Intellectual Property Rights in Traditional Knowledge: Enabler of Sustainable Development

• Author: Freedom-Kai Phillips
• Position: Research Associate, International Law Research Program (ILRP), Centre for International Governance Innovation (CIGI); Legal Research Fellow, Biosafety and Biodiversity Law Programme, Centre for International Sustainable Development Law (CISDL), McGill University (Canada)
• Pages: 1-18

Freedom-Kai Phillips, ‘Intellectual Property Rights in Traditional Knowledge:

Enabler of Sustainable Development’ (2016) 32(83) Utrecht Journal of

International and European Law 1, DOI: http://dx.doi.org/10.5334/ujiel.283

UTRECHT JOURNAL OF

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ATIONAL AND EUROPEAN LA

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RESEARCH ARTICLE

Intellectual Property Rights in Traditional

Knowledge: Enabler of Sustainable Development

Freedom-Kai Phillips*

Traditional knowledge (TK) plays an integral role in supporting sustainable development prac-

tices, and can act as an enabler of sustainable development in indigenous and local communities

(ILCs) through recognition of intellectual property rights (IPRs). This paper explores points of

convergence and divergence, arguing that the application of IPRs to TK held by ILCs can help

facilitate sustainable development. An overview of the normative development, including key

denitions, relating to sustainable development and TK is oered as background. Contemporary

tensions and arguments favouring the application of IPRs to TK are summarised, followed by

an analytical reconciliation of points of divergence based on international and domestic legal

practices, and a discussion of the role of TK in achieving sustainable development. Recognition

of IPRs in TK held by ILCs through a specialised internationally binding instrument could work

to reconcile lack of trust, positively incentivise preservation, and act as an equitable enabler

of sustainable development.

Keywords: Traditional knowledge; Sustainable development; Intellectual property rights; Nagoya

Protocol; WIPO IGC; Access and benet-sharing (ABS)

I. Introduction

Recognition of intellectual property rights (IPRs) over traditional knowledge (TK) held by indigenous peo-

ples and local communities (ILCs), particularly TK associated with biodiversity and genetic resources (GRs), is

an important step in actualising sustainable development. This paper argues that TK can act as an enabler of

sustainable development for ILCs through recognition of IPRs over TK relating to natural capital and effec-

tive sharing of fair and equitable benefits as envisioned under international treaties and conventions. First,

a brief background will be provided to illustrate the increasing trend in international law towards recogni-

tion and establishment of protections relating to TK, and to define sustainable development and TK for the

purposes of this discussion. Second, contemporary points of divergence will be summarised to highlight per-

ceived tensions relating to the use of IPRs to govern TK. Third, arguments favouring recognition of IPRs over

TK held by ILCs are put forward to illustrate current legal trends and mechanisms supporting recognition.

Fourth, critical considerations are provided to reconcile perceived tensions, illustrating the compatibility

and importance of recognising IPRs in TK and of vesting ownership with ILCs in operationalising the 2030

development agenda. Finally, concluding thoughts are offered which summarise key findings and identify

remaining challenges. For sustainable development to become a reality, legal recognition and protection of

IPRs relating to TK through the empowerment of ILCs is a prerequisite enabling catalyst.

II. Towards Recognition of IPR in TK: Background

A. Background

Beginning around the mid-twentieth century, the international community began a progressive migra-

tion towards recognition of the need for sustainable development, and appreciation for the importance

of TK held by ILCs in achieving such a profound policy objective. Early policy consideration, which began

* Research Associate, International Law Research Program (ILRP), Centre for International Governance Innovation (CIGI); Legal

Research Fellow, Biosafety and Biodiversity Law Programme, Centre for International Sustainable Development Law (CISDL), McGill

University (Canada).

Intellectual Property Rights in Traditional Knowledge2

among the United Nations Economic and Social Council, United Nations Educational, Scientific and Cul-

tural Organization, and International Union for the Protection of Nature, expanded global recognition

through the first UN Conference on the Human Environment held in Stockholm in 1972,1 and gained

wider appeal in policy nomenclature through the 1987 report of the World Commission on Environment

and Development (WCED), ‘Our Common Future.’2 Where the Brundtland Report —named for the WCED

Chair— established sustainable development as a policy objective, the 1992 United Nations Conference on

Environment and Development in Rio de Janeiro (Rio Earth Summit) conceptually endorsed and empow-

ered the model concurrent to the opening for signature of the Rio Treaties: 1992 United Nations Convention

on Biological Diversity (CBD), the 1992 United Nations Framework Convention on Climate Change (UNFCCC),

and the 1994 United Nations Convention to Combat Desertication (UNCCD), which collectively establish

rules and regimes committed to sustainable development.3 Evolving in parallel, the World Trade Organiza-

tion (WTO) in 1994 established as part of the covered agreements the Agreement on Trade-Related Aspects

of Intellectual Property Rights (TRIPS),4 which aimed to standardise IPRs across Member States to facilitate

international trade.

The CBD, along with the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable

Sharing of Benets Arising from their Utilization (Nagoya Protocol), establish the preeminent international

regime for the recognition and protection of TK. Under Article 8(j) of the CBD, Parties are required to

respect and maintain knowledge held by ILCs, and to encourage wider application of TK based on fair

and equitable benefit-sharing.5 TK is further recognised in Article 16 as a vital ‘technology’ for effective

practices of conservation and sustainable use of biodiversity,6 with procedural requirements established

in Article 15(4–5) for access to genetic resources including based on prior informed consent (PIC) and

1 Stockholm Declaration on the Human Environment (adopted 16 June 1972) 11 ILM 1416. The International Union for the Protec-

tion of Nature was later renamed the International Union for Conservation of Nature (IUCN).

2 Report of the Secretary-General, ‘Development and International Co-operation: Environment’ (1987) UN Doc A/42/427, Annex –

Report of the World Commission on Environment and Development: Our Common Future (Brundtland Report); Marie-Claire Cor-

donier Segger and Ashfaq Khalfan, Sustainable Development Law: Principles, Practices and Prospects (OUP 2004) 15–18.

3 Patricia W Birnie, Alan E Boyle and Catherine Redgwell, International Law and the Environment (3rd edn, OUP 2009) 124.

4 Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) 33

ILM 1144, Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights.

5 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD) art 8(j).

6 ibid art 16(1); Lyle Glowka and others, ‘A Guide to the Convention on Biological Diversity’ (1994) IUCN Environmental Policy and

Law Paper No 30, 84–85.