SUBSCRIBE TODAY!
Subscribing entitles a reader to complete stories on all topics released as they happen, special features, confidential documents and access to the complete, searchable story archive online back to 2004.
IP-Watch Summer Interns

IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

Inside Views

Submit ideas to info [at] ip-watch [dot] ch!

We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

Quantitative Analysis Of Contributions To NETMundial Meeting

A quantitative analysis of the 187 submissions to the April NETmundial conference on the future of internet governance shows broad support for improving security, ensuring respect for privacy, ensuring freedom of expression, and globalizing the IANA function, analyst Richard Hill writes.


Latest Comments
  • Why should anyone care what James Anaya thinks? In... »
  • If this goes ahead, as the EU will "speak" for all... »

  • For IPW Subscribers

    A directory of IP delegates in Geneva. Read more>

    A guide to Geneva-based public health and intellectual property organisations. Read More >


    Monthly Reporter

    The Intellectual Property Watch Monthly Reporter, published from 2004 to January 2011, is a 16-page monthly selection of the most important, updated stories and features, plus the People and News Briefs columns.

    The Intellectual Property Watch Monthly Reporter is available in an online archive on the IP-Watch website, available for IP-Watch Subscribers.

    Access the Monthly Reporter Archive >

    Academics Criticise Handling Of Cultural Diversity, Traditional Knowledge At International Level

    Published on 6 March 2013 @ 5:41 pm

    By for Intellectual Property Watch

    At a recent conference jointly organised by the Graduate Institute of International and Development Studies (IHEID, Geneva) and the Museum of Art and History of Geneva, academics tackled the question of the preservation of culture – in its natural and cultural dimension – against the risks of globalisation.

    At the 22 February event, panellists offered criticisms of the evolution of the international system for the protection of cultural diversity in the form of protection of traditional knowledge and rights of indigenous people.

    Firstly, many panellists addressed strong criticisms toward the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol). One panellist, using personal experience, explained some deficiencies of the system for the protection of the rights of indigenous communities. The event also gave an opportunity to panellists to discuss the definition of concepts attached to traditional knowledge and to discuss the finality of this protection where one academic saw a “commercial drift in the concept of culture.”

    Regarding the Nagoya Protocol, Sandrine Maljean-Dubois, senior researcher at the French National Centre for Scientific Research (CNRS), qualified as “incomplete and inadequate” the issue of access to genetic resources and fair and equitable sharing of advantages deriving from their use. She also suggested that the Nagoya Protocol “undergo the competition of other forums and texts dealing with the same issue,” in the sense that many organisations deal with the themes addressed in the Nagoya Protocol.

    “There is an overlap of forums and texts dealing with the themes of the Nagoya Protocol and there is a lack of coordination between the organisations involved which leads to mixed and unsatisfactory results,” she said.

    Riccardo Pavoni, a professor at the University of Sienna, Italy, described the Nagoya Protocol as a “masterpiece of erratic treaty drafting,” containing what he called “contradictory and inconsistent drafting”. To him, the text is very weak in its approach towards trade and intellectual property issues.

    In correspondence with Intellectual Property Watch, Pavoni said: “The Nagoya Protocol is absolutely neutral in relation to the issue of patentability of genetic material. The principle of sovereign rights over genetic resources may only allow states to ban the exploration and/or exportation of genetic resources found in their territories, but may not prevent a company from seeking patent protection in its home state or in other countries where such patents are granted.”

    The core issue, he said, “is that of securing that genetic material has been accessed pursuant to the prior informed consent of the source country and that some form of benefit-sharing has been agreed upon with the same country.”

    As a way forward, he proposed solutions to deal with this difficulty.

    “It would be crucial to provide for the disclosure of origin of genetic resources as a requirement for patentability of such resources (and/or associated traditional knowledge),” Pavoni said. “And it would be crucial that this requirement be imposed by the so-called user (industrialized) countries.”

    Pavoni said Nagoya Protocol negotiators “deliberately refrained from imposing such disclosure requirement, especially in article 17. The requirement is therefore only optional for Parties to the Nagoya protocol, hence the continuing battle happening at the World Trade Organisation (WTO) and at the World Intellectual Property Organisation (WIPO) to introduce a mandatory disclosure requirement.”

    He further highlighted what he referred to as the “glaring inconclusiveness of article 4 of the Nagoya protocol in relation to its relationship with other agreements (i.e. the WTO agreements).”

    Nagoya No Step Forward?

    Meanwhile, in response to a question on the Nagoya Protocol from the audience, Geoffroy Filoche, researcher for a French research institute for development (IRD, Institut de recherches pour le développement) pointed out that regarding traditional knowledge, the Nagoya Protocol does not offer better protection than what the Convention on Biological Diversity (CBD) already does. For him, in this respect, the Nagoya Protocol is not a step forward.

    Filoche also expressed his views on the concept of traditional knowledge and its current protection at the international level. He put forward the example of the exploitation of guaraná by the Satere-Mawe people, an indigenous community in Brazil, to highlight the insufficiency of the mechanism of exploitation of natural resources by indigenous peoples. In his case, the indigenous community could not keep the unique link with guaraná it used to have and could not use a legal system that seemed play in favour of the indigenous peoples.

    He said that the Brazilian legal system is a priori favourable to the Indians as the 1988 Constitution recognises their rights to land and natural resources.

    Based on his research jointly undertaken with Florence Pinton, professor at the Paris Institute of Technology for Life, Food and Environmental Sciences, he added in correspondence with Intellectual Property Watch that: “the 1990s could have seen the emergence of formal rights to guaraná for the Satere-Mawe people. The adoption of the CBD allowed the role of traditional agro-ecological practices and the importance of local knowledge relating to the preservation of genetic resources to be highlighted. (…) In Brazil, this system resulted in the implementation of Provisional Measure no. 2186-16 in 2001, according to which access to genetic resources must henceforth receive authorisation from the State, from communities and from landowners, and the benefits must be shared with the suppliers of the resource or related traditional knowledge.”

    But this scope of the legal protection was not enough, he said, as “guaraná was considered to be a freely available raw material for agribusiness (sodas) long before the CBD was drawn up. This was well before the idea that the plant, as a genetic resource or variety, could come under national sovereignty or be appropriated by certain parties.”

    Similarly, he said that “the fact that natural life forms cannot be patented in Brazil means that the use of guaraná cannot be the sole preserve of a single company. This explains the proliferation of guaraná-based sodas (for example Kuat, a Coca-Cola group brand) as well as brands using the Satere-Mawe or Maués names. Guaraná has thus gradually moved beyond the control of the Satere-Mawe people, becoming available to all.”

    While panellists at the event pointed to the weakness of the Nagoya Protocol, which is supported by many academics. But many other academics, while acknowledging that the Nagoya Protocol is not perfect, see in it a step forward as this text creates a system that links the user and supplier countries. In that respect, Nagoya marks a difference with the previous situations.

    Traditional Knowledge

    Also at the conference, panellists analysed the current definition of traditional knowledge and the associated concepts.

    Filoche referred to traditional knowledge as a “composite legal category”. To him, the construction of this concept is “at the crossroads of different ethical considerations.” While making this point, he joined the argument made Isabelle Schulte-Tenckhoff, professor at IHEID.

    According to her, at the United Nations organisation level, there has been an amalgam in the way of dealing with concepts such as “indigenous”, “local communities”, and “cultural minority”. She said the definitions set by various UN entities and texts do not differentiate between groups that are in practice very different. In her view, the general UN definitions mainstream and oversimplify under the umbrellas of concepts such as “indigenous communities” and “traditional knowledge” realities that account to very different situations.

    Lastly, Genevièvre Koubi, professor at the University of Paris VIII, denounced what she called the “commercial drift” of the concept of protection of diversity of cultures. She said that no UN organisations protect culture in itself, but rather the forms that culture takes.

    Koubi said that in every UN agency dealing with traditional knowledge – including WIPO and the traditional knowledge division – it is the economical aspect of culture that prevails and diversity is only understood in the market context. It is the economical and trade values of cultures through the goods they can produce that is put forward at the expense of social considerations. Culture is therefore only understood as a strategy for development.

    One could argue that the activities of the traditional knowledge division at WIPO at least partially contradict her theory. Some activities undertaken by this division, like the defensive protection missions where WIPO recognises on its website that “traditional knowledge genetic resources and traditional cultural expressions are economic assets of indigenous and local communities” do echo her theory.

    But in the domain of protection of folklore, the protection is also heavily related to the enhancement of cultural diversity and to the preservation of cultural heritage.

    Tiphaine Nunzia Caulier recently graduated with a Master in International Law from the Graduate Institute in Geneva and UCLA School of Law. Through her work experiences and academic interests she has specialized in international trade, intellectual property, and public health.

    Tiphaine Nunzia Caulier may be reached at info@ip-watch.ch.

     

    Comments

    1. Latest Developments, March 7 | Beyond Aid says:

      [...] Sharing benefits Intellectual Property Watch reports that one expert has described the Nagoya Protocol, a proposed UN text on cultural diversity and traditional knowledge, as a “masterpiece of erratic treaty drafting”: [...]

    2. This week in review … Academics criticize handling of cultural diversity, TK at international level | Traditional Knowledge Bulletin says:

      [...] Academics Criticise Handling Of Cultural Diversity, Traditional Knowledge At International Level IP Watch, 7 March 2013 [...]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
    Your IP address is 54.237.95.6