In this 75th installation, we canvas ARIPO’s new mandates on traditional knowledge and expressions of folklore.
Intellectual Property Perspectives with Richard Pasipanodya
Global initiatives on the conceptualisation and attempts to protect traditional knowledge (TK) and expressions of folklore (EoF) took centre stage in various United Nations forums way back in the early 1990’s, albeit in an ad hoc manner.
Nature and scope of TK and EoF
Though variantly defined, the global consensual views on the nature and scope of traditional knowledge and expressions of folklore were that, among other things:
TK is knowledge systems, beliefs, creations, innovations and cultural expressions of a given community of a natural habitat;
TK and EoF are passed on from generation to generation. As such, it connects the present generation with the past and is thus symbolic of a deeper order of belief system;
TK is not limited to a specific field or sphere of human endeavours but pervades the entire spectrum of human socio-politico-economic creativity encompassing literary, artistic and scientific work, performance in song and dance;
TK and EoF evolve in response to human socio-economic transformation;
By virtue of its pervasiveness and evolutionary nature it inextricably interfaces with modern science IP fields such as inventions, utility models, industrial designs, trademarks, undisclosed information, copyright and neighbouring rights;
The interface of TK and EoF with modern scientific works has resulted in the incorporation into modern technological products of foreign players without any derivative benefits accruing to the knowledge holder;
Because traditional knowledge is communally-owned by a specific community, it inevitably interfaces with the biodiversity or genetic resources within that given ecosystem, and
Because of their pervasiveness, the entire fields of IP are subject to enquiry by traditional methods, albeit with varying degrees and intensity.
Rationale basis for protection
Despite their communal ownership, it is universally acknowledged that TK and EoF owe their existence and evolutionary tendencies to the human intellect. As such they are intellectual property creations worthy of protection at parity with modern technology IP titles. The global view is that such protection is morally correct and economically justified on the meritorious grounds that, among other things:
They enable knowledge holders to benefit from their tradition-based creative effort, innovativeness and knowledge repositories which would be disseminated to contemporary and future generations;
They result in equitable access, acquisition, exploitation and use of the fruits of such creativity and innovativeness;
They promote a wider use and recognition of traditional knowledge and expressions of folklore in parallel with modern science-based intellectual property regimes, and
They ensure that the collective custodianship and ownership of TK and EoF are not undermined and distorted by the introduction of modern science-based private intellectual property rights (IPRs) concepts.
ARIPO adopts TKs and EOFs mandates
ARIPO initiatives towards expanding its mandates to include the protection of TK and EoF commenced in the year 2000.
These initiatives, which ran parallel to WIPO global initiatives, culminated in the conclusion and adoption of the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore on August 9, 2010 at Swakopmund, Namibia.
The protocol entered into force on January 1, 2012. Its agreed purpose was broadly to safeguard against wanton misappropriation and expropriation of tradition-based public domain knowledge astride preventing the continued granting of patents which incorporated traditional knowledge without derivative benefits to the knowledge holders.
ARIPO concept of TKs and EoFs
As defined by section 2.1 of the protocol, expressions of folklore concern themselves with works which are otherwise catered for under modern concepts of copyright protection.
These are protected in any form, tangible or intangible, so long as they express or manifest traditional culture or knowledge. These categories of work include the following expressions in singular or in combination thereof:
Verbal or narrative expressions, such as stories, epics, legends, poetry, signs, names and symbols which are otherwise regarded as literary works under copyright law;
Musical expressions, such as songs and instrumental music;
Dramatic works or expressions by movement, such as dance, plays, rituals, and
Artist works or tangible expressions of such as works of art as in drawings, paintings, designs, carvings, sculptures, jewelry, basketry, textiles, glassware, costumes, handicrafts, musical instruments architectural forms etc
Criteria for TK and EoF Protection
To be accorded protection the traditional knowledge must be: generated, preserved and transmitted from generation to generation in a traditional context; distinctively or clearly associated with a local or traditional community, and integral to the cultural identity of that given community with respect to custodianship, guardianship and ownership.
With respect to expressions of folklore, these must be products of cumulative intellectual creativity of a community or individual, characteristic of the cultural identity and traditional heritage of such community as would be so determined by the customary laws and practices of that community.
Beneficiaries and rights conferred
The beneficiaries of TKs protection are owners of the traditional knowledge, be they local traditional communities or individuals.
These are the rights holders who shall communally exercise the rights to authorise the exploitation of the knowledge and to prevent third parties from exploiting their knowledge without their prior informed consent.
By exploitation here is meant manufacturing, imparting, exporting, offering for sale, use or possession for any of those acts beyond its traditional context.
Meanwhile, by prior informed consent is meant the furnishing by the prospective user and the acceptance of the knowledge holders of complete and accurate information for the use of the traditional knowledge or expressions of folklores on agreed contractual terms and conditions.
Pasipanodya is an IP consultant who writes in his own capacity. Feedback on: mobile +263 775 053 007 or e-mail: firstname.lastname@example.org