RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/165
3 November 1999
(99-4753)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
Proposal on Protection of the Intellectual Property Rights Relating to the Traditional
Knowledge of Local and Indigenous Communities1
Communication from Bolivia, Colo mbia, Ecuador, Nicaragua, and Peru
The following communication, dated 4 October 1999, has been received from the Permanent
Mission of Peru.
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Background
1. Both the ongoing evolution of intellectual property and the introduction of this subject into
the Uruguay Round of multilateral trade negotiations in 1996 have been based on a view of economic
and technological development that recognizes intellectual property as a necessary ingredient and
essential requisite for achieving the developmental goals of global trade.  The WTO Members,
including the signatories of this communication, confirmed this recognition by adopting and
undertaking to comply with the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS).
2. The system of intellectual property protection as recognized today is the result of a
continuous evolutionary process driven by the desire to achieve accelerated commercial and
technological development.  Over time, the scope of intellectual property has been expanded by
recognizing new subject matter of protection.  This broadening has taken place by the inclusion of
special ( sui generis ) systems of protection or through the widening of the traditional categories of
protection so as to cover new subjects.  In recent decades, the laws of WTO Members as well as
international instruments have recognized as new subject matter of protection, for instance, plant
varieties (in 1950 and 1960), biological material, plants and animals (in 1970 and 1980), layout
designs (topographies) of integrated circuits (1980), computer software (in 1980 and 1990) and
databases and compilations of data (in 1980 and 1990).
3. Seen from a historical perspective, the evolution and widening of intellectual property
through the recognition of new rights and subjects of protection was prompted by the legitimate needs
of industries and producers whose economic interests depended on recognition of their creations and
innovations as protectable subject matter.  The needs and expectations of these sectors were in due
course accepted by the governments of the Member States concerned and eventually recognized andformalized at the international level.
                                                     
1 This communication was distributed as WT/GC/W/362 dated 12 October 1999.  At the meeting of the
Council for TRIPS of 20-21 October 1999, the representative of Peru requested that this communication be
circulated as a formal submission to the Council for TRIPS as well.IP/C/W/165
Page 2
4. Nevertheless, the entire modern evolution of intellectual property has been framed by
principles and systems which have tended to leave aside a large sector of human creativity, namely
the traditional knowledge possessed by local and indigenous communities.  In many cases, this
traditional knowledge is linked to the use and application of genetic, biological and natural resources,
or the management and conservation of such resources and the environment, in ways that haveeconomic, commercial as well as cultural value.  More broadly, traditional knowledge also comprises
artistic and cultural expressions which have a fundamental value for their holders, as they are the
cement binding their individual and collective identi ty, as well as the guarantee of their continued
survival.
5. Traditional knowledge consists largely of innovations, creations and cultural expressions
generated or preserved by its present possessors, who may be defined and identified as individuals or
whole communities, natural or legal persons, who are holders of rights.  The economic, commercialand cultural value of this traditional knowledge for its possessors warrants and justifies a legitimate
interest that this knowledge be recognized as subject matter of intellectual property.  This expectation
on the part of those concerned that their traditional knowledge should be given legal recognition has
found expression in an increasing number of national, regional and international forums, and is quite
as legitimate as the expectations which in the past justified the recognition of the new subjects ofintellectual property that were mentioned above by way of example.
6. On the threshold of a new round of international trade negotiations, these needs and
expectations cannot be ignored or disregarded.  They deserve full consideration in the framework of
the future development of intellectual property at the global level.  The future development of
intellectual property must be based on mutual recognition of the creations and intangible goodsgenerated by the various sectors concerned in the different WTO Members.  For many WTO
Members, the cultural and economic value of traditional knowledge is just as important as that of
modern technological innovations for other Members.
7. Traditional knowledge has been under study in some WTO Members for a number of years
with a view to establishing sui generis  legislation at national and/or regional level.  Nevertheless,
international recognition of traditional knowledge as protectable subject matter would afford its
holders the legal possibility of obtaining enforcemen t of their rights outside their own countries, thus
enabling them to share in the economic benefits derived from that knowledge.  Such recognition
would also lead to a reduction in the misappropriation and unauthorized exploitation of such
knowledge, and diminish the risk of erosion or destruction of these intangible goods and of the
cultures that have generated them.
8. An international legal framework should enable the legitimate holders of traditional
knowledge to exercise effective control over access, use, reproduction, imitation, exploitation and
transmission and other commercial activities relating to traditional knowledge or expressions and
manifestations thereof, and ensure that these rights are accompanied by effective means of
enforcement at least equal to those alr eady provided for in the TRIPS Agreement.
9. International recognition of traditional knowledge as protectable subject matter would also
provide additional means of dealing at international level with, among other things, aspects related to
the protection of innovations under Article 27.3(b), of the TRIPS Agreement and the obligation to
respect, preserve and maintain knowledge, innovations and practices of indigenous and local
communities provided for in Article 8(j) of the Convention on Biological Diversity.IP/C/W/165
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Proposal
10. For the foregoing reasons, the above signatory Members propose that the Seattle Ministerial
Conference establish, within the framework of th is Round, a mandate with the following purposes:
(a) To carry out studies, in collaboration with other relevant international organizations,
in order to make recommendations on the most appropriate means of recognizing and
protecting traditional knowledge as the subject matter of intellectual property rights.
(b) On the basis of the above-mentioned recommendations, initiate negotiations with a
view to establishing a multilateral legal framework that will grant effective protection
to the expressions and manifestations of traditional knowledge.
(c) To complete the legal framework envisaged in paragraph (b) above in time for it to be
included as part of the results of this round of trade negotiations.
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