INTELLECTUAL PROPERTY / INTERNATIONAL / TRADITIONAL KNOWLEDGE

IIC, Vol 33 No 4, 2002

Intellectual Property, Traditional Knowledge and Folklore: WIPO's Exploratory Program

Wend Wendland

This article discusses the progress made by the fact-finding missions of the World Intellectual Property Organisation into the intellectual proerty needs and expectations of Traditional Knowledge holders. Many problems have arisen, not least in the terminology and subject-matter: the author lists many of the proposed terms, including folklore and various exp0ressions incorporating the words "indigenous", "cultural" or "heritage". (The word "property" is believed by some, according to the author, to send the wrong signal.) As for the subject-matter, this was comprehensively described in a UNESCO report and ranges from dances and ritual performances to scientific and ecological knowledge and skills. A major problem here is the application of Intellectual Property to Traditional Knowledge: the author quotes, without personally supporting, the view that "once you have done to indigenous and local knowledge whatever is necessary to make it fit into the Intellectual Property mould, it would not be recognizable as indigenous and local knowledge any more". The WIPO missions made clear that Intellectual Property was a broad concept; yet there were still divergences in the missions on whether Intellectual Property protection was appropriate at all for the protection of Traditional Knowledge and, even it were, whether existing standards should be used or new - sui generis - standards introduced. A specific problem encountered by the missions was the one referred to in an earlier digest [ ], under which Intellectual Property procedures were used by third parties to acquire rights over inventions based on Traditional Knowledge. The author mentions the Turmeric and Ayahuesca cases and considers the possibility of documenting Traditional Knowledge as part of searchable prior art. He believes that some of the criticism of Intellectual Property "appears generalized and not founded on a strong technical knowledge of Intellectual Property" and concludes that there is a need for strengthened dialogue among Traditional Knowledge holders, the private sector, governments, non-governmental organizations and other stakeholders at the community, national, regional and international levels; and for the Intellectual Property community to understand and appreciate better the points of view of Traditional Knowledge holders. [20073]