New Paper Looks At Differential Protection For Traditional Knowledge, Folklore

The protection of traditional knowledge and traditional cultural expressions (folklore) has been escaping consensus at the World Intellectual Property Organization for many years. One of the reasons for this lack of agreement is the particular nature of traditional knowledge and folklore. Some years ago, a new concept, calling for a different protection according to the degree of diffusion of this knowledge, gained support. A new paper looks into the benefits of this approach and its implementation in local contexts.

The Centre for International Governance Innovation (CIGI) based in Canada recently issued a paper [pdf] on the tiered or differentiated approach to traditional knowledge (TK) and traditional cultural expressions (TCEs). It is authored by Chidi Oguamanam, CIGI senior fellow and expert in global intellectual property law and policy frameworks, and representing Nigeria at the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

The 37^th session of the IGC is meeting this week, from 27-31 August.

The IGC has been seeking consensus on the best approach to protect TK and TCEs against misappropriation. The paper explores a concept which has been discussed at the IGC since a few years.

The tiered or differential approach to the protection of TK and TCEs is based on the concept that different kinds of TK and TCEs could benefit from a different degree of protection, with reference to the degree of their diffusion, with a higher protection awarded to secret TK and TCEs for example.

TK and TCEs are classified into four categories under the tiered approach: Sacred, secret, narrowly diffused, and widely diffused.

According to the paper, one of the challenges of this tiered approach is the evidentiary threshold. The aim of the tiered approach, says the author, is “primarily to advance legal certainty and clarity on TK/TCEs and to address concerns over the subjects, especially from the rank of non-demandeurs in the IGC negotiations.” Demandeurs of an international instrument of protection are developing countries.

“The tiered approach is a pragmatic and malleable strategy that seeks to negotiate the extent of exclusive rights or non-exclusive rights that attach to the beneficiaries or claimants of TK/TCEs, as a factor of how much of those, or aspects thereof, may already be in the public domain,” the paper says.

According to Oguamanam, “the African Group, India, Indonesia and certainly the LMCs [like-minded countries] as a whole strongly believe that the tiered approach is an important cross-cutting issue that will assist with the protection of TK and TCEs in the variegated contexts of their diffusion and in ways that will not permit the use of elaborate exemptions and public domain arguments to undermine protection.”

The paper illustrates how the tiered approach would be approached through national examples: Kente fabrics and designs from Ghana, Adire fabrics and designs from Nigeria, Arnhem aboriginal bark painting from Australia, and Cowichan weaving art from Canada and the United States.

According to the author, the concept of a tiered approach has a lot of potential “to foster a better understanding and pragmatic integration of TK/TCEs toward fair and balance global knowledge governance.”

 

Image Credits: CIGI