Tony Bennett, Differing diversities - Council of Europe

Reasearch position paper 7It is recommended that Council Parties undertake further research to consider:– the viability of trade secret models for protecting ITKIP in digital environments,the degree to which violations of database confidentiality give rise tolegal recourse, the extent to which such agreements will be respected andrecognised in national and regional patent regimes, and the desirability ofamending patent law to respect the norms and agreements of confidentialitydeveloped by indigenous peoples and traditional communities;– the compatibility of the TRIPs Agreement with the suggested requirementsthat, for the purposes of establishing novelty, all patent and plant breeders’rights applications include:i. a sworn statement as to the origins of genetic resources, as well as anyassociated knowledge, innovations and practices of indigenous peoples andlocal communities utilised directly or indirectly in the research anddevelopment of the subject matter of the patent application;ii. evidence of prior informed consent from the country of origin and the localcommunity in all applications that involve genetic resources and ITKIP;– the legal and cultural consequences of digital dissemination before ITKIP of asensitive, sacred, or potentially proprietary character is posted to the Internet;– the emergence and development of protocols for indigenous peoples’ and localcommunities’ prior informed consent for Internet postings of ITKIP and meansof respecting such protocols in all Internet activities directly or indirectly supportedby Council Parties;– implications of various forms of confidentiality for local communities andindigenous peoples’ biodiversity and cultural diversity preservation needs;– the potential for distinguishing between kinds and fora of publication in ascertainingwhether patentable subject matter has been “anticipated” and the viabilityof introducing exemptions for restricted access indigenous knowledgeregisters and database linkages between local communities as permissibleforms of technology transfer in current patent regimes.ConclusionIn conclusion, Council Parties’ international legal obligations under environmentaland human rights regimes provide opportunities to ensure that digital technologiesare utilised in a way that serves to preserve biological diversity in a fashionthat simultaneously preserves and revitalises the world’s cultural diversity. Therecommendations for future research contained herein are designed to ensure thatthese efforts are undertaken with full awareness of the complexities posed by theneed to balance intellectual property, trade, and environmental considerations withcultural diversity objectives.185