Traditional Medicine in Asia

Traditional Medicine in Asia
diverging considerations on the socioeconomic
implications of IPRs protection,
including the danger of distortion to
indigenous systems. 28
Developing a sui generis regime
Many proposals have been elaborated, by
scholars and NGOs, to protect traditional
knowledge (including medicinal use)
through a sui generis regime. xxviii This is
the case, for instance, in respect of
proposals relating to “tribal”, “communal”
or “community intellectual rights”, xxix and
“traditional resource rights”, among
others. xxx Some proposals aim to develop
new forms of protection as an independent
category of intellectual property, 9 or as a
component of the broader body of
“traditional knowledge”. In many cases,
however, the rationale for the proposed
protection is unclear. 13
A few countries have started to address
the complex conceptual and operational
problems involved in the recognition of
communities’ rights on traditional knowledge.
For instance, “collective” intellectual
property rights have been recognized by
the Constitution of Ecuador (1998). The
Biodiversity law of Costa Rica (1998)
protects “sui generis community rights”
(article 82), and a draft law in Brazil (Bill
No. 306, 1995) recognizes the rights of
local communities to collectively benefit
from their traditions and knowledge and
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to be compensated by means of intellectual
property rights or other measures. At the
international level, the Council of TRIPS has
under its consideration the possible review
of article 27.3(b) of the TRIPS Agreement.
Such review is regarded by some developing
countries as an opportunity to harmonize
the TRIPS Agreement with the CBD, xxxi
and to develop rules for the protection of
traditional knowledge. xxxii The proposed
approaches differ, however.
Thus, for the African Group the review
of article 27.3(b) should preserve the room
existing to develop specific modalities of
protection for traditional knowledge
(including TM) at the national level. xxxiii
Venezuela xxxiv has gone a step further.
It has proposed the development of binding
international rules on the matter. It has
suggested
“to establish on a mandatory basis
within the TRIPS Agreement a system for
the protection of intellectual property, with
an ethical and economic content,
applicable to the traditional knowledge of
local and indigenous communities,
together with recognition of the need to
define the rights of collective holders”
(WT/GC/W/282).
Though the viability of this latter
proposal in the framework of the TRIPS
Agreement is still uncertain, it addresses
one of the problems that countries that opt
for protecting traditional knowledge may
xxviii For a review of literature on the matter, see x.
xxix See, e.g., 29, p. 38.
xxx See, e.g., 30.
xxxi See, e.g., the submission by Egypt, WT/GC/W/136.
xxxii See, in particular, the submissions by India (WT/GC/W/147)and by the African Group (WT/GC/W/302 of 6
August, 1999).
xxxiii The OAU has developed a “Model law on Community Rights and Control of Access to Biological Resources”
(1999).
xxxiv Under Decision 391 of the Andean Pact, the Member Countries thereof are bound to develop legal regimes for the
protection of communities’ knowledge. A constitutional provision to that effect has been adopted in Ecuador.
None of the Andean countries, however, have so far developed such regimes.