TRIPS-Related Aspects of Traditional Knowledge: Case Western Reserve Journal of International Law

Case Western Reserve Journal of
International Law
Volume 33 | Issue 2
2001
TRIPS-Related Aspects of Traditional Knowledge

Graham Dutfield
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Graham Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 Case W. Res. J. Int'l L. 233 (2001)
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TRIPS-RELATED ASPECTS OF TRADITIONAL KNOWLEDGE
GrahamDutfield*
INTRODUCTION ........................................................................................... 233
I. TRADITIONAL KNOWLEDGE ("TK")AND ITS ROLE IN THE GLOBAL

ECON OM Y..................................................................................................... 239
A. Definitional dilemmas: what is different about traditional knowledge?
239
•.............................................
........................................................
B. Where does traditional knowledge come from? .................. . .. . .. . .. . .. . .. . . 242
C. Traditional knowledge in the global economy ..................................... 243
II. WHOSE KNOWLEDGE IS IT ANYWAY? .............................................. 244
III. WHY NOT PROTECT TK THROUGH PATENTS, COPYRIGHTS OR

TRADE SECRETS? ........................................................................................ 248
A . Copyright ............................................................................................. 248
B . Patents ................................................................................................. 253
C. Trade secrets ........................................................................................ 258
IV. THE ROLE OF TK IN INTERNATIONAL DIPLOMACY ...................... 260
A. TK in 'biodiplomacy'. ......................................................................... 260
B. TK at the World Intellectual Property Organization ............................ 266
C. TK at the World Trade Organization ................................................... 269
V. CONCLUSIONS ........................................................................................ 273
INTRODUCTION
Towards the end of the 1980s, indigenous peoples, 1 thought by

many to be doomed to extinction, finally gained broad respect for their
* D.Phil., University of Oxford. Researcher, Oxford Centre for the Environment, Ethics
and Society, Mansfield College, University of Oxford. I am grateful to Kristina Plenderleith
for her comments on an earlier draft. I would also like to acknowledge the support of the
Economic and Social Research Council. This article is dedicated to Darrell Posey (1947-
2001).
t In this Article, 'indigenous peoples' refers to the term as defined under the
International Labour Organization Convention 169 as those
peoples in independent countries who are regarded as indigenous on account of their descent
from the populations which inhabited the country, or a geographical region to which the
country belongs, at the time of conquest or colonization or the establishment of present state
233
CASE W. RES. J. INT'L L. [Vol. 33:233
cultural richness, sophisticated natural resource management expertise, and

for their agricultural and health-related knowledge. Many conservation and
development agencies began to consider the ecological knowledge of
indigenous peoples and other ethnic and minority groups "embodying
traditional lifestyles ' 2 (henceforward "traditional peoples and
communities") as a hitherto barely tapped source of technologies capable of
being harnessed in the pursuit of more sustainable paths of development.
Although the case was sometimes overstated to the point of naive
romanticism, 3 this re-evaluation was long overdue. Indeed, such views
seemed to be borne out by the tremendous biodiversity-richness of those
areas inhabited by traditional peoples and communities, as compared to the
generally far more degraded ecosystems elsewhere, or in those same places
after the traditional occupants had been subjected to policies of forced
assimilation or removal. Around the same time, a growing number of
ethnobiologists, anthropologists, and activists supporting the interests of
traditional peoples and communities began to call for the legal protection of
traditional knowledge (TK) through such existing formulations as
intellectual property rights (IPRs), or since they tended to be dubious about
the applicability of IPRs, more frequently through sui generis 5 means like
traditional resource rights4 and community intellectual rights.
boundaries and who, irrespective of their legal status, retain some or all of their own social,
economic, cultural and political institutions.
See ILO Convention 169, Convention Concerning Indigenous and Tribal Peoples in
Independent Countries, June 7, 1989, art. 1(b), availableat http://www.cwis.org.
2 The 1992 Convention on Biological Diversity originated the phrase "indigenous and
local communities embodying traditional lifestyles." See generally Convention on
Biological Diversity, United Nations Environment Programme, June 5, 1992, available at
http://www.biodiv.org/doc/legal/cbd-en.pdf.
3 For discussion on the value of indigenous peoples' knowledge as a source of
technology, see Raymond Pierotti and Daniel R. Wildcat, Traditional Knowledge,
Culturally-basedWorld-views and Western Science, in CULTURAL AND SPIRITUAL VALUES OF
BIODIVERSrrY (Darrell A. Posey ed., 1999) (discussing Native American intellectual
property), and Kent H. Redford, The Ecologically Noble Savage, 15 CULTURAL SURVIVAL Q.
46 (1991) (discussing various South American indigenous cultures). However, see TER
ELLINGSON, THE MYTH OF THE NOBLE SAVAGE 350 (2001) (arguing that it is a "high
expectation" to view the ecological knowledge of indigenous peoples as a source of
technologies capable of being harnessed for further cultural development).
4 Traditional Resource Rights was coined by the late Darrell Posey of Oxford
University. See Darrell Addison Posey, Indigenous Peoples and Traditional Resource
Rights: A Basis for Equitable Relationships? 5 (June 28, 1995) (unpublished manuscript, on
file with author).
5 The concept of community intellectual rights was developed and elaborated by Gurdial
Nijar of the activist network Third World Network. See GURDIAL SINGH NuAR, IN DEFENCE
OF LOCAL COMMUNITY KNOWLEDGE AND BIODIVERSrrY: A CONCEPTUAL FRAMEWORK AND
THE ESSENTIAL ELEMENTS OF A RIGHTS REGIME 22-24 (1996).
2001] TRIPS AND TRADITIONAL KNOWLEDGE
During the early 1990s, there seemed to be an emerging consensus

among many environmentalists and ethnobiologists and even
pharmaceutical, personal care and herbal medicine companies, that
traditional peoples and communities had important knowledge that could be
used not only to develop valuable new products but also to prove that
resources like standing rainforests were worth more to developing countries
than the6degraded croplands and pastures they were otherwise destined to
become.
This consensus, however, has come under attack. Prominent
skeptics, such as Pat Mooney of the Canadian activist group Rural
Advancement Foundation International (RAFI) and the Indian eco-feminist
Vandana Shiva, who considered the interests of traditional peoples and
communities and the corporations to be completely irreconcilable, became
increasing vocal in their criticisms of bioprospecting.7 RAFI has been
particularly effective in undermining even those bioprospecting programs
that seemed on their face to be the most progressive at that time.8 These
critics as well as others, including many indigenous people working at the
international level to further the rights of their own groups and of traditional
peoples and communities generally, considered IPRs and the TRIPS
6 See BIODIVERSITY PROSPECTING: USING GENETIC RESOURCES FOR SUSTAINABLE
DEVELOPMENT (Walter V. Reid et al. eds., 1993), for evidence of such a consensus. Other
scholars have concurred with this view. See generally, Darrell A. Posey, Indigenous
Knowledge and Green Consumerism: Cooperationand Conflict, in SCIENCE FOR THE EARTH:
CAN SCIENCE MAKE THE WORLD A BETTER PLACE? 239 (Tom Wakeford & Martin Walters
eds., 1995); FRIENDS OF THE EARTH, THE RAINFOREST HARVEST: SUSTAINABLE STRATEGIES
FOR SAVING THE TROPICAL FORESTS? (1992).
7 For works by these authors that express this skepticism, see Pat Roy Mooney, Why We
Call It Biopiracy,in RESPONDING TO BIOPROSPECTING: FROM BIODIVERSITY IN THE SOUTH TO
MEDICINES IN THE NORTH 37 (Hanne Svarstad & Shivcharn S. Dhillion eds., 2000), and
VANDANA SHIVA, BIOPIRACY: THE PLUNDER OF NATURE AND KNOWLEDGE 72-79 (1998).
8 Examples of programs that RAFI has been effective in undermining are the
International Cooperative Biodiversity Groups, which are bioprospecting projects in
developing countries jointly sponsored by the National Institutes of Health, the National
Science Foundation and the United States Agency for International Development. For an
overview of these projects, see Francesca T. Grifo, Chemical Prospecting:An Overview of
the International Cooperative Biodiversity Groups Program, in BIODIVERSITY,
BIOTECHNOLOGY AND SUSTAINABLE DEVELOPMENT IN HEALTH AND AGRICULTURE:
EMERGING CONNECTIONS 12 (1996). RAFI questioned one of these projects, which involved
bioprospecting in Chiapas, Mexico, to severe condemnation. Id. at 22.
Agreement 9 to be not only a symptom of the conflict of interests, but to

have actually deepened the conflict further. 10
During the first half of the 1990s, participants in international
discussions on IPRs for traditional peoples and communities were mostly
non-governmental actors. Deliberations took place at such functions as
academic ethno-biological conferences," events organized by indigenous
peoples,12 and advocacy network gatherings, which took place
independently alongside meetings of the Conference of the Parties (COP) to
the Convention on Biological Diversity (CBD) and inter-governmental
meetings and conferences of the U.N. Food and Agriculture Organization
(FAO).
In addition, the issues surrounding traditional knowledge were
formulated and driven by these non-governmental organizations (NGOs),
making government involvement initially quite minimal. Indeed,
traditional knowledge was a non-issue at the GATT Uruguay Round of
trade negotiations. R Meanwhile, the World Intellectual Property
Organization (WIPO) had, for all intents and purposes, dropped its earlier
9 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994,
Annex IC, LEGAL INSTRUMENTS- RESULTS OF THE URUGUAY ROUND, vol. 31; 33 I.L.M. 81
(1994) [hereinafter TRIPS Agreement].
10 Alejandro Argumedo of the Indigenous Peoples Biodiversity Network argues that
"Biopiracy is the inevitable consequence of international agreements... that have no real
capacity to regulate bioprospecting or to ensure benefit-sharing...." News Release, Rural
Advancement Foundation International, The Captain Hook Awards: Coalition Against
Biopiracy (CAB) presents the much uncoveted "Hook" at the Biodiversity Convention in
Nairobi (May 17, 2000), at http:llwww.rafi.orglweb/docus/pdfsl00mayl7.pdf (last visited
Oct. 10, 2000).
11 An example of a non-governmental actor participating in such deliberations is the
International Society of Ethnobiology (ISE). In 1988 at its first international congress, the
ISE made one of the first public calls for compensation for native peoples for the utilization
of their knowledge and their biological resources when it proclaimed the Declaration of
Beldm. See Declaration of Belim, Int'l Soc'y of Ethnobiology (1988), at
http://users.ox.ac.uk/-wgtrr/belem.htm (last visited Sept. 28, 2001). Another major
conference was the 1993 conference on intellectual property rights and indigenous
knowledge, which took place in Lake Tahoe, California. For published copies of the papers
from this conference, see VALUING LOCAL KNOWLEDGE: INDIGENOUS PEOPLES AND
INTELLECTUAL PROPERTY RIGHTS (Stephen B. Brush & Doreen Stabinsky eds., 1996).
12 For example, in 1993 the Maori tribes of Mataatua, New Zealand hosted the First
International Conference on the Cultural and Intellectual Property Rights of Indigenous

Peoples. See Mataatua Declaration on Cultural and Intellectual Property Rights of
Indigenous Peoples, First International Conference on the Cultural and Intellectual Property
Rights of Indigenous Peoples, availableat http:llusers.ox.ac.ukl-wgtrr/mataatua.htm.
13 The Uruguay Round was launched in Punta del Este, Uruguay, in September 1986 and
was finally concluded in Marrakech, Morocco, in April 1994. See JOHN H. JACKSON, THE
WORLD TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 1 (2d
ed. 1997).
interest in the closely related issue of folklore protection. While the 1992
CBD included some vague wording on protection of "traditional
knowledge, innovations and practices," this was not so much through any
widespread commitment on the part of governments to protect TK in any
effective manner. Instead, the wording in the CBD was the result of
concerted pressure from NGOs whose influence was derived from the
relatively open way the negotiating process was conducted.
Today, a growing number of governments and inter-governmental
organizations are no longer detached from these debates but have come to
embrace them, albeit to the discomfort of a few governments (e.g. the
United States). TK is now a mainstream issue and has been one at WIPO
since 1998 and at the World Trade Organization (WTO), particularly since
the General Council began to prepare for the 1999 Seattle Ministerial
Conference. 4 Developing country governments increasingly complain
about TK 'piracy' by transnational (usually U.S.-based) corporations, and
have added this to their list of reasons to be dissatisfied with TRIPS.
Several developing country governments have gone so far as to submit
official proposals to both organizations, and also to the CBD COPs, for
measures to be taken to protect TK legally and to prevent its
misappropriation by industry through inappropriate use of patents and plant
breeders' rights. In fact, at COP meetings the word "biopiracy", frequently
invoked by developing country delegations evidencing the extent to which a
term that was originally coined to inspire critical perspectives and political
activism relating to the role of IPRs in determining the skewed distribution
5 "Biopiracy"' 6
of benefits from the biotrade, has gained wide currency.
was coined by Mooney as part of a counterattack strategy on behalf of
developing countries that had been accused by developed countries of
condoning or supporting "intellectual piracy," but who felt they were hardly
14 In addition, the U.N. Conference on Trade and Development in 2000 held an inter-
governmental 'expert meeting' on the subject of systems and national experiences for the
protection of traditional knowledge, innovations and practices. For copies of the documents
presented at the meeting, see http://www.unctad.orgltrade-env/tkem.htm (last visited Sept.
28, 2001).
15 This situation is attributable, at least in part, to the fact that national delegations to the
COP meetings consist largely of civil servants from environment ministries, who tend to be
more concerned about conservation, sustainable development and food security than are
their trade ministry counterparts.
16 Biopiracy generally refers either to the unauthorized commercial use of biological
resources and/or associated TK from developing countries, or to the patenting of spurious
inventions based on such knowledge or resources without compensation. See generally,
SHIVA, supra note 7, at 1-5 (discussing various theories underlying the common practice of
appropriation of biodiversity). Critics of such practices argue that if patent, copyright and
trademark infringements are acts of intellectual piracy, then so is the failure to recognize and
compensate for the intellectual contributions of traditional peoples and communities. See id.
at 9-11.
as piratical as corporations which acquire resources and TK from their

countries, use them in their research and development (R&D) programs,
and acquire patents and other IPRs -- all without compensating the provider
countries and communities. Some developing country trade negotiators at
the WTO have also adopted anti-biopiracy rhetoric.
This Article will describe how the mainstreaming of TK as a
TRIPS-related issue was achieved and explain why so much effort was
made to achieve it. In addition, this Article will show how developing
countries use of TK as an issue is likely to influence their compliance with
TRIPS. TK is an interesting example of an issue formulated and promoted
by NGOs, subsequently adopted by trade negotiators, and then introduced
into a highly unpromising forum for achieving solutions on TK, yet the
most effective forum for the pursuit of a rather different agenda: that of
justifying decelerated compliance with TRIPS and perhaps even rolling
back the strong IPRs it requires WTO members to provide.
Part I of this Article investigates the meaning of the term
"traditional knowledge" and estimates the importance of TK to the global
economy. Policymakers are more likely to grasp the economic significance
of TK than its actual meaning, which turns out to be quite elusive. TK is
often (and conveniently) assumed to be in the public domain. This is likely
to encourage the presumption that nobody is harmed and no rules are
broken when research institutions and corporations use it freely. In fact, as
Part II explains, this presumption is not only false but the implications of its
wide acceptance may be detrimental for traditional peoples and
communities. Part Ill aims to answer the question of whether it is
appropriate to treat protection of TK as a problem that existing IPRs can
solve. This section should, on balance, cast doubt on whether TRIPS would
be an appropriate forum for negotiations on TK if securing effective
protection of the rights of traditionalpeoples and communities over their
knowledge were the sole objective. In reality, this may not be true. As Part
IV shows, rightly or wrongly many developing countries believe that
TRIPS is a concession to developed countries that was made under duress
and is inadequately compensated for by the efforts made so far by the latter
countries to open up their markets to the former countries' goods. Finding
themselves pressured to comply with TRIPS before the expiry of the
permitted transitional periods and to accept the advice of the United States
and the European Union as to how the rules should be interpreted, these
countries have found TK to be an issue they can use strategically to deflate
such pressure. The early indications are that this strategy is to some extent
successful, although traditional peoples and communities are unlikely to
benefit.
Before going further I should justify my extended treatment of TK,
including its meaning, its economic value, the local customary rules
governing its access and use, and its (in)compatibility with western IPR
20011 TRIPS AND TRADITIONAL KNOWLEDGE
formulations. How can both intellectual property and compliance scholars

benefit from knowing more about such matters?
This Article should make clear that TK is a far more complex issue
than it is usually depicted, and its true social, economic, cultural, and
developmental significance is unlikely to be well understood by most trade
negotiators. Despite this, many developing country governments have
made determined efforts to promote TK protection as a TRIPS-related issue
even while they generally (though with notable exceptions) 17 do very little
about TK at the national level. This all seems rather contradictory and
requires us to think more deeply about the reasons for such interest in what
was previously just "a ponytail issue' ' ' 8 to most respectable diplomats.
There are four different possible explanations for developing
countries pursueing this issue at the WTO. First, developing countries may
have identified a problem with TRIPS, namely that it promotes the piracy
of TK, and feel strongly enough about it to the extent of proposing that
ways be found to eradicate this problem. Second, developing countries
may actually want to do more than eradicate TK piracy; they may be
genuinely seeking to have new IPR standards inserted into TRIPS in order
to legally protect TK. Third, they may simply wish to exploit the issue, not
out of a sense of justice on behalf of their traditional peoples and
communities, or even because TK protection provides competitive trade
advantages, but because they are looking for concessions on TRIPS from
developed countries. Lastly, developing countries may be using the issue
as a means of obtaining concessions in negotiations on other WTO
agreements. Each of these possible reasons is relevant to compliance. This
is because these countries know that a failure by the developed countries to
treat this issue seriously can best be responded to by reducing their
commitment for compliance with an agreement that most of them quite
obviously do not consider to be favorable to their economic interests
anyway. This Article should help us to understand what is really going on,
and what it implies for compliance with TRIPS and for compliance theory
more generally.
Having made these points, this is an excellent opportunity
graciously provided by the editors of the Journal of International Law to
call attention to TK as an important issue in its own right, whose resolution
can be attained by the contributions of scholars working in many other
areas of international law.
17 The Philippines, Peru, India and Costa Rica are notable exceptions.
18 This was a term allegedly used by a WTO official, though it is unclear whether he was
referring to TK.
I. TRADITIONAL KNOWLEDGE AND ITS ROLE IN THE GLOBAL ECONOMY
A. Definitionaldilemmas: what is different about

traditionalknowledge?
As a concept, traditional knowledge is difficult to define and to
distinguish from other knowledge. One way to deal with this difficulty is to
avoid a definition altogether and to say simply that TK is the knowledge
held by traditional peoples and communities. 9 This is not entirely helpful,
however, since TK can persist and even be revived in urbanized western
societies. Such societies may also adopt elements of TK systems from
other societies. 20 Another response is to deny there is such a thing as TK;
to argue essentially that there is just knowledge. This Article argues that
TK does exist and that it has both similarities and differences with the
scientific knowledge of western and westernized societies. The following
is a brief description of these similarities and differences with particular
reference to a sub-category of TK commonly referred to as traditional
ecological knowledge (TEK).
Given that traditional peoples and communities provide most of the
world's cultural diversity, it is probably inadvisable to define TK except in
fairly general terms. Clearly traditional knowledges are incredibly diverse
not just between different peoples, groups, and communities, but within
them too. Therefore, any definition should be quite general.
Anthropologist Martha Johnson's definition of traditional ecological
knowledge (which she calls environmental knowledge) is helpful: "a body
of knowledge built by a group of people through generations living in close
contact with nature. It includes a system of classification, a set of empirical
observations about the local environment, and a system of self-management
that governs resource use.' In this sense, TEK is systematic and empirical,
and therefore, scientific. Similarly, those anthropologists and other
academics who use the ethnoscience approach to studying TK relating to
2
nature? treat we
fields. Thus thishave
knowledge as being
ethnobiology, divisible into
ethnozoology, western scientific
and ethnomedicine, for
19 This is the approach adopted by the Convention on Biological Diversity.

The actual
phrase adopted in Article 8G) of the CBD is "knowledge, innovations, and practices of
indigenous and local communities embodying traditional lifestyles." See Convention on
Biological Diversity,supra note 2, at art. 80).
20 Acupuncture and tai chi are popular examples.
21 Martha Johnson, Research on TraditionalEnvironmental Knowledge: Its Development
and Its Role, in LORE: CAPTURING TRADITIONAL ENVIRONMENTAL KNOWLEDGE 3, 4 (Martha
Johnson ed., 1992).
22 See Paul Sillitoe, What, Know Natives? Local Knowledge in Development, 6 Soc.
ANTHROPOLOGY 203, 207-09 (1998).
example. Dividing TEK into such sub-categories is likely to lead people to

consider TEK as being scientific.
But if traditional peoples and communities indeed practice science,
in what ways is TEK distinguishable? Based on a literature survey,
Johnson identifies several ways that TEK is generated, recorded, and
transmitted, distinguishing it from western scientific knowledge. 23 Thus,
TEK:
- is recorded and transmitted through oral tradition;

- is learned through observation and hands-on experience;
- is based on the understanding that the elements of matter have
a life force. (All parts of the natural world are therefore
infused with spirit);
- does not view human life as superior to other animate and
inanimate elements: all life-forms have kinship and are
interdependent;
- is holistic (whereas western science is reductionist)
- is intuitive in its mode of thinking (whereas western science is
analytical);
- is mainly qualitative (whereas western science is mainly
quantitative);
- is based on data generated by resource users. (As such it is
more inclusive than western science, which is collected by a
specialized group of researchers who tend to be more selective
and deliberate in the accumulation of facts);
- is based on diachronic data (whereas western science is largely
based on synchronic data);
- is rooted in a social context that sees the world in terms of
social and spiritual relations between all life-forms. (In
contrast, western science is hierarchically organized and
vertically compartmentalized); and
- derives its explanations of environmental phenomena from
cumulative, collective and often spiritual experiences. Such
explanations are checked, validated, and revised daily and
seasonally through the annual cycle of activities. 24
While these generalizations are helpful, it is important not to

exaggerate the differences either. A great deal of hybridization and cross-
fertilization takes place to the extent that it would be incorrect to define TK
as an entirely discrete category of knowledge. As the British anthropologist
23 Johnson, supra note 21, at 7-8.

24 See id.
Paul Sillitoe explains, the same may be said for "western science":
"scientific knowledge is indisputably anchored culturally in western
society, where it largely originated, although with the contemporary
communications revolution and cultural globalization, hybridization is
occurring and blurring distinctions between scientific and other knowledge
on socio-cultural grounds." 25Use of "traditional" suggests a certain lack of
novelty. Russel Barsh, an indigenous peoples scholar and representative,
disagrees with such an interpretation:
... [W]hat is 'traditional' about traditional knowledge is not its antiquity,

but the way it is acquired and used. In other words, the social process of
learning and sharing knowledge, which is unique to each indigenous
culture, lies at the very heart of its 'traditionality.' Much of this
knowledge is actually quite new, but it has a social meaning, and legal
character, entirely unlike the knowledge indigenous peoples acquire from
settlers and industrialized societies. [emphasis added]. 26
Although the Four Directions Council separates "traditional knowledge"

from knowledge acquired from outsiders, this may not always be easy to do
given the likely extent of cross-cultural knowledge exchange and
hybridization.
In short, then, there is a category of knowledge that we may call
traditional knowledge, of which traditional ecological knowledge is a sub-
category, and these are different from western scientific knowledge in some
fundamental respects. Nonetheless, some TK is, at least to some degree,
scientific even if the form of expression may seem highly unscientific to
most of us. For example, an indigenous person and a scientist may both
know that quinine bark extract can cure malaria. But they are likely to
describe what they know in very different ways that may be mutually
unintelligible (even when communicated in the same language). 27
B. Where does traditionalknowledge come from?

The subject of authorship in TK is more than a theoretical issue; it
is a political one too. Many commentators, especially those supporting the
25 Sillitoe, supra note 22, at 205.

26 Russel Lawrence Barsh, Indigenous Knowledge and Biodiversity, in Indigenous
Peoples, Their Environments and Territories, in CULTURAL AND SPIRITUAL VALUES OF
BIODIVERSITY 73, 74-75 (Darrell A. Posey ed., 1999).
27 It might be countered that, since the indigenous peoples of western Amazonia do not
really understand why quinine works, their quinine-based treatment is a technology that is
not science-based. If that is so, however, one could infer that many western 'scientific'
applications ought likewise to be 'downgraded' to technologies, since they are not based on
a complete understanding of why they work.
20011 TRIPS AND TRADITIONAL KNOWLEDGE
rights of traditional peoples and communities in the developing world,

emphasize the collective nature of creative processes in traditional societies,
which they contrast with the individualistic view of creativity (and of
ownership in the end-product of that creativity) that prevails in western
societies. This assumption will be considered further below. At this stage,
however, it is important to stress that generalizations should be made with
caution. The sources of much TK are difficult to trace, either because two
or more peoples or communities share the knowledge, or because the author
is simply unknown. And for some traditional peoples and communities it
would be presumptuous to attribute authorship to a human being anyway.
According to the ethnoecologist and indigenous rights activist Darrell
Posey, "indigenous singers... may attribute songs to the creator spirit....,28
Australian lawyer Michael Blakeney states, "[i]f the beliefs and practices of
Australian indigenous peoples are any guide, authorship may reside in pre-
human creator ancestors ... Authorship is replaced by a concept of
interpretation through initiation.' 29 But for other groups, this may not be
true at all. For example, many of the 10,000 "grassroots innovations"
documented by the India-based Honeybee Network are attributed to and
claimed by individuals.30
C. Traditionalknowledge in the global economy
TK plays an important role in the global economy. Traditional
peoples and communities are responsible for the discovery, development,
and preservation of a tremendous range of medicinal plants, health-giving
herbal formulations, and agricultural and forest products that are traded
internationally and generate considerable economic value.
TK is also used as an input into modem industries such as
pharmaceuticals, botanical medicines, cosmetics and toiletries, agriculture,
and biological pesticides. In most cases, corporations that can harness
advanced scientific, technological, and marketing capabilities capture
virtually all of the value added.
Attempts have been made to estimate the contribution of TK to
modem industry and agriculture. For pharmaceuticals, the estimated
market value of plant-based medicines sold in OECD 31 countries in 1990
28 Posey, supra note 4, at 17.

29 Michael Blakeney, The Protection of Traditional Knowledge under Intellectual
PropertyLaw, 22 EUR. INTELL. PROP. REV. 251,252 (2000).
30 For a discussion by the Director of the Honeybee Network regarding the origin of the
knowledge leading to such 'grass roots innovations,' see Anil K. Gupta, Making Indian
Agriculture More Knowledge Intensive and Competitive: The Case of Intellectual Property
Rights, 54 INDIAN J. OFAGRiC. ECON. 342, 346-52 (1999).
31 Organisation for Economic Cooperation and Development (OECD) is an international
organization comprised of 30 member countries that share a commitment to democratic

government and the market economy. The organization maintains working relationships
was $61 billion.32 Many of the pharmaceutical companies are likely to have
used TK leads in their product development, as demonstrated by biochemist
Norman Farnsworth's estimate that of the 119 plant-based compounds used
in medicine worldwide, 74 percent had the same or related uses as the
medicinal plants from which they were derived.3 3
A study of the use and value of traditional crop varieties (landraces)
for rice breeding in India calculated that rice landraces acquired from India
and overseas contributed 5.6 %, or an annual present value of the benefits
of $6.1 million, to India's rice yields. 34 There are no reliable estimates of
the total contribution of landraces to the global economy. However,
assuming that India's landraces contribute equally to other countries where
rice is cultivated, the global value added to rice yields by use of landraces
can be estimated at $400 million per year.
But accurately estimating the full value of TK in monetary terms is
impossible, because TK is often an essential component in the development
of other products and because most TK-derived products never enter
modem markets. In any case, a great deal of TK is likely to have 36 cultural
or spiritual value that cannot be quantified in any monetary sense.
The industrial demand for TK should not be overestimated either.
While enhanced abilities to screen huge quantities of natural products,
analyze, and manipulate their DNA structures might suggest that
bioprospecting will become more popular, it seems more likely that
advances in biotechnology and new drug discovery approaches based, for
example, on combinatorial chemistry, human genomics, and "proteomics"
with 70 other countries. NGOs and civil society. as well as produces publications and
statistics to help governments tackle the economic, social and governance challenges of a
globalized economy. See, OECD webpage, at http://www.oecd.org.
32 Peter Principe, Economics and Medicinal Plants, in MEDICINAL PLANTS: THEIR ROLE
IN HEALTH AND BIODIVERSrrY 42, 44-45 (Timothy R. Tomlinson & Olayiwola Akerele eds.,
1998). There do not appear to be any more recent estimates.
33 Norman R. Farnsworth, Screening Plantsfor New Medicines, in BIODIVERsITY 83, 83,
91 (E. 0. Wilson ed., 1988).
34 Robert E. Evenson, Economic Valuation of Biodiversity for Agriculture, in
BIODIVERSITY, BIOTECHNOLOGY, AND SUSTAINABLE DEVELOPMENT IN HEALTH AND
AGRICULTURE: EMERGING CONNECTIONS 153, 162 (1996).
35 U.N. TDBOR, Systems and National Experiences for Protecting Traditional
Knowledge, Innovations and Practices: Background Note by the UNCTAD Secretariat,
Agenda Item 3, at 6, U.N. Doe. TD/B/COM.1/EM.13/2 (Aug. 22, 2000), available at
www.unctad.org/trade._env/index.htm.
36 See Darrell A. Posey, Preface to CULTURAL AND SPIRITUAL VALUES OF BIODIVERSITY,
at xvii, xvii (Darrell A. Posey ed., 1999).

will in the long37 term reduce industrial interest in natural products and its
associated TK.
II. WHOSE KNOWLEDGE IS IT ANYWAY?
The fact that TK is being so widely disseminated and commercially

exploited with such a small proportion of the benefits flowing back to
provider peoples and communities raises the question of ownership. Who
owns TK according to traditional peoples and communities? And who
owns TK according to most national legal systems and the international IPR
regime?
Many commentators argue that traditional peoples and
communities are characterized by a strong sharing ethos with respect to
their knowledge and resources. 38 There is a great deal of truth in this, but
this does not mean that everything is shared with everybody. The
anthropological literature reveals that such concepts as ownership and
property rights - or at least close equivalents to them - also exist in most, if
not all, traditional societies. 39 But to assume that there is a generic form of
37 The best-known company to adopt this approach in developing new drugs was
Shaman Pharmaceuticals. Facing the threat of closure, however, the company left the
pharmaceuticals sector and entered the market for botanical medicines. Consequently, the
economic case for ethnobioprospecting has been notably weakened. For general information
on the situation of Shaman Pharmaceuticals, see the company website, at
http://www.shamanbotanicals.com.
38 This is the conventional wisdom among many NGOs such as Rural Advancement
Foundation International (RAFI), Third World Network (TWN), and Research Foundation
for Science, Technology and Ecology. See generally, RAF Mission Statement, at
http-//www.rafi.orgtweb/about.shtml (stating that "RAFI works in partnership with non-
governmental organizations for cooperative and sustainable self-reliance within rural
societies, through the provision of information on socio-economic and technological trends
and alternatives.., joint actions in community, regional, and global fora."); TWN website
on Biodiversity, Access, Indigenous Knowledge and IPRs, at
http://www.twnside.org.sglaccess.htm (describing the organization as an "independent non-
profit international network of organizations and individuals involved in issues relating to
development" focused on research, publication and representation of southern interests and
perspectives at various international fora); Research Foundation for Science, Technology &
Ecology Mission Statement, at http://www.vshiva.net (stating that the Foundation "works on
biodiversity conservation and protecting peoples' rights from threats to their livelihoods and
environment by centralised [sic] systems of monoculture in forestry, agriculture and
fisheries.").
39 See generally David A. Cleveland & Stephen C. Murray, The World's Crop Genetic
Resources and the Rights of IndigenousFarmers,38 CURRENT ANTHROPOLOGY 477, 477-96
(1997) (discussing aspects of the debate over the protection of indigenous farmers' rights),
and Tom Griffiths, Indigenous Knowledge and Intellectual Property: A Preliminary Review
of the Anthropological Literature (July 1993) (unpublished manuscript, on file with the
Working Group on Traditional Resource Rights, Oxford University) (discussing the concept
of exclusive rights as it is inherent in indigenous communities regarding magical
CASE W. RES. J. INT'L L. (Vol. 33:233
collective intellectual property rights ignores the intricacies and sheer

diversity of traditional proprietary systems. According to Russel Barsh, an
indigenous peoples scholar and representative:
Indigenous peoples possess their own locally-specific systems of

jurisprudence with respect to the classification of different types of
knowledge, proper procedures for acquiring and sharing knowledge, and
the nature of
4
the rights and responsibilities which attach to possessing
0
knowledge.
In an anthropology literature review by British anthropologist Tom

Griffiths, various studies on TK suggest some interesting findings that
indicate western IPR formulations are not necessarily culturally
inappropriate: 41
- The Shuar view shaman knowledge as an "exchangeable

commodity" which can be purchased. The tangible, alienable
nature of specific items of shaman knowledge is revealed by
the fact that this knowledge can be bought, sold, lent, as well
as be subject to theft.4 2
- The Miskito healers of Nicaragua value their cures as "private
property. 43
- "Secrets turn knowledge into property that can be exchanged.
• . . People throughout Melanesia swap or sell their secrets
knowledge). Shamans and other TK holder specialists may wish to restrict access to their
knowledge for reasons other than because they consider it to be their property. For example,
sacred knowledge - which may include knowledge of the therapeutic properties of plants -
is often considered dangerous if it gets into the hands of the uninitiated. In other words, they
may be concerned for the welfare of those who acquire the knowledge and try to use it. I am
grateful to Darrell Posey for this insight. See also Janet Wall Hendricks, Power and
Knowledge: Discourse and Ideological Transformation Among the Shuar, 15 AM.
ETHNOLOGIST 216, 222 (1987) (discussing the importance of the completion of an
apprenticeship for shamans).
40 Barsh, supra note 26, at 73.
41 Griffiths, supra note 39, at 16-18.
42 Hendricks, supra note 39. The Shuar are an indigenous group inhabiting the
Ecuadorian rainforest. Historically, the Shuar were an Amazonian society economically
based on horticulture and hunting, and politically based on a balance of power among
autonomous groups. Id.
43 Philip A. Dennis, Herbal Medicine Among the Miskito of Eastern Nicaragua, 42
EcON. BOTANY 16, 16 (1988).
and/or their knowledge copyrights for pigs, money, and other

goods." 44
- The personalized nature of healing knowledge can induce a de
facto private knowledge of botanical resources. For the healer,
these secret plants are a symbolic extension of his secret
knowledge. Langdon states that among the Siona, each
shaman maintains ownership rights over his personal
cultivation of yajg, a botanical creation used for supernatural
healing. Anyone who uses the shaman's yaji without his
permission will be cursed by evil spirits. According to Siona
shaman, yaj6 is only co-owned by the shaman's spirit guide.45
Evidently, customary rules governing access to and use of

knowledge do not necessarily differ all that widely from western
intellectual property formulations. Nonetheless, IPR regulators and courts
dealing with IPR disputes have rarely paid any heed to customary law, nor
seen any reason why they should do so. 4 6 In most countries, TK from
anywhere in the world that has not been kept secret is generally treated as
being the intellectual property of nobody. Therefore, this TK can be used
freely by anyone who acquires it.
The case of the United States, however, requires that this
generalization be qualified. According to U.S. patent law, undocumented
knowledge held only in foreign countries does not form the state of the
relevant art.47 Unfortunately, this loophole is helpful only for those who
44 LAMONT LINDSTROM, KNOWLEDGE AND POWER IN A SOUTH PACIFIC
SOCIETY 119
(1990).
45 E. Jean Langdon, Las Clasificacionesdel Yaji Dentro del Grupo Siona: Etnobotanica,
Etnoquimicae Historia,46 AMtRICA INDfGENA 101, 102-04 (1986).
46 A rare exception is a 1995 copyright case in Australia. See Milpurruru v. Indofurn
Pty. Ltd. (1994) 130 A.L.R. 659. This case involved the unauthorized importation and sale
by an Australian firm of carpets manufactured in Vietnam on which had been reproduced the
designs of three living and five deceased Aboriginal artists. According to Blakeney, this
case "establishe[d] the principle that where the unauthorised reproduction of such works
involves a breach of copyright, customary Aboriginal laws on the subject may be taken into
account in quantifying the damage which has been suffered." Michael Blakeney, Communal
Intellectual Property Rights of Indigenous Peoples in CulturalExpressions, 1 J. OF WORLD
INTELL PROP. 985, 988 (1998).
47 A person shall be entitled to a patent unless -
(a) the invention was known or used by others in this country, or patented or described in a
printed publication in this or a foreign country, before the invention thereof by the applicant
for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign
country or in public use or on sale in this country, more than one year prior to the date of the
application for patent in the United States... 35 U.S.C. § 102 (1994).
would claim TK as their own invention. Thus, when a U.S. patent on the
use of turmeric powder for wound healing was granted to the University of
Mississippi Medical Center, the Indian government agency that challenged
the patent could not have succeeded by proving that the "invention" was
common knowledge in India, although this was indeed true. It was only
when the agency provided published documentation to this effect that the
patent was revoked. 48
Consequently, no matter how novelty and non-obviousness are
defined in patent laws, researchers and companies may be tempted to
misappropriate TK, especially in those jurisdictions where patent office
staff are known to have insufficient time or resources to conduct thorough
prior art searches and examinations.
III. WHY NOT PROTECT TK THROUGH PATENTS, COPYRIGHTS OR
TRADE SECRETS?
The following question now arises: can the IPRs that TRIPS
provides be used for the protection of TK? This part of the Article
discusses the conceptual and practical challenges inherent to the application
of copyrights,
49 patents, and trade secrets (or undisclosed information) to
TK.
A. Copyright
At the international level, the idea of applying copyright law to
protect intangible cultural expressions, including those of traditional
peoples and communities, dates back to the 1960s. The term commonly
applied to such manifestations of culture was not TK but folklore, or
"expressions of folklore."50
The possibility of protecting folklore by means of copyright was
raised at the Diplomatic Conference of Stockholm in 1967 for the revision
of the Berne Convention. While the issue was not fully resolved, the
following - and it must be said rather unsatisfactory - provisions were
48 PRABUDDHA GANGULI, INTELLECTUAL PROPERTY RIGHTS: UNLEASHING THE

KNOWLEDGE ECONOMY 155-56 (2001).
49 The scope of this Article does not consider other IPRs included in TRIPS, such as
trademarks and geographical indications, since these are essentially marketing tools rather
than means to protect knowledge. This is not to say that such IPRs cannot be used to protect
TK-based products associated with such a mark or indication.
so For example, in 1982 the Model Provisions for National Laws on the Protection of
Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions were
adopted by a Committee of Governmental Experts jointly convened by UNESCO and
WIPO. See Paul Kuruk, Protecting Folklore under Modem Intellectual Property Regimes:
A Reappraisalof the Tensions between Individual and Communal Rights in Africa and the
United States, 48 AM. U. L. REV. 769, 815 (1999).
included in the Stockholm Act of the Convention, and retained in the most
recent revision adopted in Paris in 1971:51
In the case of unpublished works where the identity of the author is

unknown, but where there is every ground to presume that he is a national
of a country of the Union, it shall be a matter for legislation in that
country to designate the competent authority who shall represent the
author and shall be entitled
52 to protect and enforce his rights in the
countries of the Union.
Countries of the Union which make such designation under the terms of
this provision shall notify the Director General [of WIPO] by means of a
written declaration giving full information concerning the authority thus
designated. The Director General shall at53 once communicate this
declaration to all other countries of the Union.
Over the years many traditional peoples and communities have

condemned the unauthorized reproduction of their fixed and unfixed
cultural expressions such as artistic works, handicrafts, designs, dances, and
musical and dramatic performances. Not only do outsiders frequently
neglect to ask permission to reproduce these items, but also fail to
acknowledge the source of the creativity, and even pass off productions and
works as authentic expressions or products when they are not. Yet,
traditional peoples and communities find it difficult to prevent such
practices. Could the copyright provisions of TRIPS provide a solution?
In Australia, Aboriginal artists have on a few occasions
successfully sued on the basis of copyright infringement.54 Copyright law
is also being used by the Dene of Canada, as well as several other
indigenous groups worldwide, to control use by others of compilations of
their TK.55 This suggests that as developing countries fully comply with
the levels of enforcement required by TRIPS, more and more peoples and
communities will be able to avail themselves of copyright protection.
51 See Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886,
828 U.N.T.S. 221 (Paris revision, July 24, 1971).
52 ld. at art. 15.4(a).
53 Id. at art. 15.4(b).

54 See Blakeney, supra note 29, at 253; Christine Haight Farley, ProtectingFolklore of
Indigenous Peoples: Is Intellectual Property the Answer, 30 CONN. L. REv. 1, 4-7 (1997);
and Kamal Puri, Preservation and Conservation of Expressions of Folklore, COPYRIGHT
BULL, Oct.-Dec. 1998 at 5, 6, 10-12.
55 See Tom Greaves, Tribal Rights, in VALUING LOCAL KNOWLEDGE: INDIGENOUS
PEOPLES AND INTELLECTUAL PROPERTY RIGHTS 25, 31 (Stephen B. Brush & Doreen
Stabinsky eds., 1996).
Despite these successes, copyright law has some fundamental

limitations in the folklore context. First, whereas copyright requires an
identifiable author, the notion of authorship is a problematic concept in
many traditional societies. Second, copyright has a time limit, whereas for
folkloric expressions that are important elements of people's cultural
identity it would be more appropriate to have permanent protection. Third,
copyright normally requires works to be fixed. However, among some
traditional groups, folkloric expressions are not fixed but are passed on
orally from generation to generation. This normally excludes such
expressions from eligibility for copyright protection.
1. Authorship is a problematic concept in many

traditional societies.
This point was made earlier and was articulated very coherently in
a statement issued by a group of academics and activists at a 1993
conference on "cultural agency/cultural authority, politics and poetics of
intellectual property in the post-colonial era." 56 The statement, known as
the Bellagio Declaration,57 argues that IPRs, and copyright law especially,
unduly emphasize the role of individuals in knowledge creation and
consequently fail to reward those knowledgeable communities and
collaborators that provided the intellectual raw material that formed the true
basis for the copyrighted work or patented invention. 58 In other words,
creative expressions and collective innovations, such as those of traditional
communities, are ineligible for protection yet may legally be treated as free
inputs for industrial R&D and the copyright industries. According to James
Boyle of Duke University:
56 JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF
THE INFORMATION SOCIETY 192 (1996).

57 See The Bellagio Declaration, Conference on Cultural Agency/Cultural Authority,
Mar. 11, 1993, reprintedin BOYLE supra note 56. According to the Declaration,
contemporary intellectual property law is constructed around the notion of the author, the
individual, solitary and original creator, and it is for this figure that its protections are
reserved. Those who do not fit this model - custodians of tribal culture and medical
knowledge, collectives practicing traditional artistic and musical forms, or peasant
cultivators of valuable seed varieties - are denied intellectual property protection.
58 For the same view expressed in a more detailed way by people who helped to write the
declaration see BOYLE, supra note 56; Peter Jaszi & Martha Woodmansee, The Ethical
Reaches of Authorship, 95 THE S. ATLANT'C Q. 947 (1996). See also SHIVA, supra note 7, at
21. According to Shiva: "IPRs exploit creativity whilst killing its very source". This
position did not prevent her from claiming copyright and asserting her moral rights over the
book containing this phrase, suggesting a surprising degree of ambivalence about IPRs given
her famously virulent anti-IPR rhetoric.
The author concept stands as a gate through which one must pass in order
to acquire intellectual property rights. At the moment, this is a gate that
tends disproportionately to favor the developed countries' contributions to
world science and culture. Curare, batik, myths and the dance 'lambada'
flow out of developing countries, unprotected by intellectual property
rights, while Prozac, Levis, Grisham and the movie 'lambada!' flow in -
protected by a suite of intellectual property laws, which in turn are backed
59
by trade sanctions.
According to this view, then, copyright law is more likely to be

used to undermine the interests of traditional peoples and communities than
to promote them. While this is probably true, it is not a reason to discount
copyright completely, since it is not essential to name an author to acquire
copyright protection. Indeed, the copyright industries have -- with the help
of supportive copyright legislation -- devised ways of -making authors
disappear. For example, this can be achieved by taking advantage of the
work-for-hire doctrine ° and, in the United Kingdom, requiring authors to
waive their moral rights. 6' As a result, a community or organization
representing the work could likewise hold copyright over a work
originating in that community whether or not there is an identifiable author.
2. Important folkloric expressions should have

permanent protection.
Copyrights have time limits and most people would probably agree
that it is a good thing they do. But for many traditional peoples and groups
certain expressions and works are central to their cultural identity and
should therefore never be fully released into the public domain, at least not
to the extent that others would be free to do whatever they like with them.
This is not to say that copyright protection should be permanent for
culturally significant expressions and works, but that copyright law is
simply not the appropriate approach.
59 BOYLE, supra note 56, at 125.

60 See Peter Jaszi, Toward a Theory of Copyright: The Metamorphosesof "Authorship",
1991 DUKE L. J. 455,485-491.
61 Moral rights include the right of authors to be identified as such, and to object to
having their works altered in ways that would prejudice their reputation. See W. R.
CORNISH, INTELLECTUAL PROPERTY: PATENTS, COPYRIGHT, TRADEMARKS, AND ALLIED
RIGHTs 443-445 ( 4 !h ed. 1999).
3. The fixation requirement would exclude many

folkloric expressions from protection.
Conventionally, copyright protects works and not unfixed
expressions. Since communities often do not have the means of recording
their cultural expressions, they cannot acquire copyright protection.
This bar to protection can be removed if the will exists to do so.
Several countries have incorporated protection of folkloric expressions into
their national copyright laws. These include Tunisia in 1967, Bolivia in
1968, and Kenya in 1975.62 Given the way copyright has been transformed
to, for example, treat computer programs as literary works, it hardly seems
radical to extend the definition of copyrightable subject matter to unfixed
cultural expressions or even to create a new IPR based on copyright for
such an end. 63 However, the most powerful actors in international IPR
negotiations are still resistant to the idea of modifying international
copyright rules to more effectively protect folklore. And to date,
developing country proposals to reform TRIPS to protect TK have paid
little attention to copyright.
Unfixed cultural expressions can, to a limited extent, also be
protected under performers' rights in cases where performances have been
fixed without the authorization of the original performers. TRIPS partially
incorporates the 1961 Rome Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations, allowing
performers to prevent the recording and reproduction of their performance
on a phonogram, and the broadcast and public communication of a live
performance.65 Still, neither the Rome Convention nor TRIPS makes any
reference to folklore. The 1996 WIPO Performances and Phonograms
Treaty does, however, define "performers" as "actors, singers, musicians,
dancers, and other persons who act, sing, deliver, declaim, play in, interpret,
66
or otherwise perform literary or artistic works or expressions offolklore."
62 WORLD INTELLECTUAL PROP. ORG., INTELLECTUAL PROPERTY READING MATERIAL 53

(2"d ed. 1998). See also generally Kuruk, supra note 50 (citing more examples from Africa).
63 This point does not suggest that computer programs are unworthy of protection, but
that they are hardly works of literature in the strict sense.
64 See J.H. Reichman, The TRIPS Agreement Comes of Age: Conflict or Cooperation
with the Developing Countries? 32 CASE W. RES. J. INT'L L. 441, 452 (2000). It may
actually be quite difficult even for sympathetic western trade negotiators to understand why
folklore is so important for people in developing countries. This is because folklore in
western societies is no longer an integral part of most people's lives and is generally
considered as archaic or quaint.
65 TRIPS Agreement, supra note 9, art. 14, para. 1.
66 WIPO Performances and Phonograms Treaty, Dec. 20, 1996, art. 2(a), WIPO Doc.
CRNR/DC/95, available at http://www.wipo.org. (emphasis added).
It is possible that a future revision of TRIPS will incorporate this treaty. 67

Nonetheless, the current scope of protection is quite narrow.
Apart from these theoretical difficulties, there are practical
obstacles, too. For example, the entity wishing to assert its copyright - or
indeed to claim any other IPR - must have a legal personality. Such
collective groups as rural communities and smaller groups within
communities rarely have 68 the status of being juristic persons according to a
national legal system.
B. Patents
Michael Blakeney notes that
[t]he expression 'Traditional Knowledge' . . . accommodates the concerns

of those observers who criticize the narrowness of 'folklore'. However, it
significantly changes the discourse. Folklore was typically discussed in
copyright, or copyright-plus terms. Traditional knowledge would be
broad enough to embrace traditional knowledge of plants and animals in
medical treatment and as food, for example. In this circumstance the
discourse would shift from 69the environs of copyright to those of patent
law and biodiversity rights."
But can patent law actually provide promising solutions? I address this
question by considering the most commonly expressed objections to the
patent approach and assessing their validity. The main objections are as
follows:
67 In fact the United States and the European Union have already suggested that TRIPS
be revised to incorporate the Treaty. The United States is actively encouraging other
countries to sign and ratify the Treaty through, for example, bilateral trade agreements
containing such a requirement. The interest of the United States in a treaty on (inter alia)
phonograms is apparently quite recent given that it has never been a party to the 1961 Rome
Convention. Carlos Correa, Reviewing the TRIPS Agreement, in UNITED NATIONS
CONFERENCE ON TRADE AND DEVELOPMENT, A POSITIVE TRADE AGENDA FOR DEVELOPING
COUNTRIES: ISSUES FOR FUTURE TRADE NEGOTIATIONS 221, 232, U.N. Doc.
UNCTAD/ITCD/TSB/10, U.N. Sales No. E.00.II.D.8 (2000). See also OFFICE OF THE U.S.
TRADE REPRESENTATIVE, 2001 SPECIAL 301 REPORT 2 (2001), available at
http'J/www.ustr.gov/enforcement/special.pdf (last visited Sept. 26, 2001). Not surprisingly,
U.S. interest in the Treaty has nothing to do with folklore.
68 See Barsh, supra note 26, at 75.
69 Michael Blakeney, What is TraditionalKnowledge? Why Should it be Protected?Who
Should Protect it? For Whom?: Understanding the Value Chain, 3 WIPO Doc.
WIPO/IPTK/RT/99/3 (Oct. 6, 1999), available at
http://www.wipo.int/englmeetings/1999/folklore/indexrt.htm.
- Traditional knowledge is collectively-held and generated

while patent law treats inventiveness as an achievement of
individuals.
- Patent applicants must supply evidence of a single act of
discovery.
- Patent specifications must be written in a technical way that
examiners can understand.
- Applying for patents and enforcing them once they have been
awarded is prohibitively expensive.
1. Traditional knowledge is collectively held and
generated while patent law treats inventiveness as an
achievement of individuals.
It is often asserted that because TK is collectively held and
generated, patent law is fundamentally incompatible. This is because
patents require that an individual inventor be identifiable. Yet while TK is
merely part of the public domain, a new and non-obvious modification to
this knowledge achieved by an individual can be the subject of a patentable
invention.
This particular argument against the compatibility of IPRs is
persuasive in the copyright context but does not fit the patent situation so
easily. In the late nineteenth century, large research-based corporations
were already finding the heroic inventor paradigm to be rather
inconvenient. They much preferred to treat invention as a collective and
routinized corporate endeavor in which individual flashes of genius were
unnecessary. Through their lobbying efforts, patent law and doctrine began
to accommodate the collective notion of inventorship from as early as the
1880s, first in Germany and then elsewhere. 70 By 1941, Charles Kettering
of General Motors openly admitted that "a one-man invention isn't very
possible these days," and argued that it would be unfair to reward
individuals for what were basically collective endeavors. 7'
70 For industry, there were two advantages. First, companies sought to accumulate
massive patent holdings in order to block research by rival companies and dominate markets.
This would have been more difficult to accomplish had the companies been required to
demonstrate a genuine flash of genius or inventive step. Second, companies preferred to
employ inventors rather than compete with them. These inventors were then required to
assign their inventions to the companies. Treating inventorship as a collective activity
placed each scientist in a more subordinate position than would have been the case
otherwise. See GRAHAM DUTFIELD, INTELLECTUAL PROPERTY RIGHTS AND THE LIFE SCIENCE
INDUSTRIES: A TWENTIETH CENTURY HISTORY (forthcoming 2002).
71 Larry Owens, Patents, the "Frontiers" of American Invention, and the Monopoly
Committee of 1939: Anatomy of a Discourse,32 TECH. AND CULTURE 1076, 1081 (1991).
This suggests that the collective nature of TK production and

ownership need not be a bar to the acquisition of a patent. It certainly has
not been for corporations.
2. Patent applicants must supply evidence of a single

act of discovery.
As was indicated earlier, while there need be no demonstrable flash
of genius, patent specifications must provide evidence of an inventive step
or an act that would not be obvious to one skilled in the art. Applying the
same criteria to TK would exclude most of it from patentability. But the
same is true of western scientific knowledge, much of which is just as
cumulative and equally unpatentable. So this may not be a valid objection
to the patent approach.
3. Patent specifications must be written in a technical
way that examiners can understand.
It would be extremely difficult for a shaman or indigenous group to
complete a patent specification. While a useful characteristic of a plant or
animal may be well known to such an individual or group, the inability to
describe the phenomenon in the language of chemistry or molecular biology
would make it almost
72 impossible to apply for a patent, even if the fees
could be afforded.
This is a situation that gives companies an advantage. Patent rules
in most countries require a company to do more than describe the mode of
action or the active compound to acquire a patent. Minimally, it would
probably need to come up with a synthetic version of the compound or a
purified extract. But in the absence of a contract or specific regulation, the
company would have no requirement to compensate the communities
concerned.
4. Applying for patents and enforcing them once they

have been awarded is prohibitively expensive.
The lack of economic self-sufficiency of many traditional
communities, the unequal power relations between them and the corporate
world, and the high cost of litigation would make it very difficult for them
to protect their IPRs through the patent system. In the United States, for
example, it costs about $20,000 to prepare and prosecute a patent
application, including legal and filing fees. 73 This is well beyond the
72 Though one may be able to if one could describe a specific formulation, even in fairly
non-technical terminology.
73 John H. Barton, Intellectual Property Rights and Innovation, in CAPTIAL FOR OUR
TIME: THE ECONOMIC, LEGAL, AND MANAGEMENT CHALLENGES OF INTELLECTUAL CAPITAL
123, 127 (Nicholas Imperato ed., 1999).
256 CASE W. RES. J. INT'L L. [Vol. 33:233
financial means of most communities. Even though patent fees in some

jurisdictions may be reduced for small and medium-sized enterprises, the
cost of acquiring a patent is still likely to be prohibitive.
On the face of it, the use of patent law has some genuine
possibilities. Among the options that might be considered are: (a)
traditional peoples, communities or their representative organizations could
apply for patents; (b) they could share ownership with companies who
would apply on their behalf; or (c) companies could file patents, but with
community members named as inventors possessing contractual rights of
compensation. Nevertheless, most traditional peoples and communities
seem to be fundamentally opposed to patents, and few - if any - are rushing
to patent offices to submit their applications (or are likely to in the future).
There are various reasons why traditional peoples and communities are
skeptical that patent law can be utilized to further their interests. Some of
these are practical while others are ideological. The main practical
difficulty that deters traditional peoples and communities from filing
patents is the expense of doing so, which includes payments to the patent
attorney hired to complete the application, and the filing, prosecution, and
renewal fees. Legally enforcing the patent against infringers is likely to be
even more expensive.
There are other concerns about patents that have provoked
condemnation by traditional peoples and communities and others. First, as
we have seen, the United States does not recognize undocumented
knowledge held only abroad as prior art. Therefore, it is legally permissible
simply to copy this knowledge and apply for a patent. Second, patents with
overly broad claims encompassing non-original products or processes are
sometimes mistakenly awarded. Due to poverty, few if any indigenous
groups could mount legal challenges to patents on the grounds that their
knowledge or, say, landraces, have been fraudulently or erroneously
claimed. Supporters of patents argue that you cannot patent traditional
knowledge. While patent law generally supports such a defense, "the state
of the art" is to some extent subjective, especially from a cross-cultural
perspective. Lord Hoffman of the British House of Lords made this point
in a 1995 patent case:
There is an infinite variety of descriptions under which the same thing

maybe known. Things may be described according to what they look
like, how they are made, what they do and in many other ways. Under
what description must it74be known in order to justify the statement that
one knows that it exists?
74 Merrell Dow Pharmaceuticals Inc and Another v. HN Norton & Co. Ltd., 33 INTrLL.
PROP. REP. 10, R.P.C. 76 (1996).
He went on to use the example of quinine:
The Amazonian Indians have known for centuries that cinchona bark can
be used to treat malarial and other fevers. They used it in the form of
powdered bark. In 1820, French scientists discovered that the active
ingredient, an alkaloid called quinine, could be extracted and used more
effectively in the form of sulphate of quinine. In 1944, the structure of
the alkaloid molecule (CI02 4N20 2) was discovered .... Does the Indian
know about quinine? My Lords, under the description of a quality of the
bark which makes it useful for treating fevers, he obviously does. I do
not think it matters that he chooses to label it in animistic rather than
chemical terms. He knows that the bark has a quality which makes it
good for fever and that is one description of quinine. On the other hand,
in a different context, the Amazonian Indian would not know about
quinine. If shown pills of quinine sulphate, he would not associate them
with the cinchona bark. He does not know quinine under the description
of a substance in the form of pills. And he certainly would not know
about the artificially synthesised alkaloid. 75
To give a more recent example, Phyllanthus amarus, a medicinal

plant used in India for treating various ailments including jaundice, was
discovered in tests to show effectiveness against viral hepatitis-B and E.
patent7 6
Subsequently, the Fox Chase Cancer Center was awarded a U.S. 77
the plant.
for a pharmaceutical preparation comprising an extract of
While the invention was sufficiently new, useful and non-obvious to be
patentable, Indian ayurvedic healers are unlikely to be as impressed as the
Patent and Trademark Office examiner who granted the patent.
This evidences that, while patent law has been contoured in ways
that tend to be highly supportive of corporate interests, the demands of
traditional peoples and communities are rarely, if ever, taken into account
when patent regulations are reformed.7 8 To traditional peoples and
communities this result is unjust.
75 Id. at 10-11.
76 U.S. Patent No. 4,673,575 (issued Jun. 16, 1987) (A pharmaceutical preparation
comprising the methanol extractable components of Phyllanthusniruri L administered to
patients suffering from hepatitis B virus infection to inhibit the growth of the virus).
77 Darshan Shankar et al., CulturalRichness of Green Pharmacy, COMPAS NEWSL., Oct.
1999, at 10, 10-11, available at
http.//www.etcint.org/COMPAS%20Newsletter/No2/lntro_-2.html (last visited Sept. 26,
2001).
78 This is demonstrated by the unwillingness of government policy makers to seriously
consider proposals that patent applications, where appropriate, should contain provisions
evidencing prior informed consent by indigenous peoples providing the knowledge upon
which applicants' inventions are based. See Council Directive 98/44 of 6 July 1998 on The
Traditional peoples and communities see the globalization of patent

regulations modeled on those of the United States and Europe as a form of
neo-colonialism. Well-meaning corporate bioprospectors and patent
lawyers are likely to deny vehemently - and sincerely - that they are neo-
colonialists. But indigenous peoples, in particular, have framed the issues
that concern them in ways they consider to be completely justified by
historical experience. As far as they are concerned, the misappropriation of
their knowledge and the patenting of inventions based upon this knowledge
are just as colonialist as the seizure of their territories and their
displacement from their homelands. To them, territories, ecosystems, folk
varieties, medicinal plants, and their knowledge have always been and
continue to be treated as if they are free for the taking until they are
"discovered" by explorers, scientists, governments, corporations, and
conservation organizations and subsequently privatized. 79
One may of course counter that, unlike territories, ecosystems, and
species, new knowledge is constantly being generated and is theoretically
inexhaustible. Moreover, use of knowledge by one person does not prevent
its use by another. Nonetheless, the viewpoint of traditional peoples seems
to accurately reflect the bitter historical experience of indigenous peoples,
who tend to see western law as an imposition that negates their own
custom-based regulations. After all, if traditional peoples and communities
in WTO member states are required to accept the existence of patents, of
which they are economically prevented from acquiring for themselves, why
shouldn't their own knowledge-related regimes be respected by others? "It
is perhaps this point - that one type of IPR system is being universalized
and prioritized to the exclusion of all others - that causes most concern,
especially among those peoples and communities that cannot benefit from
what is to them an imposed system." 80
Given the above arguments, it is hardly surprising that traditional
peoples and communities are deeply reluctant to have anything to do with
patents, despite their theoretical possibilities.
C. Trade secrets
While the sharing of knowledge is common in many traditional
societies, healers and other specialist knowledge-holders as well as clans
and lineage groups are likely to have knowledge that they will not wish to
share with anyone.
Legal Protection of Biotechnological Inventions, 1998 O.J. (L213), available at LEXIS,

European Union, Legislation & Regulations, EC Legislation (excluding any informed
consent provision requirement).
79 Graham Dutfield, Rights, Resources and Responses, in CULTURAL AND SPIRITUAL
VALUES OF BIODIVERSITY, supra note 26, at 503, 505.

80 Graham Dutfield, The Public and Private Domains: Intellectual Property Rights in
TraditionalKnowledge, 21 SCI. COMM. 274, 287 (2000).
2001] TRIPS AND TRADITIONAL KNOWLEDGE 259
Trade secret protection, however, does not necessarily require that

knowledge be known only by a small number of people. According to a
1993 report of the Congressional Research Service, "if a shaman or other
individual has exclusive access to information because of his status in the
group, that individual or the indigenous group togetherprobably has a trade
secret .. ,,81 If a company obtains such information by illicit means, legal
action may then be used to force the company to pay compensation.
Conceivably, a considerable amount of TK could be protected under trade
secret law.
An experimental project based in Ecuador and supported by the
InterAmerican Development Bank is currently trying to protect TK as trade
secrets.8 2 The project, entitled "transforming traditional knowledge into
trade secrets," aims to enable traditional peoples and communities to
benefit from bioprospecting through effective trade secret protection of
their knowledge. An NGO called Ecociencia is documenting the
botanical knowledge of the participating indigenous groups, and registering
it in closed-access databases. Checks are made to see whether each entry is
not already in the public domain and whether other communities have the
same knowledge. If an entry is not in the public domain, the community or
communities with the knowledge have a trade secret. The trade secret can
then be disclosed to companies with benefit sharing guaranteed by a
standardized contract. These benefits can then be distributed among the
trade secret-holding communities and the Ecuadorian government. To date,
the database contains 8,000 entries provided by six participating indigenous
groups. Sixty percent of the uses appear so far not to have been disclosed
through publications. Already, three companies have expressed interest in
accessing the database.84
Thus, as developing countries implement the TRIPS section on
undisclosed information, the possibility exists for trade secrecy to be
deployed as a means to protect TK and to realize its commercial potential
for the benefit of the knowledge holders and their communities.
Nevertheless, overall, TRIPS does not appear to provide many
opportunities of which traditional peoples and communities can avail
themselves. On the contrary, framing the issue of TK protection in the
discourse of western intellectual property rights does not go very far unless
it is embedded in much broader-based negotiations between traditional
s Josephine R. Axt et al., Biotechnology, Indigenous Peoples,and IntellectualProperty

Rights, 93-478 CONG. REs. SERVICE REP. FOR CONGRESS 63 (1993) (emphasis added).
82 See Joseph Henry Vogel, Bioprospecting and the Justificationfor a Cartel, BuLL. OF
THE WORKING GROUP ON TRADmONALRESOURCE RIGHTS, Winter 1997, at 16, 17.

83 Id.
94 Information provided by Dr. Rocio Alarcon of Ecociencia at
the Oxford University
seminar on February 7,2001. See Notes from the Oxford University Seminar (Feb. 7,2001)
(on file with author).
260 CASE W. RES. J. INT'L L. (Vol. 33:233
peoples and communities, national governments, businesses, and scientists

in which the most fundamental concerns of these peoples and communities,
such as self-determination (for indigenous peoples), territorial rights, and
human rights, are openly and comprehensively addressed. But, as the next
section shows, while this may be true, many governments do find it
advantageous to frame TK protection as an IPR issue, and therefore one
that is trade-related.
IV. THE ROLE OF TK IN INTERNATIONAL DIPLOMACY
A. TK in 'biodiplomacy'
Until recently, IPRs was a subject mainly for specialists, and was
considered totally unrelated to international environmental law, biodiversity
conservation, or to the rights of indigenous peoples and resource-poor
farmers in developing countries. This placed IPR lawyers and business
interest groups in a strong position to influence the development of IPR law
in ways that suited their own interests. However, they are increasingly
encountering determined and well-organized opposition. Two major
catalysts are the CBD and the FAO negotiations relating to the International
Undertaking on Plant Genetic Resources (IUPGR).
Biodiplomacy and intellectual property diplomacy have to some
extent converged. There are various reasons for this. First, TRIPS requires
IPR protection for biological material such as microorganisms and plant
varieties. Second, the CBD treats biological and genetic resources as
tradable commodities subject to national sovereignty rights, and whose
transfer to developed countries is part of a quid pro quo involving
technology transfers among other benefits. Finally, the CBD and the
ongoing IUPGR negotiations have become entry-points for critical
perspectives on IPRs to be expressed and turned into policy proposals.
1. The Convention on Biological Diversity

In contrast to TRIPS, non-business NGOs played a major role not
only in encouraging governments to agree on the need for a treaty on
biodiversity conservation, but also in the development of the various drafts,
including the final text. The CBD came into force in 1993 and now has 180
contracting parties.85
The CBD is the only international treaty that specifically
acknowledges the role of traditional knowledge, innovations, and practices
in biodiversity conservation and sustainable development, as well as the
85 As of Sept. 30, 2001 there are 181 contracting parties. However, the European Union,
one of the parties, is not a state. See Parties to the Convention on Biological Diversity,
United Nations Environment Programme, June 5, 1992, at
http://www.biodiv.orgtworld/parties.asp (last visited Sept. 30, 2001).
need to guarantee their protection, whether through IPRs or other means.

Article 8(j) requires the parties to:
Respect, preserve and maintain knowledge, innovations and practices of

indigenous and local communities embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity
and promote the wider application with the approval and involvement of
the holders of such knowledge, innovations and practices and encourage
the equitable sharing of the benefits 8arising
6 from the utilization of such
knowledge, innovations and practices.
This implies that the holders have rights over their knowledge, innovations
and practices, whether or not these rights are capable of being protected by
IPRs. Still, the language is vague and it is difficult to ascertain the specific
legal requirements, if any, of the contracting parties.
To review implementation of the CBD, the Conference of the
Parties (COP), which is composed of all contracting parties, meets
periodically. IPRs are most frequently discussed in deliberations on such
topics as access to genetic resources and benefit sharing, technology
transfer, and TK. Perhaps the strongest criticisms of TRIPS and IPRs in
general have arisen from deliberations falling within the latter topic.
In fact, the COP has become a forum in which TRIPS and IPRs are
openly debated and critiqued. There are two reasons for this. First, the
national delegations consist largely of civil servants from environment
ministries. They tend to be concerned mostly about conservation,
sustainable development and food security, and often have little contact
with their trade ministry counterparts. 88 Second, there are close links
between many of the national delegations and well-organized networks of
highly articulate and politically astute activists who represent international
NGOs and attend virtually all inter-governmental meetings relating to the
CBD. The building of such links has been made easier by the openness of
CBD forums. Sometimes activists are even invited onto the official
delegations.
86 Convention on BiologicalDiversity, supra note 2, at art. 8(j).

87 Ordinary meetings of the Conference of the Parties are held every two years. COP
R.P. 4(1). The next meeting will take place at The Hague, Netherlands, in May 2002. See
Convention on Biological Diversity website, at http://www.biodiv.org.
88 There are exceptions. Some national delegations include individuals from trade and
industry ministries and even intellectual property specialists. However, these are more likely
to be from developed countries with the resources to send more delegates. For an overview
of each contracting party, see the Convention on Biological Diversity website, supra note
87.
With respect to implementation, the COP, at its third meeting

(COP-3) in November 1996, drafted Decision 111114, "Implementation of
Article 8(j)." In this decision, the COP agreed on the need to "develop
national legislation and corresponding strategies for the implementation of
Article 8(j) in consultation particularly with representatives of their
indigenous and local communities."89 Pursuant to this agreement, the CBD
Secretariat arranged the Workshop on Traditional Knowledge and
Biodiversity Conservation. The workshop took place in Madrid, Spain, in
November 1997, and was attended by representatives 9 of governments and
148 indigenous and local community organizations. 0
This was followed up at the fourth meeting of the COP (COP-4) in
May of 1998, by Decision IV/9, the "Implementation of Article 8(j) and
Related Provisions." This decision recognized "the importance of making
intellectual property-related provisions of Article 8(j) and related provisions
of the Convention on Biological Diversity and provisions of international
agreements relating to intellectual property mutually supportive, and the
desirability
91
of undertaking further cooperation and consultation with the
WIPO."
The parties agreed to establish an ad hoc, open-ended, inter-
sessional working group to address the implementation of Article 8(j) and
related provisions to be composed of parties and observers including, in92
particular, representatives of indigenous peoples and local communities.
One of the mandated activities of the working group is "to provide advice..
. on the application and development of legal and other appropriate forms
of protection for the knowledge, innovations, and practices of indigenous
and local communities embodying traditional lifestyles .... 93
The working group had its first meeting in Seville, Spain, in March
2000.9 4 Based upon its recommendations, two months later COP-5, in the
annex to Decision V/16, "Article 8(j) and Related Provisions," extended the
mandate of the working group and adopted a program of work on
89 Report of the Third Meeting of the Conference of the Parties to the Convention on
Biological Diversity, U.N. Environment Programme, Annex. II, at 90, 91, U.N. Doc.
UNEP/CBDICOP/3138 (1997), available at http:llwww.biodiv.org/doclmeetings/cop/cop-
03/official/cop-03-38-en.pdf.
90 See United Nations Environment Programme Announcement website, at
http://www.unep.org/restrict/unep.org/restrict/uneplink/y1997/nov/nov97gef.htm (last
visited Nov. 27,2001).
91 Report of the Fourth Meeting of the Conference of the Partiesto the Convention on
Biological Diversity, U.N. Environment Programme, Annex I, at 111, U.N. Doc.
UNEPICBDICOPI4I27 (1998), available at http:llwww.biodiv.org/docmeetings/cop/cop-
92 Seeid. at 111,112.
93 Id. at 112.
94 See Final Briefing, at http:llwww.iisd.calbiodiv/article8j (last visited Nov. 27, 2001).
implementation of Article 8(j) and related provisions. 95 This included the

following tasks relating to legal elements:
Task 11: The Working Group [is] to assess existing subnational, as

appropriate, national and international instruments, particularly
intellectual property rights instruments, that may have implications on the
protection of the knowledge, innovations and practices of indigenous and
local communities with a view to identifying 9
synergies between these
instruments and the objectives of Article 8(j).
Task 12: The Working Group [is] to develop guidelines that will assist
Parties and Governments in the development of legislation or other
mechanisms, as appropriate, to implement Article 8(j) and its related
provisions (which could include sui generis systems), and definitions of
relevant key terms and concepts in Article 8(j) and related provisions at
international, regional and national levels, that recognize, safeguard and
fully guarantee the rights of indigenous and local communities over their
traditional knowledge,
97
innovations and practices, within the context of the
Convention.
Nevertheless, it is difficult to envisage the COP, which still does

not include the United States as a full member, ever adopting a protocol to
the CBD that would require parties to harmonize their IPR systems with
their CBD-related obligations, including protection of TK. But as will be
explained below, trade negotiators are not deaf to the critiques of TRIPS
being expressed at this forum.
2. The FAO International Undertaking on Plant Genetic

Resources and Farmers' Rights
According to Cary Fowler, a former political activist opposing the
extension of IPRs to life forms in the United States and internationally,
during the 1980s,
The extension of intellectual property rights through the legislative and

judicial process (without improvement in efforts to conserve genetic
diversity) was a sign to nongovernmental organizations that a new arena
95 See Report of the Fifth Meeting of the Conference of the Partiesto the Convention on
Biological Diversity, U.N. Environment Programme, Annex III, at 66, 143, U.N. Doc.
UNEPICBD/C0PI5123 (2000), available at http://www.biodiv.orgtdoc/meetings/cop/cop-
96 Id. at 145.
97 Id.
was needed. In order to continue there also needed to be a redefining and

was to
the challenge ...
repackaging of the arguments and the goals ...
develop a new strategy and set it to work in a new but potentially
friendlier arena.... The strategy was developed to protect the 'property
rights' of the Third World98through challenging industrialized countries'
access to genetic diversity.
At the beginning of the 1980s, Fowler and Pat Mooney identified

the FAO as the most promising arena. The two had done some consultancy
work for the Mexican government on the scientific and political aspects of
genetic resource control and erosion, which led to a period of close
collaboration between Mexican officials in Rome and NGOs. During this
time, Mooney played a major strategizing and awareness-raising role that
had the desired effect of mobilizing a great many developing countries.
The consequence was that the FAO became the principle battleground of
what became known as "the seed wars," 99 and with the advantage point - in
contrast to the Uruguay Round negotiations on IPRs - held by the
developing countries. This was due not only to their strength in numbers,
but also to the fact that they had taken the initiative.
The main bone of contention was that the developed countries were
abusing the free exchange principle in two ways. First, it was argued that
most of the world base crop collections were held in the developed world,
even though most of the accessions had come from the developing world.
Second, while folk varieties were treated as being the common heritage of
humankind, plant breeders in the developed countries were securing IPR
protection for their own varieties. Again, according to Fowler,
To a certain extent this shift in arenas marked the first time NGOs, or
opponents of plant patenting, had taken the initiative with their own
proposals. Moving the debate to FAO allowed for this to happen because
it shifted the power base from American to Third World interests.
Furthermore, it extended the debate beyond patenting in the narrow sense,
and thus moved the debate onto territory NGOs are most comfortable
with - the connections between patenting and genetic conservation, and
between these and development issues. 1
98 CARY FOWLER, UNNATURAL SELECTION: TECHNOLOGY, POLITICS, AND PLANT

EvoLUTIoN 180 (1994).
99 For a discussion of the FAO's importance in these "seed wars" and of the developing
countries' advantage in the dispute, see Jack Kloppenburg, Jr. & Daniel Lee Kleinman, Seed
Wars: Common Heritage, Private Property, and Political Strategy, 95 SOCIALIsT REV. 6
(1987).
'00 FOWLER, supra note 98, at 181-182.
20011 TRIPS AND TRADITIONAL KNOWLEDGE 265
At the 1981 FAO biennial conference, a resolution was adopted,

against the vehement opposition of developed countries (especially the
United States, United Kingdom and Australia) and the seed industry, calling
for the drafting of a legal convention. In 1983, the over-ambitious demand
for a convention was replaced by a call for a non-binding undertaking, and
for the creation of a new FAO Commission on Plant Genetic Resources
(CPGR) where governments could meet for discussion and monitor what
became known as the International Undertaking on Plant Genetic
Resources. 0 1 By the mid-1980s, over 100 countries agreed to the IUPGR,
whose stated objectives were "to ensure that plant genetic resources of
economic and/or social interest, particularly for agriculture, will be
explored, preserved, evaluated and made available for plant breeding and
scientific purposes."' 2 These signatory countries included many developed
countries that would not have signed a binding convention.
The first meeting of the CPGR took place in March 1985.103 In
spite of U.S. attempts to discredit the commission, 93 countries were
represented, and it soon became a well-established body within the FAO.
In 1993, CPGR Resolution 93/1 called for the IUPGR to be revised
in harmony with the CBD.'04 To this end, the Commission (now called the
Commission on Genetic Resources for Food and Agriculture or the
CGRFA) has held a series of negotiations to revise the IUPGR. These
proved to be extremely difficult, but were finally concluded in November
2001, when a text for the revised IUPGR was adopted and then converted
into a legally-binding treaty.105
The Farmers' Rights concept was included in the IUPGR from 1989
in response to the developed countries' insistence on excluding IPR-
protected plant varieties from application of the common heritage principle.
Mooney, as a counter to Breeders' Rights, coined "Farmers' Rights."
Farmers' Rights is not an IPR as such, but it is frequently suggested as a
principle that could be implemented as a compensation or benefit-sharing
mechanism. Officially, Farmers' Rights is an attempt to acknowledge "the
enormous contribution that... farmers of all regions of the world ... have
made and will continue to make for the conservation and development of
101 See Establishment of a Commission on Plant Genetic Resources, FAO Conf. Res.
9/83, 22" d Sess., FAO (Nov. 23, 1989), available at ftp://ext-
ftp.fao.org/waicent/pub/cgrfa8/Res/C9-83E.pdf.
102 See International Undertaking on Plant Genetic Resources, FAO Conf., 22d
Sess.,
FAQ (Nov. 1983), availableat ftp:llext-ftp.fao.orglwaicent/pub/cgrfa8/iu/iutextE.pdf.
103 See Meetings of the CGRFA, at http://www.fao.org/ag/cgrfa/meetings.htm (last visited
Nov. 27,2001).
104 Dutfield, supra note 79, at 511.
105 See International Treaty on Plant Genetic Resources for Food and Agriculture, FAO
Conf., 31' Sess., FAQ (Nov. 3, 2001), available at ftp://ext-

ftp.fao.org/waicent/pub/Cgrfag/iu/ITPGRe.pdf.
plant genetic resources which constitute the basis of food and agriculture
production throughout the world.' ' 0 6 Resolution 5/89 defined Farmers'
Rights as:
rights arising from the past, present and future contributions of farmers in
conserving, improving and making available plant genetic resources,
particularly those in the centres of origin/diversity. These rights are
vested in the International Community, as trustees for present and future
generations of farmers. . . and supporting the continuation of their
contributions as well as the attainment of overall purposes of the
International Undertaking [on Plant Genetic Resources].
This is a paradoxical definition, since the holders of the farmers'

rights are not the farmers but the international community. And while the
intent is laudable, it is far from clear that an international community whose
members have been responsible for the huge-scale conversion of
biologically-diverse ecosystems, such as tropical forests and traditional
low-input polycultural agro-ecosystems to pastures, high-input
monocultural croplands and plantations, can be trusted to act as responsible
trustees for traditional farming communities in support of the continuation
of their high-biodiversity farming systems.
Notwithstanding the problematic official definition, NGO
campaigning in support of the interests of traditional farmers has
encouraged some governments to consider how to operationalize Farmers'
Rights in a relatively un-paternalistic fashion that can truly benefit
traditional farmers. Internationally, the concept has galvanized
considerable opposition to biopiracy relating to folk plant varieties, which
appears to be spilling over into the WTO.
B. TK at the World Intellectual Property Organization

WIPO's involvement in TK goes back more than twenty years. In
the 1970s and 1980s, WIPO jointly with the U.N. Educational, Social and
Cultural Organization (UNESCO), held a series of meetings on folklore
which culminated in the 1982 adoption of the Model Provisions for
National Laws on the Protection of Expressions of Folklore Against Illicit
Exploitation and Other Prejudicial Actions. In 1984, WIPO and UNESCO
convened a meeting to explore the possibility of developing an international
treaty on folklore based on the Model Provisions. However, participants at
106 Report of the Commission on Genetic Resourcesfor Food and Agriculture,U.N. FAO,
6 th Extraordinary Sess., Annex B, art. 10.1 at 7, U.N. Doc. CGRFA-Ex 6/01/REP (2001),
availableat http://www.fao.orglaglcgrfa/docsex6.htm.
107 Farmers' Rights, FAO Conf. Res. 5/89, 25 1h Sess., FAO (Nov. 1989), available at
http://www.fao.orglagtcgrfa/lU.html.
the meeting were unable to reach agreement and the proposal for a treaty
was withdrawn.'08 Consequently,1 WIPO dropped the issue of folklore from
its programs for several years. V
The next collaboration between WIPO and UNESCO on folklore
was the 1997 World Forum on Folklore in Phuket, Thailand. The idea of
having such an event was proposed in February 1996 by several of the
developing country delegations attending the joint sessions of the WIPO
Committee of Experts on a Possible Protocol to the Berne Convention, and
the WIPO Committee of Experts on a Possible Instrument for the Protection
of the Rights of Performers and Producers of Phonograms.110 The
Committees subsequently recommended to the WIPO Governing Bodies
that an international forum on folklore be arranged.
The majority of participants at the World Forum agreed that
copyright law was inadequate to protect folklore and therefore urged WIPO
and UNESCO "to pursue their efforts to ensure an effective and appropriate
international regime for the protection of folklore."' 1' Most of the
participants then suggested the following actions:
- A Committee of Experts should be set up in cooperation with

UNESCO as soon as possible consisting of experts in both the
conservation and protection of folklore and representing a fair
balance of global geographical distribution.
- Regional consultative fora should take place.
- The Committee of Experts should complete the drafting of a
new international agreement on the sui generis protection of
folklore ....112
In early 1998, shortly after Kamal Idris of Sudan had become the
new Director-General, WIPO established a new unit called the Global
10 See Kuruk, supra note 50, at 817-19, 819 n.382. However, UNESCO remained
somewhat active in the field of folklore. In 1989, for example, UNESCO's member states
adopted a document known as the Recommendations on the Safeguarding of Traditional
Culture and Folklore.
109See id.
110These joint sessions led to the development of the aforementioned WIPO
Performances and Phonograms Treaty and to the WIPO Copyright Treaty. See Memorandum
preparedby the Chairmanof the Committees of Experts, Diplomatic Conference on Certain
Copyright and Neighboring Rights Question, para. 1, WIPO Doc. CRNR/DC/6 (Aug. 30,
1996).
11 UNESCO-WIPO World Forum on the Protection of Folklore, Phuket Plan of Action,
235, U.N. ESCO and WIPO (Apr. 8-10, 1997).
2
11 Id. The participants suggesting such actions included all except the representatives of
the U.S. and U.K. governments. Id.
Intellectual Property Issues Division (GIPID). This unit was headed by

Richard Owens, a lawyer working in WIPO's Development Cooperation
Division. The purpose of this new Division was to identify and respond to
the new challenges for the intellectual property system of globalization and
rapid technological change. As part of this mandate, the Division sought to
identify potential new beneficiaries of IPRs, including traditional peoples
and communities. The Division researches and explores various issues
including protection of traditional
13 knowledge, innovations and creativity,
and protection of folklore.'
During 1998 and 1999, WIPO embarked on nine fact-finding
missions in various parts of the world on traditional knowledge,
innovations, and culture to investigate the needs and expectations of TK
holders, bearing in mind the possible use of existing IPRs to protect their
knowledge, innovations, and culture." 4 In addition, WIPO held four
regional consultations on the protection of expressions of folklore, jointly
with UNESCO.
Since 2001, GIPID has sought to go beyond identifying and
investigating the issues involved and to find out the views of TK holders by
addressing basic conceptual problems and testing practical solutions. The
emphasis of its work has shifted towards such activities as pilot projects on
the use of existing IPRs to protect TK, exploration of customary law and its
relationship with the formal intellectual property system, and training and
awareness-raising programs for the benefit of TK holders." 5
Is this work likely to lead to a new treaty on TK? This does not
seem possible. According to one commentator:
113 The two other issues are biotechnology and biodiversity, and intellectual property and
development. Id.
114 See Intellectual Property Needs and Expectations of TraditionalKnowledge Holders:
WIPO Report on Fact-FindingMissions on IntellectualProperty and TraditionalKnowledge

(1998-1999) 9, WIPO (Apr. 2001), available at
http:llwww.wipo.orglglobalissues/tklreportlfinal.
115 One of the early outcomes of this more applied phase of the work is a Study
commissioned jointly by WIPO and the United Nations Environment Programme on the role
of IPRs in the sharing of benefits arising from the use of biological resources and associated
traditional knowledge. The Study consists of an introductory review, case studies, and an
analytical synthesis. The case studies were released by WIPO and UNEP in Nairobi in May
2000 at the Fifth meeting of the Conference of the Parties to the Convention on Biological
Diversity. For copies of these case studies, see The Role of Intellectual Property Rights in
the Sharing of Benefits arising from the Use of Biological Resources and Associated
Traditional Knowledge: Selected Case Studies, WIPO & UNEP Doc.
UNEP/CBD/COP/51INF/26 (2000), available at
http://www.wipo.int/globaissues/biotech/documents/index.html.
GIPID's mandate is limited. American support for the new mandate was
secured in return for the concession that GIPID was not 'on a norm
setting track'; that is to say, that its work is not intended to feed into a
process which would 116 end with the creation of a treaty or
recommendations.
Nevertheless, there is a great deal of interest in this work. For the 26h
Session of the WIPO General Assembly from September 25 - October 3,
2000, the WIPO Secretariat prepared a paper inviting the member states to
consider the establishment of an Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore. This proposal was approved by the General Assembly, and the
first meeting of the Committee took place in Spring 2001.117
C. TK at the World Trade Organization
Even though TK was not an issue during the Uruguay Round, it has
been one at the WTO almost since the organization came into being. As
early as June 1995, it came up in a meeting of the Committee on Trade and
Environment. At that particular meeting, the Nigerian delegate argued that
TRIPS must be construed to "accord recognition to traditional interest and
right holders."'1 8 In addition, the Indian representative complained, "[T]he
worst casualty, in an IPR regime for plant varieties, was the knowledge,
innovations and practices of indigenous and local communities embodying
traditional lifestyles relevant for the conservation and sustainable use' 19of
biodiversity, highlighted in Article 8(j) of the Biodiversity Convention."'
Since then, developing country interest in TK has increased,
becoming less reactive and more proactive. Proposals from such
governments frequently make reference to the CBD and the IUPGR. This
suggests that deliberations on TK at the CBD COPs, the FAO CGRFA and
WIPO have not sidelined the TK issue - as some governments might have
preferred - but mainstreamed it to the extent that TK has emerged as an
issue that the WTO and all of its member states must take seriously.
In the future, historians of trade law may point to 1999 as a year
that marked a shift in the balance of power at the WTO. While the Quad
countries (the United States, European Union member states, Japan and
116 Michael Halewood, Indigenous andLocal Knowledge in InternationalLaw: A Preface

to Sui GenerisIntellectual PropertyProtection, 44 McGILL L. J. 953, 986 (1999).
117 Matters Concerning Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore para. 13, WIPO Doc. WO/GA/26/6 (Aug. 25,2000).
118 Committee on Trade and Environment: Report of the Meeting Held on 21-22 June
1995, para. 12, WTO Doc. WT/CTE/M/3 (July 18, 1995), available at
http.//docsonline.wto.org.
119 Id. at para. 20.
Canada) were still disproportionately powerful, developing countries

became more proactive and assertive. According to UNCTAD Secretary-
General Rubens Ricupero, who had been strongly advocating a positive
developing country approach to trade negotiations, more than half of the
250 proposals submitted to the WTO General Council during the
preparations for the Seattle Ministerial Conference came from developing
countries. 120 Of these 250 proposals, fifteen were on TRIPS and eight came
from developing countries. 121 And while many factors contributed to the
collapse of the Seattle Conference, criticisms by many developing countries
that they were being excluded from key negotiations probably contributed
to its failure to launch a new trade round or even to agree on a declaration at
all.
During the early stages of the twelve-month period leading up to
the Seattle Conference, a year when Article 27.3(b) of TRIPS was
scheduled to be reviewed, it seemed that the United States, the European
Union, and Japan were going to seek to raise the standards of protection.
For its part, the United States, in a communication to the WTO General
Council dated November 19, 1998, noted in reference to the 1999 review
that the TRIPS Council is "to consider whether it is desirable to modify the
TRIPS Agreement by eliminating the exclusion from patentability of plants
and animals and incorporating key provisions of the UPOV agreement
regarding plant variety protection." 122 This was presumptuous given that an
agenda for the review had not yet been declared.
A communication from the European Union to the General Council
dated June 2, 1999, while adopting a conciliatory tone, noted that "[I]t
should of course be kept in mind that the TRIPS acquis is a basis from
which to seek further improvements in the protection of IPR. There should
therefore be no question, in future negotiations, of lowering of standards or
granting of further transitional periods."1 I23
In a similar vein, a submission from Japan to the General Council
dated July 6, 1999 stated that:
12 0 Rubens Ricupero, Rebuilding Confidence in the MultilateralTrading System: Closing

the "Legitimacy Gap", in THE ROLE OF THE WORLD TRADE ORGANIZATION IN GLOBAL
GOVERNANCE 40 (Gary P. Sampson ed., 2001).
121 Victor Ognivtsev, Elements of a Positive Agenda, in UNITED NATIONS CONFERENCE ON
TRADE AND DEVELOPMENT, A POSITIVE AGENDA FOR DEVELOPING COUNTRIES: ISSUES FOR
FUTURE TRADE NEGOTIATIONS 11, 13, U.N. Doc. UNCTAB/ITCD/TSB/10, U.N. Sales No.
E.00.II.D.8 (2000).
12 Preparationsfor the 1999 Ministerial Conference: General Council Discussion on
Mandated Negotiations and the Built-In Agenda 6, WTO Doc.WT/GC/W/1 15 (Nov. 19,
1998), availableat http://docsonline.wto.org.
123 Preparationsfor the 1999 Ministerial Conference: EC Approach to Trade-Related
Aspects of Intellectual Property in the New Round, para. 3, WTO Doc. WTIGC/W/193 (June
2, 1999), available at http://docsonline.wto.org (emphasis added).
...taking into account the nature of the TRIPS Agreement, that is, a
minimum standard of intellectual property protection, we should not
discuss the TRIPS Agreement with a view to reducing the current level of
protection of intellectual property rights. To the contrary, the
TRIPS Agreement should be improved properly in line with new
technological development and social needs. For example, the TRIPS
Agreement should deal with higher protection of intellectual property
rights which has been achieved in other
124
treatiesor conventions in other
fora appropriately.[emphasis added]
What is especially problematic about these statements is their

shared assumption that the only direction the international IPR regime
should move is towards ever higher minimum standards and fewer
exceptions. In spite of this, the full development and impact of TRIPS
continues to defy even the most sophisticated economic analyses, 125 and
many developing countries simply cannot fulfill their TRIPS obligations
within the transitional periods. Such statements were bound to provoke a
reaction.
Indeed, developing countries were far from unresponsive to these
pressures. As they themselves had a number of grounds for dissatisfaction
with TRIPS, they decided it was time to place their concerns on the
negotiating table. TK was one of these issues.
On August 6, 1999, two important documents were submitted to the

General Council. One of these, from the Permanent Mission of
Venezuela, proposed that the next review of TRIPS inter alia should
"[E]stablish on a mandatory basis within the TRIPS Agreement a system
for the protection of intellectual property, with an ethical and economic
content, applicable to the traditional knowledge of local and indigenous
124 Preparationsfor the 1999 Ministerial Conference:Proposalon Trade-RelatedAspects

of Intellectual Property: Communicationfrom Japan, para. 6, WTO Doc. WTIGCIW/242
(July 6, 1999), availableat http://docsonline.wto.org (emphasis added).
125 For an example of such an analysis, see Keith E. Maskus, Intellectual Property Rights
and Economic Development, 32 CASE W. RES.J. INT'L L. 471 (2000).

126 Other major issues were access to essential drugs and technology transfer. See
Preparationsfor the 1999 Ministerial Conference: Implementation Issues to be Addressed
Before/At Seattle: Communication from Cuba, Dominican Republic, Egypt, El Salvador,
Honduras, India, Indonesia,Malaysia, Nigeria, Pakistan,Sri Lanka and Uganda, para. 27,
WTO Doc. WT/GC/W/354 (Oct. 11, 1999), available at http://docsonline.wto.org. See also
Preparationsfor the 1999 MinisterialConference: Implementation Issues to be Addressed in
the First Year of Negotiations, para. 27, WTO Doc. WT/GC/W/355 (Oct. 11, 1999),
availableat http://docsonline.wto.org.
communities, together with recognition of the need to define the rights of

collective holders." 127
And the African Group of countries proposed that after the sentence on
plant variety protection in Article 27.3(b) "a footnote should be inserted
stating that any sui generis law for plant variety protection can provide for
[inter alia]: (i) the protection of the innovations of indigenous farming
communities in developing countries, consistent with the Convention on
Biological Diversity and the International Undertaking on Plant Genetic
28
Resources.'
This latter communication, which attracted considerable NGO
support worldwide, also warned that "by mandating or enabling the
patenting of seeds, plants and genetic and biological materials, Article
27.3(b) is likely to lead to appropriation
129 of the knowledge and resources of
indigenous and local communities."'
A more detailed proposal for a legal framework on TK was
submitted to the General Council on October 12, 1999 by the governments
of Bolivia, Colombia, Ecuador, Nicaragua, and Peru. 3 ° Specifically, the
document proposed that the WTO establish a mandate in a future trade
round with three purposes:
a) To carry out studies, in collaboration with other relevant

international organizations, in order to make recommendations
on the most appropriate means of recognizing and protecting
traditional knowledge as the subject matter of intellectual
property rights.
b) On the basis of the above-mentioned recommendations,
initiate negotiations with a view to establishing a multilateral
legal framework that will grant effective protection to the
expressions and manifestations of traditional knowledge.
127 Preparationsfor the 1999 Ministerial Conference: ProposalsRegarding the TRIPS

Agreement: Para. 9(a)(ii) of the Geneva Ministerial Declaration, para. 2, WTO Doc.
WT/GC/W/282 (Aug. 6, 1999), availableat http:docsonline.wto.org.
128 Preparations for the 1999 Ministerial Conference: The TRIPS Agreement:
Communication from Kenya on Behalf of the African Group, para. 23, WTO Doc.
WT/GC/W/302 (Aug. 6, 1999), availableat http://docsonline.wto.org.
129 Id.at para. 24.
130 Preparationsfor the 1999 Ministerial Conference: Proposal on Protection of the
Intellectual PropertyRights Relating to the TraditionalKnowledge of Local and Indigenous
Communities, WTO Doc. WT/GCIW/362 (Oct. 12, 1999), available at
http://docsonline.wto.org.
c) To complete the legal framework envisaged in paragraph (b)

above in time for it to be included
1 31
as part of the results of this
round of trade negotiations.
Developing countries have begun not only to complain in an

organized fashion about TRIPS, but also to propose in a coordinated way.
Thus, not only have developing countries actively opposed the raising of
IPR standards, they have even proposed that TRIPS be revised in order to
circumscribe certain rights, to maintain or expand the exceptions, and to
create new IPR frameworks.
What does this imply for TK? It seems highly unlikely that a new
framework to protect TK will be inserted into TRIPS anytime soon. And
since the United States is determined to prevent a WIPO convention on TK
that could then be incorporated in TRIPS, this is unlikely to happen even in
the more distant future. At best, minimalist measures to safeguard TK from
misappropriation could conceivably be agreed upon. A greater danger is
that trade negotiators will sacrifice the interests of traditional knowledge
holders once concessions in other areas of intellectual property or other
trade-related issues are secured in return. In fact, for developing countries,
TK serves a strategic purpose at the WTO that is unlikely to serve the
interests of traditional peoples and communities. While some trade
negotiators and ministries may see TK as a significant moral or economic
issue, it is difficult to imagine many developing countries pursuing this
issue with any great determination. Measures to protect TK are far more
likely to be achieved at the international level by the CBD COPs. And for
governments genuinely interested in TK, whether out of a sense of social
justice or because they believe TK can benefit national economies,
solutions need to be found at the national level. These solutions have more
to do with basic human rights than with intellectual property rights.
Indeed, the significance of the TK issue should be seen as
transcending its role in TRIPS negotiations and should not - indeed cannot
- be reduced to a problem merely for IPR experts or trade negotiators to
solve. It is not that elements of TK cannot be protected through patents,
copyrights, and trade secrets, but that the exploitation of traditional peoples
and communities, including holders of TK, is fundamentally due to a
widespread failure to respect their basic rights, and not to the inadequacies
of IPRs to protect TK.
V. CONCLUSIONS
This Article has sought to reveal how and why traditional

knowledge became TRIPS-related. It has also shown that TRIPS and the
WTO are not really appropriate agreements or forums to resolve the issue.
131 Id. at para. 10.

The concluding part of this paper considers what developing country use of
TK implies for their compliance with TRIPS and for compliance more
generally.
First, it should be clear that whether or not developing countries
will gain once they have fully implemented their TRIPS obligations, their
perception is that TRIPS does not further their interests and exists only
because the developed countries insisted there should be such an
agreement. While the flexibility within the agreement has much to do with
the tenacity with which some developing country delegations sought to
defend their interests, there is little doubt that the main beneficiaries of
TRIPS, at least in the short term, are the transnational corporations (TNCs)
whose interests may be quite different.
So are developing countries using this issue to introduce new IPR
standards on TK into TRIPS? And if so, are they linking the speed of their
compliance to such an introduction? Or are they simply using the issue
either to obtain non TRIPS-related trade concessions or to justify
implementing an agreement they dislike as slowly as they can get away
with? We cannot be certain, but the complexity of the issue and the
improbability of developed countries agreeing to accept new norms on TK
both suggest that the latter is the real motivation. This may, therefore, be
an example of countries introducing "problems" into negotiations not to
solve them but to undermine an unpopular agreement and, more specifically
in this case, to deflate pressures for compliance.
TRIPS is of course unfinished business. Developed countries
would like to see the standards progressively raised, as would the TNCs.
While some developing countries accept the agreement as it is and seek to
construe its rules as creatively as possible, others are actively trying to
weaken the standards. In both cases, many of them share an interest in
being able to extend the transitional periods without having to answer for
their inaction to a WTO dispute settlement panel. It is very possible that
playing the TK card has had some effect, though it is not clear how great
this impact has been as compared to the technology transfer and access to
essential medicines cards.
Section IV strongly suggests the likelihood that the period since
1999 has seen a slight shift in the balance of power at the WTO towards
developing countries, at least with respect to TRIPS. From the view of
these countries, this has had both positive and negative consequences.
On the positive side, developed countries have softened their stance
and have decided to focus for the time being on implementation of the
existing standards rather than seeking to raise them further. And while
many developing countries have failed to meet the built-in implementation
deadlines, such as the requirement to provide protection for plant varieties
by 2000, they are not being challenged at the WTO for this. Most probably,
raising the TK issue has been a contributory factor to this lack of a
challenge.
On the negative side, the United States and the European Union
have responded by encouraging developing countries to raise their IPR
standards beyond those required by TRIPS outside of the WTO, such as
through bilateral treaties. A good example of such a bilateral agreement is
the 2000 Agreement Between the United States of America and the
Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area,
which requires that Jordan allow the patenting of business methods and
computer-related inventions. While one must assume that the Jordanian
government felt it was a good agreement for the country, such patents are
highly controversial in the United States and Europe and are not expressly
required by TRIPS. In addition, the United States and the European Union
continue to unduly pressure countries with "inadequate" IPR standards by
threatening to remove trade concessions. Moreover, it appears likely that if
countries agree to create a Free Trade Area of the Americas, IPR standards
throughout the American continent will become higher than those required
by TRIPS (i.e. 'TRIPS plus').
From the view of developed countries, the business associations,
and lobby groups that pushed so hard to ensure that IPRs were on the
Uruguay Round agenda, they are finding that TRIPS comes with a price.
Logically it is difficult to understand why determining the standards of
patentability, for instance, should be a business for trade negotiators to
resolve. But politically it is much easier to comprehend. 33 Seeking to
emphasize the TRIPS-relatedness of TK in spite of its complexities is
similarly flawed logically, but also advantageous strategically. TK is trade-
related, but only insofar as intellectual property is trade-related. Use of the
TK issue shows that developing country governments have learned to frame
issues of interest to them as trade-related (and in this case TRIPS-related)
just as the developed world business associations in the 1980s successfully
made the case that aspects of IPRs were trade-related and should therefore
be dealt with at GATT.
132 For an account of how a coalition of business associations worked behind the scenes to
help ensure that the Uruguay Round agenda included trade-related intellectual property
rights, see Peter Drahos, Global Property Rights in Information: The Story of TRIPS at the
GATT, 13 PROMETnES 6 (1995).
133 See Peter M. Gerhart, Why Lawmaking for Global Intellectual Property is
Unbalanced,22 EUR. INTELL. PROP. REV. 309 (2000).

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TRIPS-Related Aspects of Traditional Knowledge

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I. TRADITIONAL KNOWLEDGE ("TK")AND ITS ROLE IN THE GLOBAL

III. WHY NOT PROTECT TK THROUGH PATENTS, COPYRIGHTS OR

Towards the end of the 1980s, indigenous peoples, 1 thought by

cultural richness, sophisticated natural resource management expertise, and

During the early 1990s, there seemed to be an emerging consensus

6 See BIODIVERSITY PROSPECTING: USING GENETIC RESOURCES FOR SUSTAINABLE

Agreement 9 to be not only a symptom of the conflict of interests, but to

International Conference on the Cultural and Intellectual Property Rights of Indigenous

as piratical as corporations which acquire resources and TK from their

formulations. How can both intellectual property and compliance scholars

I. TRADITIONAL KNOWLEDGE AND ITS ROLE IN THE GLOBAL ECONOMY

A. Definitionaldilemmas: what is different about

19 This is the approach adopted by the Convention on Biological Diversity.

example. Dividing TEK into such sub-categories is likely to lead people to

- is recorded and transmitted through oral tradition;

While these generalizations are helpful, it is important not to

23 Johnson, supra note 21, at 7-8.

... [W]hat is 'traditional' about traditional knowledge is not its antiquity,

Although the Four Directions Council separates "traditional knowledge"

B. Where does traditionalknowledge come from?

25 Sillitoe, supra note 22, at 205.

rights of traditional peoples and communities in the developing world,

28 Posey, supra note 4, at 17.

organization comprised of 30 member countries that share a commitment to democratic

at xvii, xvii (Darrell A. Posey ed., 1999).

The fact that TK is being so widely disseminated and commercially

collective intellectual property rights ignores the intricacies and sheer

Indigenous peoples possess their own locally-specific systems of

In an anthropology literature review by British anthropologist Tom

- The Shuar view shaman knowledge as an "exchangeable

and/or their knowledge copyrights for pigs, money, and other

Evidently, customary rules governing access to and use of

48 PRABUDDHA GANGULI, INTELLECTUAL PROPERTY RIGHTS: UNLEASHING THE

In the case of unpublished works where the identity of the author is

Over the years many traditional peoples and communities have

53 Id. at art. 15.4(b).

Despite these successes, copyright law has some fundamental

1. Authorship is a problematic concept in many

THE INFORMATION SOCIETY 192 (1996).

According to this view, then, copyright law is more likely to be

2. Important folkloric expressions should have

59 BOYLE, supra note 56, at 125.

3. The fixation requirement would exclude many

62 WORLD INTELLECTUAL PROP. ORG., INTELLECTUAL PROPERTY READING MATERIAL 53

It is possible that a future revision of TRIPS will incorporate this treaty. 67

[t]he expression 'Traditional Knowledge' . . . accommodates the concerns

- Traditional knowledge is collectively-held and generated

This suggests that the collective nature of TK production and

2. Patent applicants must supply evidence of a single

4. Applying for patents and enforcing them once they

financial means of most communities. Even though patent fees in some

There is an infinite variety of descriptions under which the same thing

He went on to use the example of quinine:

To give a more recent example, Phyllanthus amarus, a medicinal

Traditional peoples and communities see the globalization of patent

Legal Protection of Biotechnological Inventions, 1998 O.J. (L213), available at LEXIS,