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'Sui Generis' Protection of Traditional Knowledge A Service of Leibniz-Informationszentrum econstor Wirtschaft Leibniz Information Centre Make Your Publications Visible. zbw for Economics Mathur, Ajeet Working Paper Missing markets in world trade the case for 'Sui generis' protection of traditional knowledge Working Paper, No. 141 Provided in Cooperation with: Indian Council for Research on International Economic Relations (ICRIER) Suggested Citation: Mathur, Ajeet (2004) : Missing markets in world trade the case for 'Sui generis' protection of traditional knowledge, Working Paper, No. 141, Indian Council for Research on International Economic Relations (ICRIER), New Delhi This Version is available at: http://hdl.handle.net/10419/176163 Standard-Nutzungsbedingungen: Terms of use: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Documents in EconStor may be saved and copied for your Zwecken und zum Privatgebrauch gespeichert und kopiert werden. personal and scholarly purposes. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle You are not to copy documents for public or commercial Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich purposes, to exhibit the documents publicly, to make them machen, vertreiben oder anderweitig nutzen. publicly available on the internet, or to distribute or otherwise use the documents in public. Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, If the documents have been made available under an Open gelten abweichend von diesen Nutzungsbedingungen die in der dort Content Licence (especially Creative Commons Licences), you genannten Lizenz gewährten Nutzungsrechte. may exercise further usage rights as specified in the indicated licence. www.econstor.eu WORKING PAPER NO. 141 MISSING MARKETS IN WORLD TRADE THE CASE FOR ‘SUI GENERIS’ PROTECTION OF TRADITIONAL KNOWLEDGE Ajeet Mathur AUGUST, 2004 INDIAN COUNCIL FOR RESEARCH ON INTERNATIONAL ECONOMIC RELATIONS Core-6A, 4th Floor, India Habitat Centre, Lodi Road, New Delhi-110 003 website1: www.icrier.org, website2: www.icrier.res.in MISSING MARKETS IN WORLD TRADE THE CASE FOR ‘SUI GENERIS’ PROTECTION OF TRADITIONAL KNOWLEDGE Ajeet Mathur AUGUST, 2004 The views expressed in the ICRIER Working Paper Series are those of the author(s) and do not necessarily reflect those of the Indian Council for Research on International Economic Relations (ICRIER). Contents FOREWORD .................................................................................................................................................I ABSTRACT.................................................................................................................................................. II 1. INTRODUCTION..................................................................................................................................... 1 2. WHY IS TRADITIONAL KNOWLEDGE A TREASURE TROVE ?.............................................. 11 3. KNOWLEDGE ARENAS ..................................................................................................................... 15 3.1 TECHNOLOGY ...................................................................................................................................... 16 3.2 TRADITIONAL KNOWLEDGE................................................................................................................. 18 3.3 GENETIC RESOURCES .......................................................................................................................... 19 3.4 FOLKLORE ........................................................................................................................................... 21 3.5 KNOWLEDGE PROTECTABLE BY INTELLECTUAL PROPERTY RIGHTS ..................................................... 22 4. THE INTELLECTUAL PROPERTY RIGHTS (IPR) SYSTEM ...................................................... 27 5. INCOMPATIBILITIES BETWEEN INTERNATIONAL REGIMES............................................. 30 6. IS TRADITIONAL KNOWLEDGE A PUBLIC GOOD? .................................................................. 43 7. THE VALUATION OF TRADITIONAL KNOWLEDGE................................................................. 50 8. ACCESS AND BENEFIT-SHARING REGIMES ............................................................................... 53 9. THE LONG MARCH TO INTERNATIONAL 'SUI GENERIS' PROTECTION ........................... 64 9.1 INTELLECTUAL PROPERTY AND GENETIC RESOURCES......................................................................... 65 9.2 INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE............................................................... 65 9.3 INTELLECTUAL PROPERTY AND FOLKLORE (TRADITIONAL CULTURAL EXPRESSIONS) ......................... 69 10. FEASIBILITY OF NATIONAL ©SUI GENERIS' PROTECTION.................................................. 72 10.1 THE BUILDING BLOCKS ..................................................................................................................... 72 10.2 ESSENTIAL ELEMENTS OF A NATIONAL 'SUI GENERIS' FRAMEWORK .................................................... 73 CONCLUSIONS ......................................................................................................................................... 84 REFERENCES............................................................................................................................................ 87 Foreword The feasibility of ‘sui generis’ protection of traditional knowledge is a matter of considerable interest to developing countries because of its trade potential. It concerns all countries regarding costs and benefits of appropriation of traditional knowledge in the absence of access and benefit-sharing regimes. WTO’s Doha Ministerial Declaration referred the matter to the TRIPS Council where discussions have begun but not yet concluded. In 2001, WIPO instituted an Inter-Governmental Committee on Traditional Knowledge, Genetic Resources and Folklore which whose mandate has recently been extended. The question of examining feasibility of national or international ‘sui generis’ protection of traditional knowledge in a manner consistent with international treaty obligations involves complex policy choices concerning the application of law and economics to problems with multi-disciplinary dimensions. This study was undertaken as part of the WTO series of studies at ICRIER supported by the Sir Ratan Tata Trust. The study analyses the problem from an inter- disciplinary perspective and concludes by presenting a framework for national ‘sui generis’ protection of traditional knowledge. The study first constructs a taxonomy, taking into consideration the special features and characteristics of how different forms of traditional knowledge are held and transmitted by knowers and users from the perspective of what is knowable, by whom, and how. The study then analyses the scope, efficiency in application, equity in outcomes, and compatibility with other international regimes of the world’s intellectual property rights system, in its protection of traditional knowledge. Arvind Virmani Director & Chief Executive ICRIER August 2004 i Abstract This study analyses the feasibility of `sui generis' protection of traditional knowledge as a Scitovskyian problem of `missing markets' in world trade in the context of the reference made by the WTO Doha Ministerial Declaration to the TRIPS Council. The logic and design for a national framework of sui generis protection of traditional knowledge and plant genetic resources that can harmonise development priorities with all international commitments, including TRIPS, is developed and presented. The study constructs a taxonomy taking into consideration the special features and characteristics of how different forms of traditional knowledge are held and transmitted by knowers and users from the perspective of what is knowable, by whom, and how. The study finds that considerable ownable knowledge claimed under intellectual property rights arises from the combination of folklore, genetic resources, and traditional knowledge, with technology playing an important function as an interlocutor. The location of traditional knowledge in articulable and tacit forms within and without arenas of contestation influences what is protectable from what is in the public domain. The study analyses how and why and in what respects, the world's intellectual property rights system is incomplete in scope, inefficient in application, inequitable in terms of outcomes, and incompatible with other international regimes. The profound implications under-use and exhaustability have for inter-generational and spatial equity are discussed to examine whether traditional knowledge has characteristics of public goods to clearly establish undesirable conditions under which non-excludability, and non-rivalrous consumption are not met. Depending on whether traditional knowledge is to be treated as a pure or impure public good, the economics of valuation of traditional knowledge is analysed by admitting two orders of static effects and three orders of dynamic effects and how policies designed to maximise early positive gains from static effects may be counter- productive in terms of cancelling the dynamic effects, which ought to be much greater than the static effects, if chronology and institutional intervention are factored into the calculus. Distributed cross-border value-chains in which multinational companies
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