Traditional Knowledge Protection and Digitization: A Critical Decolonial Discourse Analysis

In the past years, intellectual property rights (IPRs) and traditional knowledge (TK) have been the subject of debate in several international bodies, including the Convention on Biological Diversity (Biodiversity Convention)1, the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). Generally, this debate has been rather controversial, clearly showing the divergent views that exist on the two issues among developed and developing countries, private industry, indigenous and local communities, and non-governmental organizations (NGOs). Key words that have been frequently used in this debate are "green gold", "biopiracy", "exploitation of the South", "erosion of TK", "fair and equitable benefit sharing", "self-determination of indigenous peoples" and "no patents for life". Some of the debate has been conducted on an emotional level, rendering the debate even more difficult and hardening unnecessarily the positions of those involved. IPRs and TK are thus political "hot potatoes" that bear many pitfalls and are reason for controversy on the international level. The debate has also shown that at present a great deal of information is lacking on the two issues. The very definition of the term TK, for example, remains questionable.

The role that intellectual property can play in the protection of traditional knowledge (TK) has been on the international agenda for more than ten years, with little to show for it. For example, the World Intellectual Property Organization (WIPO) has provided a forum for international policy debate on the subject since 1998, and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has held meetings on draft provisions for the protection of TK against misappropriation and misuse since 2001. Similarly, since 1999 the World Trade Organization (WTO) has been examining the most effective means to deal with the commercial use of TK when that knowledge is the subject of patent applications. Years of effort have produced few tangible results.

Traditional knowledge and human rights are two fields that have largely developed separately despite being interrelated. A number of international institutions are pursuing different priorities related to the protection of traditional knowledge. The underlying theme of all these discussions could be linked to various human rights obligations. Despite this reality, in the discussions on the protection and the use of traditional knowledge within the World Trade Organisation, the Convention of Biological Diversity, and the World Intellectual Property Organisation, the human rights dimension is often sidelined. The main purpose of this article is to examine the status of the ongoing discussion on the protection of traditional knowledge including the level of coordination among these international processes. The article argues that it is crucial to integrate human rights dimensions in the discussion of traditional knowledge in other international fora.

Traditional knowledge (TK) is a key component of a nation’s knowledge bank reflecting on the traditional culture, norms and customs. The protection of traditional knowledge is an important component of conservation and preservation directly contributing to the sustainable development of the environment. The protection of traditional knowledge world over is indicative of the rich civilization and heritage and is directly proportional to the national biodiversity index. The robust intellectual property regime, the laws and the regulations therein at the various national and international platforms are deliberating on a system for the protection of the traditional knowledge developed and practiced for environmental sustainability by the vibrant tribal and indigenous communities.
 In this research paper, the focus is on the legal regime under the intellectual property domain to identify the aspects with commonality for administering the traditional knowledge of the world’s indigenous peoples and tribals, CBD (Conservation of Biological Diversity)[i], the aspects of ABS (Access Benefit Sharing) [ii]and thereby draft a comprehensive legislation for the protection in India or incorporate the same to the Biodiversity Act 2002. The paper is an attempt to provide suggestive amendments or rather inclusions to the WIPOs (World Intellectual Property Organization) functionality with respect to the commercialization of the traditional knowledge pertaining to environmental sustainability for the benefit of the indigenous originators. The paper identifies the need to draft a framework for the insertion of a new Article under the Constitution of India for the protection of traditional knowledge of the indigenous peoples as a Fundamental Right drawing a corollary with the protection of educational and cultural rights of the minorities as prescribed under Articles 29 and 20 of the Constitution of India, in view of the gross misuse and misappropriation of TKs locally, nationally and Internationally.

Access to Genetic Resources and Benefit Sharing: Main Aspect of Some Legal Frameworks

Click to increase image sizeClick to decrease image size Notes 1. This article outlines material from a longer study of the World Intellectual Property Organisation prepared for the Global Institutions (Routledge) series, and I thank the series editors for permission to draw on that study for this Global Monitor. 2. All membership figures are drawn from the WIPO Treaties – Contracting Parties database. 3. This period of the history of intellectual property is covered at length in Christopher May & Susan Sell, Intellectual Property Rights: A Critical History (Lynne Rienner, 2005), ch. 5. 4. Ruth Gana, ‘Has Creativity Died in the Third World? Some Implications of the Internationalisation of Intellectual Property’, Denver Journal of International Law and Policy, Vol. 24, No. 1 (1995), p. 137. 5. Craig N. Murphy, International Organization and Industrial Change: Global Governance since 1850 (Polity Press, 1994), ch. 2 and passim. 6. As a result of the time constraints, none of the original members was able to ratify the Convention Establishing the World Intellectual Property Organization before 1970, but in that year 20 states completed the process. 7. Arpad Bogsch, The First Twenty-Five Years of the World Intellectual Property Organization from 1967 to 1992, WIPO Publication No. 881 (International Bureau of Intellectual Property, 1992), p. 28. 8. Ibid. 9. Agreement between the UN and the WIPO, available at http://www.wipo.int/treaties/en/agreement (accessed 19 December 2005). 10. World Intellectual Property Organization, Introduction to Intellectual Property Theory and Practice (Kluwer Law International, 1997), p. 30. 11. Ibid., p. 42. 12. Technical assistance and capacity building for intellectual property is explored at considerably more length in Christopher May, ‘Capacity Building and the (Re)production of Intellectual Property Rights’, Third World Quarterly, Vol. 25, No. 5 (2004), pp. 821–37. 13. Ibid. 14. Stephen Gill, Power and Resistance in the New World Order (Palgrave Macmillan, 2003), p. 132. 15. Ibid., p. 196. 16. Ibid., p. 177. 17. Much of this section draws on the work of William New at IP Watch and Sisule Musungu, both of whom have been keen observers of the political debates underlying the development of the Development Agenda. I am grateful to them both for their extensive reportage, little of which is explicitly cited here but has informed much that set out in this Global Monitor. 18. Brazil's previous major attempt in 1961 to raise these issues (at the UN) is discussed at length in Andréa Koury Menescal, ‘Changing WIPO's Ways? The 2004 Development Agenda in Historical Perspective’, Journal of World Intellectual Property, Vol. 8, No. 6 (2005), pp. 761–96. 19. Sisule F. Musungu, ‘The WIPO Assemblies 2004: A Review of the Outcomes’, South Bulletin, No. 89 (15 October 2004), pp. 1–5. 20. The Development Agenda was reproduced in the South Bulletin, No. 88 (30 September 2004), and all quotes are taken from this source. 21. Sisule F. Musungu, ‘A Review of the Outcomes of WIPO Discussions on the Development Agenda Proposal’, Bridges, Vol. 8, No. 9 (October 2004), pp. 21–2. 22. See the elaboration reproduced in South Bulletin, No. 101 (15 April 2005). 23. May & Sell, Intellectual Property Rights, ch. 7. 24. Space precludes a full discussion of all the various proposals, but an overview can be found in Sisule F. Musungu, Rethinking innovation, development and intellectual property in the UN: WIPO and beyond, TRIPS Issues Papers: 5, Quaker United Nations Office, 2005, section 3.2.1. 25. Sisule F. Musungu & Graham Dutfield, Multilateral agreements and a TRIPs-plus world: The World Intellectual Property Organisation, TRIPs Issue Papers: 3, Quaker United Nations Office, 2003, p. 19. 26. Ibid., pp. 19–20. 27. Musungu, ‘The WIPO Assemblies 2004’. 28. William New, ‘Industry Concerned About Development Agenda at WIPO’, Intellectual Property Watch, 4 November 2005, http://ip-watch.org/weblog/wp-trackback.php/125 (accessed 24 November 2005).

Gene Patents at Home and Abroad: Should the WTO Take Action in Light of Myriad?

This chapter explores the international politics of intellectual property protection within the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). It looks at power dynamics and the distributive issues of winners and losers to argue that the current emphasis on strict and expansive intellectual property rules has been initiated by the industrialized countries and their industries and does not cater to the needs of non-dominant actors, particularly developing countries. After providing an overview of intellectual property rights, capacity building, and “informational development” in developing countries, the chapter turns to the global governance of intellectual property and the rise of internationalism in intellectual property governance. It also discusses the globalization of intellectual property’s governance and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement before concluding by outlining ways in which non-dominant actors can exploit the flexibilities provided by the relevant mechanisms to promote developmental and public interest objectives.

In this paper relativistic ethical theories are handled in relation to intellectual property rights (IPRs). Different cultural traditions are a descriptive fact, and many such traditions—past and present—will be presented. It will be shown that the current Western versions of IPRs are offered as the only viable options in negotiations in international organisations such as the World Trade organization (WTO) and the World Intellectual Property Organization (WIPO) as well as in uni-, bi- and other multilateral negotiations by most Western countries. Free and open source software (F/OSS) and IPR systems similar to it are offered as a possibilities to respect the local traditions, although any local traditions are encouraged to be tried as options to the cultural homogenisation which the international treaties offer instead.

Patenting of Microorganisms

India is rich of traditional medicine knowledge. Due to inadequate protection on its traditional medicine knowledge, some of them have been illegally possessed or used by other countries, resulting in huge economic and cultural losses. In order to prevent such issues from happening, the Indian government has formulated a series of policies to protect and rationally develop traditional medicine knowledge, taken up many effective measures, such as collecting and archiving traditional medical knowledge, formulating laws and policies, establishing an administrative supervision system for traditional medicine knowledge, establish a Traditional Knowledge Digital Library (TKDL), as well as build a traditional medical knowledge registration and invention patent system. It also establishes an investment foundation, and conducts intellectual property culture building. At present, India has formed a relatively complete protection system for traditional medicine knowledge, which has achieved good results and gained recognition. To summarize the experience of traditional medicine knowledge protection in India can provide reference for China. Key words: Intellectual property; Medicine, traditional; India; Protection; Overview; Reference

This article analyses how local, national and international interests are reflected in India’s attempts to protect traditional knowledge through the formation of a Traditional Knowledge Digital Library (TKDL). It compares how the digital library is contextualised within India’s domestic policy with how it is presented to the World Intellectual Property Organization (WIPO). The article argues that WIPO has endorsed the Indian initiative and embraced the promotion of protective databases as an uncontroversial tool that diverts attention from more contested forms of traditional knowledge protection. Consequently, India has been able to use WIPO as a platform to promote itself and the TKDL to the global community. Domestically, however, the library serves other purposes. Since it systematically documents a vast body of traditional medical knowledge, Indian authorities can use the library to claim that knowedge as part of a national cultural heritage, and as a source of scientific innovations to the economic and social benefit of the country. In that regard, the TKDL reflects an interplay among local, national and international interests, where the goal of protecting the traditional knowledge of indigenous and local communities against misappropriation risks being co-opted to serve national purposes.

This overview complements our two previous reviews on the future of Arab universities and on quality assurance and relevance in academia published in this Springer book series. It encompasses the concepts of universities and their societal roles, and considers the definitions of innovation, creativity, and entrepreneurship. It argues that innovation and entrepreneurship can be taught in the right circumstances. The personal qualities needed to be an entrepreneur are described. An account is given of intellectual property (IP), especially patents and copyright works, together with its regulation in different jurisdictions, registration, defence, and exploitation. Governments have a pivotal role in facilitating start-up companies and the ease of conducting business. Also important is their interaction with international bodies such as the World Trade Organization and Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Organisation for Economic Co-operation and Development, World Intellectual Property Organization etc., and international indices such as the World Competitiveness Index. Governments can assist this crucial phase of university development, but should not interfere with universities, by a combination of adequate education and research funding together with setting up national technology foresight and related exercises, participating in regional initiatives to establish large-scale research and development facilities, and promoting competition. The combination of quality assurance, societally relevant teaching and research, accreditation, university-based and university-associated business and technology parks, business incubators and similar structures, alongside business schools, represent the main routes to successful delivery of university-derived IP. Even so, much depends on the quality, energy, experience, attitudes, and contact network of those leading these structures, and those of the associated academic staff. The roles of banks, venture capitalists, business angels, IP lawyers, and accountants in establishing a business are described, and the role and design of business plans outlined. Worrisome aspects of IP theft are described although there is little prospect of preventing it at this juncture in international relationships. Opportunities arising from the raft of transformative technologies under development are described, along with opportunities arising from international trends in convenience, fashion, design, entertainment, and diet. Climate change and the problems of water, energy, and food security offer huge opportunities for university-based innovations in STEMM subjects (science, technology, engineering, mathematics, medicine). Challenges come from (a) the level of competition; (b) dominating position of the US and Chinese tech giants absorbing talent and finance; (c) venture capital based mainly in the US and Europe; (d) US Supreme Court ruling on the patentability of software; and (e) problems of doing business in the Arab world and its attitudes to RD (b) code of institutional practice; (c) institutional quality plan; (d) standard operating procedures; and (e) equipment logbooks.

This thesis takes the expression intellectual property (IP) with Chinese characteristics as a departure point to reflect on the interplay between IP, industrial and innovation policies in contemporary China. Inspired by legal anthropology and political economy, it aims at highlighting what is concealed and what is elicited by the expression. In around 40 years, China went from a nearly non-existent to a very stringent IP system. It is the largest applicant of patents in the world, and actively engages at the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). Persistent counterfeiting, access to medicines, artificial intelligence, and reduced freedom to operate are main issues at stake. In this context, the thesis compares the Made in China and the Made in China 2025, which represent the shift from an economic model based on relatively cheap manufacturing with little IP protection to the pursuits of Chinas technological dominance with hightechnology and strong IP protection. It provides a historical overview and assesses the recent amendments in the period 2019-2021, which are based on foreign pressure by the US-China trade war and the interests of domestic firms in IP protection. It also conducts an analysis of some of the main contemporary aspects of the Chinese IP system, including the expansion in IP applications, the use of national security, the creation of specialized courts, policies to create a culture of IP in schools and universities, and ostensive anti-counterfeiting policies. Subsequently, the research deals with how the IP with Chinese characteristics reverberates internationally. To that aim, it conducts an analysis of Chinas stances at the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO), where the country tends to adopt intermediary positions. This section is partly based on a series of interviews and an ethnographic experience as participant observer in Geneva (2018-2021). It also develops Chinas IP stances in the Regional Comprehensive Economic Partnership (RCEP) and its Belt and Road Initiative (BRI), as examples of its increased role in regional and bilateral IP. China conducts procedural harmonization and cooperation-based activities but does not push its own Chinese legal standards. Therefore, it concludes that there is no Chinese standard in IP, but its role as norm-maker will invariably continue to grow. This may offer opportunities for Latin America. In the following chapter, the research addresses the politics of pharmaceutical patents and Covid-19 vaccines. It provides an analysis of IP and access to medicines in China, and its adoption of multiple TRIPS-Plus norms, which largely reduces the policy space of the country to ensure affordable access to medicines. The non-IP regulatory scope of tools available to the Chinese State can limit the detrimental impacts in China but may not be enough. The chapter then assesses the pharmaceutical sector in the country, noting how Chinese companies aim at becoming global big pharma, which this is in line with Chinas aspirations to achieve technological dominance. At the World Health Organization (WHO), China has committed to treating vaccines as global public goods. At the same time, it has incentivized patenting of all technologies via fasttrack policies, and heavily invested and coordinated the Covid-19 R&D research. China has been the main provider of Covid-19 vaccines in the global south but uses it to advance its geopolitical interests. The Sinovac-Butantan partnership highlights some interactions and a transnational publicprivate regulation between China and Brazil. The chapter presents the debates on the WTO TRIPS waiver proposal and the mostly cautious, background role of China despite its key position in the access to Covid-19 vaccines. It concludes with a parallel between the idea of vaccine diplomacy and IP nationalism are correlated issues. The next chapter argues that IP is part of a nation-building process and surrounded by a specter of modernity. In contemporary China, this is associated to a forward-looking and futuristic ideal that positively values the high-tech. For this reason, the figure of the IP pirate is a public enemy to be combatted since it represents the backwards and the illicit. However, categories of copy and authenticity are not pre-existing, but constructed something which Tianducheng, a Chinese copy of Paris with its own aura, elucidates. The concluding remarks argue that China offers a lesson for countries to use their policy space to conduct IP and innovation policies differently from the expectations of Western countries. However, it does not present a techno-diverse, critical alternative: instead, it reinforces existing structures. At the very end, drawing a comparison with Brazil, the thesis concludes with the need to envision alternative intellectual properties, which should not be based on exclusionary concepts of nationalisms and the private, but rather on inclusionary ideas of global and the public.

In this article the current political debates at the World Intellectual Property Organisation (WIPO) relating to the proposed “development agenda” are set out and contextualised. Central to the proposal for the WIPO Development Agenda is the need to make the link to the United Nations (of which the WIPO is a Specialised Agency) actually mean something. Thus, at the centre of the WIPO Development Agenda is an engagement with the hitherto accepted mission of the organisation to “promote” intellectual property rights (IPRs). The article discusses the main components of the WIPO Development Agenda and the discussion to date regarding their adoption and modification by the WIPO.