(LINK Centre, University of the Witwatersrand (Wits), Johannesburg, 2019-06-28) Oguamanam, Chidi
The World Intellectual Property Organisation (WIPO) has, for nearly two decades,
engaged in formulating the nature and content of a text-based legal instrument
or instruments for the effective protection of genetic resources (GRs), traditional
knowledge (TK), and traditional cultural expressions (TCEs, also known as folklore)
within or relating to the international intellectual property (IP) system. This task
has been the job of WIPO’s Intergovernmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore (IGC), established
in 2000. In this article, I explore the context and rationales for, and evolution of,
one of the IGC’s evolving contributions: development of a tiered or differentiated
approach to the protection of TK and TCEs. The article discusses and analyses
the empirical ramifications and challenges of the tiered approach—alternatively
referred to as differentiated approach—with reference to examples of forms of TK
and TCE in Africa, North America and Australia. I conclude that the approach is
a work in progress, still evolving, which provides a useful broad policy framework
at the international level while, at the same time, its details are contingent on many
considerations better addressed at national and local levels.