GAP ANALYSIS MATRIX This matrix corresponds to the items mentioned in sub-paragraphs (a) to (d) of the decision of the Twelfth Session of the WIPO Intergovernmental Committee, as required by that decision, and as updated if and as needed. Following a summary table, the full matrix includes the material covered in the gap analysis above. CONTENTS OF ANNEX SUMMARY OF MATRIX A. EXISTING MEASURES B. GAPS EXISTING AT THE INTERNATIONAL LEVEL C. CONSIDERATIONS RELEVANT TO DETERMINING WHETHER THOSE GAPS NEED TO BE ADDRESSED D. OPTIONS THAT EXIST OR MIGHT BE DEVELOPED TO ADDRESS ANY IDENTIFIED GAPS: I. SUMMARY OF MATRIX Aspects of protecting TK (a) existing measures (b) gaps identified (c) and (d) considerations and options Objectives and principles of IP protection applied to TK Existing public international law (nonIP) instruments on indigenous peoples’ rights, the environment (including biodiversity and genetic resources), agriculture Authoritative statement on the role of IP law and policy in addressing public policy issues relating to TK. Objectives may include: Recognizing value and promoting respect for TK systems; Responding to the actual needs of TK International treaty or declaration establishing framework for TK protection in IP system that: - expresses objectives of protection - articulates general principles of protection Considerations: - role of hard law and soft law instruments - political as against legal aspects of issues - coordinated international approach as against autonomous national initiatives - benefit of firmer policy basis and general settled
Positive patent protection Established patent system, including standards and procedures in TRIPS and PCT Protection of marks, symbols and names associated with TK and TK systems No direct protection for: (i) Collective, cumulative and intergenerational innovation as such (ii) Systems of TK as such (in contrast to specific innovations within TK systems, and means of certifying authenticity and protecting distinctive signs and reputations) Review or adapt patentability criteria and standards to recognize TK systems and collective interests: - internationally for a coordinated approach, and/or - nationally/regionally to maintain necessary flexibility Establish sui generis protection (see below) Recognize that as much of TK falls outside the boundaries of the patent system it may be preferable to deal with TK innovation systems on their own terms Aspects of protecting TK (a) existing measures (b) gaps identified (c) and (d) considerations and options Inventions based on TK Specific PCT, IPC, IGC measures to recognize TK No agreed international norm for specific disclosure mechanism for TK and associated genetic resources - several proposals (CBD, WTO, WIPO) Introduce disclosure mechanisms for TK - internationally for a coordinated approach, and/or - nationally/regionally to maintain necessary flexibility Strengthen framework of contractual obligations governing access to TK under national law to require disclosure and other conditions of access to TK Undisclosed TK TRIPS standards on the protection of No explicit standards on: (i) TK disclosed within a Clarify or adapt existing standards to ensure: (i) Restricted dissemination within a defined
aspect of development and preservation of TK systems. Recognition of direct or less immediate contributions of TK to patentable inventions. The holistic nature of TK and collective rights over TK TK holders right to control their natural resources and manage their knowledge; TK holders human right to self-determination; TK holders right to prior informed consent Recognition of the role of customary laws and customary knowledge systems in the protection and preservation of TK Aspects of protecting TK (a) existing measures (b) gaps identified (c) and (d) considerations and options Rights and interests of communities in their cumulative, collectively held and intergenerational TK, and their integrated traditional knowledge systems as such Limited protection, mostly as confidential information Direct recognition of collective rights and interests in cumulative, collectively held and intergenerational TK Protection of the integrity of traditional knowledge systems as such. Potential ownership by several communities Specific protection of collective rights and interests in traditional knowledge as such (rather than separately IPprotectable elements): - internationally for coordinated approach - nationally/regionally for maximum flexibility Specific protection of rights and interests of communities in traditional knowledge systems as such : - internationally for coordinated approach - nationally/regionally for maximum flexibility Specific mechanisms of TK protection against certain prejudicial acts and acts of misappropriation None in conventional IP law. May be protected in part through contract and See detailed elements below