Wipo/Grtkf/Ic/Q.4

WIPO/GRTKF/IC/Q.4

page 1

WIPO/GRTKF/IC/Q.4

QUESTIONNAIRE ON DATABASES AND REGISTRIES
RELATED TO TRADITIONAL KNOWLEDGE AND
GENETIC RESOURCES

INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE

February 2003

1.A growing number of initiatives seek to use databases and registries to conserve and protect traditional knowledge (TK) and genetic resources. They vary greatly in what they seek to protect, and how they operate – they may aim to conserve and disseminate such material for wider public access, or they may seek to protect and restrict access to it. These initiatives have precipitated considerable concern about their intellectual property (IP) implications.

2.These initiatives generally aim at promoting the interests of TK holders and local and indigenous communities. But in some cases, there is apprehension that recording TK will actually undercut the IP rights of TK holders, or override customary law restrictions associated with the knowledge. These concerns raise questions of how to clarify and give practical effect to the policy objectives of such initiatives; how to ensure that TK is collected, represented and accessed consistent with cultural and customary law norms; how to ensure full community participation and prior informed consent of TK holders; how databases can govern access to TK according to the wishes of TK holders, including confidentiality requirements; how databases can work effectively to promote IP interests of TK holders; and how to avoid problems about the legal status of information stored in the registry or database. In order to resolve these questions, a better understanding of the needs, objectives and priorities of the different stakeholders is essential.

3.To date no global, systematic study of stakeholder needs and objectives in databases and registries has been undertaken. The present questionnaire has been developed to provide the basis for such a study, which would be available as a resource to assist those planning and undertaking database or registry initiatives. It seeks to ascertain whether databases and registries are appropriate mechanisms for TK and genetic resources and, if so, for which objectives and with which functions they may be useful. So that the study can be most useful in promoting the interests of TK holders, responses to this questionnaire are encouraged from as broad a base of interested parties as possible. The study will promote cooperation and sharing of practical lessons and tools between various initiatives, while leaving open the choice of objectives and mechanisms up to the TK holders themselves.

4.The questionnaire refers both to ‘databases’ and ‘registries.’ The term databases refers to compilations of data, which through the arrangement of their contents constitute intellectual creations. Such compilations may be the subject of legal protection, but the data elements included in a database are not individually protected. On the other hand, the inclusion of a record within a registry confers some legal status upon the record. A registry is an ordered repository of information that has an official status. A registry is a list or database into which people put information in order to gain legal rights relating to that information. ‘Registering’ something in a registry puts it ‘on the record’ and puts the public ‘on notice’ that the registrant asserts a claim to the registered subject matter. For instance, some trademark systems typically require applicants to register trademarks in a public registry so as to put future claimants of the symbol or name on notice that it has already been registered.

5.IP-related aspects of such databases and registries have been discussed at length in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (“the Committee”) of the World Intellectual Property Organization (WIPO). The Committee has provided a forum in which all stakeholders have deliberated on their experiences with databases and registries. As a result of these deliberations, the Committee concluded that, as a basis for future work, there is a need to:

clarify the policy objectives of databases and registries;

define functionalities, which would achieve those objectives; and

develop specifications for systems that could perform those functions.

6.At its third session, in June 2002, the Committee supported the dissemination of a questionnaire concerning the objectives, functional requirements and technical specifications of databases and registries containing TK and associated genetic resources.[1] Committee members noted that the issues of confidentiality and intellectual property regarding such databases and registries should be fully addressed in the questionnaire.[2]

7.The Asian Group submitted a document entitled “Technical Proposals On Databases And Registries of Traditional Knowledge and Biological/Genetic Resources” (document WIPO/GRTKF/IC/4/14) to the Committee at its fourth session, in December2002. This document proposed that “the Intergovernmental Committee should undertake systematic information gathering on the objectives, functionalities and technical specifications of databases and registries for TK and genetic resources through means such as questionnaires or fact-finding missions.”[3] During its deliberations on the technical proposals contained in the document, the Committee decided that “the proposal of the Asian Group … and the comments received … would be taken into account in future work” of the Committee.[4] This questionnaire has been prepared to give effect to these decisions by the Committee. It also takes account of the Asian Group proposal and the comments made at the Committee’s fourth session.

Purpose and structure of the questionnaire

8.This questionnaire aims to gather information from all relevant stakeholders on the objectives, functionalities and technical specifications of databases and registries relating to TK and genetic resources. This information will be compiled:

(a)to achieve a comprehensive identification of the needs, objectives and priorities which all stakeholders attach to such databases and registries; and

(b)to compile experiences and lessons learned by those stakeholders who have already established and operated such databases and registries.

9.Accordingly, the questionnaire consists of two separate sets of questions, which are directed at two distinct groups:

(a)Annex A contains questions addressed to stakeholders who have not established databases or registries, but who are interested in using or creating a database or registry. These questions aim at assessing their needs and expectations.

(b)Annex B contains questions addressed to those stakeholders who have already established databases and registries, or are in the process of establishing them. These questions gather factual information about existing databases/registries and practical lessons learned by stakeholders during the establishment of the database/registry.

10.The questionnaire is organized so that:

it can be answered relatively briefly,

it can be answered online in electronic form, and,

different stakeholders only need answer questions that are relevant for them.

Who should answer this questionnaire?

11.Input is sought from the widest possible range of stakeholders in TK and genetic resources, whether or not they have already established or maintained databases/registries. While the input of indigenous and local communities is of particular importance, such stakeholders could also include:

all custodians of TK and genetic resources (e.g., TK holders, genebanks and other ex-situ collections of genetic resources, etc.)

database compilers and operators (e.g. community TK documentation initiatives, government agencies, non-governmental organizations, etc)

content distributors (e.g. publishing houses, online content distributors)

national competent authorities, responsible for administering rights in TK and genetic resources (e.g., Patent Offices, Ministries of Environment, Ministries of Agriculture)

database contributors (e.g., TK holders; custodians of genetic resources; researchers documenting TK and genetic resources)

database users (e.g., patent examiners or other staff of Intellectual Property Offices; university and other research institutions; companies or private sector entities; any other users of databases/registries of TK and genetic resources)

How to complete this Questionnaire

12.If you have not established or operated a database/registry, please answer the questions in Annex A. These questions aim at clarifying your needs pertaining to databases/registries of TK and genetic resources. If you wish to familiarise yourself with the concept of a TK database before answering the questions, several examples are available on the “WIPOPortal of Online Databases,”[5] such as the “Health Heritage Test Database.”[6]

13.If you have established or operated a database/registry, please answer the questions in Annex B, which seek factual information about your database/registry and the practical lessons learned from its development.

14.The Questionnaire contains hyperlinks to referenced databases, registries and background information. If you are viewing this Questionnaire online, you may click on the hyperlinks to obtain further information on the respective subjects. If you are viewing this Questionnaire offline, the target addresses are provided as footnotes. Follow these addresses to obtain further information.

How to submit the questionnaire

15.It would be appreciated if responses to the questionnaire could be received, preferably in electronic form, by the Secretariat of WIPO before May16, 2003. This deadline is set so that the inputs provided can contribute to a summary of stakeholder needs and objectives at the fifth session of the Committee, which meets between July 7 to 15, 2003. There may be a later round of consultations on this issue, so that later submissions of the questionnaire by a broader range of stakeholders may also be considered in international discussions on these issues.

16.Completed questionnaires may be sent to the Traditional Knowledge Division, preferably by e-mail to , or otherwise at WIPO, 34chemin des Colombettes, 1211Geneva 20 (Switzerland), Fax 41 22 338 8120.

Scope and definitions

A note on traditional knowledge and traditional cultural expressions:

17.There is no single definition of ‘traditional knowledge’ and answers to this questionnaire may be based on any approach to traditional knowledge that is used within the community concerned. However, some clarification may assist users of the questionnaire. The work of the Committee has distinguished between ‘traditional knowledge’ (TK) as such and the more specific notion of ‘traditional cultural expressions’ (TCE) or folklore, and WIPO is undertaking a complementary range of activities on the protection of TCEs.

18.For some TK databases and registries, one particularly relevant aspect of TK is the content of the knowledge – for instance, the knowledge that a particular plant, processed in a particular way, is an effective medical remedy. However, a number of databases include information concerning related forms of expressing traditional cultures associated with the knowledge. TCEs or folklore generally refers to literary and artistic works that embody or convey aspects of traditional cultural heritage – for instance, handicrafts that incorporate traditional designs, or indeed a song or chant that has traditionally passed on knowledge about the preparation and use of the medicinal plant. In practice, therefore, there may be overlap between the two concepts, and answers to the questionnaire that relate also to the recordal of TCEs will be used to inform WIPO’s work in that area.

Some definitions

The following definitions may assist in dealing with other concepts in this questionnaire:

Defensive protection:measures aimed at preventing the acquisition of intellectual property rights over TK or associated genetic resources by parties other than the customary custodians of the resources themselves;

Positive protection:the use of existing intellectual property or contractual rights or the development of sui generis rights to give the holder of TK specific legal rights or capacity to prevent unauthorized use of their TK, or to claim a right to share benefits from the use of the TK;

Genetic resources:genetic material of actual or potential value; genetic material is defined as any material of plant, animal, microbial or other origin containing functional units of heredity (following the definition in the Convention on Biological Diversity).

Questionnaire on Databases and Registries
Related to Traditional Knowledge and Genetic Resources

Which part of the questionnaire should you complete?

Have you already established or operated a database/registry related to TK or genetic resources, or are your in the process of establishing such a database/registry?

Yes.No.

If your answer is ‘No’, please answer the list of questions in Annex A.

If your answer is ‘Yes’, please answer the list of questions in Annex B.

[Annex A follows]

WIPO/GRTKF/IC/Q.4

ANNEX A

ANeeds Assessment for Databases and RegistriesRelated to TK and Genetic Resources

contact Details:

Name:

Title:

Office/Organization:

Country:

Address:

Email:

Telephone:

Facsimile:

Question 1

(a)Are you:

A custodian of TK or genetic resources (e.g. individual traditional healer, indigenous and local community, etc)
A database compiler/operator (e.g. community TK documentation initiative, WHO Traditional Medicine Cooperating Centers[7], etc)
A national competent authority, responsible for administering rights in TK or genetic resources;

WIPO/GRTKF/IC/Q.4

Annex A, page 1

An institution or initiative for collection and documentation (e.g. a genebank or an International Agricultural Research Center[8], botanical garden, museum, archive)
A researcher or scientist involved in documenting TK or genetic resources (e.g. ethnobotanist, anthropologist)
A content distributor (e.g., publishing house, online content distributor)
A patent examiner or other staff of an Intellectual Property (IP) Office
An IP attorney or other IP professional
A company or other private sector entity
Another stakeholder (please specify): ______
______.

(b)When using databases/registries of TK and genetic resources, would you be using the Database/Registry for the primary purpose of:

contributing data to the Database/Registry.

searching and retrieving information from the Database/Registry.

operating the Database/Registry.

for other purposes (please specify):

A.1Objectives and Scope

A.1.1Objectives

Question 2

In order to meet your needs, which objectives would the Database/Registry have to fulfill:

Intellectual Property Objectives
(a)Defensive protection of TK and genetic resources (e.g., prevent the grant of patents on disclosed traditional medicinal knowledge and medicinal plants)
(b)Intellectual property information on positive protection of TK and genetic resources through existing intellectual property systems (e.g., make available information about patents over traditional medicine and medicinal plants)
(c)Positive sui generis protection for TK and genetic resources (e.g., the database/registry is part of a sui generis system of TK protection[9])
(d)Participation in IP information networks (e.g., IPDL[10], WIPONet[11], Esp@acenet[12])
(e)IPR management in documented TK and genetic resources (e.g., licensing, collective management of rights in TK)
(f)Other intellectual property objectives (please specify): ______
______.
Other Objectives
(g)Preservation and management of TK or genetic resources
(h)Recognition and awareness of the value of TK or genetic resources
(i)Implementation of access and benefit-sharing legislation for genetic resources
(j)Linking modern science to TK and associated genetic resources
(k)Using TK for natural resource conservation and management
(l)Information exchange between indigenous peoples and local communities
(m)Sustainable development (e.g., by harnessing TK and genetic resources for development and wealth generation)
(n)Dissemination of information about TK and genetic resources:
to the general public;
for non-commercial use only;
to custodians of TK and genetic resources only;
with other dissemination restrictions, please specify: ______
______.
(o)Other general objectives (please specify): ______
______
______.

A.1.2Scope

A.1.2.1Substantive Scope

Question 3

In order to meet your needs, which scope of subject matter would the Database/Registry have to cover:[*]

Traditional Knowledge
(a)Traditional medicine (e.g., TK about the use of medicinal plants)
(b)Traditional agriculture (e.g., TK about landraces or agricultural practices)
(c)Traditional ecological knowledge (e.g., TK about irrigation and soil conservation, water, ice and weather formations)
(d)Handicrafts (e.g., textiles, woodwork, metalwork, basketry)
(e)Other TK (please specify): ______
______.
Biological and Genetic Resources
(f)Plant genetic resources (e.g., traditional food crops; medicinal plants)
(g)Animal genetic resources (e.g., livestock breeds)
(h)Microbial genetic resources (e.g., soil microbial diversity)
(i)Biological resources (e.g., chemical extracts of plants, any biotic components of ecosystems not containing hereditary information)
(j)Other genetic or biological resources (please specify): ______
______.

A.1.2.2Scope of Data

A.1.2.2.1General Scope

Question 4

(a) In which language(s) would the Database/Registry have to be available in order to meet your needs:

(b) In order to meet your needs, which geographical scope would the Database/Registry have to cover:

Local (e.g. tribal database, community registry)
National (e.g., Traditional Knowledge Digital Library of Ayurveda[13], Peoples’ Biodiversity Registers of India[14])
Regional (e.g., World Bank Indigenous Knowledge Database[15] of Sub-saharan Africa)
Interregional/global (e.g., Honeybee Database[16], EcoPort Database[17])
Other geographical scope (please specify): ______

(c) What types of records would the Database/Registry have to include, in order to meet your needs:

Text
Images (e.g., photographs, drawings)
Audio records (e.g., audiotape recordings)
Audiovisual records (e.g., video recordings)
Spatial data (e.g. for geographical information systems (GIS))
Other types of records (please specify): ______

A.1.2.2.2Data Elements Recorded

Question 5

Which data elements would a standard record of the Database/Registry need to include, in order to meet your needs?

(a)Data concerning legal titles in the TK or genetic resource (e.g., title and number of legal titles over TK and genetic resources)
(b)Dates of making available to the public of the TK or genetic resource (e.g. disclosure date, publication date)
(c)Technical information (e.g., abstract and claims, title, classification data, amendments to title, etc.)
(d)Identification of parties concerned with the record (e.g., TK holders, custodians of genetic resources; information provider; applicant for legal title, owner of legal title)
(e)Specific data on TK and genetic resources (e.g., access conditions, prior informed consent, scientific and vernacular names)
(f)Additional information (e.g., fixation date, origin of TK or genetic resource, etc)
(g)Details of genetic and biological resources (e.g., description, location, cultivation and production of the genetic resource; formulation and process of use; effects and medicinal properties; chemical constituents; information on PIC and benefit-sharing)
(h)Other data elements (please specify): ______.

A.2Functionalities

A.2.1Intellectual property specific functions

Question 6