[Random-bits] CPTech at WIPO on Proposals for Propection of Traditional Knowledge

[James Love]

There are our comments presented at yesterday's WIPO session on the 
protection of Traditional Knowledge (TK).   We made a separate 
intervention on model contracts for Access to TK and Genetic Resources. 
  Jamie


Statement of CPTech on Proposals for Protection of Traditional Knowledge

James Love, Manon Anne Ress and Thiru Balasubramaniam
CPTech
17 March 2004
Intergovernmental Committee (IGC) on Intellectual Property and Access to 
Genetic Resources, Traditional Knowledge and Folklore (GRTKF)
Sixth Session, WIPO
Geneva

Comments on WIPO/GRTKF/IC/6/4/ Rev.

I would like to congratulate the Chair and the two vice chairs, and 
thank the Chair for his efforts here and elsewhere to be inclusive and 
provide an opportunity for civil society to participate in WIPO debates.

I will comment on the issues raised in Document 6/4, which sets out a 
number of policy and legal options relating to traditional knowledge. 
We congratulate the WIPO Secretariat for providing such a clear and 
useful paper.  Our comments today focus primarily on policy and legal 
options that relate to the commercialization of patented products or 
processes.

We are concerned on the one hand that new sui generis regimes for the 
protection of traditional knowledge (TK) resources could be implemented 
in a way that lead to barriers to scientific progress or innovation, 
while on the other hand, we acknowledge and share concerns that there is 
inadequate benefit sharing when products that rely upon TK resources are 
commercialized.

The issue of whether or not TK should be part of an intellectual 
property right (IPR) system is appropriately controversial, because the 
implementation of some IPR systems have harmed the poor, impeded 
scientific progress and follow-on innovation, and are subject to a 
number of well-known abuses by right owners.

CPTech generally opposes new exclusive rights IPR regimes, and notes 
that the choice of an exclusive rights regime is not even appropriate 
for some types of non-TK intellectual property.  For example, we support 
much greater reliance upon compulsory licensing of patents to ensure 
access to essential medicines, and many countries use compulsory 
licensing to address a number of public interest objectives in the area 
of copyrighted goods.

In the area of TK resources, we believe some non-exclusive rights sui 
generis approaches may be socially beneficial, while others could impose 
significant costs on society.

Compensatory liability approach  - mandatory cross license of sui 
generis and patent rights

The TK sui generis approaches we find particularly interesting and which 
may offer the best potential for social benefits are those described as 
compensatory liability regimes, discussed in paragraph 34 and 44 of 
Document 6/4.   We think it would be interesting to consider this in a 
manner that is analogous to the approach taken by the European Union 
biotechnology directive.   In the case of genetically modified crops, 
the European directive provides for a mandatory cross license between 
patents and sui generis plant breeder rights, when both the patent and 
sui generis rights apply to the same product.  According to the European 
Commission, this Directive is consistent with TRIPS Article 27, and does 
not run afoul of provisions on discrimination by field of technology.

In this manner, one can imagine a regime that recognizes a TK sui 
generis right, and also a patent system, but provides that when a 
patented invention is based in part on a TK resource, it must obtain a 
license to the TK sui generis right.  In a liability rule approach, the 
license would be automatic or mandatory, subject to compensation to the 
owner of the patent or the TK resource.   If one follows the EU example 
with patents and plant breeder rights, the patent owner would have a 
mandatory compulsory license to the TK resource, and the TK owner would 
also have an automatic license to use the patent.  The patent owner 
could commercialize the invention, subject to making royalty payments to 
the TK resource owner, and the TK owner could also commercialize the 
patented invention, subject to making royalty payments to the patent 
owner.

This is similar in structure to the dependent patent provisions in TRIPS 
Article 31.

	Pro-competitive aspect of mandatory cross licenses

We note that this model, if followed, would not only provide for benefit 
sharing with the TK owner, but also, by providing the owner of the TK 
resource with a license to the patent, there would be a possibility of 
competition for the patented product.

In Europe, the pro-competitive aspect of the mandatory cross-licensing 
of patent and plant breeder rights was seen as a mechanism that would 
mitigate and reduce the market power of Dupont and Monsanto in the seed 
market.

	Relationship to the public domain

If the TK resource were implemented as a compensatory liability regime 
that only applies to patented products, it would not undermine the 
benefits of the public domain, except when the patent would otherwise 
have created a monopoly for a product.  It therefore might both offer 
greater protections to consumer interests in developing countries, but 
it may offer a greater chance of recognition and support in higher 
income countries, which will be important if one want the benefit 
sharing provision to be economically significant.

The TK sui generis right, if implemented in this manner, “combines the 
equitable reallocation of benefits without constraining open access to 
know-how,” as noted in paragraph 44 of Document 6/4, and also goes 
further, by providing a basis for the TK owners to use the patent and 
even compete against the patent owner for the product, which could 
benefit consumers.

Since the mandatory patent/sui generis cross-licensing approach is 
already embraced in the European Biotechnology Directive, it may be 
appropriate for the Secretariat to provide information on its 
implementation.

	Free Software Movement as Model for Protecting TK Resources

Finally, on a different note, we urge the IGC to look at the very 
relevant experience of the modern free software movement, which seeks to 
protect the work of a global community of programmers against 
misappropriation by Microsoft or other software firms.  The GPL 
licensing strategy for software, developed by Richard Stallman and 
others, has led to the important and effective legal strategy for 
protecting community knowledge.  We suggest the WIPO Secretariat invite 
Mr. Stallman to address a future information session so that delegates 
can learn from this important model, as well as well-known academic 
experts such as the economists Hal Varian or Joe Stiglitz, or law 
professors such as Paul David or Yochai Benkler, or software developers 
or experts such as Linus Torvald, Alan Cox or Rishab Aiyer Ghosh, to 
mention a few.

We also recommend the WIPO secretariat provide a paper describing the 
GPL, and report on its success in protecting a global community of 
software programmers by ensuring that they have the opportunity to 
acquire, use and modify software.  This would be appropriate for the 
IGC, and would balance and extend some of the other excellent 
contributions by the Secretariat in providing models for protecting TK.

Thank you.

-- 
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040