TRIPS Agreement and Traditional Knowledge, Genetic Resources, and Folklore[1]

Generally speaking, WTO agreements, including TRIPS Agreement, are a deal between the developed countries and the developing countries, and the whole agreements of WTO are balanced in the interests of the developed countries and the developing countries. On the one hand, the developing countries accepted the standards or criteria for the protection of intellectual property set up by the developed countries. This is good for developed countries, and helped them to strengthen their position in the international trade. On the other hand, the developing countries participated the new world trade system, and benefited from this trade system. Some of them even since then have enjoyed MFN from some of the developed countries.

Although the whole agreements of WTO are balanced in the interests of the developed countries and the developing countries, the TRIPS agreement itself is mostly in favor of the developed countries, and biased against the developing countries. The developing countries are concerned about this and made their best efforts to change the biased tendency of the agreement. The Doha Declaration embeds the efforts in some extent and changes a great deal in this respect. For example, Article 17 of Doha Declaration deals with public health, and the ministerial conference issued another document “Declaration on the TRIPS Agreement and Public Health”. Another example, Article 19 of Doha Declaration instructs the TRIPS council to study the relationship between the TRIPS Agreement and the protection of genetic resources, traditional knowledge, and folklore. These topics are all relating to the interests of the developing countries and the most undeveloped countries.

2. Two types of the results of intellectual creation

According to the current international and national legal systems, intellectual property rights include copyright, patent, trademark, trade secret, and some other rights. These are one type of the results of intellectual creation by human being, and well protect by the current legal system.

There is another type of the results of intellectual creation by human being, such as genetic resources, traditional knowledge, and folklore. In tradition, these results of intellectual creation are not within the scope of the intellectual property, and are not protected by international intellectual property law. Although some of them are protected by some national laws, but not all of them are protected by any national laws. Because of the protection of the intellectual property rights in the international trade, and because of the TRIPS agreement, it becomes more and more an important issue on how to protect genetic resources, traditional knowledge, and folklore against the background of international trade. And this is discussed in many international and regional forums.

China is drafting its Civil Code. In the title V of the Draft of the Civil Code, which relates to intellectual property rights, genetic resources, traditional knowledge, and folklore are included in the subject matter of intellectual property rights. Therefore, if the draft of the Civil Code is passed by our congress, works, patents, trademarks, trade secrets and some other rights, and genetic resources, traditional knowledge, and folklore will be protected as intellectual property rights. In addition to this, we have a provision in our copyright law since 1991 to protect the folklore. However, there is no implementing regulation for the protection of folklore. According to our 1991 copyright law, the state council shall promulgate independent regulations for two types of the subject matter, software and folklore. However, it is ironical that the regulation for the protection of software was enacted in June 1991, and again amended in January 2002, but the regulation for the protection of folklore has not yet drafted well. It seems that we have long way to go to effectively protect folklore.

With respect to the protection of intellectual property rights, we have two clear positions. First, we shall strongly and effectively protect the intellectual property rights provided in the international treaties and the national law, such as patent, copyright, trademark, and trade secret. Second, we shall as well provide some strong and effective protection for the genetic resource, traditional knowledge, and folklore. In other words, we shall promote the position of genetic resources, traditional knowledge, and folklore in our intellectual property system; we shall protect these subject matters in our intellectual property system by this or other way[2].

3. The basic theory of the IP system

The current intellectual property systems, including international law and national laws, are derived from the western legal system and the related theory. According to this system and the theory involved, the intellectual property is a private property, and the intellectual property rights are private rights, which including copyright, patent, trademark, trade secret, and some other rights. Because genetic resources, traditional knowledge, and folklore, are belong to, or devoted to a tribe, or a community, or even a nation, they are not within the scope of the intellectual property.

Therefore, if we are going to protect genetic resources, traditional knowledge, and folklore as some kinds of intellectual property rights, the current intellectual property systems must assimilate some other elements of legal theory. For example, we may try to define some kinds of intellectual property rights as communal property owned by a tribe, or indigenous people, or even by a sovereign nation. In this way, the communal property would be a complementary to the private property, and the communal rights would be a complementary to the private rights. And thus the two types of the results of intellectual creation shall be protected in the intellectual property system.

In this respect, even western scholars have suggested some new ideas, which will help us to consider the new theory for the protection of genetic resources, traditional knowledge, and folklore. In 1998, German Writers Union and other professional organization of writers, artists, and performers introduced a proposal called “a communal Right of Authors and Performers”. The basic points of this proposal are as follows: after the copyright and the related rights expired, the works and the performance used to be covered by copyright and related right have gone to public domain. While everybody can take use of the works and the performances in public domain, it is the publishers, performance organizations, and broadcasting organizations that actually took advantage of the works and the performances and made profits thereof. Therefore, the publishers performance organization shall pay some money form their profits to the society or a foundation. In turn, the society or the foundation may use the money to support the writers, artists, and performers, to help those persons to create new works and new performance. Because this money is derived not from the copyright or related rights, because it is derived from the use of the works and performances in the public domain, this doctrine is also called paying public domain[3].

Of course, a communal right of workers and performers, or paying public domain, is not in accordance with the theory of private property and private rights. However, it helps us to reconsider the legal theory to protect intellectual property rights.

4. Different resolutions

In addition to the theory approach, some useful resolutions should be figured out to effectively protect genetic resources, traditional knowledge, and folklore. The resolutions in this respect are discussed in many international and regional forums. There are two resolutions that need to be addressed here.

The first one is the resolution of sui generis rights, which is illustrated specifically by WIPO Intergovernment Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, fifth session, July 2003. According to the report, genetic resources may be protected by license arrangement and patent disclosure. That means the providers may license others to use the genetic resources they preserved, and the applicant of the parent must disclose any genetic resources they used in their invention. The protection of folklore is often closely linked to the copyright system, either as a sui generis element within the copyright law, or as a distinct but complementary law linked to copyright law. That means the nations may use copyright system to protect folklore, either a sui generis element in the law or a sui generis law closely linked to the copyright law. As for traditional knowledge, because of the range of it varied broadly, the rights under the sui generis system can be categorized copyright style rights and parent style rights. So traditional knowledge can be protected either by patent system or by copyright system. Sui generis system is always a choice if we have no other choice. For example, we chose the sui generis system to protect database because we no other proper system to protect database. Although the sui generis system is a good choice to protect the genetic resources, traditional knowledge, there are many questions should be discussed further, and many problems should be resolved.

The second one is the benefit sharing resolution, which is provided in Convention on Biological Diversity. Article 1 of CBD requires that the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including from the transfer the relevant technologies. And article 16 (5) of CBD recognizes the influence of patents and other intellectual property rights and requires “that such rights are supportive of and do not run counter to the objectives of the CBD”. For example, if somebody is going to use genetic resources to make an invention, he may access the genetic resources with the prior informed consent by the providers, and has a benefit sharing arrangement with the providers. This means that any illegal access and unauthorized use of genetic resources and traditional knowledge are prohibited. Based on this solution, the providers of genetic resources and traditional knowledge will get some benefits derived from the patent if the invention is patented.

For example, European Union Directive on the legal protection of biotechnological inventions has a requirement to voluntarily indicate the geographical origin of material of plant and animal. The recital 27 of the directive reads as if an invention is based on biological material of plant or animal origin or if it uses such material, the patent application should, where appropriate, include information on the geographical origin of such material, if known; whereas this is without prejudice to the processing of patent applications or the validity of rights arising from granted patents. Because it is a voluntary indication of the origin of the plant and animal, applicant may or may not indicate the origin of such materials. If this becomes a necessary condition for the application of a biotechnological patent, it would help the providers of genetic resources and traditional knowledge to share the benefit get from the biotechnological patent.

Now TRIPS Agreement and most national patent laws have no such requirement, so the developing countries and the most undeveloped countries shall advocate for such requirement in TRIPS Agreement and the national patent laws. This is in accordance with their interests.

5. Conclusion

Effectively protecting the genetic resources, traditional knowledge, and folklore is very important for the developing countries and the most undeveloped countries against the background of the international trade, and concerned with the interests of the developing countries and the most undeveloped countries. If we can find some useful solutions to effectively protect genetic resources, traditional knowledge, and folklore, the position of the developing and most undeveloped countries in the international trade will be strengthened.

[1]This is the speech delivered by Prof. Li, Mingde at WIPO Asia and the Pacific Regional Training Course for Intellectual Property Trainers and Instructors organized by World Intellectual Property Organization (WIPO) in cooperation with the International Intellectual Property Training Institute (IIPTI) in Daejeon, Republic of Korea, September 2 to 5, 2003.

[2]This idea is from Prof. Zheng, Chengsi, Director, Intellectual Property Center, China Academy of Social Sciences.

[3]Adolf Deitz, Paying Public Domain, New Initiative and Proposal of a Communal Right of Authors and Performers, Industruegewerkschaft Medien, 1998.