Access to Traditional Knowledge and Genetic Resources without Misappropriation

This statement was summarized orally at the WIPO IGC on April 27, 2006. This is the written submission. James Love

Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore : Ninth Session (WIPO/GRTKF/IC/9)
Apr 24, 2006 to Apr 28, 2006
Geneva, Switzerland

Comments of Consumer Project on Technology

Access to Traditional Knowledge and Genetic Resources without Misappropriation
the Bellagio/Yale A2K proposal.

We will discuss briefly a proposal that was first developed in a November 20-25, 2002 Rockefeller Bellagio meeting, (Collective management of intellectual property, tacklliing the anticommons) and presented most recently by Dr. Manon Ress at last week’s meeting at Yale on Access to Knowledge (A2K).

We wil examine the issues of access and misappropriation, as relating to both Traditional Knowledge (TK) and Genetic Resources (GR).

Our starting point is not about fairness, but rather, what is in the self-interest of developing countries? We consider this question both for countries that are rich in TK or GR resources, and countries that are not.

Our proposal does not deal with many important issues, such as privacy, dignity, respect, identification of owners of TK or GR resources, or many other important topics. It is a narrow proposal.

It draws from the experience of the free software community, and it has implications for a wider set of problems that concern misappropriation, including important cases involving modern biomedical research.

As mentioned earlier, our starting point is the experience of the free software community. This is a community of persons who create software code, and who collaborate in software development, and also freely share the code with others. They were confronted with a problem of misappropriation. Companies were taking code that was in the public domain, making changes, and creating new commercial versions that were protected by copyrights, trade secrets and patents. The community that created the initial code did not have access to the new products.

The response by the free software community to this problem is interesting, because it was novel, controversial, and very successful. It is also very relevant to the WIPO discussions over protections for TK. The free software community, led by Richard Stallman and the Free Software Foundation, created a new copyright licensing strategy, around the GNU General Public License (GPL). This license gave anyone the right to use GPL’d code, for any purpose, including for commercial purposes, at a zero royalty. In return, however, the user of the GPL’d code had to provide the free software community royalty free access to the new product, including the new source code. Moreover, the new product would also be protected by the GNU GPL license. The “reach through” or “viral” aspect of the GNU GPL was quite important and effective. Today millions of lines of software code and thousands of important software programs are protected by the GNU GPL.

In the beginning, the GPL was attacked as “communistic,” anti-capitalist, overly restrictive or impractical by a legion of critics. But over time, many software and computer companies began to see the GNU GPL as a very useful device to ensure that collaboratively created knowledge goods continue to be resources that are widely available. Today IBM, Oracle, Sun and many other major corporations use the GNU GPL for important projects.

Now let’s return to a focus of this meeting, the protection of TK or GR resources. What is the relevance of the GNU GPL story to TK or GR resources? The free software community is, in many respects, similar to a community that creates TK resources. The difference is that the software programmers have an automatic intellectual property right -- copyright, which is easy to get (there are no formalities under the Berne Convention), and which they can license, under a variety of terms.

If a developing country created a sui generis TK or GR intellectual property right, it could be done in many different ways. If the sui generis right asserts exclusive rights over TK/GR resources, it may provide some opportunities for rent seeking when people use those resources, but this approach can also create or lead to monopoly controls over knowledge, which can be a bad outcome if everyone does the same thing. Most developing countries are net importers of TK and GR resources, so they need to consider the regime both as owners and as consumers. And, if other countries do not recognize a countries’ sui generis TK/GR regime, you are only hurting your own consumers.

The Bellagio/Yale/A2K proposal focused on a different strategy for the sui generis TK/GR intellectual property regime. In this proposal, the TK/GR right would not apply to any use of the TK/GR resource that was not patented. But when there is a patented invention that uses TK/GR resources, there would be an obligation for the patent owner to obtain a license to the TK/GR resources. But to avoid monopolies and promote innovation, there would be a mandatory compulsory cross-license on both the patented invention and the TK/GR sui generis right. The patent owner would have guaranteed access to the TK/GR resource, but the TK/GR owner (or owners) would also have guaranteed access to the patented invention.

Under the cross-licensing approach, there would be less monopoly power for the patented invention than would be the case if the TK/GR resource had been in the public domain. This is because the TK/GR owners would have the right to directly compete against the patent owner, if they choose to.

There is a precedent for this, in Europe. The European Directive on the Protection of Biotechnological Inventions provides for a mandatory cross-license between owners of patented inventions and owners of improvements in seeds protected by plant variety rights.

Article 12.1. Where a breeder cannot acquire or exploit a plant variety right without infringing a prior patent, he may apply for a compulsory licence for non-exclusive use of the invention protected by the patent inasmuch as the licence is necessary for the exploitation of the plant variety to be protected, subject to payment of an appropriate royalty. Member States shall provide that, where such a licence is granted, the holder of the patent will be entitled to a cross-licence on reasonable terms to use the protected variety.

The European Commission adapted this approach because it wanted to weaken the monopoly power in seeds enjoyed by two US patents owners, Monsanto and Dupont. In subsequent reviews, the mandatory cross-licensing program has been found to promote access to innovations.

A similar approach could be used for TK/GR resources. Because it is required by the TRIPS, there would have to be remuneration from the TK/GR owner to the patent owner, to use the patented invention. But there could also be remuneration from the patent owner to the TK/GR owner. This can provide a useful framework for meeting CBD obligations on benefit sharing.

This would clearly work to the benefit of a developing country if applied solely within it’s borders -- it would receive royalties from the patent owners, and it would also have the right to use the patented invention under the mandatory cross-license. But would it also be something that other countries would recognize?

Again, it would depend upon the implementation. But one approach involving cross-border pooling of TK/GR resources might be particularly effective in promoting recognition of the regime.

If a country (community) that “owned” TK/GR resources was willing to pool its resources with another country (community), the new co-owner in the TK/GR resources would have an incentive to recognize the cross-licensing scheme, because it would provide them with greater access to the patented invention.

A country (community) with few TK/GR resources would benefit from both greater access to the patented invention, and also from the reduction in patent monopoly power.

A country (community) with an abundance of TK/GR resources would benefit from greater acceptance of it’s sui generis right, including the receipt of remuneration for the use of the TK/GR resources in the larger market of countries (communities) that join the pool.

As a thought experiment, suppose every country in Latin American joined the pool. If the “ownership” of the TK/GR resources were everyone in Latin America, then everyone in Latin America would have the right to exploit any patented invention that relied upon any TK/GR resources in the Latin America. This is a big benefit.

It is easy to consider this thought experiment with Africa or Asia, or even the entire developing world. If the whole world entered the pool, you would move toward a global system of non-exclusive remunerative rights (liability rules) for many inventions.

Because of limited time, there are many details we cannot discuss today, which are important, and worth thinking about.

One is that the Bellagio/Yale proposal could be a model, or a basis, for thinking about a wider range of cases where public or community resources are misappropriated, including for example, cases involving important publicly owned biomedical databases, such as the SNPS, HAPMAP or Human Genome Projects, where issues of licensing and misappropriation have been problematic.

There is also an interesting discussion over optimal remuneration policies. One might think of GNU GPL software as a special case of cross licensing at a zero royalty. The free software movement clearly put the premium on access, rather than on remuneration. One wonders if programmers would have freely donated code to collaborative GNU GPL’d projects if there were issues over who would receive and control royalties.

For some problems, a zero remuneration might be the best. But for other cases, non-zero remuneration may lead to better development of patented technologies, and greater incentives for developing countries to protect, document, disseminate and share knowledge.

In closing, it is appropriate to note that many persons have provided helpful ideas and insights which we have shamelessly exploited, and criticisms we may have unfortunately ignored. Without implicating anyone in any aspect of the proposal, we are particularly grateful to the participants of the 2002 Rockefeller Bellagio meeting on collective management of intellectual property rights, Professors Peter Drahos, Ruth Okediji, Jerome Reichman and Carlos Correa, Tim Hubbard, Julia Oliva, Chee Yoke Ling, Martin Khor, Sisule Musungu, Tony Taubman and Richard Stallman for their insights into various aspects of this problem.

James Love
Manon Ress
27 April 2006