What is Traditional Knowledge and how far is it protected in the UK?

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Jane Lambert

On Easter day the Intellectual Property Office tweeted

The modern #Easter egg owes its development to Van Houten’s invention of a press for separating cocoa butter from the cocoa bean in 1828. pic.twitter.com/PwcaaxMG4O

— IPO.GOV.UK (@The_IPO) April 1, 2018

Chocolate came from the New World and its properties were discovered by the indigenous peoples of the American continent. It is a good example of what we would nowadays call "traditional knowledge."

According to the World Intellectual Property Organization ("WIPO") traditional knowledge is a living body of knowledge passed on from generation to generation within a community which often forms part of a people’s cultural and spiritual identity. Its traditional knowledge and intellectual property background brief explains:

"The current international system for protecting intellectual property was fashioned during the age of industrialization in the West and developed subsequently in line with the perceived needs of technologically advanced societies. However, in recent years, indigenous peoples, local communities, and governments, mainly in developing countries, have demanded equivalent protection for traditional knowledge systems,"

A number of WIPO member states established an Intergovernmental Committee ("IGC") on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in 2000. In 2009 the IGC agreed to develop an international legal instrument (or instruments) to give traditional knowledge, genetic resources and traditional cultural expressions (folklore) effective protection. The IGC held its 35th session between 19 to 23 March 2018 which was summarized in Summary of IGC 35. The WIPO presented the above video on the fictional Yakuanoi people and Documenting Traditional Knowledge –A Toolkit to the Committee at that meeting.

However, for all that effort there is at present very little protection for traditional knowledge, genetic resources and folklore in the UK.  According to the WIPO database of Traditional Knowledge, Traditional Cultural Expressions & Genetic Resources Laws the only legislation that can be used to protect traditional knowledge is The Copyright Designs and Patents Act 1988 in relation to traditional cultural expressions. The position is slightly different in Brazil which protects genetic resources as well as cultural expression and India which also protects genetic resources. Furthermore, it appears from the List of Participants that the UK was the only large country not to have been separately represented at the 35th IGC meeting.

The story of the Yakuanoi's negotiations with a cosmetics story is charming but, sadly, not very realistic.  It hinted that patents and trade marks can be revoked on traditional knowledge grounds but did not explain exactly how. The paste pounded by the Yakuanoi seems to be very different from the cosmetic product by the cosmetics company and there is no reason why they should use the name of an indigenous people as a trade mark.  Had the cosmetics company been British it is unlikely that a meeting with the Yakuanoi could ever have taken place because there would have been no legal leverage on it to make concessions.  Moreover, even if the company's management had done so the company's shareholders and other stake holders such as unions might well have objected.

It seem unlikely that any British government would ever enact legislation to protect traditional knowledge unless obliged by treaty to do so.  Despite 18 years of deliberation there are no signs of a multilateral agreement. The only way that I can imagine that such a treaty obligation could ever would be through bilateral trade negotiations with a powerful trading partner after Brexit.

Anyone wishing to discuss this article or traditional knowledge in general should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.