FTAA.TNC/w/133/Rev.1. July 3, 2001
GENERAL
STATESMENTS
Relationship
Between the Protection of Traditional Knowledge and Intellectual
Property
Relationship
Between Access to Genetic Resources and Intellectual Property
Relation
between the protection of traditional knowledge and intellectual
property, and between access to genetic resources and intellectual
property
Absolute
and Relative Prohibitions
1. The relationship between the protection
of traditional knowledge and intellectual property as well as the relationship
between access to genetic resources and intellectual property shall be based on
the provisions of the Convention on Biological Diversity, without prejudice to
subscribing to consensuses which may be reached in the various international
fora in which the subject matter is addressed and the provisions of national
laws on the subject.
2. Members shall grant protection to the
genetic resources and traditional knowledge, jointly or separately, by means of
an effective sui generis system, guaranteeing at least fair and equal
remuneration for use by third parties.
3. Nevertheless, in recognition of the
sovereign rights of States over their natural resources and traditional
knowledge, the power to regulate access to such genetic resources and
traditional knowledge is vested in national governments under national law.
Each Party shall protect the collective
intellectual property and traditional knowledge rights of indigenous peoples to
their creations, when these can be used for commercial purposes, through a
special system for registration, promotion and marketing of their rights, in
order to highlight the social and cultural values of indigenous peoples and
local communities and treat them equitably.
Each Party shall recognize that the
customs, traditions, beliefs, spirituality, religiosity, worldview, expressions
of folklore, artistic expressions, traditional knowledge and any other form of
traditional expression of indigenous peoples and local communities are part of
their cultural patrimony.
Cultural patrimony may not be subject to
any form of exclusivity on the part of third parties not authorized through the
intellectual property rights system, unless application is made by the
indigenous peoples and local communities or by third parties authorized by them.
Each Party shall provide that any fixation,
representation, publication, communication or use in any form of expressions of
folklore or traditional knowledge will mention the community and indigenous
people associated therewith.
Each Party shall protect access to its
genetic resources, and traditional knowledge developed by indigenous peoples and
local communities on the use of biological resources contained in such genetic
resources, against the indiscriminate use of biological diversity, as well as
ensuring that the country will participate in benefits derived from the use of
its genetic resources.
Each Party shall provide for just and
equitable participation in the benefits deriving from access to its genetic
resources and from use of traditional knowledge and expressions of folklore.
Each Party shall ensure that the protection
given to industrial property is granted to safeguard its biological and genetic
patrimony. For such purpose, the granting of patents on inventions developed
based on material obtained from such traditional knowledge or patrimony shall be
subject to such material having been acquired pursuant to national and
international law. ]
Parties shall ensure that the protection
granted to intellectual property elements shall be accorded while safeguarding
and respecting their biological and genetic heritage, together with the
traditional knowledge of their indigenous, African American, or local
communities.
The granting of patents on inventions that
have been developed on the basis of material obtained from the biological and
genetic heritage, or from the traditional knowledge of indigenous, African
American, or local communities of the Parties, shall be subordinated to the
acquisition of that material in accordance with international, regional,
subregional and national law.
Parties recognize the right and the
authority of indigenous, African American, and local communities in respect of
their collective knowledge.
Parties
shall provide protection to genetic resources and traditional knowledge, either
jointly or separately, through a sui generis system, guaranteeing fair and
equitable payment from the benefits derived from access to resources or
the use of such knowledge.
1.
Parties may establish absolute and relative prohibitions on the registration of
trademarks, provided that they are not inconsistent with regional or
multilateral agreements on intellectual property.
In
particular, signs that reproduce, imitate or include the denomination of a plant
variety protected in one of the Members may not be registered as a trademark if
said sign is used for products or services related to that variety or if usage
thereof can cause confusion or association with the variety.
In
addition, signs may not be registered if their use in the course of trade would
unduly affect the rights of a third party, in particular when they consist of
the name of indigenous, afro-American or local communities, or the
denominations, words, letters, characters or signs used to distinguish their
products, services or the way they were processed, or if they constitute an
expression of their culture or practice, unless the request is presented by the
community itself or with its express consent.
