General information

International aspect of the protection of Traditional Knowledge (TK)

The questions of providing legal protection of TK and associated genetic resources today one of the important and widely discussed in the framework of the World Intellectual Property Organization WPO.

Since 2001, in WIPO works Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (hereinafter – Committee) as an international political forum on these issues.

This legal document is required in order to avoid the possibility of other people or states assign or give TK for their knowledge, and protection from the grant of patents for the creation of traditional therapeutic agent based on genetic resources.

Major genetic resources and such knowledge are in the developing countries, such as North and South America, Africa, and South-East Asia, Australia, and also in our country. All this knowledge and genetic resources need legal protection.

However, this document does not fit into the framework of intellectual property, as there is no author (owner) of this knowledge, as they are passed from generation to generation, often orally. And this document under the sui generis while still being discussed at the sessions of the Intergovernmental Committee.

In the broadest sense of TK – is transmitted historically established communities from generation to generation and practical knowledge on habitat, which are enshrined in both intangible and tangible form. There are many varieties of traditional knowledge: this knowledge in the field of agriculture, ecology, medicine, food industry, etc. But all of them have in common is that they are passed on from generation to generation, inherent in a particular people or territory of residence and are constantly evolving in line with the changing environment.

Traditional knowledge of the Kyrgyz people  

Kyrgyz people a long and rich cultural heritage.

The Kyrgyz TK  can be divided into knowledge related: national cuisine (traditional cooking methods horse sausage “chuchuk” of fermented mare’s milk “kymyz” soft drink made from cereal grains “max”, the low-alcohol beverage from cereal grains “Bozo” , and others, as well as methods for storage and preservation of food);

– Habitat and  household item (construction of yurt, child’s cradle – «beshik»);

– Material culture and decorative arts (interior and exterior yurts, traditional clothes, equestrian equipment, manufacturing felt products, products from splendens (Achnatherum splendens);

 – Pastoral knowledge (biodiversity conservation, pasture rotation, migrations to distant pastures, treatment of animals);

– Traditional medicine;

– National games and folklore (epics, tales, proverbs) etc.

There is knowledge of people’s diplomacy, the power system and its traditional management philosophy and philosophy, and other astronomical knowledge.

Traditional knowledge is developed in close connection with genetic resources and their use is associated with age-old traditions, traditional land of the Kyrgyz people.

General concepts used in this Law

TK shall mean knowledge, methods and manners, including use of genetic resources, used in different fields of the human activities, which have been transferred from one generation to another eventually in certain order and meaning. This knowledge have been kept and adapted for different needs of the local communities and the owners of traditional knowledge and represent particular value for the development of various fields of;

TK holders shall mean the local communities, natural persons and legal entities with any legal structure and with any pattern of ownership who are the possessors of Traditional Knowledge;

Local community shall mean a population permanently residing on the territory of a village, township or city administration and other particular territories of the Kyrgyz Republic with their own national and cultural traditions, way of life and traditional knowledge in different fields of the human activities which possibly may improve the level of living standards;

Genetic Resources include all fauna and flora of terrestrial, marine and any other origin, which may be used by the owners of Traditional Knowledge to obtain specific practical outputs in any field of the human activities.

Objectives and tasks of the State regulation

The objective of the state regulation in the field of Traditional Knowledge is a legal protection, promotion of reservation and wide use of Traditional Knowledge in different fields of human activities, assistance in use of Traditional Knowledge, including knowledge based on genetic resources in industrial production, as well as further commercialization of objects produced as a result of their use.

State regulation in the field of Traditional Knowledge shall include the following:

1) Creation of the preventive mechanism aimed at protection of Traditional Knowledge from illegal patenting of subject-matters created on the bases of Traditional Knowledge and use of associated genetic resources by the inclusion the Traditional Knowledge into database;

2) Fair distribution of benefits received due to usage of Traditional Knowledge in favor of local communities;

3) Establishment of the fund for development of local communities, which can be supported by financial transfers collected during the usage of Traditional Knowledge and genetic resources;

4) Establishment of the State fund for development of the system of usage of Traditional Knowledge;

5) Conducting scientific researches on Traditional Knowledge and existing genetic resources as to their practical use, inter alia:

– reveal the priority trends in researches in the field of Traditional Knowledge using genetic resources, which may contribute significantly to the preservation of environment;

– development and improvement of new types of genetic resources utilization;

– making scientific studies in order to create the inventory on Traditional Knowledge on the territory of the Kyrgyz Republic;

– reveal of well-known and widely used Traditional Knowledge.

The state policy in the field of Traditional Knowledge shall be performed by the Authorized State Body in the field of Intellectual Property (hereinafter referred to as the Authorized Body).

Pursuant to this Law the Authorized Body shall receive applications for registration of Traditional Knowledge, fulfill the State registration, include the data on the registration into the State Register, form the database on Traditional Knowledge, and publish data on Traditional Knowledge, elaborate and issue normative legal acts for enforcement of this Law.

Legal protection of Traditional Knowledge

The present Law shall establish a legal regime for the protection of Traditional Knowledge in the Kyrgyz Republic territory.

The present Law shall not cover expressions of folklore and national handicraft arts.

Legal relationships in the field of use of genetic resources and the order of access to genetic resources of the Kyrgyz Republic shall be regulated in accordance with legislation of the Kyrgyz Republic.

Legal protection shall cover Traditional Knowledge, which is practically applicable in appropriate field of the human activities and which has positive result in the appropriate field.

Legal protection shall not cover Traditional Knowledge, which is actually or possibly may cause damage to human life and health as well as to environment.

Legal protection of traditional knowledge arises on the basis of registration in the order established by this Law, or entered into force in the order established by the legislation of the Kyrgyz Republic or in virtue of an international agreement of the Kyrgyz Republic.

Traditional Knowledge may be registered by one or jointly by several legal entities or natural persons inspective of their patterns of ownership, who are the holders of Traditional Knowledge.

In  order  to  protect  Traditional  Knowledge  in the  Kyrgyz  Republic,  inclusion  them  into  the database,  applications  for  registration  of  Traditional  Knowledge  may  be   filed  by  State  bodies  and  institutions.

The order of registration and use of Traditional Knowledge by State bodies and institutions shall be determined by the Government of the Kyrgyz Republic.

Registration of Traditional Knowledge in the Kyrgyz Republic shall not be limited in time.

Patenting of subject-matters created on the base of Traditional knowledge

Patenting of subject-matters, which are representing Traditional Knowledge shall not be allowed in the Kyrgyz Republic.

When patenting the subject-matters created on the base of Traditional Knowledge, materials of

the  application must  contain  reveal  of  origin  of  Traditional Knowledge  which is  used  as  prior  art or prototype.  The applicant shall indicate the  source  of  making  Traditional  Knowledge  available to  the  public.

Holder of a certificate, which name is indicated in the registered Traditional Knowledge shall be entitled to receive remuneration from the owner of  a patent for invention created by use of  Traditional Knowledge.

The  order  of  payment  of  remuneration  for  use  of  Traditional Knowledge with the purpose  of   creation  of  invention  shall  be   determined  by  an  agreement  between  the  owner  of  certificate  for  Traditional Knowledge and the owner of  a patent for invention.

At  the  same time  such  agreement must  specify assignments to  be  made  for  use  of  Traditional

Knowledge to the Fund for development of local communities or the State fund for development of the system of Traditional Knowledge usage.

In order  to  prevent  illegal  patenting  of  subject-matters  created  on  the  base  of  Traditional

Knowledge  the  Traditional  Knowledge  database  shall  be   maintained,  which  shall  be   used  during examination of  subject-matters to be  patented.

The database shall be maintained by the Authorized State Body based on the data on registered

Traditional  Knowledge  and  information  regarding  Traditional  Knowledge  which  has  entered  into public domain.

Registration of Traditional knowledge

An  application  for  registration  and  granting  the  right  to  use  Traditional  Knowledge  or  for granting the right to use registered Traditional Knowledge (hereinafter referred to as Application) shall be filed  to  the  Authorized  Body  by  applicant  personally  or  through  his/her    representative (representatives) acting on the basis of  a power of  attorney granted by the applicant whose interests are represented by him.

An application shall be filed in the State or Official language.

An application shall contain the following:

1)  application  for  traditional  knowledge  registration  and  granting  the  right  to  use Traditional Knowledge or granting the right to  use registered Traditional Knowledge  stating the applicant as well as his location and place of  residence;

2)  specific and complete description of  Traditional Knowledge, including:

point of  origin of  Traditional Knowledge (borders of  a geographic object); description  of  genetic  resource,  which is  being  used in connection with  particular traditional knowledge; field of  application and expected positive result of  traditional knowledge used; information  relevant  to  previously  issued  publications  regarding  a  particular traditional knowledge.

The following documents shall be attached to the application:

1)  An  official  document  granted  by  the  competent  authority  confirming  a  practical applicability  of   Traditional  Knowledge  and  positive  result  of   use  thereof  in appropriate field of  activity.

2)  Conclusion  of  the  competent body (bodies)  confirming membership  of  the  applicant in  a  local  community  and/or  is  located  in  geographic  object  for  which  Traditional Knowledge is pertained to.

In case of filing the  application  for  registration of  Traditional Knowledge  by State bodies, the said conclusion shall not be  required.

3)  For foreign applicant a document confirming his/her   right for the claimed Traditional Knowledge in the country of origin

Registration of Traditional Knowledge and Certificates Granting

The Authorized Body upon positive decision taken on Traditional Knowledge registration and  payment  of  appropriate  registration  fees  shall  enter  the  information  on  registration  into  the  State Register  of  Traditional  Knowledge  of  the  Kyrgyz Republic  (hereinafter  referred to  as  Register).  The order of entering and list of information entered into the Register shall be determined by the Authorized Body.

The information related to registration of Traditional Knowledge can be   published in official publications of the Authorized Body of Traditional Knowledge holder wishes to do so. The Authorized

Body upon consultation with the traditional knowledge holder shall define the scope and contents of the information subject to publication.

Traditional Knowledge, which is being published partially or not published at all, shall be kept by the Authorized Body confidentially.

Appropriate  fee  shall  be   paid  within  two  months  since  the  date  of  decision  receipt  by the applicant.

Applicants, whose names are indicated as Traditional Knowledge owners or who were granted the  right  to  use  Traditional  Knowledge  in  appropriate  manner  shall  receive  certificates  with  a  form prescribed by the Authorized Body.  A form of certificates and content of the data contained therein shall be specified by the Authorized Body.

A certificate shall be granted by the Authorized Body within two months after publication in the Official Bulletin.

UsageofTraditionalknowledge

Production, application, import, distribution, offer for sale, sale and other entering to economic turnover  shall  be   deemed  as  a  usage  of  Traditional  Knowledge  in  subject-matters  containing  and created on their base.

Usage in production with commercial purposes without conclusion  of   agreements  with Traditional Knowledge holders shall be deemed as illegal use of  Traditional Knowledge.

Usage  of  Traditional  Knowledge  shall  be  allowed  without  consent  of  Traditional Knowledge holder if  such  a usage  takes  place  for  educational  and  research  purposes  provided that the  source is indicated and exclusively for personal purposes.

Agreement for Traditional Knowledge utilization

Pursuant to this  Law  a person who  is  not the  owner  of  Traditional Knowledge may receive  a right to  use Traditional Knowledge provided that appropriate agreement is concluded between him/her and the owner of  Traditional Knowledge, who  has registered Traditional Knowledge in the Authorized Body.

According  to  the  agreement  the  owner  of  Traditional  Knowledge  shall  grant  the  right  to  use

Traditional Knowledge to other person in the scope of transferred rights, time-limits, territory and order of payments established by this agreement.  Conditions  of  the  agreement  are  subject  to  the mutual consent  of  the parties  concerned.  The agreement shall be registered in the Authorized Body provided that appropriate fee is paid.