RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/230
14 December 2000
(00-5468)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English/
French/Spanish
DOCUMENT PREPARED BY THE UNCTAD SECRETARIAT FOR THE EXPERT
MEETING ON SYSTEMS AND NATIONAL EXPERIENCES FOR PROTECTING
TRADITIONAL KNOWLEDGE, INNOVATIONS AND PRACTICES WHICH TOOK
PLACE FROM 30 OCTOBER TO 1 NOVEMBER 2000 IN GENEVA
OUTCOME OF THE EXPERT MEETING
*
1. The Expert Meeting on Systems and National Experiences for Protecting Traditional
Knowledge, Innovations and Practices was held in  Geneva from 30 October 2000 to 1 November. The
following is the outcome of the Expert Meeting. In accordance with the decision taken by the Trade
and Development Board at its twenty-fourth executive session, the outcome will be circulated by the
secretariat to member States with a request for policy comments on the recommendations of experts.
The responses of member States will be taken into account in the preparation of secretariatdocumentation for the fifth session of the Commission on Trade in Good and Services, and
Commodities, to be held from 26 February to 2 March 2001.
2. Individual experts put forward views and policy options for Governments to consider in
protecting traditional knowledge, innovations and practices (TK). The following text reflects the
diversity of the views expressed and summarizes the experts' conclusions and recommendations.
A. T
HE ROLE OF TRADITIONAL KNOWLEDGE
3. The role of TK in several economic sectors was emphasized by many experts. It was
indicated that TK has intrinsic value, which goes beyond its economic value to cultural, linguistic,
spiritual, ecological and other spheres. The loss of cultural diversity and biodiversity, particularly the
languages spoken and applied uses of biodiversity by local and indigenous communities (LICs), is a
contributing factor in the loss of TK. It was emphasized that preserving cultural diversity and local
systems of self-management would protect TK. The protection of TK requires an entire spectrum ofaction, which may include, but is not limited to, the application of intellectual property rights (IPRs),
and such action should include support to societies that are the custodians and developers of these
knowledge systems.
4. The most important objectives of regulating acc ess to TK are: generating income for LICs,
building the capacity of and developing value-added activities in LICs, and respecting and preservingcultural diversity. New technologies increase the economic value of biodiversity, expanding the
potential for commercialization of any given sample. On the negative side, they also make it easier to
misappropriate TK.
                                                     
* At its meeting of 21 and 22 September 2000, the Council for TRIPS agreed that this document be
circulated in the IP/C/W/- series of documents.  Th e symbol of the original document circulated by the
UNCTAD Secretariat on 9 November 2000 is TD/B/COM.1/EM.13/L.1.IP/C/W/230
Page 2
5. TK can help increase efficiency because it is cost-effective and uses appropriate technology,
effectiveness because it is locally managed and reaches the poor, and sustainability because it
provides for mutual adaptation and learning and empowers local communities.
6. It was suggested that a pluralistic legal approach to the protection of TK, which would
accommodate the interests of LICs, should be promoted. There should be an exchange of national
experiences among countries where progress has been made in respecting customary law in national
legislation.
7. Action should be taken closer to the communities themselves, and their territory and structure
should be taken as a basis for such action, which would require finding more human and inclusive
models, with a strong focus on women as the main carriers and preservers of TK and biodiversity and
the key to household food security, as well as on children to support the inter-generationaltransmission of TK.
8. Approaches to the protection and use of TK seem to be different in Latin America, Asia and
Africa. This calls for regional capacity-building activities and policy dialogues.
B. R
OLE OF TRADITIONAL KNOWLEDGE IN SECTORS
Traditional medicine
9. Large parts of the population in developing countries depend on traditional medicine and
treatment for survival. In developed countries, there is a rebound of interest in alternative treatment
methods, including traditional medicine.
10. Possibilities of interaction between traditional and modern medicine should be carefully
studied, and there is a need for more research on the effective use of traditional medicine, in particular
with universities, polyclinics and hospitals. Traditional medicine and treatment often offer many
unexplored opportunities.
11. The importance of proper protection of traditional medicine was expressed. Traditional
medicinal care must be affordable to the poor, and any form of intellectual property protection shouldnot interfere with customary practices in providing traditional medicines and health care.
Article 27.3(a) of the TRIPS Agreement permits countries to  exclude from patentability diagnostic,
therapeutic and surgical methods for the treatment of humans or animals. It was also  considered
necessary to provide adequate protection for TK to prevent misappropriation and assure equitable
sharing of benefits, preferably based on an international system of recognition of TK.
Traditional agriculture
12. Traditional agriculture plays an important role in food security, resource management, and
environmental and bio-diversity preservation.
13. TK communities need to ensure that their innovations systems are supported and rewarded
and that they are not locked out of the research agenda by major companies and countries.
Agricultural extension services and the direction  of R&D in developing countries should take account
of TK, and other social and economic policies should support and enable TK, innovations and
practices to flourish as a necessary requirement for other aspects of protection, using either existing
IPRs or sui generis  systems, to be meaningful.IP/C/W/230
Page 3
Handicraft and folklore
14. The importance of traditional handicraft and folklore lies not only in their economic and
aesthetic functions, but also in the fact that they often use materials from renewable resources and are
more friendly to the environment.
15. Experts underlined the need to raise awareness among the creators of traditional folk culture
of their rights in the area of intellectual property; support archiving of traditional folk culture and
folklore collections and databases; encourage efforts to protect such collections and databases against
misappropriation; and encourage educational institutions to introduce classes in traditional folk
culture.
C. SYSTEMS FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE
16. Customary law, IPRs, common law concepts, legal agreements or contractual arrangements
and sui generis  systems are important to trade in TK goods and TK-led development. The first step is
to define the issue clearly in order to establish to what extent the use or adaptation of existing
regulatory regimes or legal instruments will m eet needs. The work undertaken by WIPO and the
Intergovernmental Committee established earlier this year should contribute to this process.
Customary law systems should be strengthened and recognized.
17. It would seem preferable to have a system of protection of TK that is consistent with other
forms of IPRs. IPR-related measures can protect biodiversity and related TK. But in some cases, IPRs
may not be effective in protecting TK. Several proposals were made to link IPRs and TK, e.g. through
certificates of origin or disclosure clauses in patent applications and, as in the Andean Decision 406,
by linking the approval of TK-based patents to the presentation of a contract for licensing.
18. Information was also provided and views expressed to the effect that IPRs are a broad and
dynamic concept that is not limited to the known and existing categories of IPRs. As in the past, the
system can evolve to meet new needs, including several of those expressed by TK holders.
19. "Bridging" the collective rights applicable to TK  with the IPR regime in devising a system for
access to and sharing of the benefits of genetic or bio-chemical resources is a formidable task and, atthe same time, the most promising avenue. There is a need to explore an international framework for
collective rights within the universe of IPRs, possibly including in WIPO, WTO and CBD. In this
connection, it is important to bear in mind that indigenous peoples exist in a "universe" which differs
from that of IPRs.
20. TK holders and others expressed the view that the current IPR system is inappropriate for the
recognition and protection of TK systems because of the inherent conflict between these two systems.
According to this view, th e patenting of life forms should be banned because it attacks the values and
the livelihoods of LICs. All forms of bio-piracy should be eliminated, and WIPO and other relevant
organizations should work towards this objective.
21. The protection of biodiversity depends on the prot ection of TK that goes with it. A number of
countries have gained interesting experience with legislative, IPR and non-IPR measures, e.g. the
Andean Community, Costa Rica, Brazil, India, Nigeria, Panama, Thailand and the Philippines. Thereare practical problems for the effective application and implementation of legal frameworks for TK
protection. Some countries have IPR-related regulation that requires disclosure of the source of
information.
22. TK holders expressed concern that one type of IPR system, e.g. patents, is being universalized
and prioritized to the exclusion of all others, including their counterpart customary systems. Concernwas also expressed that the patent system can also lead to misappropriation of TK.IP/C/W/230
Page 4
23. There are also policy measures and non-legal instruments that can offer some degree of
protection.  These might include codes of conduct for researchers and commercial entities or
grassroots initiatives such as community-controlled databases.
24. The rights of TK holders may be acknowledged in different terms: up-front payments,
royalties, fees for material services, involvem ent of local researchers and communities in R&D,
milestone payments etc.  The associated procedures may also be quite diverse, e.g. certificates of
origin, trademarks, copyrights, geographical i ndicators, contracts, permits, know-how licenses,
material transfer agreements (for ex situ  collection), and public register confidentiality. A possible
role for the Global Bio-Collecting Society in monitoring access to TK could be explored.
D.  SUI GENERIS  SYSTEMS FOR THE PROTECTION OF TK
25. Several elements constituting a sui generis  system for the protection of TK were discussed
and a number of common elements emerged from the discussion, which are included in the
recommendations for action at the national level (paragraph 34). A view was expressed that the
protection of TK should influence national policies in areas such as agriculture, forestry and
investment. Many countries have made advances on sui generis  legislation for protecting TK. These
systems should be developed in close consultation with TK holders and should include prior informedconsent by the LICs as an intrinsic element of their legislative frameworks. Several model laws have
also been developed, including those of the Organization of African Unity and the Third World
Network.
26. National sui generis  systems by themselves would not be adequate to protect TK. Exclusion
from patentability of TK-based products in one country, for instance, would not prevent othercountries from granting patents. A need was therefore expressed for an international mechanism for
protecting TK. In this context, minimum standards for an international sui generis  system for
protecting TK could be devised.
E. H
ARNESSING TK FOR DEVELOPMENT AND TRADE
27. The top-down approach prevailing in development policies has been dominated by the idea of
national Governments and intergovernmental organizations providing LICs with what they lacked,
e.g. funding, training and employment. TK is one area where there is a need to cultivate a bottom-up
approach to development, building upon the resources and strengths of LICs, their experiences and
creativity.
28. There is a need to explore the potential of information and communication technologies for
the transmission of TK, e.g. through virtual markets, community multi-media centers and culturally
specific education activities. The key role of development partners is to empower communities to useglobal and local knowledge. However, empowerment alon e is not sufficient. Capacity building should
support it. Experts identified a number of areas on which capacity-building efforts should focus:
institutional consolidation of LICs; promoting intercultural exchange of experience; facilitating policy
dialogue; awareness-raising on the importance of TK and cultural impact assessment; documentation
of traditional knowledge; converting TK into economically viable products and services; andcommercializing TK-based products and services.
29. Whereas commercialization of TK-based products and services provides a powerful incentive
to communities to retain the TK base, extreme care needs to be taken to ensure that the resource base
of LICs is not over-exploited or permanently destroyed. Making the commercialization of TK
sustainable takes a number of measures at several levels: ( in situ ) conservation; generating awareness
about the importance of sustainable resource use; monitoring resource use; changing policy for TK
collection with the consent and participation of local communities; training  in sustainable harvesting;IP/C/W/230
Page 5
and assisting in simple first and second degree processing of TK-based products to add value. The
current IPR regime does not create a level legal field for LICs. It is all the more important to assess
the risks of over-exploitation and consequent loss of TK associated with commercialization.
30. TK holders pointed out that too much emphasis is put on the commercialization of TK, rather
than on its conservation and further development. It is necessary to protect the underlying values ofTK.
31. Targeting local communities as beneficiaries may trigger conflicts between those of them that
have overlapping resource bases or TK. The idea of a community knowledge fund as a recipient of
benefits derived from commercialization of TK-based products deserves special attention. However,
overheads associated with such funds should be kept to a minimum.
32. The share of benefits accruing to LICs from the commercial use of TK should be
proportionate to the volume of trade in TK-based products and services.
F. R
ECOMMENDATIONS AT THE NATIONAL LEVEL
33. There is a continued need for raising awareness of the role and value of TK among LICs,
policy makers and other stakeholders. LICs, particularly women, should be fully involved in the
development of policies aimed at protecting TK.
34. Apart from using suitable modern IPR instruments for appropriate cases, a national sui
generis  system for the protection of TK may be useful. Such a sui generis  system could include the
following common elements: collectively held TK rights; registers of knowledge; clear systems of
access to such rights and benefit-sharing; clarification of land resource rights as part of the holding of
TK rights; wide participation and consultation; and creation of  effective incentives for research. In
addition, TK protection needs to be reflected in other national policy areas, such as agriculture,forestry, investment and finance.
35. There is a need to carry out training and consultation programmes among LICs, especially on
the application of customary law.
36. National representatives should try to have the meeting's outcome translated into national or
local languages and distributed to LICs.
G. R
ECOMMENDATIONS AT THE MULTILATERAL LEVEL
37. A number of institutions are carrying out work programmes on TK. There should be
continued coordination and cooperation between the intergovernmental organizations concerned. An
impartial working group could be created to coordinate these efforts. In addition to other fora, TK
protection should also be discussed in the WTO.
38. The regional diversity reflected in the debate call for a regional approach to exploring
possibilities for the protection of TK and the commercialization of TK-based products.
39. Indigenous groups at the Meeting called for the establishment of an Indigenous Peoples
Working Group for Protecting TK of the LICs. It was also noted that there should be no duplication
with existing work and processes in other inte rnational fora, including CBD and the Economic and
Social Council.
40. National sui generis  systems by themselves will not be sufficient to protect TK adequately.
There is therefore a need to explore an inte rnational mechanism that might explore minimum
standards of an international sui generis  system for TK protection. Any international discussionsIP/C/W/230
Page 6
should take due account of practical experiences gained in TK-related issues at the national and
regional level.  LICs should be involved in building an in ternational framework for collective rights.
Capacity-building targeting women as primary TK holders is an essential component of such
activities.
H. R ECOMMENDATIONS TO UNCTAD
41. UNCTAD, within its mandate as expressed in the Bangkok Plan of Action (TD/386), subject
to available resources, and in cooperation and avoiding overlap with other relevant international and
regional organizations, should:
• Organize workshops and seminars at the regional and national levels and encourage
the involvement of indigenous and local communities;
• Contribute to the ongoing processes in WIPO, WTO, CBD, UNCCD and other
organizations;
• Promote the design and implementation of comprehensive national strategies to
harness TK for development and trade;
• Strengthen capacity-building programmes on TK, including within the framework of
the BIOTRADE Initiative, the UNEP-UNCTAD Capacity Building Task Force (CBTF) on
Trade, Environment and Development and ongoing and planned UNDP/UNCTAD projects;
• Further develop the training module on Traditional Knowledge, Trade and
Development;
• Assist interested developing countries in exploring sui generis  systems for the
protection of TK, including possible multilateral aspects of such systems;
• Review practical difficulties in developing and implementing effective legal
frameworks for the protection of TK;
• Assist in the formation of databases on TK at national and international levels to
disseminate information and ensure consistency among different organizations;
• Publish, including on the Internet, the papers submitted to this workshop and circulate
the monograph among its member countries and NGOs representing LICs.
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