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 Options for protection

From chapter 4, one can conclude that mainstream intellectual property rights generally fall short of providing effective protection for traditional medicinal knowledge and biological resources; yet, in case such protection is desired, the -limited- opportunities for making use of the conventional IPR system (e.g. trade secret protection, geographical indications) should not be discarded.

However, there is no need to confine protection to the options existing under the current IPR regime. Other options include customary law, but also the use of other legal concepts, such as for example unfair competition or breach of confidence. Unauthorized publication of a community's knowledge may be subject to legal challenge on the grounds of breach of confidence, even when the person disclosing the knowledge had made no formal promise or agreement to keep the knowledge secret22. While, typically, such legal action may be costly, this principle has been used successfully in Australia to prevent the publication of a book disclosing sacred -and secret- Aboriginal knowledge.

22 At least in countries whose legal system is based on the British system.

Finally, contracts and other legal agreements, such as material transfer agreements (MTAs) and licenses can be used to formalize permission and conditions for the use of physical resources and/or knowledge, and to specify the rights and responsibilities of the different parties involved.

Since it is difficult to use existing laws and mechanisms for the protection of traditional medicine, it is also necessary to look beyond the existing possibilities and devise new mechanisms, either by means of modifications or additions to existing laws, or via the development of alternative (sui generis) systems of protection.

Table 10 Overview of options to protect traditional medicine(s) and biological resources

existing possibilities

modifications/supplements

sui generis alternatives

customary law

codification and formal recognition of customary law

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contracts, MTAs and other civil & public law concepts (e.g. unfair competition, breach of confidence)

access and benefit sharing agreements

biodiversity management regulations with provisions on traditional knowledge; access legislation

intellectual property law

certificate of origin; declaration of PIG; extended grace period; PVP for wild discovered plants; waive fees, etc.

new intellectual property categories

Adapted from G. Dutfield.

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