Published online by Cambridge University Press: 28 February 2014
Numerous international institutions now seek to address the problems of misappropriation and disappearance of traditional knowledge. The relevant legal frameworks were developed at different times and motivated by diverse policy goals. As new frameworks continue to emerge, an important question arises as to how the unity of international efforts to protect traditional knowledge can be maintained. This paper scrutinizes the fragmentation of international law in this field, how it came about, and what its implications are for traditional knowledge protection. It argues that much of the confusion surrounding traditional knowledge protection today is attributable to the fragmentation of international law in this area. To reverse the adverse effects of fragmentation, all institutions involved must be conscious of, and collectively work towards, a common goal, however loosely defined that goal might be. National governments must also ensure that their negotiating positions are consistent across all relevant fora.
PhD Candidate, Faculty of Law, University of Cambridge. Second Secretary, Department of Treaties and Legal Affairs, Ministry of Foreign Affairs (Thailand). The author wishes to thank Jennifer Davis, Roger O'Keefe, and Wend Wendland for their useful comments on an earlier draft. Thanks are also due to the Thai Mission to the UN in Geneva who facilitated the author's participation at the Twentieth, Twenty-First, and Twenty-Second Sessions of WIPO's IGC in 2012. All views expressed in this paper are the author's own and do not necessarily reflect those of the Royal Thai Government.
1. The meeting was convened on 9 January 2012 by a Thai research team working on a project called “The Study of the Situation Concerning the Protection and Promotion of Traditional Knowledge Related to Biological Resources in Thailand”, funded by Thailand's Biodiversity-Based Economy Development Office.
2. While the Committee has made some progress on streamlining the draft text on TK, there remain significant divergences among the negotiators on key issues regarding the protectable subject matter, the beneficiaries of protection, the types of entitlements to be given to the beneficiaries, and the exceptions to such entitlements. The current draft text on TK (as of 26 April 2013) is still riddled with conflicting options and overlapping square brackets. See The Protection of Traditional Knowledge: Draft Articles (Rev. 2), WIPO Doc. WIPO/GRTKF/IC/24/FACILITATORS DOCUMENT REV. 2 (2013).
3. See Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, finalized by M. KOSKENNIEMI, UN Doc. A/CN.4/L.682 (2006) [ILC Study Group Report].
4. Traditional Knowledge—Operational Terms and Definitions, WIPO Doc. WIPO/GRTKF/IC/3/9 (2002), para. 15.
5. See e.g. P. DRAHOS, “A Networked Responsive Regulatory Approach to Protecting Traditional Knowledge” in D. GERVAIS, ed., Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS-Plus Era (Oxford: Oxford University Press, 2007)Google Scholar, 385;
RAZZAQUE, J. and SSENYONJO, M., “Protection of Traditional Knowledge and Human Rights Obligations: The Status of Discussion in International Organisations” (2007) 25 Netherlands Quarterly of Human Rights 401 CrossRefGoogle Scholar;
M.A. GIRSBERGER, “Legal Protection of Traditional Cultural Expressions: A Policy Perspective” in C.B. GRABER and M. BURRI-NENOVA, eds., Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Cheltenham: Edward Elgar, 2008)Google Scholar, 123.
6. See e.g. Girsberger, supra note 5.
GRABER, C.B., “Using Human Rights to Tackle Framentation in the Field of Traditional Cultural Expressions: An Institutional Approach” in Graber and Burri-Nenova, supra note 5 at 96Google Scholar.
8. As Coombe observes, “very little of the available scholarship [on TK] is as interdisciplinary in scope as the politics of this dynamic field ideally demands”: COOMBE, R.J., “The Expanding Purview of Cultural Properties and Their Politics” (2009) 5 Annual Review of Law and Social Science 393 at 394 CrossRefGoogle Scholar.
9. For a comprehensive study of existing IP-related international, regional, and national legal frameworks for TK protection, see LEWINSKI, S. VON, Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge, and Folklore, 2nd ed. (Alphen aan den Rijn: Kluwer Law International, 2008)Google Scholar.
10. Much has already been written about the interplay between IP and TK. See e.g. BLAKENEY, M., “The Protection of Traditional Knowledge Under Intellectual Property Law” (2000) 22 European Intellectual Property Review 251 Google Scholar;
DOWNES, D.R., “How Intellectual Property Could be a Tool to Protect Traditional Knowledge” (2000) 25 Columbia Journal of Environmental Law 253 Google Scholar;
DUTFIELD, G., “TRIPS-Related Aspects of Traditional Knowledge” (2001) 33 Case Western Reserve Journal of International Law 233 Google Scholar;
GERVAIS, D., “Traditional Knowledge & Intellectual Property: A TRIPS-Compatible Approach” (2005) Michigan State Law Review 137Google Scholar;
AREWA, O.B., “TRIPS and Traditional Knowledge: Local Communities, Local Knowledge, and Global Intellectual Property Framework” (2006) 10 Marquette Intellectual Property Law Review 155 Google Scholar. For views against protecting TK under IP laws, see
DAVIS, M.H., “Some Realism About Indigenism” (2003−2004) 11 Cardozo Journal of International and Comparative Law 815 Google Scholar;
C. CLIFT, “Is Intellectual Property Protection a Good Idea?” in P. SILLITOE, ed., Local Science vs. Global Science: Approaches to Indigenous Knowledge in International Development (Oxford: Berghahn Books, 2007)Google Scholar, 191.
11. For discussion of a sui generis system for TK protection, see ANTONS, C., “Sui Generis Protection for Plant Varieties and Traditional Knowledge in Biodiversity and Agriculture: The International Framework and National Approaches in the Philippines and India” (2010) 6 Indian Journal of Law and Technology 89 Google Scholar;
OSEITUTU, J.J., “A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law” (2011) 15 Marquette Intellectual Property Law Review 147 Google Scholar.
12. Discussions about how TK should be defined or whether “traditional knowledge” is an appropriate term to be used to refer to knowledge of cultural character are beyond the scope of this paper. This paper uses the term “traditional knowledge” primarily for practical reasons, as it is the term most commonly used among scholars in this field. For a detailed discussion of TK terminology, see WIPO Doc. WIPO/GRTKF/IC/3/9, supra note 4.
13. This broad interpretation differs from the one adopted by WIPO, which sees protection only as “the use of IP tools and principles to prevent unauthorized or inappropriate uses of [TK] by third parties”: WIPO, Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions: An Overview, WIPO Publication No. 933 (2012) at 13.
14. Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 U.N.T.S. 215 (entered into force 7 August 1956) [Hague Convention].
15. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970, 823 U.N.T.S. 231 (entered into force 24 April 1972) [Illicit Traffic of Cultural Property Convention].
16. N. BRODIE et al., Stealing History: The Illicit Trade in Cultural Material, Commissioned by ICOM UK and Museums Association (Cambridge: McDonald Institute for Archaeological Research, 2000) at 8 Google Scholar.
18. Hague Convention, supra note 14, preamble, para. 2.
19. Illicit Traffic of Cultural Property Convention, supra note 15, preamble, para. 5.
20. Adopted by UNESCO General Conference at its Fourteenth Session on 4 November 1966.
21. See Constitution of the United Nations Educational, Scientific and Cultural Organization, 16 November 1945, 4 U.N.T.S. 275 (entered into force 4 November 1946), preamble, para. 5 [UNESCO Constitution].
22. As the UNESCO Constitution declares, “[s]ince wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed” (preamble, para. 1).
23. Convention for the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 U.N.T.S. 151 (entered into force 17 December 1975), preamble, para. 1 [World Heritage Convention].
25. Adopted by the Committee of Governmental Experts convened by the Tunisian Government in Tunis (23 February − 2 March 1976), with the assistance of UNESCO and WIPO.
26. Folklore is generally characterized as being collective, intergenerational, orally transmitted, constantly evolving, and integral to the cultural identity of the cultural group from which it originates. See The Protection of Traditional Cultural Expressions : Draft Gap Analysis, WIPO Doc. WIPO/GRTKF/IC/13/4(b) Rev. (2008).
27. Adopted by the Committee of Governmental Experts on the Intellectual Property Aspects of the Protection of Expressions of Folklore convened by UNESCO and WIPO in Geneva (28 June − 2 July 1982) [UNESCO-WIPO Model Provisions].
28. See commentary prepared by the UNESCO and WIPO Secretariats on the UNESCO-WIPO Model Provisions, para. 2.
29. Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886 (revised in 1908 (Berlin), 1928 (Rome), 1948 (Brussels), 1967 (Stockholm), 1971 (Paris), and amended in 1979), WIPO Database of Intellectual Property Legislative Texts, WO001EN.
30. Adopted by UNESCO General Conference at its Twenty-Fifth Session on 15 November 1989.
31. Defined as “the sum total of the knowledge, skills, and practices based on the theories, beliefs, and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health as well as in the prevention, diagnosis, improvement or treatment of physical and mental illness”: General Guidelines for Methodologies on Research and Evaluation of Traditional Medicine, WHO Doc. WHO/EDM/TRM/2000.1 (2000) at 1.
32. See generally VUORI, H., “The World Heath Organization and Traditional Medicine” (1982) 4 Community Medicine 129 Google Scholar.
33. Von Lewinski suggests that this was partly because the organization of indigenous groups became more efficient, allowing them to be better represented in different international fora: LEWINSKI, S. VON, “The Protection of Folklore” (2003−2004) 11 Cardozo Journal of International and Comparative Law 747 at 747 Google Scholar.
34. Convention Concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 72 ILO Official Bull 59, 28 I.L.M. 1382 (entered into force 5 September 1991) [ILO Convention No. 169].
36. Passed by the Plenary of the First International Conference on the Cultural & Intellectual Property Rights of Indigenous Peoples (12−18 June 1993, New Zealand), in recognition that 1993 was the UN International Year for the World's Indigenous Peoples.
37. Protection of the Heritage of Indigenous People: Final Report of the Special Rapporteur, Erica-Irene DAES, in conformity with the Subcommission on Protection of Discrimination and Protection of Minorities resolution 1993/44 and decision 1994/105 of the Commission on Human Rights, UN Doc. E/CN.4/Sub.2/1995/26 (1995).
38. These claims were made for the purposes of “identity assertion, greater inclusion in political life, the defense of local autonomy, and new forms of engagement with global markets”: Coombe, supra note 8 at 395.
39. POSEY, D.A., Traditional Resource Rights: International Instruments for Protection and Compensation for Indigenous Peoples and Local Communities (Cambridge: IUCN, 1996)Google Scholar;
DUTFIELD, G., Intellectual Property, Biogenetic Resources and Traditional Knowledge (London: Earthscan, 2004)Google Scholar.
40. F. LENZERINI, “Indigenous Peoples' Cultural Rights and Controversy Over Commercial Use of Their Traditional Knowledge” in F. FRANCIONI and M. SCHEININ, eds., Cultural Human Rights (Leiden: Martinus Nijhoff, 2008)Google ScholarPubMed, 119;
B. TOBIN, “Setting Protection of TK to Rights − Placing Human Rights and Customary Law at the Heart of TK Governance” in E.C. KAMAU and G. WINTER, eds., Genetic Resources, Traditional Knowledge & the Law: Solutions for Access & Benefit Sharing (Sterling: Earthscan, 2009)Google Scholar, 101.
41. Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79, 31 I.L.M. 818 (entered into force 29 December 1993) [CBD].
42. Rio Declaration on Environment and Development, UN Doc. A/CONF.151/5/Rev.1, 14 June 1992, 31 I.L.M. 874 (1992); Principle 22 states that “[i]ndigenous peoples and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.”
43. Agenda 21, Conference of the United Nations on Environment and Development, Annex 2, UN Doc. A/CONF.151/26/Rev.1, Vol. 1 (1993). See in particular Chapter 15 on conservation of biological diversity, Chapter 26 on indigenous people, and Chapter 32 on local farmers.
44. Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, UN Doc. A/CONF.151/6/Rev.1 (1992), 31 I.L.M. 881. See in particular Principle 12(d) which states that “[a]ppropriate indigenous capacity and local knowledge regarding the conservation and sustainable development of forests should … be recognized, respected, recorded, developed and, as appropriate, introduced in the implementation of programmes”.
45. According to this Principle, the holders of TK should receive an equitable share of the benefits that arise from the use of their TK, which may be expressed in terms of a compensatory payment, or other non-monetary benefits (see the 2002 Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Arising from Their Utilization, online: 〈http://www.cbd.int/abs/bonn/〉).
46. According to this Principle, holders of TK should be fully consulted before their TK is accessed or used by third parties. In the process of consultation, they should be fully informed about the consequences of the intended use and an agreement should be reached, on appropriate terms, regarding the scope of use and how the benefits arising from the future exploitation will be shared.
47. See e.g. Brazil's Provisional Measure (Medida Provisόria 2186-16/2001, 2001), which recognizes indigenous peoples' right to prevent unauthorized use by a third party (art. 9) and establishes a system of access and benefit-sharing (Chapter VII), and Thailand's Plants Varieties Protection Act B.E. 2542 (1999), which requires those seeking to “collect, procure or gather” registered local plant varieties to conclude access and benefit-sharing agreements with the relevant community (s. 48).
48. United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 17 June 1994, 1954 U.N.T.S. 3, 33 I.L.M. 1328 (entered into force 26 December 1996) [UNCCD].
49. Under the CBD, ownership in TK ultimately rested with national governments under the principle of “sovereignty” over natural resources (art. 3).
50. Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 15 April 1994, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (entered into force 1 January 1995) [TRIPS].
52. Ministerial Declaration, adopted on 14 November 2001 at the Fourth Session of WTO Ministerial Conference, WTO Doc. WT/MIN(01)/DEC/1 (2001). See particularly para. 19, which instructed the TRIPS Council, “in pursuing its work programme including under the review of art. 27.3(b) … to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity [and] the protection of traditional knowledge and folklore”.
53. See generally The Relationship Between the TRIPS Agreement and the Convention on Biological Diversity: Summary of Issues Raised and Points Made, WTO Doc. IP/C/W/368/Rev.1 (2006); TARASOFSKY, R.G., “The Relationship Between the TRIPS Agreement and the Convention on Biological Diversity: Towards a Pragmatic Approach” (1997) 6 Review of European Commmunity & International Environmental Law 148 CrossRefGoogle Scholar.
54. GERVAIS, D., The TRIPS Agreement: Drafting History and Analysis, 3rd ed. (London: Sweet & Maxwell, 2008)Google Scholar
55. See generally S.A. LAIRD and K. TEN KATE, “Biodiversity Prospecting: The Commercial Use of Genetic Resources and Best Practice in Benefit-Sharing” in S.A. LAIRD, ed., Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice (London: Earthscan, 2002)Google Scholar, 241.
56. Defined as “the appropriation of the knowledge and genetic resources of farming and indigenous communities by individuals or institutions who seek exclusive monopoly control (patents or intellectual property) over these resources and knowledge” by the Action Group on Erosion, Technology and Concentration, online: ETC Group 〈http://www.etcgroup.org/node/2164〉.
57. For a strong view against biopiracy, see V. SHIVA, Biopiracy: The Plunder of Nature and Knowledge (Dartington: Green Books, in association with the Gaia Foundation, 1998Google Scholar
58. A drink made of a vine used by indigenous tribes throughout the Amazon in religious and healing ceremonies. In 1986, Loren Miller obtained a US plant patent over an alleged variety of the vine, claiming that it represented a new and distinct variety. The Centre of International Environmental Law filed a re-examination request on behalf of the Amazonian indigenous organizations, leading to the patent being revoked in 1999 by the USPTO. The patent was, however, regranted in 2001 following a re-examination request presented by Loren Miller.
59. An Indian tree, the extract of which has long been used by traditional communities in India and other parts of South and Southeast Asia as natural pesticide and fertilizer. The European Patent Office granted a multinational corporation a patent for “a method for controlling fungi on plants by the aid of a hydrophobic extracted Neem oil” in 1994. The patent was revoked in 2000.
60. A plant of the ginger family traditionally used for healing wounds. Two Indian nationals in the US were granted a US patent on the “use of turmeric in wound healing” in 1995. The patent was revoked in 2002.
61. A cactus used by the San people in southern Africa to stave off hunger and thirst on long hunting trips. A patent was granted to the South African Council for Scientific and Industrial Research on its appetite-suppressing element in 1995. The San people protested and in 2002 an agreement was reached whereby the San were recognized as custodians of the TK and would receive a share of future royalties from the sale of the drug developed from their knowledge.
62. Some scholars accept “biopiracy” as an objective reality, e.g. WERRA, J. DE, “Fighting Against Biopiracy: Does the Obligation to Disclose in Patent Applications Truly Help?” (2009) 42 Vanderbilt Journal of Transnational Law 143 Google Scholar. Others see it as either a fiction, e.g.
CHEN, J., “There's No Such Thing as Biopiracy … and It's a Good Thing Too” (2006) 37 McGeorge Law Review 1 Google Scholar; or as part of a social movement, e.g.
COOMBE, R.J., “Protecting Traditional Environmental Knowledge and New Social Movements in the Americas: Intellectual Property, Human Right, or Claims to an Alternative Form of Sustainable Development?” (2005) 17 Florida Journal of International Law 115 Google Scholar.
63. The fact that the WIPO's Draft Articles on the protection of TK (in the strict sense) explicitly acknowledge the need to prevent misappropriation of TK is illustrative of this. See The Protection of Traditional Knowledge: Draft Articles, WIPO Doc. WIPO/GRTKF/IC/24/4 (2013), Annex, arts. 3 and 4 at 13−16.
64. WIPO Performances and Phonograms Treaty, 20 December 1996, 2186 U.N.T.S. 121 (entered into force 20 May 2002), art. 2(a).
65. M. PERLMAN, “From ‘Folklore’ to ‘Knowledge’ in Global Governance: On the Metamorphoses of the Unauthored” in M. BIAGIOLI et al., eds., Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective (London: University of Chicago Press, 2011)Google Scholar, 115.
67. See Draft Program and Budget 1998−1999, WIPO Doc. A/32/2-WO/BC/18/2, Main Programme 11 at 105.
68. WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998−1999), WIPO Publication No. 768(E) (2001) [WIPO Fact-Finding Report].
69. Established by WIPO General Assembly at its Twenty-Sixth Session (25 September − 3 October 2000). See Report of the Twenty-Sixth Session of WIPO General Assembly, WIPO Doc. WO/GA/26/10, para. 71.
71. Matters Concerning Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, WIPO Doc. WO/GA/26/6 (2000), para. 15.
72. See WIPO, A Stronger Voice for Indigenous and Local Communities in WIPO's Work on Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources: The WIPO Voluntary Fund, Booklet No. 3, WIPO Publication No. 936 (undated).
73. According to WIPO, such an instrument could range from a recommendation to a legally binding treaty. See WIPO, Traditional Knowledge and Intellectual Property, Background Brief No. 1 (undated).
75. Draft Report of the Forty-Third (21st Ordinary) Session of WIPO General Assembly, WIPO Doc. WO/GA/43/22 PROV. (2013), para. 182.
76. Established by ECOSOC resolution 2000/22 of 28 July 2000, ECOSOC Doc. E/2000/99 (ESCOR, 2000, Suppl No. 1) at 49.
78. See e.g. Report on the Eleventh Session of the Permanent Forum on Indigenous Issues, ECOSOC Doc. E/2012/43-E/C.19/2012/13 (2012), paras. 43−55.
79. United Nations Declaration on the Rights of Indigenous Peoples, adopted by UN General Assembly at its Sixty-First Session, resolution 61/295 of 13 September 2007, UN Doc. A/RES/61/295 (2007).
80. UNCTAD, Plan of Action, UN Doc. TD/386 (2000), para. 147. See also Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices. Background Note by the UNCTAD Secretariat, UN Doc. TD/B/COM.1/EM.13/2 (2000).
81. See FAO, FAO and Traditional Knowledge: The Linkages with Sustainability, Food Security and Climate Change Impacts (2009), online: FAO 〈http://www.fao.org/docrep/011/i0841e/i0841e00.htm〉.
82. International Treaty on Plant Genetic Resources for Food and Agriculture, 3 November 2001, 2400 U.N.T.S. 303 (entered into force 29 June 2004) [ITPGR]. ITPGR has its origin in the non-binding International Undertaking on Plant Genetic Resources adopted by the FAO in 1983.
83. See resolution 4/89, Agreed Interpretation of the International Undertaking, adopted by the FAO Conference at its Twenty-Fifth Session on 29 November 1989.
84. Convention for the Safeguarding of the Intangible Cultural Heritage, 17 October 2003, 2368 U.N.T.S. 3 (entered into force 20 April 2006) [Intangible Cultural Heritage Convention].
85. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005, 2440 U.N.T.S. 311 (entered into force 18 March 2007) [Cultural Diversity Convention].
86. See also the Yamato Declaration on Integrated Approaches for Safeguarding Tangible and Intangible Cultural Heritage, adopted at the International Conference on the Safeguarding of Tangible and Intangible Heritage, organized by the Japanese Agency for Cultural Affairs and UNESCO, 20−23 October 2004, Nara, Japan.
87. See preamble, para. 2, Intangible Cultural Heritage Convention; and art. 1(f), Cultural Diversity Convention.
88. According to Smith, the concepts of monumentality and aesthetics have given rise to many unuseful assumptions about the “innate and immutable cultural values of heritage”: SMITH, L., Uses of Heritage (London: Routledge, 2006) at 4 Google Scholar.
89. LOULANSKI, T., “Revising the Concept for Cultural Heritage: The Argument for a Functional Approach” (2007) 13 International Journal of Cultural Property 207 at 211 Google Scholar.
90. See WHO Traditional Medicine Strategy 2002−2005, WHO Doc. WHO/EDM/TRM/2002.1 (2002).
91. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity, 29 October 2010, online: CBD 〈http://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf〉 (not yet in force).
92. For a negotiating history of the Protocol, see BUCK, M. and HAMILTON, C., “The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity” (2011) 20 Review of European Commmunity & International Environmental Law 47 CrossRefGoogle Scholar.
93. Endorsed by the Committee on World Food Security at its Thirty-Eighth (Special) Session on 11 May 2012, online: FAO 〈http://www.fao.org/nr/tenure/en/〉. See also FAO, Voluntary Guidelines on the Governance of Tenure: At a Glance (2012), online: FAO 〈http://www.fao.org/docrep/016/i3016e/i3016e.pdf〉.
94. Beijing Treaty on Audiovisual Performances, 24 June 2012, WIPO Doc. AVP/DC/20, online: WIPO 〈http://www.wipo.int/edocs/mdocs/copyright/en/avp_dc/avp_dc_20.pdf〉 (not yet in force).
95. ILC Study Group Report, supra note 3, para. 8.
96. Ibid., para. 15.
97. Ibid., para. 8.
98. See GERHARD, H., “Pros and Cons Ensuing from Fragmentation of International Law” (2003−2004) 25 Michigan Journal of International Law 849 Google Scholar (identifying various factors responsible for increased fragmentation, namely the proliferation of international regulations, the increasing political fragmentation, the regionalization of international law, the emancipation of individuals from states, and the specialization of international regulations).
99. KOSKENNIEMI, M. and LEINO, P., “Fragmentation of International Law? Postmodern Anxieties” (2002) 15 Leiden Journal of International Law 553 at 562 CrossRefGoogle Scholar (emphasis in original). It is interesting to see how different institutions prioritize their involvement in the TK debate; e.g. Twarog, an UNCTAD staffer, writes that “UNCTAD addresses the issue from the trade and development perspective and can thus have a somewhat more holistic approach [than WIPO, WTO, and CBD]”:
S. TWAROG, “Preserving, Protecting and Promoting Traditional Knowledge: National Actions and International Dimensions” in S. TWAROG and P. KAPOOR, eds., Protecting and Promoting Traditional Knowledge: Systems, National Experiences and International Dimensions (Geneva: UNCTAD, 2004), 61 at 61 Google Scholar. Cf. WIPO's attempt to distinguish its work on TK protection from the initiatives of other organizations by claiming that it focuses on the “legal” protection of TK, while others are more concerned with the preservation and dissemination of TK, which are not “legal protection” in the strict sense: WIPO Background Brief No. 1, supra note 73 at 2.
100. G. ABI-SAAB, “Fragmentation or Unification: Some Concluding Remarks” (1998−99) 31 New York University Journal of International Law and Politics 919 at 925.
102. ASSELT, H.V., “Managing the Fragmentation of International Environmental Law: Forests at the Intersection of the Climate and Biodiversity Regimes” (2011−12) 44 New York University Journal of International Law and Politics 1205 Google Scholar.
103. WIPO Fact-Finding Report, supra note 68 at 54. See also J. CRAWFORD and M. KOSKENNIEMI, “Introduction” in J. CRAWFORD and M. KOSKENNIEMI, eds., The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012), 1 at 12 Google Scholar (noting that “[f]ragmentation in the international system is to some extent unavoidable, even—in terms of the capacity for development and experimentation—desirable”).
105. See PROST, M. and CLARK, P.K., “Unity, Diversity and the Fragmentation of International Law: How Much Does the Multiplication of International Organizations Really Matter?” (2006) 5 Chinese Journal of International Law 341 CrossRefGoogle Scholar (arguing that for the multiplicity of international organizations to weaken the unity of international law, there must be (1) duplication of competences, (2) conflicts resulting from such duplication, and (3) such conflicts must be of normative significance).
106. WIPO points out that the term “indigenous knowledge” can be understood in two ways. It is used either to describe the knowledge held and used by communities, peoples, and nations that are indigenous, or to denote knowledge which is itself indigenous, in the sense of specifically originating from a certain region or country. In the latter sense, the terms “indigenous knowledge” and “traditional knowledge” may be interchangeable: WIPO Fact-Finding Report, supra note 68 at 23−4.
107. According to WIPO, “expressions of folklore” are a subset of “traditional knowledge”. “Traditional knowledge” is, in turn, a subset of the broader concept of “heritage”. “Indigenous knowledge”, being the TK of “indigenous peoples”, is also a subset of “traditional knowledge”. As some “expressions of folklore” are created by indigenous persons, there is an overlap between “expressions of folklore” and “indigenous knowledge”, both of which are forms of TK: ibid., at 26.
108. TK lato sensu is defined as “tradition-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”: ibid., para. 25.
109. Traditional Knowledge: Policy and Legal Options, WIPO Doc. WIPO/GRTKF/IC/6/4 (2003), para. 57.
110. Traditional Knowledge and Biological Diversity, Note by the Executive Secretary, UNEP Doc. UNEP/CBD/TKBD/1/2 (1997), para. 87.
111. See further discussion below.
112. This may in fact prove to be an impossible and elusive task. It has been suggested that “it may only be possible (or desirable) to settle on a particular definition in the context of a specific legal instrument and with a defined policy goal”: WIPO Doc. WIPO/GRTKF/IC/3/9, supra note 4, para. 11.
113. There are other factors which contribute to the confusion, including the multifaceted nature of the TK itself and the multitude of stakeholders (other than international organizations) bringing their diverse understandings of TK to the negotiating table. This explains why the meaning of “traditional knowledge” is highly contested, even within each institution, let alone among them.
114. WIPO, The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Background Brief No. 2 (undated) at 2.
115. Telesetsky points out that there are four “paradigms” of TK: (1) TK as intangible cultural heritage, (2) TK as a mechanism of sustainable development, (3) TK as an aspect of IP, and (4) TK as a commodity of a trade regime: A. TELESETSKY, “Traditional Knowledge: Protecting Communal Rights Through a Sui Generis System” in J.A.R. NAFZIGER and T. SCOVAZZI, eds., Le patrimoine culturel de l'humanité / The Cultural Heritage of Mankind (Leiden: Martinus Nijhoff, 2008), 297 at 301 Google Scholar.
117. WENDLAND, W., “Intangible Heritage and Intellecual Property: Challenges and Future Prospects” (2004) 56 Museum International 97 at 102 CrossRefGoogle Scholar. See also UNCTAD, Report of the UNCTAD-Commonwealth Secretariat Workshop on Elements of National Sui Generis Systems for the Preservation, Protection and Promotion of Traditional Knowledge, Innovations and Practices and Options for an International Framework (2004) at 2 [UNCTAD-Commonwealth Workshop Report].
118. Many scholars have voiced similar concerns. See e.g. Razzaque and Ssenyonjo, supra note 5 at 402Google Scholar (noting that different international institutions are “pursuing different priorities … The lack of agreement among the parties to these international processes has resulted in a slow pace of progress in [ensuring adequate protection for TK]”).
119. See Report of the International Technical Workshop on Indigenous Traditional Knowledge, UN Doc. E/C.19/2006/2 (2005).
120. See UNCTAD-Commonwealth Workshop Report, supra note 117.
121. Various UN agencies were represented at the UNPFII workshop (e.g. WIPO, UNEP, WHO, and UNESCO), but other relevant agencies such as UNCTAD and FAO were not represented. See UN Doc. E/C.19/2006/2, supra note 119.
123. See A.K. GUPTA et al., WIPO-UNEP Study on the Role of Intellectual Property Rights in the Sharing of Benefits Arising from the Use of Biological Resources and Associated Traditional Knowledge, Study No. 4, WIPO Publication No. 769(E) (2004). See also UNESCO-WIPO Model Provisions, supra note 27.
124. DEERE, C., “Reforming Governance to Advance the WIPO Development Agenda” in J. DE BEER, ed., Implementing WIPO's Development Agenda (Waterloo, ON: Wilfred Laurier University Press / Centre for International Governmance Innovation / International Development Research Centre, 2009), 43 at 45 Google Scholar.
125. RECHT, J., “Hearing Indigenous Voices, Protecting Indigenous Knowledge” (2009) 16 International Journal of Cultural Property 233 at 235 CrossRefGoogle Scholar. See also Telesetsky, supra note 115 at 321−2 (noting that “the efforts of an international organization cannot be reduced to a single paradigm since there is quite a bit of cross fertilization between specialized organizations”).
126. Drahos proposes an enforcement-based framework for TK protection supported by what he calls a “global bio-collecting society”: Drahos, supra note 5.
127. A similar analogy is provided by Girsberger, who suggests that different measures adopted by different fora can, if crafted carefully, “represent pieces of a larger puzzle resulting in a comprehensive protection of [TK]”: Girsberger, supra note 5 at 142−3.
128. This is particularly apparent in the negotiations at WIPO, where different countries brought to the table their different perceptions of who should be the beneficiaries of TK protection. The list of potential beneficiaries of TK protection now includes individuals, families, indigenous peoples, local communities, and even nations. See WIPO Doc. WIPO/GRTKF/IC/24/4, supra note 63, Annex, art. 2 at 12.
129. One legal consequence of such a distinction is that those TK holders who are classified as “indigenous peoples” may have their rights recognized under existing international human rights instruments relating to the rights of indigenous peoples, while non-indigenous TK holders such as “local communities” and farmers may not receive the same recognition. See A. MEYER, “International Environmental Law and Human Rights: Towards the Explicit Recognition of Traditional Knowledge” (2001) 10 Review of European Community & International Environmental Law 37 at 42 (noting that “local groups have yet to find recognition in the human rights arena, which is perhaps due to the fact that they do not claim basic rights such as the right to self-determination, autonomy or … the recognition of traditional land rights”).
130. It has been pointed out that “local communities” and “indigenous peoples” generally have different needs owing to their different historical and political backgrounds: while the demands of indigenous peoples in former colonies can be summarized as being a general struggle for self-determination, the same cannot be said for local communities who are generally more integrated into modern societies: BRAHY, N., The Property Regime of Biodiversity and Traditional Knowledge: Institutions for Conservation and Innovation (Bruxelles: Larcier, 2008) at 291 Google Scholar. For this reason, many critical scholars have warned against homogenizing the needs and expectations of TK holders. See e.g. R.J. COOMBE, “Cultural Agencies: The Legal Construction of Community Subjects and Their Properties” in Biagioli et al., supra note 65 at 79;
131. Cowan et al. refer to this as “strategic essentialism” that serves a political need to maintain a unified voice among diverse TK holders: J.K. COWAN et al., Culture and Rights: Anthropological Perspectives (Cambridge: Cambridge University Press, 2001)Google Scholar.
133. There is a lively debate about the scope of international organizations’ power—whether they perform merely “operational” functions or whether they possess “normative” competences (that is, power to act independently from states and behave as norm-makers)—the discussion of which lies beyond the scope of this paper. See generally KLABBERS, J., “International Institutions” in Crawford and Koskenniemi, eds., supra note 103 at 228Google Scholar.
134. Twarog has identified some factors which may influence the governments’ choice of forum, noting that “[w]hile many [developing countries] consider the CBD to be the forum most sympathetic to their perspective, WIPO has technical expertise on [IP,] and WTO, with its dispute settlement mechanism, has ‘teeth’”: Twarog, supra note 99 at 61.
136. See comment of Canada in The Protection of Traditional Knowledge and Folklore: Summary of Issues Raised and Points Made, WTO Doc. IP/C/W/370/Rev.1 (2006), para. 14.
137. See e.g. MERWE, A. VAN DER, “Can Traditional Knowledge be Efffectively Covered Under a Single ‘Umbrella’?” (2010) 13 Potchefstroom Electronic Law Journal 2 Google Scholar.
138. As the Commission on Intellectual Property Rights (UK) notes, “no single body is likely to have the capacity, expertise or resources to handle all aspects of [TK]”: Integrating Intellectual Property Rights and Development Policy, Report of the Commission on Intellectual Property Rights (2000) at 78.
139. WIPO seems to have recently assumed this admirable role, by (among other co-ordinating efforts) engaging in a comprehensive dialogue on TK protection and the rights of indigenous peoples with the UNPFII at the Eleventh Annual Session of the UNPFII, New York, 7−18 May 2012.
140. Cf. the emerging concept of “international legal pluralism”, according to which different actors must respect and cherish the “legitimate difference” among them, while “recalling the importance of unity in crafting rules, developing procedures, [and] building institutions”: W.W. BURKE-WHITE, “International Legal Pluralism” (2003−04) 25 Michigan Journal of International Law 963 at 979.
141. See Meyer, supra note 129 at 46 (arguing that these two principles should guide any further development relating to TK protection because they “represent an important understanding of the essence of any protection of [TK]” and are “common principles in both international environmental and human rights law”).
142. The same suggestion is made by Brazil, the African Group, and Venezuela in the TRIPS Council. See WTO Doc. IP/C/W/370/Rev.1, supra note 136, para. 15. See also the Report of the Commission on Intellectual Property Rights, supra note 138 at 78.
143. Young has argued that these three stages (which she sees as part of the “process” of international law) are all affected by the fragmentation of international law: Young, supra note 101 at 17.
144. Memorandum of Understanding Between the Secretariat of the Convention on Biological Diversity and the World Intellectual Property Organization (text available in Approval of Agreements with Intergovernmental Organizations: Memorandum of the Director General, WIPO Doc. WO/CC/48/2 (2002), Annex I). The objective of this Memorandum of Understanding is “to enhance cooperation between the CBD Secretariat and WIPO on intellectual property issues concerning access to genetic resources and benefit-sharing and the protection of [TK]” (art. I) through, inter alia, ensuring respective participation at each other's meetings (art. II(3)), and exchanging information regarding activities of relevance to their respective mandates (art. III).
145. Girsberger makes a similar suggestion in the context of the protection of TCEs (“[to preserve the unity of efforts,] the objectives and scope of the various international instruments addressing the protection of TCE and related matters, whether already adopted or to be concluded in the future, [must be] mutually supportive and complementary”): Girsberger, supra note 5 at 140.
146. Abi-Saab, supra note 100 at 925.
147. The International Law Commission suggests that “increasing attention will have to be given to the collision of norms and regimes and the rules, methods and techniques for dealing with such collisions”: ILC Study Group Report, supra note 3, para. 493.
148. Young has identified a number of obstacles to “regime interaction” in the field of fisheries governance, including the exclusivity of forum, the lack of transparency and openness, and the need for parallel membership: Young, supra note 101 at 258−66.
149. BALICK, M.J., “Traditional Knowledge: Lessons from the Past, Lessons for the Future” in C.R. MCMANIS, ed., Biodiversity and the Law: Intellectual Property, Biotechnology and Traditional Knowledge (London: Earthscan, 2007), 280 at 294 Google Scholar.