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Regional laws on traditional knowledge and access to genetic resources

Some regions, such as Africa and the Andean Community, have introduced regional laws to protect traditional knowledge and genetic resources. Where these resources are shared between countries, the laws promote common standards so that those seeking access can’t just go to the country with the lowest requirements. Regional laws also provide model legislation that can guide countries developing national laws, eg. the African Model Law.

The African Model Legislation for the protection of the rights of local communities, farmers and breeders, and for the regulation of access to biological resources.

This model law was adopted by the African Union (AU) (then the Organisation of African Union) in 2000. The model law is intended to be used as a guide for African countries developing national laws on local community rights, plant breeders’ rights and regulation of access to biological resources.

It contains some progressive provisions on the rights of indigenous and local communities. It recognises that both the state and its people have sovereign and inalienable rights over biological resources. It requires that states recognise the rights of indigenous and local communities over biological resources, as well as traditional knowledge, innovations and practices. Access must be subject to prior informed consent from communities. It also forbids patents on life forms.

The model law recognises the collective rights of communities, and their customary law, whether it is written down or not. It also recognises farmers’ rights as in the FAO Treaty on Plant Genetic Resources for Food and Agriculture. And it makes plant breeders’ rights subject to recognition of farmers’ rights.

See: The African Model Legislation for the protection of the rights of local communities, farmers and breeders, and for the regulation of access to biological resources.

The ARIPO Swakopmund Protocol on protection of traditional knowledge and expressions of folklore

This protocol was adopted in August 2010, within the framework of the African Regional Intellectual Property Organisation (ARIPO). It is open for signature to African member countries of ARIPO. Countries can use and refine the protocol to develop laws to protect traditional knowledge at national level. The protocol grants exclusive rights to communities to authorise the exploitation of their traditional knowledge and to prevent exploitation without their prior informed consent. It emphasises that protection must be tailored to the specific characteristics of traditional knowledge, including its collective and community context.

The protocol grants automatic protection for traditional knowledge that meets the criteria in Section IV: knowledge which is generated and sustained in a traditional and inter-generational context, distinctively associated with a local community, and integral to its identity through a form of custodianship or collective ownership or responsibility. Such a relationship may be established informally by customary practices, laws or protocols. The duration of rights is for as long as these criteria are met. However, rights over knowledge that belongs exclusively to an individual shall last for 25 years.

The protocol states that it shall not be interpreted as limiting the diverse holistic conceptions of traditional knowledge. However, it only recognises the rights of communities over their traditional knowledge, and not over related biological resources. This goes against the holistic indigenous worldview where knowledge and biological resources are inextricably linked and cannot be separated. It also fails to recognise the enormous contribution of communities to conserving and improving genetic resources, and their close dependence on these resources. And it may create practical challenges since traditional knowledge and genetic resources are often used together.

The Andean Community Decision 391 on access to genetic resources

Decision 391 was one of the first access and benefit-sharing laws, adopted in 1996. It is effective in the Andean Community which is Bolivia, Colombia, Peru, Ecuador and Venezuela. It recognises indigenous and local communities’ rights to decide about their know-how, innovations and the traditional practices associated with their genetic resources. When intangible components are involved, the terms for equitable benefit-sharing are to be included in an annex to the access agreement. However, it states that member countries exercise sovereignty over their genetic resources and consequently determine the conditions for access to them.

See: The Andean Community Decision 391 on access to genetic resources

The ASEAN draft regional framework for ABS

This was drafted in 2000 by the Association of South East Asian Nations (ASEAN), but has not yet been enforced.

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