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.
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.