Tiered or Differentiated Approach to Traditional Knowledge and Traditional Cultural Expressions The Evolution of a Concept

Full Paper

For nearly two decades, the World Intellectual Property Organization’s (WIPO’s) expert committee, known as the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has been working to negotiate text-based legal instrument(s) for effective protection of the subject matters of genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs), and their intersection with the intellectual property (IP) system. So far, the IGC experience rejects the intensity of the international process, geopolitical undercurrents and the power dynamics that characterize that process, especially as it relates to the subject of IP. Despite mixed responses across North-South geopolitical interests regarding the elongation of the IGC’s deliberations and the continuing delay in the expected outcome from the forum, the latter has made substantive contributions to international IP law and policy-making in relation to matters under its mandate. This paper identifies and explores the rationale for one of the major evolving contributions of the IGC, namely the notion of a tiered or differentiated approach to the protection of TK and TCEs. The paper provides the context for the evolution of the approach. Using various forms of TK/TCEs in select regional and national contexts, the paper discusses the empirical rami cations and challenges of the tiered and differentiated approach. The paper concludes that the approach provides a broad policy framework, although its details are contingent on many considerations, which are better addressed at national and local levels.

World Trade Organization’s failure to include TK/TCEs in its negotiations and in the text of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as the increasing economic and trade importance of TK/TCEs and GRs. Given the historic interest of the United Nations Educational, Scienti c and Cultural Organization in TK and related matters such as folklore (TCEs), the jurisdictional ambit of the WIPO IGC is limited to the rami cations of GRs, TK and TCEs in the IP system. However, in recognition of the overlapping, or fluid, nature of these subject matters across diverse international regimes, member states and experts are required to ensure and respect the synergistic relationship of the resulting instruments and relevant regimes.

The difficulty of the IGC’s task is not necessarily a factor of the contentious nature of the international IP policy-making process, the underlying ubiquitous geopolitical power relations or ideological schisms over knowledge governance. Neither does it lie in the institutional factor of WIPO’s Committee process in the complex regime ecosystem in which those subject matters are engaged. Without question, those factors contribute to make the IGC’s mandate a herculean task. However, in addition to these issues, perhaps the most critical feature underlying the di culty of the IGC project is the enigmatic nature of TK and, certainly, TCEs. TCEs have been and remain a unified or inherent component of TK. At WIPO and other fora, TCEs have been demarcated from TK as a conceptual matter. Both TK and TCEs are pragmatic terms of convenience and compromise.

Start typing and press Enter to search