(2002; 131 pages)
II. RATIONALE FOR PROTECTION
The “protection” of TRM under IPRs - generally as part of “traditional knowledge”- has been advocated in many national, regional and international fora, documents and academic work42. The provision contained in article 8 (j) of the Convention on Biological Diversity (CBD), as adopted in 1992, triggered a number of proposals to deal with this issue at the national and international level43. Most notably, in 2000, an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore was established under the auspices of WIPO.44
42 See, e.g. an annotated bibliography Dutfield, 2000a. See also in Correa, 2001.
43 See e.g. the Report of the UN Secretary General on the Intellectual Property of Indigenous Peoples, EICN.41 Sub.2/1992/30.
44 This Committee (hereinafter the “WIPO Committee”) held its first meeting in Geneva, on April 30 to May 3, 2001.
The need for applying IPRs to TRM depends upon the type of objectives pursued, and the extent to which they can be fulfilled by different modalities of IPRs, existing or to be created. Since IPRs are not an end in themselves, the establishment of IPRs should be considered as a means to effectively reach well defined goals.45
45 On the rationale for the granting of IPRs, see, e.g., Penrose, 1951; Gutterman, 1997; Bettig, 1996.
The main goals suggested or implied in various analyses for IPRs protection of traditional knowledge, including TRM, have been equity, the preservation of knowledge against erosion, preventing misappropriation, promoting self-determination and the right to development. In certain combinations these goals partially interconnect or overlap, while in others they are mutually incompatible.46
46 For instance, the type of measures required to prevent the granting of IPRs over TRM under a misappropriation approach, are essentially incompatible with those aimed at encouraging the commercialization of TRM through the acquisition of IPRs.
All of these goals have some legitimacy. However, as examined below, IPRs in many cases, may not be a suitable tool to achieve the intended goals, and other effective instruments may have to be utilized. The following sub-sections briefly present the arguments advanced for the IPRs protection of traditional knowledge, as relevant to TRM.