The main thrust of this paper is to look at the outlook of WIPO discussions in various instances to understand the level of protection that is sought. The policy context becomes more important while analyzing the debates, especially since there is a huge impact that can be drawn with the area of biological diversity. There exist several different International legal agreements in the area of biological diversity that provide a starting point for the discussions. TK systems exist in diverse fields. The most discussed areas include the food and agricultural sector, biodiversity conservation, nutrition and medicine. Ancient techniques from various communities are processes that are adopted on a day to day basis.
The IP regulation of the twenty first century is heavily marked by international agreements, that is through the WTO discourse and the outcomes of the TRIPS agreement. The synergies of these agreements are best explained through a shift in the phenomenon of Global Knowledge Economy. This discussion or this outlook is very important to understand the nature of protection Traditional Knowledge is aiming for. There is a huge difference in the manner in which the WTO discussions and the WIPO discussions have panned out.
In this knowledge economy as pointed out earlier, there is a huge emphasis on intangible assets, knowledge and information. What this means is that there has been a transformation in an economic sense where value now is accorded to innovation rather than physical labour. In such an understanding Traditional Knowledge has some separate and distinct social and intellectual characteristics to it. This is precisely why the IGC debates had a hard time in determining or coming up with a specific definition for Traditional Knowledge.
Definition of Traditional Knowledge
The World Intellectual Property Organization (WIPO) has formed a committee on Intellectual Property and General Resources, Traditional Knowledge and Folklore. The mandate of the IGC as it is known (Intergovernmental Committee) is to undertake negotiations at various international levels to come up with a legal instrument that provides sufficient safeguards for the usage and effective protection of traditional knowledge, traditional cultural expressions and genetic resources.
The IGC developed three separate categories to provide a framework for discussions in this domain since each area of interest presents its own set of challenges. The three categories are traditional knowledge (TK), traditional cultural expressions and folklore (TCE), and genetic resources (GR).
The main intention of such negotiations to take place is to ensure there is effective voice and representation accorded to the indigenous communities. There is an attempt to bridge the gap between the western philosophy of commercial usage of traditional knowledge and the indigenous practices. This theme is explored further in the paper. What remains to be explored is how this inclusion has a practical undertone to it and whether there is a free and fair negotiation scope available to the indigenous communities at the negotiating table.
This brings me to the topic of discussion of this particular section. Considering that it is recognized that there is a need for protection, there must be a discussion on how the policy will be formulated in terms of what will be protected. In light of that there must be a thorough review of the IGC discussions.
The IGC’s third session in 2002 was a starting point in the discussions to elaborate on the definitions pertaining to the subject matter of Traditional Knowledge. The paper identifies that it has been a worldwide practice in the intellectual property arena to leave out specific determinations of the protectable subject matter to the respective domestic governments and instead on an international level a policy id to be generated which outlines the general definition of the subject matter.
Objectives and Terminology
Characterizing precisely what TK means is exceptionally critical to this level of discussion. Knowing precisely what it involves would decide precisely what framework is plausible and whether such security is required or even conceivable. In light of the absence of clarity and differences in its definition and the wording included, a portrayal of its elements might be a superior way to deal with understanding what it involves.
The level of exactness in the meaning of ensured topic can shift as indicated by which of these targets applies. For example, the Paris Convention characterizes \'mechanical property\' in expressly expansive terms6 and does not characterize particular terms, for example, \"licenses\" and \"trademarks.\" Yet this is not a boundary to the viable operation of the universal instrument, accurately in light of the fact that the assurance which it facilitates or fits still has its operational impact in residential law, and the particular rights allowed in various wards are proposed to be autonomous of one another. Hence the requirement for case-by-case exactness in the utilization of a definition may just emerge at the local level. Despite the fact that it might be viewed as attractive to advance union and consistency in the operation of national IP frameworks, a universal instrument requires no plan to guarantee that diverse national frameworks give singular IP rights that are indistinguishable in degree, as an end in itself.
WIPO members use TK more narrowly to describe a smaller subset of technologies that typically include diagnostic, therapeutic, horticultural, predictive, or technologies related to engineering with natural materials.
In the WIPO, in 2010 the IGC began to look at a way out of the deadlock. It wanted to make substantive progress in terms of the discussions that were already had. The IGC for the very first time agreed to a series of \"intersessional\" experts\' meetings in 2011 and then to itself holding three sessions, instead of two, each one dedicated to one of the three topics GR, TK, and TCE. These meetings were very important from the perspective of progressing to reach an acceptable compromise in at least four crucial areas which might give way to a legal instrument to come into place. From these many meetings, the four areas, that have been identified are: (1) the protected subject matter, that is, the subject of protection; (2) the scope of protection, that is, exclusive rights, protection against misappropriation,; (3) the definition of the beneficiaries of protection; and (4) the limitations and exceptions. The resolution of these issues form the bedrock an can affect whether there is scope for any justifications of intellectual property that could be workable in the TK/TCE context.
One of the primary questions that is central to the question of this debate is that of the criteria for protection of TK/TCE. The question then becomes how does one determine what TK/TCE is and to whom does it belong to. The problem of \"who would own what\" is the fundamental pressure point in all of the WIPO debates. The non-resolution of these questions simply threatens to overwhelm any system unless it is dealt with at the fundamental level.
The problem as we can see now is that of ownership. At the first instance when you set out to understand the kind of rights that you have to accord, this is the preliminary issue that would crop up. The governments and their representatives in the WIPO have failed to treat this problem seriously. In the academic circles it is quite evident that the underlying problem in dealing with indigenous intellectual property is that there is seldom any clear lineage of ownership to the idea or resource.
Problems and Issues in the WIPO
The IGC negotiations as discussed haven’t been able to reach a conclusion or a workable system for IP protection in the realm of traditional knowledge. In this section I would like to explore the discussion in light of the question whether it is even possible for Traditional Knowledge to be protected from such a standpoint. I would discuss the stewardship model to further understand a middle ground that has been proposed in academic circles. Another issue that can be addressed here would that be of bio-piracy and how the WIPO and WTO sought to address these concerns. The outlying problem therefore is along the lines of whether there is a space that might exist for a reflective analysis of whether the protection of TK can be justified at all in the first place.
The WIPO debates and IGC discussion remain largely silent on the impetus for such protection. The misappropriation by the west of indigenous knowledge is the primary standpoint for protection. But practical examples of misappropriations are often misquoted or the gravity of occurrences are misrepresented in these committee discussions.
The discussion so far gives us a description on the issues that are paramount with the traditional knowledge and it tells us that there was no conclusion or clear agreement. Traditional knowledge belongs to communities and to provide protection for such knowledge on the negative side as well as on the positive side. And in this regard the WIPO is going the sui generis way as we see it. One needs to obtain prior consent as well as needs to share the benefits with the communities indefinitely in order to provide positive protections. Community identity and traditional knowledge are so linked closely that such a protection is very well justified. The traditional knowledge is to be treated uniquely which bears its justification because of this connection. Like in any case, there are many points of disagreement within WIPO on this system. Similarly, on these issues, even at the WTO there is clearly no agreement and people are only for negative protections being strengthened by the doctrines of traditional intellectual properties based on prior use and prior art.
Issue of Public Domain
There is an indefinite assignment of right in the case of sui generis system for the compensation that has been agreed prior, even though an inventive step is involved while the commercial exploitation is taking place. Such a thing is far superior to normal intellectual property rights in terms of duration and holding once an inventive step takes place. And a plausible justification is needed for such superior rights. Such a justification takes its reference from strong connectivity to the identity of the community as well as clear associativity. So the argument in the first step goes on the lines of restricting the definition to traditional knowledge types.
The negotiations related to traditional knowledge are addressing many long drawn intellectually property challenges internationally. The issue of \"Public Domain\" is the most difficult because internationally it has not been consistently defined as a result of which it continues to pose grave challenges both at the national level as well as the international level. Both in the negotiation of Nagoya Protocol and in the negotiations of WIPO, the negotiators could neither make any recommendations nor provide any solutions nor suggest changes in the realm of intellectual property laws and as well as generic commercial laws. Same is the case with negotiations at the national level. Instead of addressing the above problems, the negotiators (both Nagoya as well as WIPO IGC) chose to steer away from the systemic difficulties. Because of this, the regular knowledge negotiators found it extremely difficult to define \"public domain\" knowledge for the purpose of excluding it. Generally there are many conflicts related to the protections for traditional knowledge and the principles of public domain when someone ought to address them for the uniform application of the instrument.
TRIPS and TK
The term \"traditional knowledge\" occupies a very interesting and important position in the global economy. It is this estimate of economic importance that has driven TK debates in the WTO and the subsequent TRIPS agreement in the same forum. The TRIPS agreement per se did not extensively deal with the TK debates.
Policymakers in the WTO are more likely to grasp the economic significance of TK than its actual socio-cultural meaning, which turns out to be quite elusive. TK for a very long time was assumed to be in the public domain. It is this assumption that prompted various commercial establishments, institutions, research laboratories and the like to use this knowledge freely in the pretext that no rules were being broken by these places. This presumption has been met with wide criticism from the local communities. Such kind of a premise is false but has huge implications to traditional peoples and their value system and can be detrimental to their well- being and identity.
Academicians have tried to answer the questions of whether it is appropriate to treat the problem or issue of TK as something that the existing intellectual property law framework is in a position to solve. The debate further goes onto see whether TRIPS would be an appropriate forum for negotiations on TK. Here the objective of what kind of protection that these forums seek to achive would weigh in here. If the objective is to secure and promote the rights of traditional peoples and communities and grant them a right over their knowledge, then the TRIPS forum will not be an ideal place to start. The TRIPS is more or less concerned about sharing knowledge in an equitable fashion more than recognizing the property or ownership conception of the rights of the indigenous people. It is here that the rights granted in other international law instruments becomes crucial while dealing with the rights of indigenous people. These aspects would be discussed in the subsequent sections of this paper. It is the consensus amongst developing countries that TRIPS is a form of a concession to developed countries. It is in exchange for that was made under duress and is inadequately compensated for by the efforts made so far by the latter countries to open up their markets to the former countries\' goods. Finding themselves pressured to comply with TRIPS before the expiry of the permitted transitional periods and to accept the advice of the United States and the European Union as to how the rules should be interpreted, these countries have found TK to be an issue they can use strategically to deflate such pressure. The early indications are that this strategy is to some extent successful, although traditional peoples and communities are unlikely to benefit.
TK and all other International Agencies
Over the past couple of decades, the protection accorded to traditional knowledge has undergone significant change. It was part of the UN’s postwar policies, it has now become an essential part of international policy and legal debate. There are many institutions and organizations that are trying to build up discussions and debates surrounding traditional knowledge. There are also remnants of the north-south debates in this context as a result of the subject matter involved. The increase in these agencies has provided a streamlined process for discussions. This transformation is possible only because of the steady increase in the number of International fora to come up with a working model of traditional knowledge protection. This has resulted in various intiatives and diversification of legal instruments that affect separate structures of the same issue.
Every international institution that is partaking in TK protection has a particular motivation to seek after and a specific order to perform. They in this way approach TK from various points. While WIPO is looking to secure TK against misappropriation or \'\'biopiracy\'\', UNEP is working towards the conservation of conventional environmental knowledge, ecological conservation, and the access to genetic resources and related TK, and the evenhanded sharing of the advantages emerging from their utilization.
UNESCO is going for the protection and advancement of TK, while the WTO is inspecting the relationship amongst TRIPS and the CBD, concentrating on the divulgence necessity for patent applications. From a human rights point of view, ILO and UNPFII are trying to ensure TK as a feature of the insurance and advancement of indigenous people groups\' social, monetary, and social rights, while different establishments are investigating the importance of TK for reasonable improvement (UNCTAD), sustenance security and manageable agribusiness (FAO), and the arrangement of essential medicinal services (WHO)
Each international institution involved in TK protection has a specific agenda to pursue and a particular mandate to perform. They therefore approach TK from different angles. While WIPO is seeking to protect TK against misappropriation or ‘‘biopiracy’’, UNEP is working towards the preservation of traditional ecological knowledge, the access to genetic resources and associated TK, and the equitable sharing of the benefits arising from their use. UNESCO is aiming for the preservation and promotion of TK, while the WTO is examining the relationship between TRIPS and the CBD, focusing on the disclosure requirement for patent applications. From a human rights perspective, ILO and UNPFII are seeking to protect TK as part of the protection and promotion of indigenous peoples’ social, economic, and cultural rights, while other institutions are looking into the relevance of TK for sustainable development (UNCTAD), food security and sustainable agriculture (FAO), and the provision of primary health care (WHO)
Differentiating between WIPO and TRIPS
The WTO traditionally has been seen as a more practical agency to deal with intellectual property issues. The discourse in the WTO regarding traditional knowledge hasn’t gained much traction in that forum though on the level that it has in the WIPO.
In spite of the fact that the WIPO is by all accounts moving toward building up a sui generis framework based upon the uniqueness of customary information approach, development in that bearing has slowed down. In readiness for the fourteenth session of the WIPO board, the African gathering supported the \"improvement and reception of a legitimately restricting worldwide instrument\" for the security of customary information, which was content based and which contained exceptionally solid insurances. The meet-ing was not able go to a choice on that approach, in light of the fact that numerous created nations were unwilling to bolster the improvement of a legitimately restricting instrument until more work had been done on its provisions.
While these advancements were occurring at the WIPO, the WTO was tending to similar issues. The nations contradicted to a sui generis framework have effectively communicated their resistance at the WTO, realizing that they have the ability to keep its selection, since all WTO choices require consistent assention.
In terms of providing solid legal instruments the Convention on Biological Diversity (CBD) and the Agreement on TRIPS proved to be of some use. They tried to protect traditional knowledge to some limit but not to the full extent.The CBD was more concerned about conservation and sustainability more than according rights to the property owners or identifying traditional knowledge as a category of intellectual property to be protected in its own right. The result of this oversight was the commercial exploitation of traditional knowledge under that legal framework.
The TRIPS mechanism also was no better. The TRIPS did indeed help in expanding the intellectual property protection through international trade mechanisms. One key component that it lacked was failing to protect the underlying raw materials.
Indigenous People and Traditional Knowledge
As can be seen there is a tremendous emphasis on Indigenous people’s right in the discourse of traditional knowledge. The 21st session of the WIPO IGC discussed whether the protection accorded to traditional knowledge should transcend beyond indigenous people and the definition of beneficiaries in the final legal instrument extend beyond indigenous people and local communities.
The IGC has been trying to make significant changes to enhance the participation by indigenous groups. The position and history of the IGC makes it difficult to accommodate a viewpoint that the IGC is forthcoming in including indigenous populations. But there are some critics who continue to reiterate their concerns and have reservations in relation to the workings of the IGC.
The documents that the IGC has come up with so far only pertains to developed countries and there is a claim participation off indigenous groups and recording of their respective perspectives is missing. The biggest negative point is that there are claims that the working documents of the IGC do not effectively reflect the indigenous groups’ perspectives. Considering that the central theme to the discussions are local communities the IGC must adopt a unique way to incorporate indigenous’ groups views and perspectives in a meaningful manner.
The most frustrating aspect of the WIPO discourse on Traditional Knowledge is the fact that even after ten years of discussions the IGC has not been able to come up with a viable legal instrument that puts in place a practical protection that should be duly accorded. When it comes to practicality the TRIPS discourse has been able to identify
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