International legal protection for genetic resources, traditional knowledge and folklore: challenges for the intellectual property system – Weerawit Weeraworawit
The 1883 Paris Convention for the Protection of Industrial Property and the 1886 Berne Convention for the Protection of Literary and Artistic Works, including their respective revisions and related agreements, have for the past 100 years established the international protection of innovation and creativity with their clearly defined sets of rules and standards. Those rules and standards have been adopted and reinforced by the TRIPS Agreement. However, they have been increasingly perceived as being unresponsive to the growing demand especially in the developing world that innovation and creativity in the forms of traditional knowledge (TK) and folklore should be accorded international legal protection, and that sovereign rights over genetic resources be respected. Many assert that the present intellectual property system has not been geared to protect genetic resources, TK or folklore. Some argue that intellectual property concepts and mechanisms exist that could and should be applied to give sufficient legal protection to these categories. Some contend that there is a need to create a sui generis system for them. In any case, traditional knowledge and folklore have become emerging global issues that are here to stay and will not go away. The run-up to and the outcome of the Fourth Session of the 2001
World Trade Organization (WTO) Ministerial Conference clearly shows that the importance and value of these new global issues have been recognized in the context of international trade albeit in the wording that is broad enough to satisfy both the member countries that are keen supporters of the setting up of the international legal protection for these issues and those that are yet to be converted. The ministerial declaration adopted at the WTO Ministerial Conference made a special reference1 to the work to be undertaken by the TRIPS Council concerning the relation between TRIPS and the Convention on Biological Diversity (CBD), in particular having in view the protection of TK. The latest development in the WTO is not an isolated incident. There have been efforts at the domestic, regional, and international levels to deal with these global and emerging issues. The rate of progress greatly varies, ranging from the making of international agreements such as the CBD and the International Treaty on Plant Genetic Resources for Food and Agriculture under the Food and Agriculture Organization (FAO).