전통지식의 특별법적 보호에 관한 연구 －WIPO 논의 동향을 중심으로－

Abstract

The traditional knowledge(“TK”) and practices of indigenous and local communities that are developed and passed on through traditional culture are closely linked to the conservation and sustainable use of biodiversity. But there is no protection for the traditional knowledge obtained by indigenous or local communities, usually from developing countries, through collective processes that may have taken even centuries. Advocates for conventional intellectual property systems argue that intellectual property rights create effective incentives for innovative use of biodiversity, which in turn creates profits on which innovators can draw in negotiating benefit-sharing arrangements with the holders of traditional knowledge and biodiversity. Nowadays, the implications of conventional intellectual property systems for traditional knowledge and biodiversity have been the subject of a polarized international debate. The protection under intellectual property rights (IPRs) of traditional and indigenous knowledge (TK) has received growing attention since the adoption of the Convention on Biological Diversity (CBD) in 1992. However, significant divergences exist as to whether IPRs should be applied and, if that were the case, which would be the rationale and modalities of protection. Different strategies may be followed to protect TK under IPRs, including the application of existing modes of protection, the development of a sui generis regime, or a combination of both. Also mentioned here are concerns about the feasibility, effectiveness, costs and acceptability of possible legal systems for traditional and indigenous communities. The issue of TK protection has been dealt with in some national laws and constitutions. A clear legislative pattern, however, does not arise so far. Debates have also taken place in different international fora, where numerous studies and proposals have been made. Despite all these efforts, many questions about objectives, tools and feasibility of TK protection remain unanswered. This report recommends that it seems premature to promote international IPRs-type standards for TK protection at present and suggests global rules to prevent misappropriation of TK. This report has also sought to suggest how Intellectual Property system could be a tool to protect traditional knowledge.