The preceding analysis has shown that proposals for the protection of TRM may be informed by quite different objectives. The following table attempts to indicate the possible relevance of IPRs and other tools to achieve various objectives. In the light of such analysis, IPRs are marked in the second column with “3” when they seem very relevant to attain the goals described in the first column; with “2” when IPRs may be somehow relevant, but their efficacy questionable as compared to other options: and with “1” when the described tools are irrelevant in attaining the proposed objectives. The third column indicates other, non-IPRs tools that might be considered as alternatives in meeting the relevant objective.
Table 3
Protection of TRM: how relevant IPRs are?
Objectives88 |
IPRs |
Other tools |
Saving data
(conservation) |
1 |
Registries, data bases |
Collecting data |
1 |
Contract-based benefit sharing
Registries, data bases |
Preventing erosion of knowledge |
1 |
Recognition of land rights, cultural integrity, customary laws, preservation of natural environment |
Ensuring continuous improvement/innovation |
1 |
Recognition of land rights, cultural integrity, customary laws, preservation of natural environment |
Benefit sharing |
2 |
Access legislation, contracts, application and recognition of customary laws |
Self-determination |
1 |
Recognition of various rights in international law - including participatory decision making, recognition of customary law |
Development/commercial exploitation |
3 |
Recognition of land rights, preservation of conditions necessary for cultural integrity, recognition of customary laws |
88 The objective relating to misappropriation is not mentioned in this Table, since in that case the aim is to exclude rather than to ensure IPRs protection.
This Table suggests that IPRs may be relevant to promote the commercialization of TRM, but not very relevant or completely irrelevant in relation to other possible objectives often mentioned in the literature and examined above. Commercialization may contribute to economic development where the use of IPRs generates value added products resulting in an increase in income. The size of such a contribution may significantly vary, but is likely to represent only a tiny fraction of GNP in the case of community based TRM. While that small contribution may benefit economies in general (albeit to a small degree), many or even most local/indigenous communities will, for reasons such as disclosure already discussed, have no opportunity to directly benefit from the possibility of protection of TRM through IPRs.
Although it is not at all clear that IPRs provide the most appropriate tool for attaining many of the objectives described above, the debate concerning the protection of TRM has been triggered by a number of proposals to apply IPRs to traditional knowledge. For this reason, examining the application of existing modes of IPRs in the field of TRM is a useful place to begin to explore the relevance of protection under IPRs. This analysis follows.
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