WORLD TRADE
ORGANIZATIONIP/C/W/370
8 August 2002
(02-4356)
Council for Trade-Related Aspects
of Intellectual Property Rights
THE PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE
SUMMARY OF ISSUES RAISED AND POINTS MADE
Note by the Secretariat
1. This note summarizes the issues raised and the points made by delegations in the Council for
TRIPS in regard to the protection of traditional knowledge and folklore.  It has been prepared in
response to the request made during the TRIPS Council meeting of 5-7 March 20021 that the
Secretariat prepare short papers on, inter alia , the agenda items related to review of the provisions of
Article 27.3(b), the relationship between the TR IPS Agreement and the Convention on Biological
Diversity (CBD) and the protection of traditional knowledge and folklore, summarizing the relevant
material presented to the TRIPS Council, whether in written or oral form, and listing all the relevant
documentation.
2. Up until this year the discussion in the TRIPS Council on these three matters has taken place
in the context of the review of the provisions of Article 27.3(b), and to a much lesser extent in the
context of the review of Article 71.1.  This note seeks to summarize those parts of this work whichrelate more specifically to traditional knowledge and folklore.  To avoid undue duplication, cross-
references to the two other notes have been made in certain places.  In accordance with the mandate
given to the Secretariat, the note only contains issues raised and points made by delegations in the
Council for TRIPS and does not cover the documentation of the Committee on Trade and
Environment and of the General Council, unless the relevant paper has also been circulated as aCouncil for TRIPS document.
3. It is emphasized that this note is an attempt to summarize the work done so far.  By its very
nature, it cannot include a full reflection of all the interventions made and documents submitted.  It is
structured around the issues raised rather than the positions of individual Members.  Therefore any
reader wishing to appreciate fully the position of a particular Member should consult the statementsmade and any papers submitted by that Member.  As requested, such documentation is listed in the
Annex to this note.  It is also referred to in the footnotes.
4. This note is divided into three major sections.  The first concerns general issues relating to the
protection of traditional knowledge, the second concerns the grant of patents in respect of traditional
knowledge, and the third concerns consent and benefit sharing.  There is also a final section whichprovides information on national legislation, practices and experiences with respect to this agenda
item.
                                                     
1 IP/C/M/35, para. 226.This document has been prepared under the Secretariat's own
responsibility and without prejudice to the positions of Members
and to their rights and obligations under the WTOIP/C/W/370
Page 2
5. The title of this paper covers both traditional knowledge and folklore as indicated in
paragraph 19 of the Doha Ministerial Declaration.2  However, most of what has been said so far in the
Council for TRIPS has related only to traditional knowledge and relatively little has been said so far
with respect to folklore.  Therefore, most of this not e pertains to traditional knowledge.  However, it is
possible that for some delegations, the issues raised and points that were made in relation totraditional knowledge were also intended to apply to folklore.  For example, one proposal has
included, in its definition of traditional knowledge, the term "cultural expressions"
3 and another
submission has referred to the protection of designs, music and other art forms generated by
traditional communities.4
I. GENERAL ISSUES RELATING TO THE PROTECTION OF TRADITIONAL
KNOWLEDGE
6. This section primarily sets out views th at have been expressed on two issues:
- why there is need for international action on the protection of traditional knowledge and
folklore;  and
- the international forum/forums most appropriate to pursue such a work.
7. The concerns expressed about the present situation by the proponents of international action
to protect traditional knowledge and folklo re can be put into two main categories:
- concern about the grant of patents or other IPRs covering traditional knowledge to
persons other than those indigenous peoples or communities who have originated and
legitimately control the traditional knowledge;
- concern that traditional knowledge is being used without the authorization of the
indigenous peoples or communities who have originated and legitimately control it andwithout proper sharing of the benefits that accrue from such use.
8. The reasons that have been put forward for why international action should be taken  to
remedy these problems can be summarized as follows:
- Common economic interest.  It has been said that traditional knowledge is a valuable
global resource and hence international efforts to secure its protection should be activelysupported.
5  More specifically, it has the potential of being translated into commercial
benefits by providing leads for the development of useful products and processes, in
particular in the pharmaceutical and agricultural sectors, saving time and cost for the
biotechnology industry.6  For these reasons it is in the common interest of mankind to
provide conditions that would be favourable to the preservation of traditional knowledge
and the continuing vitality of the peoples and communities which generate and develop
it.7
- Equity.  It has been said that, given the important economic value of traditional
knowledge, the holders of traditional know ledge should share in the economic benefits
derived from that knowledge.8  Given that the TRIPS Agreement requires countries with
                                                     
2 WT/MIN(01)/DEC/1.
3 Bolivia, Colombia, Ecuador, Nicaragua and Peru, IP/C/W/165.
4 Australia, IP/C/W/310.
5 Indonesia, IP/C/M/32, para.134;  Switzerland IP/C/W/284;  Venezuela, IP/C/M/32, para. 136.
6 Brazil, IP/C/M/28, para. 136, IP/C/W/228;  India IP/C/W/198.
7 Ecuador, IP/C/M/30, para. 184;  Peru, IP/C/M/30, para. 153.
8 Bolivia, Colombia, Ecuador, Nicaragua and Peru, IP/C/W/165.IP/C/W/370
Page 3
traditional and indigenous communities to provide intellectual property protection for a
broad range of subject matters including new ones such as plant varieties, biological
materials, lay-out designs and computer software, it is only equitable that traditional
knowledge should be given legal recognition.9  Indeed, it is the responsibility of the
international community to create an egalitarian system for the availability, acquisition,maintenance and enforcement of intellectual property rights, which does not a priori
exclude any section of the society.
10
- Food security.   Local farming communities have over the years developed knowledge
systems for the conservation and sustainable use of biological diversity, including
through the selection and breeding of plant varieties.  The well-established practices of
saving, sharing and replanting seeds sustain these communities and ensure their foodsecurity.
11  International recognition and protection of traditional knowledge would help
maintain and promote such systems.
-Culture.  The traditional knowledge of traditional communities is put into practice in a
way which is part of the day-to-day lives of these peoples and thus part of their culture.12
International action to protect traditional k nowledge would help sustain such cultures.13
-Environment .  The traditional knowledge of indigenous peoples and local communities is
central to their ability to operate in a en vironmentally sustainable way and to conserve
genetic and other natural resources.  Protection of traditional knowledge is thereforeclosely linked to the protection of the environment.
14
- Development.  The point has been made that for the various reasons set out above,
protection of traditional knowledge could contribute significantly to the fulfilment of
developmental objectives.15
-Coherence of international and national law.   International recognition of traditional
knowledge, including farmers' rights, as protectable subject-matter would be in
conformity with the obligation to respect, pr eserve and maintain knowledge, innovations
and practices of indigenous and local communities provided for under Article 8(j) of the
CBD.16  Other international systems such as the International Undertaking on Plant
Genetic Resources17 and the model law of the Organization of African Unity (OAU) also
recognize and protect the rights of local communities, farmers and breeders and there is a
need to reconcile these with the TRIPS Agreement which considers intellectual property
rights to be private rights.18  Without the existence of an international mechanism,
national and regional laws which acknowledge the collective rights of indigenous and
local communities over their traditional knowledge and folklore could be undermined.19
                                                     
9 Bolivia, Colombia, Ecuador, Nicaragua and Peru, IP/C/W/165;  Cuba, Honduras, Paraguay and Venezuela,
IP/C/W/166.
10 Bolivia, Colombia, Ecuador, Nicaragua and Peru, IP/C/W/165;  Cuba, Honduras, Paraguay and Venezuela,
IP/C/W/166;  India, IP/C/M/28, para. 128.
11 Kenya, IP/C/M/28, para. 142;  Mauritius on behalf of the African Group IP/C/W/206;  Peru, IP/C/M/29,
para. 175.
12 India, IP/C/M/28, para. 125.
13 India, IP/C/M/28, para. 127, IP/C/M/25, para.70.
14 Ecuador, IP/C/M/30, para. 184.
15 Venezuela, IP/C/M/29, para. 201.
16 Bolivia, Colombia, Ecuador, Nicaragua and Peru, IP/C/W/165.
17 Now the International Treaty on Plant Genetic Resources for food and Agriculture (2001) adopted on 3
November 2001 in Rome.  See www.fao.org/biodiversity/doc_en.asp.
18 Brazil, IP/C/W/228;  Cuba, Honduras, Paraguay and Venezuela, IP/C/W/166;  Kenya, on behalf of the African
Group, IP/C/W/163;  Mauritius, on behalf of the African Group, IP/C/W/206.
19 Ecuador, IP/C/M/30, para. 184.IP/C/W/370
Page 4
Moreover, the legal protection of traditional knowledge would improve confidence in the
international intellectual property system.20
9. On the question of the appropriate international forum/forums  for further development of
the protection of traditional knowledge and folklore, two main views seem to exist:
- priority should be given to the ongoing work in WIPO and other relevant international
forums, and the WTO should come back to this matter when this work has sufficiently
clarified conceptual issues and possible options;
- all relevant forums, including the TRIPS Council, should pursue work on this matter in
parallel and in a mutually supportive way.
10. The following reasons have been put forward for the view that emphasis should be put, at this
stage, on the work of WIPO and other relevant intergovernmental organisations:
- WIPO is already engaged in a very substantive programme in the Intergovernmental
Committee on Genetic Resources, Traditional Knowledge and Folklore, which has
already yielded concrete results, including a decision to prepare a document on the
elements of a sui generis  system for the protection for traditional knowledge.  It is
therefore, necessary to follow closely this discussion and to avoid duplication of efforts.21
The TRIPS Council should only deal with issues not tackled, or not fully tackled, in
WIPO;22
- indigenous communities, whose views vary widely with regard to both the main
problems and the possible solutions, are involved in WIPO's work;23
- at this stage the WTO is not the right place to negotiate a fully fledged system of
protection for a complex new, and as yet undefined, subject-matter like traditional
knowledge or folklore.24  It is important to try to reach a consensus on the concept and
modalities which could be acceptable at an international level and once self-standing
solutions as discussed in the appropriate forum are in place, attention could then be
focused on examining how and to what extent these need to be included in the TRIPSAgreement;
25
- WIPO, as the specialized UN agency responsible for the promotion of intellectual
property world-wide, is from a technical poi nt of view, the most appropriate forum to
tackle the issue of legal protection of traditional knowledge, especially if the purpose is
to create a new "intellectual-property-like" protection regime.26  The issue of traditional
knowledge does not involve trade and therefore handling it in the WTO would be
inappropriate.27
                                                     
20 EC, IP/C/M/35, para. 238-9, IP/C/M/30, para. 145.
21 EC, IP/C/M/35, para. 238-9, IP/C/W/254;  United States, IP/C/M/35, para. 241-242.
22 Australia, IP/C/M/28 para. 150;  Switzerland, IP/C/M/35, para. 247.
23 United States, IP/C/M/35, para. 241-242.
24 EC, IP/C/M/35, para. 238-239;  Japan, IP/C/M/26, para. 62;  Singapore, IP/C/M/26, para. 74.
25 EC, IP/C/M/35, para. 238-239, IP/C/W/254;  Japan, IP/C/M/25, para. 93;  Korea, IP/C/M/28, para. 164,
IP/C/M/25, para. 95;  United States, IP/C/M/35, para. 241-242.
26 EC, IP/C/M/35, para. 239.
27 Canada, IP/C/M/25, para. 91.IP/C/W/370
Page 5
- reference has been also been made to the work of the Working Group on Article 8(j) of
the CBD and the International Treaty on Plant Genetic Resources for Food and
Agriculture of the FAO.28
11. The reasons that have been advanced for the view that work should proceed in parallel in all
relevant forums are as follows:
- conflicts in the implementation of the CBD and the TRIPS Agreement, including on the
subject of traditional knowledge, demand a systemic solution that should be addressed as
part of the review of Article 27.3(b).29  In response, it has been said that the CBD deals
only with that part of traditional knowledge relevant for the conservation and sustainable
use of biological diversity;30
- it would be inappropriate to have issues and problems arising out of the TRIPS
Agreement dealt with by the WIPO.31  Indeed, the TRIPS Council has a valuable role to
play in shedding light on these issues and in looking for practical and equitable responses
to the concerns raised, while minimising duplication of efforts by dealing with issues not
dealt with at all or only inadequately at the WIPO;32
- lack of definition or clarity on the concept of traditional knowledge should not prevent
WTO Members from establishing multilateral disciplines just as it did not do so in thecase of "microorganisms".
33  Indeed, the exercise was called for precisely because there
was a lack of clarity;34
- WTO is an appropriate forum to discuss traditional knowledge as work on this issue is
being carried out not only in the TRIPS Council but also in the Committee on Trade and
Environment;35
- it is important for the TRIPS Council to take note of the discussions elsewhere on this
subject, so as to avoid duplication of efforts and to create the basis for the necessary
synergies between the work done in the TRIPS Council and the WIPO, CBD, FAO and
other relevant intergovernmental organisations.36
II. THE GRANT OF PATENTS IN RESPECT OF TRADITIONAL KNOWLEDGE
12. As indicated earlier, a concern that has been expressed in the discussions in the TRIPS
Council is about the grant of patents or other IPRs covering traditional knowledge to persons other
than the indigenous peoples or communities who have originated the knowledge and legitimately
control it.  Several patents have been cited as examples, including in regard to turmeric, neem37 and
ayahuasca vine.38
                                                     
28 Switzerland, IP/C/W/284.
29 Brazil, IP/C/M/28, para. 185.
30 United States, IP/C/W/257.
31 Brazil, IP/C/M/28, para. 168;  India, IP/C/M/28, para. 167;  Australia and Norway stated that the Council for
TRIPS should deal with issues that touched on the TRIPS Agreement - IP/C/M/28, para. 151 and  IP/C/M/27, para. 133,
respectively.
32 Australia, IP/C/M/28, para. 150;  Switzerland, IP/C/M/35, para. 247.
33 Brazil, IP/C/M/30, para. 183.
34 India, IP/C/M/28, para. 128.
35 Venezuela, IP/C/M/26, para. 73.
36 Brazil, IP/C/M/26, para. 62, 64;  Mauritius on behalf of the African Group, IP/C/W206;  Venezuela, IP/C/M/26,
para. 84.  Others supported coordination with other relevant organizations: EC, IP/C/M/30, para. 146; New Zealand,IP/C/M/26, para. 69; Switzerland, IP/C/M/29, para. 176.
37 India, IP/C/W/198.
38 Brazil, IP/C/W/228.IP/C/W/370
Page 6
13. The view has been expressed that the granting of patents on traditional knowledge already in
the public domain amounts to unauthorized appropriation of the knowledge.39  It has been said that
this occurs particularly in the case where Members do not follow appropriate definitions of the criteria
for patentability or appropriate procedures.40  In response, it has been said that, if patents are
improperly granted, the patent system provides remedies, as demonstrated by the revocation of theneem and turmeric patents.
41  Were parties other than traditional knowledge holders to obtain patent
protection, the patent should be cancelled.42
14. Two areas where it has been said that the patent system is not working well enough in
connection with the granting of patents covering traditional knowledge have been referred to:
- one is in connection with the definition of prior art  used to determine whether a
claimed invention meets the novelty standard for patentability.  In this connection, it has
been said that some Members define novelty in a manner that does not recognizeinformation available to the public through use or oral traditions outside their domestic
jurisdictions.
43  In response, it has been said that under the patent laws of many Members
prior art comprises not just earlier disclosures in writing but also what is already publicly
known or used anywhere in the world;44
- the second concerns the adequacy of the information on prior art  available to patent
examiners.  It has been said that the instances of patents wrongly granted show that the
prior art in the case of traditional knowledge originating in one country is not widely
known or documented and available to patent offices all over the world.45  O f t e n
traditional knowledge exists only in oral form or, if documented, is available in
languages that the patent authorities are not familiar with.46
15. With regard to patent applications, not for traditional knowledge itself but when traditional
knowledge is used as a basis for further innovations which meet the relevant criteria, it has been said
that these innovations are perfectly patentable.  However, the existence of a patent would, however,
not override accompanying national requirements to obtain authorisation from the owners of the
traditional knowledge from which the invention is derived and to reward them for the use of it orshare the benefits of its use.
47  In response, it has been said that, even if the national laws applicable
do not allow patents on inventions based on traditional knowledge, patents in other regimes that allow
such patents reduce the economic value of the knowledge of local communities and may constrain the
development and use of their knowledge in the market-place or may facilitate others' use or
exploitation of their knowledge without any rewards to them.48
16. It has been suggested that the development of databases on traditional knowledge  would
help prevent the grant of patents for subject-matter that should not be patentable.49  S o m e  s p e c i f i c
suggestions have been made in this regard.50  Creating organized data bases of traditional knowledge
searchable over the Internet51 would be beneficial for determining prior art in patent offices52 as well
                                                     
39 India, IP/C/M/30, para. 170.
40 India, IP/C/M/28, para. 126;  Kenya, IP/C/M/28, para. 141.
41 United States, IP/C/M/32, para. 131;  Japan, IP/C/M/29, para. 157.
42 EC, IP/C/W/254.
43 India, IP/C/M/28, para. 126;  Kenya, IP/C/M/28, para. 141.
44 Japan, IP/C/W/236.
45 United States, IP/C/W/209;  Switzerland, IP/C/W/284.
46 EC, IP/C/M/32 para. 137;  Switzerland, IP/C/M/30, para.164.
47 EC, IP/C/W/254.
48 India, JOB(00)/6091.
49 EC, IP/C/M/32, para. 137;  Switzerland, IP/C/M/30, para.164;  IP/C/W/284;  Brazil, IP/C/W/228;  India,
IP/C/W/198;  US, IP/C/W/209.
50 Switzerland, IP/C/W/284.
51 Switzerland, IP/C/M/30, para. 164.IP/C/W/370
Page 7
as help potential licensees.53  Moreover, to the extent that traditional knowledge is already recorded in
databases and print media, it is important to ensure  that patent examiners are made familiar with these
resources.54  It has been said that care should be taken that the databases do not themselves facilitate
piracy.55  Thus, such data bases should only disclose traditional knowledge already in the public
domain or traditional knowledge for which prior informed consent has been obtained.  It has also beensaid that access to these databases should not involve costly or burdensome procedures
56  A further
point has been that, while such databases might help forestall the grant of inappropriate patents, they
could not address the problem of the non-accrual to the holders of traditional knowledge of economic
benefits resulting from the use of that knowledge.57
17. It has also been suggested that a requirement on patent applicants to disclose in their
applications any traditional knowledge used in the invention in question could help in the assessment
of novelty and also assist countries with possible claims to examine the application and oppose thepatent in time.
58  This discussion on this suggestion, which has also been made in regard to prior
informed consent and benefit-sharing with regard to  genetic resources, is set out in the Secretariat
summary note on the relationship between the TRIPS Agreement and the CBD.
III. CONSENT AND BENEFIT SHARING
18. As indicated earlier, one of the major concerns expressed has been that traditional knowledge
is being used without the authorization of the indigenous peoples or communities who have originated
and legitimately control it and without proper sharing of the benefits that accrue from such use.
Several suggestions have been put forward with a view to addressing this concern:
-Use of the  existing IPR system .  It has been suggested that a starting-point should be to
explore possibilities for making more effective use of the existing IPR system forprotecting the traditional knowledge of indigenous peoples and local communities;
59.
-Disclosure requirement .  It has been suggested that applicants for patents for inventions
that use traditional knowledge should be required to disclose the traditional knowledge in
their patent application and to provide evidence that they have obtained any necessaryprior informed consent from the competent authority in the country of origin of that
knowledge and have entered into appropriate benefit-sharing arrangements;
60
-Contracts .  It has been suggested that the best way of addressing these concerns would
be through systems based on bilateral contracts between holders of traditional knowledge
and persons or companies wishing to access and use that knowledge.  Such systems
could be backed up by suitable national or local legislation;61
-Sui generis system of protection .  It has been suggested that only a system of protection
of traditional knowledge which provides proprietary rights can ensure that market forces
will operate to generate fairness and equity.62
                                                                                                                                                                    
52 Brazil, IP/C/W/228;  Japan, IP/C/M/32, para. 142;  Switzerland, IP/C/M/30, para.164;  United States
IP/C/W/257.
53 United States, IP/C/W/257.
54 United States, IP/C/W/209.
55 Brazil, IP/C/W/228, IP/C/M/32, para. 130, IP/C/M/28, para. 136;  India, IP/C/W/198, IP/C/M/29, para. 164, 165;
Venezuela, IP/C/M/32, para. 136.
56 Brazil, IP/C/W/228;  Switzerland, IP/C/W/284, IP/C/M/32, para. 124;  Venezuela, IP/C/M/32, para. 136.
57 Brazil, IP/C/W/228;  IP/C/M/32, para. 130;  India, IP/C7M/29, para. 164;  Pakistan, IP/C/M/28, para. 159.
58 Brazil, IP/C/W/228, IP/C/M/33, para. 121, IP/C/M/32, para. 128;  India, IP/C/W/195, IP/C/M/29, para. 164-5.
59 Australia IP/C/W/310;  Japan, IP/C/M/29, para. 157.
60 Brazil, IP/C/W/228;  India, IP/C/W/195.
61 United States, IP/C/W/257.
62 Brazil, IP/C/W/228;  Indonesia, IP/C/M/32, para. 134.IP/C/W/370
Page 8
19. The subsections that follow summarize the discussion on each of these suggestions, except
that concerning disclosure. This suggestion, which has also been made in regard to genetic material
used in inventions that are the subject of patent applications, is discussed in more detail in the
Secretariat summary note on the relationship between the TRIPS Agreement and the CBD.
20. A general point that has been made is on the importance of educating indigenous and local
communities to be able to protect their interests by effectively negotiating contracts and using
intellectual property systems. 63
A. USE OF THE EXISTING IPR SYSTEM
21. The view has been expressed that, while there is a need to examine ways of improving
protection for traditional knowledge, the starting-poi nt should be to explore possibilities for making
more effective use of the existing legal framework, particularly the intellectual property system.64
Dismissing the applicability of the current system ig nores not only the potential benefits to be gained
and identify the legitimate "gaps" in protection and could lead to the creation of additional regulatory
burdens and procedures.65  Under the existing system traditional artists and creators have legal rights
through which they can exclude unauthorized use by others and obtain financial benefits for their
efforts, including in the international market.  Beyond the patent system several other IPRs such ascopyright and related rights, trademarks and certifications marks can be used.
66  Points that have been
made and some examples cited in the discussion so far that relate to specific IPRs are set out below:
- copyright and related rights.  While it is claimed that copyright laws illustrate the existing
system's inability to accommodate the concept of traditional knowledge, for example on
account of communal ownership, attention has been drawn to some recent court cases thathave extended legal rights over copyright to traditional knowledge in certain
circumstances, thus demonstrating that creative use of the current legal system can
provide for such protection.
67  These cases including ones involving the unauthorized use
of a photograph of an indigenous dance gr oup, the unauthorized reproduction of spiritual
rock art images and the distortion of artistic works containing pre-existing cultural clanimages;
68
- patents, plant variety protection and utility models.  It has been argued that, when
combined with voluntary contracts, obtaining patents around the world on commercial
products that use traditional knowledge would provide a firm legal basis for the sharing of
benefits, whereas the absence of such protection would mean that anyone would be free
to use the technology without any obligation to share benefits.69  It has also been said that
sui generis  systems for protecting plant varieties can be designed so as to recognize
traditional knowledge and farmers' rights, for example those that take the form of
selecting, breeding, using and sustaining plant varieties.  The example of the OAU Model
Law has been cited as protecting the rights of local communities, farmers and breeders.70
It has been suggested that a footnote might be added to the TRIPS Agreement to clarify
that any sui generis  law for plant variety protection can provide for the protection of the
innovations of indigenous and local farming communities in developing countries and the
                                                     
63 United States, IP/C/W/209.
64 Australia, IP/C/W/310;  Japan, IP/C/M/29, para. 157.
65 Australia, IP/C/W/310.
66 Australia, IP/C/M/28, para. 152.
67 Australia, IP/C/W/310.
68 Australia, IP/C/W/310.
69 United States, IP/C/W/257.
70 Mauritius, on behalf of the African Group, IP/C/W/206.IP/C/W/370
Page 9
continuation of traditional farming practices.71  The view has also been expressed that the
TRIPS Agreement does not exclude the possibility of protecting farmers' varieties under a
system separate from that providing effective protection for commercially bred plant
varieties72 and that farmers' rights and breeders' rights would have to be balanced;73
- unfair competition and trade secrets .  Some examples have been given in the discussion
involving the use of unfair competition laws or remedies against passing off, in
conjunction with, for example, copyright and related rights to deal with the protection of
traditional knowledge.74  It has been said that trade secret law is particularly appropriate
in helping indigenous and local communities maintain limitations on the circulation of
their knowledge, innovations and practices;75
- industrial designs.  It has been said that the extent to which indigenous groups have used
design law to protect their indigenous cultural expression, through registration and
enforcement of indigenous designs and symbols, is the subject of a study in one Member
country.  An example has been given of the unauthorized reproduction of an indigenous
artist's work embodying clan designs, on imported fabric.  It has been said that this caseinvolves examining the ability of another party to bring an action as co-applicant, as a
representative of the clan involved;
76
- trademarks and certification marks.   Examples have been given of the use  of trademarks
by indigenous arts centres and galleries for the protection of artistic works and otherforms of indigenous knowledge.
77  Another example has been given of a national label of
authenticity registered as a certification trademark for indigenous art and art products;78
- Geographical indications .  The view has been expressed that under certain circumstances
geographical indications could be a particularly important way of protecting traditionalknowledge,
79 for example for identifying products originating from a "protected area" as
defined in Article 1 of the CBD where producers decide to link their collective
production standards and related traditional knowledge to conservation goals.80
22. The view has been expressed that, while the existing IPR system may be usable in certain
circumstances, it cannot provide for sufficient protection of traditional knowledge.  Several reasons
have been given to support this argument:
- IPRs protect individual property rights whereas traditional knowledge is by and large
collective;81
- traditional knowledge is developed over a period of time and is intergenerational and
therefore, may not meet the criteria of novelty or originality or inventive step required byIPRs;
82
                                                     
71 Kenya, on behalf of the African Group, IP/C/W/163.
72 Switzerland, IPC/W/284.
73 Malaysia, IP/C/M/29, para. 206.
74 Australia, IP/C/W/310.
75 United States, IP/C/W/257.
76 Australia, IP/C/W/310.
77 Australia, IP/C/W/310.
78 Australia, IP/C/W/310.
79 EC, IP/C/W/254; Venezuela, IP/C/M/32, para. 136.
80 EC, IP/C/W/254.
81 Brazil, IP/C/W/228;  India, IP/C/W/198;  Venezuela, IP/C/M/25, para. 86.
82 Brazil, IP/C/W/228;  India, IP/C/W/198.IP/C/W/370
Page 10
- communities often hold this knowledge in parallel which makes it difficult to determine
title holders;83
- communities lack adequate education, awareness and resources to take advantage of
IPRs;84
- communities do not use scientific methods but trial and error over time.85
B. CONTRACTS
23. It has been suggested that bilateral contracts, backed by suitable national or local legislation
between those seeking to develop knowledge, innov ations and practices into commercial products and
those providing such traditional knowledge would be the best way forward. While it is possible that a
few individuals could ignore legal requirements laid down in a contract, in the same way that some
individuals counterfeit trademarks or pirate copyrighted works, this does not negate the value of a
contractual system that would apply to the vast majority of those seeking access to traditional
knowledge.86  Moreover, criminal provisions and/or civil liability for failure to comply with such
contracts can be included in a country's laws.87  In response, it has been said that, bilateral contracts in
themselves are not sufficient to protect traditional knowledge because they are not easily enforceable
and result from negotiations between unequal parties.88  Consequently, there is no way of ensuring
that the prior consent obtained from these communities will actually be an informed one.89  It has been
added that similar problems arise with other schemes, such as voluntary guidelines to be followed by
bio-prospecting companies;  however constructive the intent, they may end up being ineffective due totheir voluntary nature.
90
C. PROTECTING TRADITIONAL KNOWLEDGE UNDER A SUI GENERIS SYSTEM
24. It has been suggested that only a system of protection of traditional knowledge that provides
proprietary rights can ensure that market forces will operate to generate fairness and equity.91  A
proprietary protection approach could provide protection erga omnes , in the sense that, even if the
knowledge is in some way publicly disclosed, there could be mechanisms available to prevent its use
by all third parties.92
25. In response, it has been said that any discussion of such a system would require clarity as to
the definition and scope of the term traditional knowledge 93  There would also be considerable
hurdles to overcome regarding issues of the determination and modalities of ownership.94  It has also
been said that careful thought would need to be given before establishing different systems of
intellectual property protection for public domain traditional knowledge developed by industrial andnon-industrial communities.
95  In response, it has been argued that the absence of clarity as to the
meaning of some terms or the limited amount of experience with national legislation should not be
                                                     
83 Brazil, IP/C/W/228;  India, IP/C/W/198.
84 India, IP/C/W/198.
85 Venezuela, IP/C/M/25, para. 86.
86 United States, IP/C/W/257.
87 United States, IP/C/W/257.
88 Brazil, IP/C/W/228;  Pakistan, IP/C/M/28, para. 158;  Peru, IP/C/M/35, para. 236, IP/C/M/32, para. 133.
89 Brazil, IP/C/W/228.
90 Brazil, IP/C/W/228.
91 Brazil, IP/C/W/228;  Indonesia, IP/C/M/32, para. 134.
92 Brazil, IP/C/W/228 para. 34.
93 Japan, IP/C/M/29, para. 157.
94 EC, IP/C/M/35, para. 238-9.
95 Singapore, Job(00)7853.IP/C/W/370
Page 11
used to justify a refusal to discuss, any more than  they had deterred Members from agreeing to the
protection of a range of subjects in the TRI PS Agreement that were new to many Members.96
26. The point has been made that there is nothin g in the TRIPS Agreement that prevents WTO
Members from setting up a specific protection regime for traditional knowledge that regulates or
enforces access to, prohibition of, and rewards for the use of traditional knowledge.97  Support has
been expressed for drawing up an international model for such legislation.98
27. With regard to action at the multilateral leve l, views have been expressed that national
systems will not be sufficient and that there is a need to explore an international system of minimum
standards of protection of traditional knowledge, drawing on synergies with the work of CBD, WIPO,
FAO and UNCTAD.99  Another view in this connection is  that once WIPO has completed work on
model national legislation, attention could be focussed on how and to what extent the protection of
traditional knowledge can be included in the TRIPS Agreement.100
28. Some more specific suggestions have been made on what such a sui generis  system should
cover:
- a possible definition put forward states that traditional knowledge consists largely of
innovations, creations and cultural expressi ons generated or preserved by its present
possessors, who may be defined and identified as holders of rights who are eitherindividuals or whole communities, natural or legal persons;
101
- the rights provided should follow those provided in Article 28 of the TRIPS Agreement
so as to give exclusive rights to prevent th ird parties not having the owner's consent from
the acts of making, using, offering for sale, or importing the covered product or
process;102
- creating a system for registration of innovations and giving the registered owner the right
to challenge any use of the innovations without prior permission.  It has been said that for
novel and useful innovations, some ki nd of a petty patent system should be
implemented.103
IV. INFORMATION ON MEMBERS' NATIONAL LEGISLATION, PRACTICES AND
EXPERIENCES
29. Three Members have made submissions with regard to their legislation, practices and
experiences, with respect to the protection of traditional knowledge.  These are Australia, India and
Peru.104
_______________
                                                     
96 Brazil, IP/C/M/30, para. 183.
97 EC, IP/C/W/254.
98 EC, IP/C/W/254.
99 Brazil, IP/C/W/228.
100 EC, IP/C/W/254.
101 Bolivia, Colombia, Ecuador, Nicaragua and Peru, IP/C/W/165.
102 Indonesia, IP/C/M/32, para. 134.
103 India, IP/C/W/198.
104 Australia, IP/C/W/310;  India, IP/C/W/198;  Peru, IP/C/W/246.IP/C/W/370
Page 12
ANNEX
DOCUMENTS OF THE TRIPS COUNCIL WITH RESPECT TO THE REVIEW OF THE
PROVISIONS OF ARTICLE 27.3(B), THE RELATIONSHIP BETWEEN TRIPS AND
THE CONVENTION ON BIOLOGICAL DIVERSITY AND THE PROTECTION
OF TRADITIONAL KNOWLEDGE AND FOLKLORE
The TRIPS Council held 15 formal meetings during the period January 1999 to March 2002.
The reports on these meetings (IP/C/M/21-35) reflect the work done so far in the TRIPS Council
pursuant to inter alia  the mandated review of the provisions of Article 27.3(b).  The substantive
discussions in the TRIPS Council on these issues have been recorded in the reports of the meetingsheld from August 1999 to March 2002 (IP/C/M/24-35).
Other documents that have been made available include:
- Members' submissions relating to specific issues.  Over the period December 1998 to
October 2001, 22 papers have been submitted by Members or groups of Members(List B).
- Information on national legislation, practices and experiences submitted by four
Members;  and the responses to the questionnaire on Article 27.3(b) from
23 Members (List C).
- Information provided on work in intergovernmental organizations (List D).- Notes by the Secretariat on relevant issues under discussion in the TRIPS Council
(List  E).IP/C/W/370
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LIST A – Records of the work of the TRIPS Council
  IP/C/M/21-35 Minutes of the TRIPS Council Meetings 22 January 1999 –
22 March 2002
LIST B - Members' submissions relating to the agenda items
2001
 Australia   IP/C/W/310 Communication from Australia:  Review of
Article 27.3(b)   2 October 2001
 EC   IP/C/W/254 Review of the Provisions of Article 27.3(b) of the
TRIPS Agreement:  Communication from the
European Communities and their Member States   13 June 2001
 Norway   IP/C/W/293 Communica tion from Norway:  Review of
Article 27.3(b) of the TRIPS Agreement:  The
Relationship between the TRIPS Agreement and
the Convention on Biological Diversity   29 June 2001
 Switzerland   IP/C/W/284 Communication from Switzerland:  Review of
Article 27.3(b):  The View of Switzerland   15 June 2001
 United States   IP/C/W/257 Communication from the United States - Views of
the United States on the Relationship between the
Convention on Biological Diversity and the TRIPSAgreement   13 June 2001
2000
 Brazil   IP/C/W/228 Review of Article 27.3(b) – Communication from
Brazil   24 November 2000
 India   IP/C/W/195 Communication from India    12 July 2000
 India   IP/C/W/196 Communication from India    12 July 2000
 India   JOB(00)/6091 Non-paper by India    5 October 2000
 Japan   IP/C/W/236 Review of the provisions of Article 27.3(b) -
Japan's view   11 December 2000
 Mauritius   IP/C/W/206 Communication from Mauritius on behalf of the
African Group   20 September 2000
 Singapore   JOB(00)/7853 Non-paper by Sing apore - Article 27.3(b)    11 December 2000
 United States   IP/C/W/209 Review of the Provisions of Article 27.3(b) -
Further Views of the United States –
Communication from the United States   3 October 2000
1999
 Andean
 Group  IP/C/W/165 Review of the Provisions of Article 27.3(b) -
Proposal on the Intellectual Property Rights
Relating to the Traditional Knowledge of Local
and Indigenous Communities – Communication
from Bolivia, Colombia, Ecuador, Nicaragua andPeru   3 November 1999
 Canada, EC,
 Japan and
 USA  IP/C/W/126 Review of the Provisions of Article 27.3(b) -
Communication from Canada, the European
Communities, Japan and the United States   5 February 1999IP/C/W/370
Page 14
 Brazil   IP/C/W/164 Review of the Provisions of Article 27.3(b) -
Communication from Brazil   29 October 1999
 Cuba,
 Honduras,
 Paraguay and
 Venezuela  IP/C/W/166 Review of Implementation of the Agreement under
Article 71.1:  Proposal on the Intellectual Property
Rights of the Traditional Knowledge of Local and
Indigenous Communities   5 November 1999
 India   IP/C/W/161 Review of the Provisions of Article 27.3(b) -
Communication from India   3 November 1999
 Kenya   IP/C/W/163 Review of the Provisions of Article 27.3(b) –
Communication from Kenya on behalf of the
African Group   8 November 1999
 Norway   IP/C/W/167 Review of the Provisions of Article 27.3(b) -
Communication from Norway   3 November 1999
 United States   IP/C/W/162 Review of the Provisions of Article 27.3(b) –
Communication from the United States   29 October 1999
1998
 Mexico   Job No. 6957 Non-paper from Mexico:  Application of
Article 27.3(b)    8 December 1998
LIST C - Information on national legislation, practices and experiences
2002
 United States   IP/C/W/341 Technology transfer practices of the US
National Cancer Institute’s departmental
therapeutics programme – Communication
from the United States   25 March 2002
2001
Australia   IP/C/W/310 Communication from Australia:  Review of
Article 27.3(b)   2 October 2001
Czech 
RepublicIP/C/W/125/Add.8/Suppl.1 Review of the Provisions of Article 27.3(b) -
Information from Members - Supplement   18 September 2001
Estonia   IP/C/W/125/Add.20 Review of the Provisions of Article 27.3(b) -
Information from Members – Addendum   2 July 2001
Hong Kong,
China  IP/C/W/125/Add.22 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   10 August 2001
Thailand   IP/C/W/125/Add.21 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   10 July 2001
Peru   IP/C/W/246 Communication from Peru:  Peru's
Experience of the Protection of Traditional
Knowledge and Access to Genetic
Resources   14 March 2001
2000
Iceland   IP/C/W/125/Add.19 Review of th e Provisions of Article 27.3(b) -
Information from Members - Addendum   17 July 2000
India   IP/C/W/198 Protection of Biodiversity and Traditional
Knowledge – The Indian Experience   14 July 2000IP/C/W/370
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1999
Australia   IP/C/W/125/Add.13 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   16 March 1999
Bulgaria - 
(Republic 
of)  IP/C/W/125 Review of the Provisions of Article 27.3(b) -
Information from Members   3 February 1999
Canada   IP/C/W/125/Add.12 Review of th e Provisions of Article 27.3(b) -
Information from Members - Addendum   12 March 1999
Czech 
Republic  IP/C/W/125/Add.8 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   16 February 1999
  European
 Communities  IP/C/W/125/Add.4 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   10 February 1999
Hungary   IP/C/W/125/Add.1 Re view of the Provisions of Article 27.3(b) -
Information from Members - Addendum   16 February 1999
Japan   IP/C/W/125/Add.7 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   12 March 1999
Korea 
(Republic 
of)  IP/C/W/125/Add.9 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   16 February 1999
Morocco   IP/C/W/125/Add.14 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   20 April 1999
New 
Zealand  IP/C/W/125/Add.2 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   12 February 1999
Norway   IP/C/W/125/Add.17 Re view of the Provisions of Article 27.3(b) -
Information from Members - Addendum   19 May 1999
Poland   IP/C/W/125/Add.11 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   12 March 1999
Romania   IP/C/W/125/Add.6 Review of th e Provisions of Article 27.3(b) -
Information from Members - Addendum   16 February 1999
Slovak 
Republic  IP/C/W/125/Add.18 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   27 July 1999
Slovenia   IP/C/W/125/Add.10 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   16 February 199
 South 
AfricaIP/C/W/125/Add 16/Corr.1 Review of th e Provisions of Article 27.3(b) -
Information from Members - Corrigendum   25 May 1999
 South 
Africa  IP/C/W/125/Add.16 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   21 April 1999
Switzerland   IP/C/W/125/A dd.15 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   13 April 1999
United 
States  IP/C/W/125/Add.5 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   20 April 1999
Zambia   IP/C/W/125/Add.3 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   10 February 1999IP/C/W/370
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LIST D  - Information on the work of intergovernmental organizations
2002
UPOV   IP/C/W/347/Add.3 Review of th e Provisions of Article 27.3(b) -
Relationship between the TRIPS Agreement and
the Convention on Biological Diversity and
Protection of Traditional Knowledge and Folklore   7 June 2002
UNCTAD   IP/C/W/347/Add.2 Review of th e Provisions of Article 27.3(b) -
Relationship between the TRIPS Agreement and
the Convention on Biological Diversity and
Protection of Traditional Knowledge and Folklore   7 June 2002
CBD   IP/C/W/347/Add.1 Review of the Provisions of Article 27.3(b) -
Relationship between the TRIPS Agreement andthe Convention on Biological Diversity and
Protection of Traditional Knowledge and folklore   7 June 2002
FAO   IP/C/W/347 Review of the Provisions of Article 27.3(b) -
Relationship between the TRIPS Agreement and
the Convention on Biological Diversity and
Protection of Traditional Knowledge and Folklore   7 June 2002
2001
WIPO   IP/C/W/242 Statement by the World Intellectual Property
Organization (WIPO) on intellectual property,
biodiversity and traditional knowledge   6 February 2001
2000
UNCTAD   IP/C/W/230 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 from30 October to 1 November 2000 in Geneva:
Outcome of the expert meeting   14 December 2000
International
Bureau of
WIPO  IP/C/W/218 Document prepared by the International Bureau of
WIPO for the meeting on intellectual property and
genetic resources, which took place on 17 and
18 April 2000 in Geneva:  Intellectual Property
and Genetic Resources – An Overview   18 October 2000
International
Bureau ofWIPO  IP/C/W/217 Document prepared by the International Bureau of
WIPO for the round table on Intellectual Propertyand traditional knowledge, which took place on
1 and 2 November 1999 in Geneva:  Protection of
Traditional Knowledge:  A Global Intellectual
Property Issue   18 October 2000
1999
CBD   IP/C/W/130/Add.1 Review of the Provisions of Article 27.3(b) –
Information from Intergovernmental Organizations
- Addendum   16 March 1999
FAO   IP/C/W/130/Add.2 Revi ew of the Provisions of Article 27.3(b) –
Information from Intergovernmental Organizations
- Addendum   12 April 1999
UPOV   IP/C/W/130 Review of the Provisions of Article 27.3(b) –
Information from Intergovernmental Organizations   17 February 1999IP/C/W/370
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LIST E – Notes by the Secretariat
2001
  Job No. 2689
  IP/C/W/273Review of the Provisions of Article 27.3(b):  Synoptic
Tables of Information provided by Members – InformalNote by the Secretariat   5 June 2001
2000
  JOB(00)/7517 The Relationship between the Convention on Biological
Diversity and the TRIPS Agreement:  Checklist of PointsMade – Note by the Secretariat   23 November 2000
  Job no. 2627 UPOV-WIPO-WTO joint symposium on the protection of
plant varieties under Article 27.3(b) of the TRIPS
Agreement: Texts of presentations   7 May 1999
1998
  IP/C/W/122 Illustrative Questions:  Review of the Provisions of
Article 27.3(b)   22 December 1998
__________