarily relate to the “quality” of the product. Reputation
is protectable subject matter in GIs, independently of the “quality” of a product.
It is pointed out that the specific inclusion of “reputation” in Art. 22.1 of TRIPS did not
exist in the first draft presented to the Brussels Ministerial Conference in December 1990;
rather, the wording is found in the consolidated text that became the basis for the final
agreement.260 The wording of the TRIPS Agreement in this regard is influenced by the
negotiating agenda of the European Council, which advocated for wide inclusion of
GIs in the TRIPS, and closely resembles the definition of GIs in the European Council’s
Regulation on Geographical Indications of 1992.261
258 Though the definition of AO does not include “reputation” as a distinct protectable subject matter,
Art.
1(2) of the Lisbon Agreement makes a reference to “reputation.” See Lisbon Agreement, note 128, Chapter
98
1.
259 Most in the common law jurisdiction protect AO through the law of passing off, which
incorporates the element of shared goodwill. See Daniel R. Bereskin, “Legal Protection of Geographical
Indications in Canada” (Paper Presented at the Intellectual Property Institute of Canada’s Annual Meeting,
Halifax, September 18, 2003).
260
See Rangnekar, “Review”, supra note 210 citing MTN.GG/NG11/W/76; reprinted in Gervais, “Drafting
History”, supra note 214. It is to be noted that the wording of the TRIPS Agreement in this regard is
consistent with and closely resembles the definition of GIs in the EC’s 1992’s Regulation on Geographical
Indications. See EU, Council Regulation (EC) 2081/92 of 14 July 1992 On the Protection of Geographical
Indications and Designations of Origin for Agricultural Goods and Foodstuffs, [1992] O.J. L/ 208; also see
Stoll et al, supra note 241 at 380.
261 EU, Council Regulation2081/92, ibid., ,Art. 5–
6.
GIs protect some “other characteristic” of the good even when the characteristic does
not relate to the “quality” or “reputation” of the product. “Other characteristic” refers to
any element that contributes to the typicality of the product. As WIPO affirms, the most
frequently cited factors that contribute to the products’ typicality include natural and
human factors. The natural factors are the physical attributes of the soil, weather,
geographical location, and the like. The combination of TK-based practices with these
attributes result in specificity to a particular area, represented by the French conception of
“terroir.” The recognition of the human factors in areas that GIs designate – as the
discussion in the following Section indicates – makes it possible to protect products
whose unique characterstic derives from TK-based practices in a defined territory.
In both AOs and GIs, attributes of the product should be linked to a geographical
origin, somehow. The Lisbon Agreement provides that to qualify for protection, the
“quality and characteristics” of the product should be “due exclusively or essentially to
the geographical environment, with its inherent natural and human factors.” Under TRIPS
too, the dual requirements that “indications identify a good as originating in the territory,”
and that the “quality, reputation or other characteristic of the good is essentially
99
attributable to its geographical origin,” suggest a qualitative link between the product and
the geographical environment in which it is found. The difference in the degree of the
products’ attachment to the geographical origin – in AOs, “due exclusively or essentially
to” and in GIs, “essentially attributable to” – demonstrates that the requirement in GIs is
less restrictive.
The foregoing discussion shows that at the international level, the TRIPS Agreement
provides the most extensive definition of GIs as a field of protection distinguished from
trademark. Despite this recognition, the Agreement does not require WTO Members to
provide a uniform means of protection of GIs at the national level. The TRIPS Agreement
allows WTO Members to choose the means of protection which, in most cases, can be
either trade mark-based or sui generis form. According to the needs and specific
circumstances that necessitate the recognition of GIs rights, domestic authorities may
choose to implement GIs either in their sui generis form or in a trademark-based model.
In GIs implementation necessitated by the “publicly-oriented” goals of TKbased
agricultural policy, the sui generis form of GIs protection best captures the essentials that
accommodate the subject matter of GIs as currently recognized under Art. 22 of the
TRIPS Agreement.
The broad scope of the concept of GIs is relevant to the primary inquiry in this thesis
in that it makes it possible for GIs systems to accommodate the traditional practice of
communities who, due to their intergenerational occupancy, are identified with a
particular territory. A wider understanding of GIs accommodates the diversity of
“creativity” that is abundant in the realm of TK systems.
100
The literature on relevant international agreements often uses the term “geographical
indications” to refer to “appellations of origin,” and “indications of source” and viceversa.
The rights and obligations flowing from those instruments exist only in relation to the
category of “geographical indication” to which the instrument in question refers.
101
This thesis adopts the understanding of GIs within the wider meaning that the TRIPS
Agreement accords to them under Art. 22.
2.8 THE LINK BETWEEN GEOGRAPHICAL INDICATIONS AND TRADITIONAL
KNOWLEDGE
At this juncture, it is appropriate to ask why it is necessary to focus on GIs as likely
candidates to protect TKBAPs. The second part of the thesis will examine unique aspects
of the relationship between GIs and TK. This section briefly elucidates the definitional
aspects of GIs that have relevance to the analyses on the applicability of GIs to TKBAPs.
A fundamental definitional issue of GIs that has bearing in discussion concerning TK
involves the role of GIs in accommodating TK embedded in agricultural practices
associated with a geographic location. As an indication, a GI directly identifies the
product’s origin, but the identification also points to “quality, reputation or other
characteristics” attributable to the product. The capability of GIs in this respect can be
illustrated by reference to the linguistic, and consequently, juristic distinction between
denotation and connotation of signs that GIs signify. Before the introduction of GIs to the
international discourse on IP, Ladas pointed to a distinction between “indication” and
“appellation.” In his words, these are not “grammatically, as well as
juristically…identical.” Noting that “appellation, in French as well as in English, means a
name given to a person or thing,” he outlines the legal consequence of the distinction:
“[Appellation] evokes the idea of susceptibility of appropriation or the idea of a property
right;” whereas, “indication” refers to “what serves to indicate or point at something, or
informs.”
102
Building on this, Taubman suggests that the definition of GIs under the TRIPS
Agreement seems both to “name” a product (signified by the term “identifies”), and to
convey information about it (indicated by the use of the term “as originating in” a certain
location). This seems consistent with the expanded definition of GIs under the TRIPS
Agreement, which enables GIs to be an indication as well as a name (and thus, a fit
subject of property). Denoting a product’s origin, a GI connotes additional properties. The
denotation protected by the law relates to the physical geographic location – “the sign the
product points to in the eyes of the consumer” – while the connotation refers to “the
penumbra of associations and qualities [i.e., in the words of the TRIPS Agreement,
“qualities, reputation or other characteristics] that ...[could be] ‘usurped’, ‘appropriated’,
‘diluted’ or ‘imitated.’”
The International Bureaux for the Protection of Intellectual Property (IBPIP)
acknowledged the distinction between the rights included in “indications” and those in
“appellation” as early as 1958. The IBPIP pointed out that the bundles of rights protected
by the term “indications” existed “primarily for the benefit of consumers, to prevent their
deception with regard to the geographic origin of the product concerned.” 276 On the other
hand, protection of rights under “appellations” is concerned with “the class of producers
or manufacturers of such products” and therefore, IBPIP noted, protection is sought “in
their [(producers’)] interest…against the improper use of such appellations by persons not
entitled to their use.” The benefit for consumers relates to the minimization of the “search
costs” of consumers who would “identify” the product due to the sign the GI signifies.
The producers’ benefits relate to proprietary interests derived from the inherent
characteristics of the product connoted by the GI.
103
As a primary focus of assessing GIs’ utility to protect TKBAPs, this thesis explores
both dimensions of GIs because of expected multifunctionality of a protection regime to
satisfy the needs and desires of ILCs. A particular emphasis is put on the “connotation”
dimension because the content of the rights in this respect exhibits “many of the hallmarks
of a property right” that may be of key importance to serve the needs of ILCs as producers
of distinct agricultural products.
On the link between GIs and TK, this thesis proceeds from the hypothesis that
TKBAPs can be subject matters of “connotation” and “denotation” in GIs. The
relationship between GIs and TK in the sense of GIs’ instrumentality to protect TKBAPs,
in this manner, emanates from the wide definitional scope of GIs under the TRIPS
Agreement, which provides for consideration of the following relevant factors.
First is the specific inclusion of “reputation” as an independent protectable subject in
the TRIPS Agreement. Maskus points out that “reputation” in the protection of GIs may
not necessarily arise from “physical characteristics emanating from climate or soil
quality” of the product, but other factors in the geographical origin such as “local
inventiveness.” The WIPO also indicates that “reputation” with respect to GIs mainly
relates to “the history and historical origin of the product” – an attribute more attuned to
products of TK.
Among the criteria considered in delimiting a geographical origin for GIs protection,
the aforementioned WTO survey lists human features such as “choice of varieties and
methods of production; historical and traditional factors; the technical skill of the makers
or processors; methods of production, preparation and processing.” Although assessment
104
of the reputation based on these factors may differ according to the systems and the
products, and can be made on a local, national, or international basis, WIPO suggests that
a local reputation be sufficient for protection to be granted. This highlights the unique
aspects of GIs that enable local ILCs to reject globalized methods of production for the
sake of production methods suited to their traditions and adapted to local context.
The increased acceptance – in the protection of GIs – of products’ “reputation or other
characteristics” has earned GIs a recognition as “unique expression[s] of local
agroecological and cultural characteristics,” and “not exclusively commercial or legal
instruments.” The Secretariat of WIPO’s Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) recognizes
GIs as instruments that protect human factors pertaining to agricultural products – beyond
physical factors specific to a geographical location – in its observation that:
Geographical indications, as defined by Article 22.1 of the TRIPS Agreement
… rely not only on their geographical connotation but also, essentially, on
human and/or natural factors (which may have generated a given quality,
reputation or other characteristic of the good). In practice, human and/or
natural factors are the result of traditional, standard techniques, which local
communities have developed and incorporated into production. Goods
designated and differentiated by geographical indications, be they wines,
spirits, cheese, handicrafts, watches, silverware, and others, are as much
expressions of local cultural and community identification as other elements
of traditional knowledge can be. Additionally, the geographical reference of a
geographical indication or appellation of origin is an indirect means of
appropriation of traditional techniques that otherwise might be in the public
domain.
For those reasons, current approaches in IP and development view GIs broadly as:
“[A]n integral form of rural development that [offer] a valuable framework for powerfully
advancing commercial and economic interests while potentially integrating local needs
105
that are anchored in cultural tradition, environment, and broad levels of participation.”
These observations serve as a basis to examine the applicability of GIs as legal
mechanisms for protecting TKBAPs.
It is important to point out that the concept of “protection” has various contexts of
application in legal scholarship in general, and in the discourse on TK in particular. The
next section provides a brief explanation of the concept of “protection” as deployed in
this thesis.
2.9 WHAT IS “PROTECTION?”
The WIPO IGC recognizes that when used in relation to TK, the term “protection”
takes on many different meanings. WIPO distinguishes between “protection” in the
context of IP, on the one hand, and the “safeguarding” or “preservation” of cultural
heritage, on the other. The latter generally refers to “the identification, documentation,
transmission, revitalization, and promotion of tangible or intangible cultural heritage in
order to ensure its maintenance or viability.” This involves mobilizing resources to ensure
the continued survival and perpetuation of cultural heritage which may include, for
example, the physical protection of cultural items from degradation or loss. In this
context, “protection” has a wider scope that includes objectives and activities that can be
realized through non-IP laws and programs.
Protection in the context of IP refers to the establishment of “legal measures that limit
the potential use of the protected material by third parties.” Such limitation may be
accomplished either through the grant of rights to prevent their use altogether (exclusive
106
rights), or through the setting out of conditions for their permitted use (such as subjecting
it to equitable compensation or a right of acknowledgement). The analysis in this thesis of
the instrumentality of GIs to “protect” TKBAPs employs legalistic and IP-context of the
use of the term.
In discussion regarding the policy implication of the use of GIs, however, the meaning
of “protection” definitely lies out of the context of IP. In analysing the contribution of GIs
to protect biodiversity, for example, “protection” applies to “safeguarding” or
“preserving.” In other words, protection of TKBAPs in the second context implies
protecting the social, economic, cultural and biodiversity context of TK so that the
knowledge continues to guide and sustain the life of ILCs. Thus, the term “protection”
should be understood in this thesis in both contexts and, where necessary, a distinction
should be made to identify the applicable context.
In the legalistic sense of “protection” of TK, the modes of protection may take the
following two forms: Either the protection for exploitation of TK with new-fangled or
extant IP regimes, or the protection against exploitation of this knowledge by preventing
its misappropriation with similar IP regimes. The former is referred to as positive
protection, while the latter is deemed defensive protection.
The positive protection of TK mainly responds to the interest of ILCs to benefit from
the commercialization of their knowledge. This system aspires to create “an entitlement
system” through mechanisms such as sui generis legislation, contractual agreements
and/or the use of existing IP systems of protection that enable ILCs to protect and promote
their knowledge.
107
The defensive protection of TK, however, mainly responds to the needs of ILCs who
may want the preservation of TK as an end in itself. These groups and communities are
more concerned with the cultural, social, and psychological harm caused by the
unauthorized use of their TK by outsiders than its economic implication.
The “positive” and “defensive” aspects of “protection” are mainly distinguished based
on the policy guidance under which “protection” is pursued. The distinction between the
defensive and positive dimensions of “protection” is not quite clear; the two are not
necessarily mutually exclusive. Although IP protection does not necessarily comprise the
grant of property rights, when property rights exist, protection “enable[s] the rights holder
either positively to exercise the rights himself, to authorize others to do so (i.e., the right
108
can be licensed), and/or to prevent others from doing so.” The distinction between the two
appears insignificant, as the protection of TKBAPs through IP for the purposes of
exploitation by its holders may also entail the protection of such knowledge against
misappropriation by “outsiders.” With the recognition of this fact, the use of the term
“protection” in relation to GIs in the thesis focuses on the “positive” dimension.
2.10 THE GLOBAL ECONOMY
Finally, the inquiry in this thesis is conducted in the framework of the global
economy. The term “global economy” represents an interdisciplinary concept which,
according to Gereffi, “no single academic field can encompass … nor can any afford to
ignore.” Because of the vast scope of the concept, he observes, “those pundits who focus
on the global economy are likely to be classified as academic interlopers; they run the
risk of being too simplistic if they advance forceful hypotheses and too eclectic if they try
to capture the full complexity of their topic.” There is no need to indulge in the difficult
venture of identifying and drawing the analytic construct of the “global economy.”
Defining the term is important, however, to clarify and delimit the scope and level of
analysis in this thesis.
In his seminal article, Stuart Hart identifies “three different, overlapping economies”
as being constituents of the global economy. The first part of the global economy is what
he identifies as “the market economy,” namely, “the familiar world of commerce
comprising both the developed nations and the emerging economies.” This is the part of
the economy where one-sixth of the world’s population lives, and is characterized by
Ibid
109
massive consumption and waste -- accounting for “ more than 75% of the world’s
energy and resource consumption and ... the bulk of industrial, toxic, and consumer
waste.” Hart describes the second economy as “the survival economy,” and says it refers
to “the traditional, village-based way of life found in the rural parts of most developing
countries.” This economy is composed of a large segment of the world’s population,
“mainly Africans, Indians, and Chinese who are subsistence oriented and meet their basic
needs directly from nature.” The third part of the economy is “nature’s economy, which
consists of the natural systems and resources that support the market and the survival
economies.” According to Hart, the three economic spheres have, beyond the realm of
interdependence, now become “worlds in collision, creating the major social and
environmental challenges facing the planet: climate change, pollution, resource depletion,
poverty, and inequality.”
The classification of the constituents of the global economy in the manner Hart
outlines coincides, more or less, with the current socio-economic setting in the global
sphere. However, the three classifications do not necessarily exist in geographic isolation
from each other. Segments of the “survival economy” can be found in the villages of the
“market economy,” such as the indigenous peoples of the Western World and the millions
of poor people living in the urban centers of the “market economy.” Likewise,
manifestations of the “market economy” can also be seen in the geographic terrains of the
“survival economy,” especially in the economies of highly developing countries.
Ibid
110
In terms of clarifying the interactions between states and global actors, and the ways
the three constituents of the global economy operate –which the thesis is devoted to
analyzing – the global economy can be looked at from different levels: Macro-level,
midlevel, and micro-level. At the macro-level, “international organizations and regimes
that establish rules and norms for the global community” define the parameters of the
global economy. These include international regimes that consider various aspects of law
and policy on IP. These regimes include, in the context of this thesis, the WTO, the
WIPO, the FAO, the CBD, and similar international and regional organizations.
At the mid-level are found “countries and firms” for whom the global economy is
“the arena in which countries compete in different product markets.” Those groups that
are characterised by their growing “resistance to globalization: ... consumer groups,
activists, and transnational social movements” dominate the micro-level.
The focus of inquiry in this study delves into the role of a wide range of stakeholders
such as farmer and producer groups, different levels of national governments,
intergovernmental organizations, non-governmental organizations, and beyond. For this
reason, the analysis in the thesis addresses issues germane to the constituents of the
global economy across the three levels as described above.
Ibid
111
2.11 CONCLUSION
The purpose of this Chapter is twofold. The first has been to outline the boundaries
and meanings of fundamental concepts and terms employed in the thesis. In the course of
accomplishing this task, this Chapter also delineates the conceptual framework within
which to assess the applicability of GIs to protect TKBAPs.
The Chapter explored the manifold ways in which TK is conceived, and the modalities
through which the complex subject of TK may be understood. The discussion about
biodiversity and its derivative, agro-biodiversity, revealed the closeness and
interconnectedness of ILCs with their surrounding physical environments. The discussion
indicated that TK and TK-based practices are associated with diverse and varied
components of biodiversity, of which TKBAPs are a part.
As a modality of the legal protection of rights, the instrumentality of GIs in the
protection of TKBAPs depends on the scope and nature of protection they offer to the
rights holders. The discussion in this Chapter has highlighted the juristic features of GIs
that serve as bases for analysis in Chapters Five and Six in relation to the protection of
TKBAPs. Those features of GIs will be weighed in assessing the effectiveness of GIs to
protect TK, and will be used to compare GIs with other instruments of legal protection for
TK identified in Chapter Four.
Before proceeding further in the analysis of the protection of TK, it is pertinent to ask
why, after all, we see the need for the protection of TK and TKBAPs. There has been
enormous interest in, and tremendous amount of energy currently being devoted to the
protection of TK in the international arena. As Coombe observes, thousands of books,
112
articles, commentaries, research studies, databases, declarations, and resolutions deal with
the protection of TK.
The drive to protect TK arose from the realization, in recent times, of the relevance of
TK in several policy contexts. In light of the multifarious ways in which protection for TK
is currently being sought, the next Chapter explores the justifications, goals, and
motivations behind the quest for a comprehensive and system-wide protection of TK in
the contemporary global legal order. In the context of the impacts and implications of
global economic conditions for ILCs, the thesis also outlines the objectives that a
protection system of GIs must serve.
113
CHAPTER 3 PROTECTING TRADITIONAL KNOWLEDGE:
IMPERATIVES AND CHALLENGES
3.1 INTRODUCTION
This Chapter provides context for understanding the initiatives to protect TK and
TKBAPs, and elucidates the conditions that justify such efforts. The discussion also
outlines fundamental issues that are relevant for understanding the role and expectations
regarding the potentials of GIs to protect TKBAPs.
Based on the different experiences of ILCs in various jurisdictions, different rationales
may be advanced to justify the legal protection of TK. To demonstrate the need for the
international protection of TK and TKBAPs, the discussion in this Chapter focuses on
common aspects of the global economic pressures that justify the need for a protection
regime for TK systems in general, and TKBAPs in particular. The discussion highlights
the importance and multi-dimensional role of TK in different spheres of economic
activity, and outlines threats and challenges that ILCs encounter in multiple settings due to
a lack of protection for their knowledge systems and their derivative production outputs.
The Chapter contains six Sections. Section 3.2 discusses general trends and specific
problems that underlie demands to protect TK at the international level. To this end, the
importance of TK systems is discussed in socio-economic, environmental and cultural
contexts. This Section also identifies problematic areas that a protection system for TK
needs to address, namely, the problems of biopiracy and misappropriation of TK.
Section 3.3 spells out the circumstances under which the demands for the protection of
TK may be understood in the specific context of TKBAPs. This Section outlines the
114
impacts of technology-led transformations of agricultural production on the political
economy of ILCs that depend on traditional agricultural practices. Thus, Section 3.3
focuses on the impact of global economic factors on agricultural production at the local
level in the domains of economic and biodiversity policy. Also examined are the impacts
of transformations of agricultural production in other policy contexts, such as
achievement of food security, and preservation of cultural identity. Section 3.4 turns
attention to a range of factors that affect traditional agricultural producers in global
markets. Together, the analyses in the Sections 3.3 and 3.4 provide bases to evaluate – in
subsequent Chapters – the role of GIs to address economical, biodiversity, cultural and
food security challenges that ILCs expect to address in their efforts to secure protection
for their TKBAPs.
Taking into account contemporary trends in global economic integration, Section 3.5
highlights the need for mechanisms to recognize and to protect the value of TKBAPs.
Section 3.6 summarizes attempts to recognize and to capture the value of TKBAPs
through widely accepted strategies of product differentiation. In their nature, these
strategies are non-legal, but they are similar to GIs in their goal to improve the
socioeconomic condition of traditional agricultural communities. Section 3.7 examines
the implementation of these strategies to address economic difficulties among traditional
agricultural communities. The discussion in this Section generates lessons that may be
relevant for appraising the implementation of GIs to protect TKBAPs.
115
3.2 JUSTIFYING THE PROTECTION OF TRADITIONAL KNOWLEDGE
It is easy to assume that it is necessary to protect TK. A working document of WIPO
lists a number of objectives that the international protection of TK would serve.
However, detailed interrogation of the justifications for protecting TK helps to establish
clear grounds as to why TK should be protected. An analysis that goes beyond a listing of
general purposes and objectives helps to explain the scope, nature, and modality of TK
protection with a degree of certainty.
The protection of TK is justified because of the value and importance that TK offers to
ILCs and to the world population at large. In addition, TK protection is required in
response to the threats and challenges posed to TK systems from global environmental,
social, and economic pressures. As part of the broader theme of inquiry in this thesis, the
examination of justifications for the protection of TK provides insight into the nature,
scope, and form of protection required. The discussion that follows examines the
protection of TK according to the aforementioned two scenarios.
3.2.1 THE VALUE AND IMPORTANCE OF TRADITIONAL KNOWLEDGE
A primary idea in the protection of TK is that the immense value TK has to its owners
and to the rest of humankind necessitates its protection. In other words, since TK has
played – and still plays – a vital role in the livelihood of millions of people in the world,
its recognition and protection would serve diverse cultural, biodiversity, socio-economic,
and scientific purposes.
116
3.2.1.1 Cultural Significance
A key justification to protect TK relates to the cultural significance that it has for
ILCs. TK is important to its holders as an integral part of their cultural heritage. Many
ILCs consider TK a source of social cohesion, and TK offers a basis for their survival as a
community.
The demand of ILCs for the prohibition of the misappropriation of TK is, therefore,
part of their demand to protect their cultural identity. For this reason, the protection of TK
is considered part of the implementation of indigenous peoples’ rights to maintain and to
take part in cultural life as recognized in international human rights instruments. The UN
Declaration on the Rights of Indigenous Peoples has recently confirmed that indigenous
peoples have the right to “maintain, control, protect and develop” their knowledge.
Indigenous peoples seek the protection of TK as an element of their right to cultural
self-determination. In this respect, the protection of TK allows them to thrive in our
changing world in ways consistent with their own values and interests. The content of the
right to self-determination of ILCs in relation to TK includes:
[T]he right to control land and territory; ii) the right to sacred places; iii) the
right to own, determine the use of, and receive accreditation, protection and
compensation for, knowledge; iv) the right of access to traditional resources;
v) the right to preserve and protect local language, symbols and modes of
expression, and vi) the right to self-definition.
In sum, the protection of TK would result in concrete realization of the rights of
indigenous peoples to preserve their cultural and spiritual identity.
117
3.2.1.2 Contribution to Biological Diversity and Ecological Integrity
In the present time, the prominent ground on which to justify the protection of TK
relates to its importance in the maintenance of biological diversity and ecological
integrity. In 1987, a United Nations Committee on the Environment and Development
report noted the inability of modern science to provide guidelines for managing natural
resources. It called for the “recognition of and greater respect for the wisdom inherent in
traditional knowledge systems” in this respect. Consequently, TK has received prominent
attention in international efforts to protect the environment and to conserve biodiversity in
the aftermath of the Rio Earth Summit. Principle 22 of Agenda 21, which reflects the
environmental focus of the summit, recognizes the vital role of ILCs in environmental
management and sustainable development because of the alternative answers and
solutions they offer in the form of TK.
The enormous value of TK in the conservation of biological diversity and in the
maintenance of ecological integrity arises from its special characteristics. These
characteristics include its existence as “a combination of accumulative knowledge” in
peoples’ relationship with nature and its “potential for innovation and adaptation.” TK
mainly comprises of resource management systems regarding the use of bio-resources as
sources of medicine, foodstuffs, and other needs in a manner that, often, has relatively low
impacts on the environment.
The practices of ILCs in carrying out economic activities cause minimal impact on
biodiversity because most ILCs utilize diverse species in small agricultural units. With a
view to “increase the variety of resources at their disposal,” and to reduce “risks of
118
fluctuations in the abundance” of certain species, ILCs engage in practices aimed at
increasing species diversity in their territories. As the discussion in Section 3.3 below
indicates, such practices contrast with biotechnology-led agricultural practices which,
essentially, change the “structure of ecosystems” by focusing on the large scale
production and collection of “fewer species.” For these reasons, international
environmental agreements, such as the CBD, expressly recognize the interdependence
between TK and biodiversity, and seek to preserve the latter by affording protection to the
former.
As far as the conservation of biodiversity is concerned, TK provides, in the words of
the CBD Secretariat, “unquantifiable, but probably substantial, opportunities for
identifying improved techniques for conservation and sustainable use of biological
diversity.” Thus, it is clear that the protection of TK closely relates to the protection of the
environment and living resources, as the content of TK is mostly embedded in the
biological resources and ecosystems themselves.
3.2.1.3 Contribution to Scientific Discovery and Biotechnology Development
So far, we have seen that the protection of TK is important to ILCs in the context of
their cultural and custodial obligations. The protection of TK is also important to
humankind in general because biodiversity resources and their underlying TK systems
contribute to scientific discovery and biotechnology development.
Technological advancement in genetic engineering since the 1980s has allowed
researchers to find and to move genetic sequences responsible for particular traits in a
119
plant, or even to move traits from one species to another. Referred to as rDNA genetic
engineering, this system of genetic manipulation at the molecular level has opened a new
era of technological adventure in biological resources, a transformation unmatched by the
technique of hybridization, which has been the most prevalent practice in the agricultural
sector in earlier times.
TK plays a crucial role in providing important leads for the development of processes
that result in modern plant breeding and biotechnology. Screening a huge quantity of
molecules that have potential for agricultural and pharmaceutical success through
processes of biotechnology is prohibitively expensive in terms of both time and financial
resources, because drastic uncertainty of potential traits requires the screening of all
plants. The valuable leads provided by TK save time, money, and investment for the
biotech industry as to any research and product development in the areas of specialty food
and beverage, pharmacy, agriculture, horticulture, personal care, and cosmetics. For
example, a study reveals that one-quarter of all currently available prescription drugs are
derived from plants and more than half are developed from natural compounds; yet, less
than one percent of all of the plants have been tested for medicinal properties.
WIPO recognizes the enormous contribution of TK in this regard, noting; “TK often
provides researchers with a lead to isolate valuable active compounds within biological
resources.” Had it not been for TK, the impact of biotechnological advances in molecular
genetics would have been limited due to high costs or, in the alternative, vast biological
resources might remain unexplored. It is in the best interest of the scientific community,
120
therefore, to acknowledge the need to protect TK, although it might not be in line with the
short-term and profit-oriented plan of most in the industry.
3.2.1.4 Improving and Preserving Socio-economic Conditions
The protection of TK is also justified in view of significant benefits in broad economic
terms. In terms of achieving socio-economic ends, WIPO notes that the protection of TK
involves three major stakeholders in the global economy: “[ILCs] that generate the
knowledge; national governments that have recognized its value for development and the
national economy; and local, national, and transnational commercial interests seeking
access to it.”
In the first instance, the protection of TK fulfills the socio-economic goal of
preserving the basic means of survival for a large sector of the world’s population in
satisfying their needs for medicine, food, and health. In many developing and in the
leastdeveloped countries, traditional medicines provide the only affordable treatment
available to the economically disadvantaged. The world’s poor satisfy eighty-five per cent
of their needs for food, fuel, shelter, and medicine from TK-based biodiversity resources.
Similarly, half of the world population relies on TK and crops for their food supply, while
approximately 1.4 billion rural people need farm-saved seeds and local agricultural
knowledge just to continue to eat. In this regard, the protection of TK addresses concerns
about fairness and equity in international economic relations. It responds to the sense of
perplexity aroused by the “moral gap” in global governance whereby over 1.2 billion
people live on less than a dollar a day; forty-six per cent of the world’s population live on
121
less than two dollars a day; and twenty per cent of the world’s population enjoy over
eighty per cent of the global wealth.
The significance of TK as a means of achieving socio-economic objectives is not
limited to developing countries. Even in industrialized countries, traditional medicine
serves as an alternative or complementary medical resource to a large sector of the
population. Posey reports that:
Americans spend more on complementary approaches than on hospitalization,
while Australians pay out more on alternative medicines than
pharmaceuticals. In Britain, the Department of Health reported in 1995 that
40 percent of General Practice partnerships in England provide access to
complementary medicine for their National Health Service (NHS) patients,
and 24.6 percent actually make NHS referrals for complementary medicine.
At the macro-economic level, TK holds enormous commercial potential for
biodiversity-rich countries on the cusp of development. With the increase in the
commercial applicability of TK in pharmaceutical and agricultural biotechnology,
researchers continue to claim rights on the use of genetic resources and the accompanying
TK as a basis for commercial production of agricultural, health care, and cosmetic
products. The lack of protection of TK has prompted “the unregulated and unmonitored
taking of biodiversity [through] an ever expanding intellectual property regime.”45 As a
result, developing countries suffer from significant economic losses in two respects.
First, developing countries lose significant incomes, as their constituents are deprived
of the opportunity to benefit from economic exchanges in several ways.46 Many find it
difficult to quantify the enormous economic value of TK in terms of marketability and
commercial use. For example, the use of Indian landraces adds, on a global scale, a value
122
of about US$400 million per year, while the estimate for handicrafts alone for the year
2000 was up to US$2 billion in export and $1 billion in national markets.47 In addition,
developing countries lose about US$5 billion each year in unpaid royalties from the use of
TK.48 In the pharmaceutical and agricultural sectors also, a rare quantitative estimate of
the economic value of TK provides:
More than two-thirds of the world’s plant species (of which at least 35,000 are
estimated to have medicinal value) come from developing countries. At least
7, 000 medicinal compounds used in Western medicine are derived from
plants, and the value of germplasm from developing countries to the
pharmaceutical industry in the early 1990s was estimated to be at least US$
contain Asian plant extracts alone. See “Biopirates Patent Traditional Wisdom” Inter Press Service, (8
October 1998) online: <http://www.ips.org>.
45
Coombe, “Recognition”, note 314, Chapter 2, at 315; also, see O’Connor, “Law of GIs”, note 239,
Chapter 2, at 373.
46 See O'Connor, ibid. at 373.
47 Ibid. at 16; Sunder, “Invention”, note 4, Chapter 1;
Graham Dutfield, “Legal and Economic Aspects of Traditional
Knowledge” in Keith E. Maskus & Jerome H. Reichman, eds,
International Public Goods and Transfer of Technology Under A
Globalized Intellectual Property Regime (Cambridge: Cambridge
University Press, 2005) 504-05 quoted in Ibid. at nn.71.
48
Visser, note 4, Chapter 1 at 28; see also David Conforto “Traditional and Modern-Day Biopiracy:
Redefining the Biopiracy Debate” (2004) 19 J Envtl L &Litig 357 at 359-361.
32 billion per year. Yet developing countries were paid only a fraction of this
amount for the raw materials and knowledge they contribute.
In the US alone, genetic resources from developing countries contribute to 15 major
crops, which are valued at US$50 billion in annual sales. The protection of TK would
ensure that the originators of TK gain economic benefits through fair participation in
123
international trade over their products, and through fair sharing of benefits from
inventions that utilize their TK.
The second way in which the lack of protection affects the socio-economic situation of
communities relates to foreign patent claims based on TK and biodiversity. As individuals
and corporations backed by a strong IP regime that is suited to their interests continue to
claim patent rights over TK and its accompanying biodiversity, ILCs may even find
themselves unable to use their own knowledge unless they pay royalties to others. Once
outsiders establish IP rights on some biological resources and their underlying TK, ILCs,
or individuals acting in their behalf or in agreement with them might not be able to
control and benefit from the use of those resources.
To conclude, the protection of TK is justified, as shown in this Section, through its
importance and value, broadly in cultural, biodiversity, socio-economic, scientific, and
technological areas of endeavour. The protection of TK is warranted, not only to ensure
that owners of TK acquire a share of benefits from its use, but also to recognize and
preserve its multifunctional potential in areas of particular interest to public policy.
The motivation to protect TK is not limited to the value and potential importance that
it holds. The need to protect TK has also become apparent in light of widespread
challenges and threats to ILCs in the current global economic system. One way in which
the need to protect TK is demonstrated is in the context of efforts to prevent third parties’
misappropriation and misuse of TK for commercial use. The discussion that follows
examines the urgency for legal protection of TK arising from ongoing transition to a
knowledge-based global economy.
124
3.2.2 THREATS AND CHALLENGES TO TRADITIONAL KNOWLEDGE
TK systems face significant challenges and threats in this era of a global knowledge
economy (GKE). The threats and challenges to TK and TKBAPs arise from two major
phenomena that are intrinsically linked: Rampant cases of biopiracy, and high-tech driven
transformation of agriculture.
3.2.2.1 Biopiracy
As indicated in the previous Chapter, biopiracy is a prevalent trend in the age of GKE.
It arises from frequent incidents of technologically and institutionally led “appropriation
and monopolisation of long-held medicinal and agricultural knowledge” by individuals
and corporations. Fundamentally, the problem of biopiracy relates to IPRs because IPRs
play a key role in providing the means by which individuals and corporations exploit the
value of biological resources and the accompanying TK. The biopiracy discourse
illustrates inequities in the utilization of genetic resources and their underlying TK
through the instrumentality of the IP regime under the TRIPS Agreement.
Claims of appropriation of genetic resources and the underlying TK have increased in
the wake of the conclusion of the TRIPS Agreement. The Agreement provides minimum
standards for the protection of patents, trademarks, copyrights, industrial designs, and
geographical indications under the institutional setting of the World Trade Organization.
The TRIPS Agreement requires all members of the WTO to enforce those knowledge
protection tools, of which the patent system stands as pivotal to the GKE. As Mgbeoji
notes, the role of the patent system in the appropriation of genetic resources and
125
associated TK can be understood by situating the patent system in its historical and
current contexts.
In the current context, the problem of biopiracy arises, in part, from the TRIPS
Agreement’s requirement for the protection of plant varieties by “patents.” In addition, the
TRIPS Agreement gives WTO members the option to exclude from patentability “plants
and animals other than microorganisms” and the “essentially biological processes for the
production of plants or animals other than non-biological and microbiological processes.”
By way of exception, therefore, this provision obliges countries to recognize patents on
microbiological life forms.
The TRIPS Agreement also sets out the “minimum” requirements that inventions will
have to meet in order to be patentable: That the subject matter must be new, must involve
an inventive step, and should be capable of industrial application. As will be indicated in
the next Chapter in detail, multinational companies in industrialized countries lobbied
their governments for the incorporation of these standards of patentability in the TRIPS
Agreement. As a result, the standards mirror prevalent patent norms in the industrialized
country Members of the WTO.
Patent offices in industrialized countries easily determine the criteria of “novelty and
inventive step” in a manner that enables biotechnology companies in the pharmaceutical
and agricultural industries to establish patent rights on different life forms. This opened
the way for patent claims over genetic resources for different uses, which may include
insights derived from TK. The patent standards enable multinational companies to
126
monopolize the market for “new” plant varieties and pharmaceutical products that are
sometimes derived from existing genetic resources and TK through biotechnological
processes.
In this respect, a major flaw in the patent system relates to the recognition of patent
rights over “inventions” in naturally occurring genes, also called “gene patents.” Gene
patents are accomplished through acts of isolating and purifying genes outside an animal,
plant, or microorganism. These acts simply uncover something that already exists, and as
such, the rationales for “gene patents” runs against the conventional justification of
patents – that protection is needed to reward individuals who come up with innovations
and creations that do not previously exist.
Such patent rights are often justified on the significant financial resource expended in
“refining the original material, scientific trials and chemical analysis,” although
technological and digital advancement have simplified these technical processes.
127
