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Documenting Traditional Knowledge – a Toolkit This Is a Publication of WIPO’S Traditional Knowledge Division Documenting Traditional Knowledge – A Toolkit This is a publication of WIPO’s Traditional Knowledge Division. The lead author was Begoña Venero Aguirre, with support and comments from Wend Wendland, Fei Jiao, Kiri Toki and Shakeel Bhatti. It was edited by Toby Boyd. Documenting Traditional Knowledge – A Toolkit The user is allowed to reproduce, distribute, adapt, translate and publicly perform this publication, including for commer- cial purposes, without explicit permission, provided that the content is accompanied by an acknowledgement that WIPO is the source and that it is clearly indicated if changes were made to the original content. Suggested citation: World Intellectual Property Organization (WIPO) (2017) Documenting Traditional Knowledge – A Toolkit. WIPO: Geneva. Adaptation/translation/derivatives should not carry any official emblem or logo, unless they have been approved and validated by WIPO. Please contact us via the WIPO website to obtain permission. For any derivative work, please include the following dis- claimer: “The Secretariat of WIPO assumes no liability or responsibility with regard to the transformation or translation of the original content.” When content published by WIPO, such as images, graphics, trademarks or logos, is attributed to a third party, the user of such content is solely responsible for clearing the rights with the right holder(s). To view a copy of this license, please visit https://creativecommons.org/licenses/by/3.0/igo/ The designations employed and the presentation of material throughout this publication do not imply the expression of © WIPO, 2017 any opinion whatsoever on the part of WIPO concerning the legal status of any country, territory or area or of its authorities, Based on a consultation draft published in 2012. or concerning the delimitation of its frontiers or boundaries. World Intellectual Property Organization This publication is not intended to reflect the views of the 34, chemin des Colombettes, P.O. Box 18 Member States or the WIPO Secretariat. CH-1211 Geneva 20, Switzerland The mention of specific companies or products of manufac- ISBN 978-92-805-2883-1 turers does not imply that they are endorsed or recommended by WIPO in preference to others of a similar nature that are Attribution 3.0 IGO license not mentioned. (CC BY 3.0 IGO) Photo credits: Luca Piccini Basile/Getty Images/iStockphoto Printed in Switzerland Table of contents Foreword 4 3. Getting started – the why and how List of figures, worksheets and tables 6 of a documentation project 18 List of acronyms 6 3.1. Understanding the interests and concerns of indigenous peoples and local communities Introduction 7 3.2. Defining the objectives of the documentation project 1. Basic concepts 9 Issues to consider when defining objectives 1.1. What is TK documentation? Examples of objectives of TK documentation 1.2. Why is TK documentation important? 3.3. Who leads the documentation project? What 1.3. How can TK be documented? role should different actors play? Examples of possible documentation 3.4. Considering the needs of potential clients or activities users Two possible scenarios: in situ collection Documentation to assist intellectual and desktop work property offices (defensive protection) 1.4. What laws or regulations need to be considered An example from India: the Traditional when documenting TK? Knowledge Digital Library (TKDL) The legal framework 3.5. An intellectual property assessment template Customary laws and practices 3.6. Applying existing documentation standards 1.5. Intellectual property and TK Annexes 26 2. Key issues 12 Annex 1: 2.1. Intellectual property issues A hypothetical documentation project: collecting TK Intellectual property rights generated from native communities in the Amazon during the documentation process Before documentation Intellectual property rights that could be During documentation used to protect the documented TK or related elements after documentation After documentation 2.2. TK and the public domain 2.3. Documentation through a database or register Annex 2: 2.4. Participation by and prior informed consent of Documenting traditional cultural expressions (TCEs) indigenous peoples and local communities 2.5. Confidentiality Annex 3: Data Specification for Technical Aspects of Databases and Registries of TK and Genetic/Biological Resources Annex 4: Examples of TK documentation through registers and databases Annex 5: Key elements of a documentation format Annex 6: Checklists Before documentation During documentation After documentation Foreword Indigenous peoples and local communities around This Toolkit should assist in that process. It provides basic the world have developed an enormous wealth of tra- information about documenting TK, and in particular ditional knowledge (TK). There is growing interest in the IP implications, with practical guidance on key documenting such TK. issues that need to be thought-through before, during and after documenting TK. The reasons why documentation initiatives are under- taken and the objectives they seek to meet vary greatly. The Toolkit does not promote the documentation of TK In most cases, the benefits that documenting TK can as such. It suggests that documentation of TK, especially provide seem straightforward. But there may also be when that might lead to its dissemination, should only risks, and these are not always so evident. take place within the context of an intellectual property strategy. Most importantly, it makes it clear that secret Many of the benefits and risks concern intellectual or confidential TK needs to be cautiously managed. property. For example, documenting TK may help in- digenous peoples and local communities prevent others By providing an accessible and neutral overview, the from wrongly asserting intellectual property rights Toolkit should help to ensure that all participants in over it. However, a poorly conceived documentation documentation projects – most especially indigenous project may jeopardize the protection of secret TK or peoples and local communities – can make informed even give third parties intellectual property rights in decisions. the documented TK. The potential pros and cons of each TK documentation project therefore need thorough consideration on a case- by-case basis. TK holders need to decide whether the benefits of the project outweigh any potential downsides; and if they do decide in principle to go ahead with the project, it needs to be carefully planned to ensure that Francis Gurry objectives are met, benefits are secured and risks are Director General controlled or minimized. WIPO 5 List of figures, worksheets and tables Figure 1: Publicly available TK, public domain and prior art 13 Figure 2: PIC in relation to TK documentation 16 Figure 3: PIC at the planning and collection stages 16 Table 1: An intellectual property assessment template 24 Worksheet 1: Key questions for initial discussion 19 Worksheet 2: Key questions on project objectives 20 List of acronyms ABS access and benefit sharing EU European Union IGC WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore NGO non-governmental organization PIC prior informed consent TK traditional knowledge UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNESCO United Nations Educational, Scientific and Cultural Organization WIPO World Intellectual Property Organization 6 Introduction Documenting traditional knowledge (TK) is now widely The Toolkit does not offer a ready-made plan for all TK doc- discussed as a way of guaranteeing the social, cultural and umentation projects. Its content will need to be adapted to economic interests of indigenous peoples and local commu- each project. Furthermore, it is not a substitute for expert nities. It has emerged as a tool that can help impede further legal advice, and documentation project participants should loss of TK, maintain TK over time, support benefit sharing consult a lawyer to determine the applicable laws in force, the between holders of TK and those who use it, and ultimately legal status of TK and the intellectual property implications. protect TK from unwanted uses. But just documenting TK is not in itself an effective strategy Structure of the Toolkit for protecting it. TK documentation does not necessarily ensure legal protection for TK. The Toolkit includes three sections: 1. Basic concepts Indeed, concerns have been raised regarding documentation 2. Key issues and its potential effects on the rights, cultures and livelihoods 3. Getting started – the why and how of each specific project of indigenous peoples and local communities. There are concerns that documenting TK may mean that communities A hypothetical example has been included as annex 1 to lose control over it, make it widely available, compromise illustrate some of the main points. the secret nature of some TK, and so on. This Toolkit focuses on “TK” in its narrower sense, i.e., the con- This Toolkit aims to provide useful practical guidance on tent or substance of technical knowledge and know-how related how to undertake a TK documentation project and how to to biodiversity, food and agriculture, health, the environment address critical issues relating to intellectual property as and the like. For their part, “traditional cultural expressions” they arise during the documentation process. (TCEs) or “expressions of folklore” raise a series of distinct intellectual property-related questions. However, in practice TK It aims to help
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