PERUVIAN EXPERIENCE IN THE PROTECTION OF TRADITIONAL KNOWLEDGE

1
PERUVIAN EXPERIENCE IN THE PROTECTION OF
TRADITIONAL KNOWLEDGE

• Presentation by Minister Counsellor Betty
  Berendson, Deputy Permanent Representative of
  Peru to the WTO

2
PERUVIAN APPROACH FOR THE PROTECTION AND
SUSTAINABLE USE OF BIODIVERSITY
REGULATION

• Enactment of a new Environmental Code
• Implementation of a National Strategy
• Enactment of a Law on the National Protected
  areas
• Proposal on a protection regime for the
  collective knowledge of indigenous peoples
• Regulation of access to genetic resources

3
PERUVIAN APPROACH FOR THE PROTECTION AND
SUSTAINABLE USE OF BIODIVERSITY

• Special constitutional mandates on
• Sustainable use of natural resources
• Environmental protection
• Development of the Amazonia
• Integral development of groups originating in the
  Amazonia
• Introduction of new institutional framework
• National Institute for Natural Resources (INRENA)
• National Environmental Council (CONAM)

4
THE STUDY OF A PERUVIAN REGIME FOR THE
PROTECTION OF COLLECTIVE KNOWLEDGE OF INDIGENOUS
PEOPLES

• Objetive to implement CBD dispositions
• Means in 1996 establishment of a Multisectorial
  Committee to draft legislation
• Participation of 15 national entities
  (governmental and NGOS) related to intellectual
  property, environment, research and development,
  public health, industry, agriculture and
  fisheries.

5
THE MANDATE OF THE MULTISECTORIAL COMMITTEE ON
TK

• To make a diagnosis of the forms of organization
  of the indigenous communities in Peru and the
  mechanism of benefit sharing distribution
• Draw up an inventory of the genetic resources in
  Peru
• Explore possibilities of regulation of access to
  genetic resources
• Explore possibilities of protection of
  traditional knowledge and
• To develop didactic material and strategy for
  training indigenous communities.

6
THE MAIN ELEMENTS OF THE PROPOSAL FOR THE
PROTECTION OF TK

• Scope of protection is based solely on TK
  associated with the biodiversity. Other kinds of
  TK are not regulated here.
• Objectives of the regime
• to promote respect and protection of TK
• to preserve TK
• to promote equitable benefit sharing, and
• the use of TK in benefit of humanity
• Right holders the regime recognizes the
  indigenous communities ownership and associate
  rights over their traditional knowledge.

7
THE MAIN ELEMENTS OF THE PROPOSAL FOR THE
PROTECTION OF TK

• Prior inform consent (PIC).- Indigenous
  communities have the right to decide if they
  authorize or not that their knowledge is used
  with commercial, industrial or scientific
  purpose.
• TK in the public domain.- It is considered that
  TK is in the public domain when it has been
  established that someone not belonging to the
  indigenous community has acquired this knowledge
  through the media (publications, TV) or directly
  from indigenous community.

8
THE MAIN ELEMENTS OF THE PROPOSAL FOR THE
PROTECTION OF TK

• Term of protection.- These rights are timeless.
  They are considered national heritage.
• Register.- The purpose is to preserve the
  knowledge. The register is voluntary and
  confidential.
• License agreements.- One or more indigenous
  community may grant licenses authorizing the use
  of a TK.
• Development Fund.- TK shared by more than one
  community. Instead of granting licenses a fund is
  established (0.5 of economic revenues from
  marketing products based on TK).

9
BIOPROSPECTIONS CONTRACTS REGULATING BENEFITS
FROM USE OF GENETIC RESOURCES AND TK
SHORTCOMINGS

• Only parties to the contracts receive benefits
• There is a high transaction cost for the parties
• Most communities are unaware of the legal regime
  in force
• There is little community negotiation capacity

10
REGIME FOR THE PROTECTION OF TK
BIOPROSPECTIONS CONTRACTS
ADVANTAGES

• It establishes clear rules to facilitate the
  conclusion of private bioprospections contracts
• Prevents abuses in these contracts
• Reduces the transaction costs, so that all
  parties can benefit from them.

11
PROPOSAL ON THE PROTECTION OF AGRO BIODIVERSITY

• Traditional knowledge associated with agro
  biodiversity of Andean indigenous peoples is
  crucial for local food and health security and
  plays an important role in maintaining the
  security of the ecosystem and for the development
  of sustainable models of agriculture in the
  region.
• During the last decade, the need to integrate
  traditional knowledge and management systems into
  agricultural development programmes have been
  widely acknowledged. International conventions
  have recognized the role of indigenous peoples
  and other traditional societies in the
  sustainable management of agro biodiversity. This
  debate has been particularly active within the
  work Convention on Biological Diversity and the
  process of implementation of Article 8(j).
• Indigenous peoples have participated only
  marginally in the development of policy or
  legislation aimed at protecting their knowledge
  and practices. This lack of participation has
  meant that existing frameworks to protect
  traditional knowledge have failed to integrate
  indigenous peoples cosmovision and customary laws
  into such arrangements .

12
INDIGENOUS PEOPLES COSMOVISION ON TK PROTECTION

• Studies about how indigenous peoples in Peru
  conceptualize their own rights and the protection
  of their knowledge and practices associated with
  plant genetic resources are yet few. The Peruvian
  Andes is an important centre of origin and
  diversity of many crops of global significance
  and such experiences are crucial for the
  development of effective in-situ conservation and
  adaptive management strategies.
• Give the opportunity to indigenous communities to
  enforce those rights outside their countries,
  thus participating in the economic benefits
  derived from TK.
• Reduce the misappropriation and unauthorized
  exploitation of TK.
• Diminish the risk of erosion or destruction of
  those intangible goods and ancestral cultures
  that created them.

13
OBJETCTIVES OF THE PROTOCOL

• To research and finalize a sui-generis protocol
  for the protection of indigenous knowledge and
  genetic resources based indigenous peoples on
  customary laws
• To develop guiding principles for community
  involvement in the management and conservation of
  agro biodiversity
• To share the research experiences with a larger
  constituency of indigenous communities in the
  Andean region

14
AIMED RESULTS

• To draft a sui-generis local protocol that will
  regulate indigenous knowledge and associated
  genetic resources based on customary laws.
• To establish guidelines for the involvement of
  indigenous communities in the management and
  conservation of agro biodiversity.
• To help indigenous communities in the Andean
  region better understand issues related to access
  to genetic resources and equitable benefit
  sharing and learn the process of developing local
  measures for the protection of knowledge and
  resources and guidelines for an effective and
  appropriate participation in activities related
  to the conservation and sustainable use of agro
  biodiversity.

15
THE ANDEAN COMMUNITY DECISION 391 ON
BIODIVERSITY 4 QUESTIONS

• Should the regime should address biodiversity
  conservation and protection measures and only
  thereafter ABS (access to genetic resources and
  benefits sharing) issues?
• What was the legal status of genetic resources in
  the region, and therefore the rights and role of
  the state?
• Should the system focus on strict control of
  access to and use of genetic resources or rather
  regulate more flexibly an ongoing flow of these
  resources?
• How to deal with the issue of indigenous
  communities rights over their TK, innovations and
  practices related to biodiversity and how an ABS
  could address it?

16
THE ANDEAN COMMUNITY DECISION 391 ON
BIODIVERSITY OBJETIVES

• Establish conditions for a just and equitable
  participation in the benefits
• Establish the basis for the recognition and
  valuation of genetic and biological resources and
  their derived products as well as of their
  intangible components, particularly in the case
  of indigenous communities
• Promote the conservation and sustainable use of
  biodiversity
• Promote the development and enhancement of local,
  national and regional capacities
• Strengthen the negotiating capacities of Member
  States.

17
THE ANDEAN COMMUNITY DECISION 391 ON
BIODIVERSITY INTANGIBLE COMPONENTS

• Intangible components is, defined as knowledge,
  innovation or individual or collective practices,
  with real or potential value, that is associated
  with the genetic resources, its by-products or
  the biological resources, whether or not
  protected by intellectual property regimes.

18
THE ANDEAN COMMUNITY DECISION 391 ON
BIODIVERSITY THE RIGHTS OF INDIGENOUS
COMMUNITIES

• Article 7 of Decision 391 states that pursuant
  to this decision and supplementary domestic
  legislation, the Member Countries, recognize and
  uphold the rights and decision-making authority
  of indigenous, afro-american and local
  communities, over their knowledge, innovations
  and traditional practices associated with genetic
  resources and their by-products.