Trips, CBD and Traditional Medicines: Concepts and Questions. Report of an ASEAN Workshop on the TRIPS Agreement and Traditional Medicine, Jakarta, February 2001
(2001; 88 pages)
Table of Contents
View the documentACKNOWLEDGEMENTS
View the documentLIST OF ABBREVIATIONS AND ACRONYMS
View the documentLIST OF RESOURCE PERSONS
View the documentEXECUTIVE SUMMARY
View the documentI. INTRODUCTION
Open this folder and view contentsII. CONTEXT
Open this folder and view contentsIII. KEY INTERNATIONAL AGREEMENTS
Open this folder and view contentsIV. IPR & TRADITIONAL MEDICINE: MISMATCH
Open this folder and view contentsV. CONCEPTS, OBJECTIVES AND CONFLICTS
Close this folderVI. OPTIONS AND CHOICES
View the document6.1 Traditional knowledge, customary law and incentives
Close this folder6.2 Options for protection
View the document6.2.1 Modifications of existing law
View the document6.2.2 Design 'sui generis' law
View the document6.2.3 The limits of law
View the document6.2.4 Other actions
View the document6.3 The choice to disclose
View the document6.4 Questions and dilemmas
Open this folder and view contentsVII. POLICIES AND STRATEGIES
Open this folder and view contentsVIII. EXAMPLES
View the documentWORKSHOP RECOMMENDATIONS
View the documentANNEX A - Workshop Agenda
View the documentANNEX B - Opening Remarks
View the documentANNEX C - Selected Articles of the Convention on Biological Diversity
View the documentANNEX D - List of Participants
 

6.2.2 Design 'sui generis' law

It is important to realize that TRIPS provides for minimum standards, therefore it is allowed to expand protection beyond the TRIPS requirements; this may include expanding protection to additional subject matters, such as for example traditional knowledge. Furthermore, while the TRIPS Agreement refers to sui generis protection in the context of PVP, it does not limit this kind of unique protection to plant varieties. The development of sui generis protection for traditional medicine therefore seems a realistic option. If contemplated, such a sui generis system should probably explicitly provide for collective ownership of intellectual property rights.

Sui generis systems have the important advantage of being flexible; they are specially designed in order to achieve a certain purpose in a particular context, and no mandatory international rules or standards -which may be at odds with national objectives- exist. This implies that in order to develop an effective sui generis system of protection, it should be clear from the outset what its objectives are; these objectives should probably differ from those for protecting 'modern' know-how. Maybe the main aim should not be to provide exclusive rights for the exploitation of traditional knowledge, but to establish linkages between commercial, conservational and developmental goals, and to formalize, and -thus- reinforce, the (moral) rights of the holders over their knowledge. Moreover, it is important that the intended beneficiaries are involved in designing the system.

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