Looking back, moving forward: traditional knowledge & IP Code

By Mila Federis, Federis & Associates
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Consumer interest in natural, organic and homegrown products has been steadily growing in many markets around the world, including the Philippines. More and more frequently, corporations are turning to traditional knowledge. Many companies, for example, are investing in studies of rare plant species as potential medications, and for other uses related to health and wellness. This marketing practice is one form of use of traditional knowledge.

There is a longstanding and ongoing international dialogue on how to protect the rights of indigenous people to their traditional knowledge and cultural expressions, with unauthorized use of biological and genetic resources a big issue.

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Mila Federis
Managing partner
Federis & Associates

The Philippines has been actively participating in this dialogue. The country is home to 110 different ethno-linguistic groups, resulting in a wide variety of traditional knowledge and cultural expressions. It is also one of only 17 megadiversity countries.

A survey conducted by the Department of Energy and Natural Resources (DENR) cited more than 1,100 species of terrestrial vertebrate, 895 species of butterflies, and 10,000 to 13,000 endemic plant species, while the coastal marine has 500 of the world’s 800 known coral species, 40 species of mangrove, more than 2,000 species of reef fish, 800 marine algae, 16 sea grass, 23 cetacean, and 5 species of turtles.

Documenting traditional knowledge is very challenging due to scarce resources. Nevertheless, there is a rich cache of traditional knowledge among the Philippines’ many ethnic groups in the areas of medicine and agriculture, such as holok, a natural solution to pest infestations in plants. As for cultural expressions, the weaving designs that vary with each ethnic group are widely admired when they are displayed on the world stage.

Two questions that arise are, first, is the Philippines willing to extend protection to traditional knowledge? And if so, what form of protection would that be?

So far, the Philippines has signed the 1992 Convention on Biological Diversity (CBD), which aims to be a framework for the conservation and use of biological and natural resources, and for the fair and equitable sharing of benefits from their use. It is also a party to the Nagoya Protocol, which recognizes the rights of indigenous people to genetic resources and requires prior and informed consent from affected communities before their resources are used. Parties to this protocol are required to establish legislative, administrative, and/or political measures regarding access to genetic resources.

On 28 October 2016, the Intellectual Property Office of the Philippines and the National Commission on Indigenous Peoples signed a joint Administrative Order No. 01 2016, which defines Indigenous Knowledge Systems and Practices (IKSP) as “collective intellectual property rights that are an inherent part of the cultural patrimony of the indigenous people”, and provides that: (1) individuals or specific families may serve as custodians of IKSP on behalf of the community; (2) indigenous peoples have the right to regulate access of their IKSP for research and documentation; and (3) indigenous peoples have the right to own, control, develop and protect the past, present and future manifestations of their cultures.

Order No. 01 2016 also requires an applicant to disclose when the subject matter of an application involves an IKSP, as well as the submission of a statement that prior and informed consent has been obtained from the concerned communities. Failure to comply may result in denial of the application, or cancellation of registration if one has been issued.

However, while Order No. 01 2016 indicates that the government favours indigenous peoples’ rights to their traditional knowledge, it only tackles IP rights and will need to be implemented within the framework of the IP Code. Moreover, the penalty of cancellation of an IP right for failure to disclose or to submit prior and informed consent may give rise to a constitutional challenge, because the IP Code itself does not require disclosure. And even if a traditional knowledge-based IP right were to be protected here, there is the question of whether it will receive the same protection in other countries.

For practical and political reasons, the traditional knowledge protection dialogue is likely to continue for many more years.

Mila Federis is the co-founder and managing partner of Federis & Associates Law Office

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FEDERIS & ASSOCIATES
Suites 2004 and 2005, 88 Corporate Centre
141 Valero St, Salcedo Village
Makati City 1227, PhilippinesContact details:
Tel: +63 2 8896197-98
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www.federislaw.com.ph