Governance and Micropolitics of Traditional ... - IPRsonline.org

enefit sharing; (ii) protection of traditional knowledge, whether or not associated with those
resources; and (iii) the protection of expressions of folklore (WIPO Acc 23/6/2005).’
The IGC has provided a useful coordination point for dialogue, fact-finding missions, national
case studies, the dissemination of such information and the articulation of the TK issue in a
predominantly IP context. It tends to also be the target of a range of criticisms because of its
limited mandate, lack of progress on substantive mechanisms for protection from
misappropriation in the IP regime 12 , and for providing a distraction point for countries such as
the US to deflect progress on the disclosure issue in the TRIPS Council. At the WIPO General
Assembly in September-October 2005, the mandate of the IGC was extended indefinitely
such that it can continue its work on achieving workable solutions to the protection of TK.
Recent rounds of discussions, as well as from the work of the TK unit of the WIPO
Secretariat have made progress on useful participatory tools such as the Voluntary Fund for
Indigenous and Local Communities to directly facilitate and support the participation of
representatives from these communities in the work of the IGC (ICTSD, BioRes, 14 October
2005). They have also very recently attempted to develop ideas about the respect of
customary laws in the protection of TK and associated cultural expressions or folklore
(WIPO, acc 26/2/2006).
During negotiations however, many developing states are somewhat sceptical of the role of
this body because of the mandate of WIPO for the promotion of IP. The IGC however has
been useful for governments and WIPO itself to delve into the complex nature of TK and
develop new understandings and approaches. The forum itself has produced a plethora of
documents out of its sessions, but there is still some dissatisfaction and a lot of confusion
about how TK ‘protection’ should in fact be implemented. In IPR terms, ‘protection’ relates
to the legal rights to exclude others from the use of the subject of protection. In general terms,
however there is a much broader meaning. Some confusion seems to have also arisen through
the use of the terms ‘defensive’ and ‘positive’ protection. While most people concerned about
TK would assume that in effect a form of IPR protection over TK would be contrary to
desires, and that in fact TK needs to be protected from IPRs themselves. However through the
manipulation of language, the norm has become such that ‘positive’ protection of TK occurs
through the use of IPRs, property rights and liability regimes, and that ‘defensive’ measures
include databases and other forms of protection. Such issues raise the question of whether
WIPO is indeed the most suitable forum for such discussion or whether they would be more
appropriately made elsewhere. On the other hand such ongoing discussions in WIPO could be
useful for developing countries to strategically block progress on a Substantive Patent Law
Treaty (SPLT) as has been noted by some authors (see Dutfield, 2005). What is perhaps most
important to note is that discussions on TK in WIPO will likely be restricted due to its limited
mandate for the regulation of exclusive advanced and western forms of IP protection.
2.7 International Union for the Protection of New Varieties of Plants (UPOV)
The scope of the International Convention for the Protection of New Varieties of Plants which
establishes UPOV 13 is narrower than some of the previous conventions and fora. UPOV was
developed essentially for the protection of plant breeders’ rights. Whilst UPOV does not have
12 It has however made an amendment to the PCT such that PCT patent applications whilst undergoing the
examination process, must cross-check with prior art databases including journals on traditional knowledge.
13 The acronym comes from the French name ‘L’Union Internationale pour la Protection des Obtentions
Vegetales’.
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