There are various mechanisms which can be used to protect Traditional Knowledge (TK). This report provides a comparative analysis of a number of case studies of existing databases and registers of TK and attempts to draw some conclusions and recommendations regarding their strengths and limitations for securing protection of TK.
The first section of the report discusses a number of underlying concepts regarding the nature of traditional knowledge. Case studies from Canada, India, Panama, Peru, and Venezuela are presented in Part 2, and Part 3 provides a comparative analysis of the case studies focusing on objectives, scope, procedures and benefits. Part 4 considers the role of databases and registers in defensive and positive protection of TK and their relationship to sui generis legal regimes, and the possibilities for interim protection of TK through use of sui generis database laws and database trusts.
The final section of the report provides conclusions and recommendations for further study, including:
- there is a need to ensure that all reasonable efforts are made to obtain prior informed consent (PIC) from the relevant indigenous peoples as a condition for placing information in a database, whether that TK is in the public domain or not;
- any means through which TK is made available to the public should incorporate initial advisory notes which explicitly state, as a minimum, that: the authors fully recognise the rights of indigenous people over their TK, including any intellectual property or sui generis property rights; PIC was obtained for the use of the TK; the use of TK for commercial or other ends must be appropriately recognised; the need for the sharing of benefits derived from the use of TK with indigenous peoples;
- access to databases and registers should require acceptance of the rights of indigenous peoples over their TK as a precondition for access as a means to ensuring appropriate use of TK;
- national governments and international organisations should review existing law and policy with a view to develop more sensitive and directed search procedures designed to enable patent authorities to access a wider range of sources of prior art, including local community and indigenous peoples databases and registers, confidential registers and oral registers;
- national governments and responsible international organisations should consider the possibilities of adopting interim measures which reduce pressure on indigenous peoples and their knowledge systems by creating obligations for users to demonstrate prior informed consent as a condition for scientific and commercial use of TK;
- in development of national sui generis TK regimes, consideration may be given to establishing a system which recognises and incorporates local community and indigenous peoples’ databases and registers whether documented or orally maintained within a national network of registers of TK;
- national governments should include indigenous representation on national delegations, and international bodies need to develop mechanisms to ensure increased indigenous participation in decision making processes through the development of participatory processes;
- international organisations, governments and other bodies should carry out further investigation into the potential, complexities and limitations of developing international standardised specification data for the registration of TK for defensive and protective purposes;
- international organisations, multilateral, bilateral and other funding agencies should consider the provision of support for initiatives to develop database trusts;
- protection of rights over traditional knowledge should not be made conditional upon registration of TK.
