A Review on Contractual Arrangement Regarding Protection of Traditional Knowledge Holders

22 Pages Posted: 7 Dec 2011

See all articles by Marina Igorevna Tsikun

Marina Igorevna Tsikun

affiliation not provided to SSRN

Kuei-Jung Ni

National Chiao Tung University

Liu Shang-Jhy

affiliation not provided to SSRN

Date Written: December 7, 2011

Abstract

In the wake of increasingly widespread bio prospecting and commercial use of indigenous knowledge by enterprises and research institutions, a variety of international agreements such as the Convention on Biological Diversity (CBD) (1992), the CBD Bonn Guidelines (2002), the FAO' International Treaty on Plant and Genetic Resources (2001), the the World Intellectual Property Organization (WIPO) Draft Provisions on Traditional Cultural Expressions/Folklore and Traditional Knowledge (2004) have proposed certain formulas for the protection of traditional knowledge (TK). The existing legal frameworks of TK protection at the international level lack specific instruments for TK protection, and rather constitute a soft law, and some regional and national laws that provide indigenous peoples with property rights over TK are not internationally recognized. There is still no operating binding international agreement that provides effective protective measures. The article argues that in the meanwhile private contractual arrangement constitutes one of the major instruments to protect TK during the bio prospecting process. Nevertheless, whether the contract basis is always workable and equitable remains controversial. The article aims to assess whether a contract model may properly protect indigenous peoples’ traditional knowledge related to genetic resources. It will explore the strength and weakness of using contracts for the protection of TK holders. Among the most significant advantages are the freedom of concluding a contract and its flexibility. Thus, the contract could be of a very flexible instrument, fitting the peculiarities of a particular transaction. On the other hand, the approach has some limitations, such as an imbalance of bargaining powers between contracting parties.

Keywords: Traditional knowledge, Intellectual property rights, Contract, Indigenous peoples’ rights

Suggested Citation

Tsikun, Marina Igorevna and Ni, Kuei-Jung and Shang-Jhy, Liu, A Review on Contractual Arrangement Regarding Protection of Traditional Knowledge Holders (December 7, 2011). ESIL 2011 4th Research Forum. Available at SSRN: https://ssrn.com/abstract=1969376

Marina Igorevna Tsikun (Contact Author)

affiliation not provided to SSRN ( email )

Kuei-Jung Ni

National Chiao Tung University ( email )

No. 1001, Daxue Rd, East District
Hsinchu, 300
Taiwan
+886-3-5731662 (Phone)

Liu Shang-Jhy

affiliation not provided to SSRN ( email )

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