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Immaterialgüter- und Wettbewerbsrecht

Protection of Traditional Knowledge of Indigenous and Local Communities and their Relationship with the WIPO Instruments and Nagoya Protocol. Comparative Studies on Megadiversity Countries

A comparative study between public policies and regulatory frameworks of the protection of Traditional Knowledge of indigenous peoples within the Group of Like-Minded Megadiverse Countries, and the regulations under WIPO instruments and the Nagoya Protocol.

Letzte Änderung: 02.07.19

The aim of this project is to carry out a comparative analysis of the experiences of mega-diverse countries in the development of policies and regulatory frameworks for the protection of Traditional knowledge. Moreover, it highlights the compliance of these countries with the requirements of the Nagoya Protocol on the access to traditional knowledge related to genetic resources and their legislation and experiences in the sharing of benefits. It also takes into account the progress that these countries have experienced in the issue of the disclosure of the origin of genetic resources and Traditional Knowledge in patent applications.
The mega-diverse countries have promoted the protection of traditional knowledge (TK) in international scenarios. For example, in the Secretariat of the Convention on Biological Diversity, they actively participated in the negotiations for the adoption of the Nagoya Protocol, entering into force in 2014, and which purpose is the regulation of the access to genetic resources and the fair and equitable benefit-sharing. The countries party to this protocol are currently designing and implementing strategies to adapt the policies and standards for their compliance thereof.
At the World Intellectual Property Organization (WIPO) the mega-diverse countries have participated in negotiations for designing an international legal instrument that ensures the effective protection of the TK (Draft Articles for the Protection of Traditional Knowledge). However, this instrument has not been yet approved because countries still differ on the objectives of the instrument and central policy issues. Some experts believe that they have had little progress in these discussions, mainly because of the work methodology they have used.
In the World Trade Organization (WTO), a large amount of Megadiverse countries has introduced a proposal of amendment to the TRIPS Agreement, based on the inclusion of Article 29bis. This article requires that every patent application that involves genetic resources and / or associated traditional knowledge must disclose its origin. It is important to note that some of these countries have adopted in their patent laws the requirement of "disclosure of the origin" of genetic resources and the associated TKs.
In summary, the mega-diverse countries aim to: (1) Have an international instrument to protect TKs, (2) Achieve compliance with measures of access to genetic resources and associated traditional knowledge, guaranteeing the sharing of benefits, and (3) Adoption of measures or rules that guarantee the disclosure of the origin of the genetic resources and / or the TKs, in case they are involved in patent applications.



Zulay Poggi


I.4 Fairness als Rechtsprinzip