Role of Registers and Databases in the Protection of Traditional Knowledge

Published by the United Nations University Institute of Advanced Studies (UNU-IAS), this 48-page report provides an analysis of a number of case studies of existing databases and registers that have been developed to document traditional knowledge (TK). As part of a wider programme on access to genetic resources and benefit-sharing, the authors identify the effectiveness, possibilities, and limitations of the strategy of using databases and registers to protect TK, in an effort to contribute to a more informed and productive debate on this topic. This debate might include questions such as: "First, to what extent do indigenous peoples wish to make their TK more readily available for use by third parties than it already is? Second to what extent may indigenous peoples wish to curtail access to and use of their traditional knowledge, including knowledge within the public domain?"

Excerpts from the Executive Summary follow:

UNU-IAS has prepared a comparative study of seven case studies, which have been considered within four categories. These are:

• indigenous registers and databases: database of the Inuit of Nunavik Canada
• institutional databases: BioZulua database in Venezuela and the Traditional Knowledge Digital Library (TKDL) in India
• NGO co-operative databases: the database of the Farmers Rights Information System (FRIS) and the Honey Bee Network database, both in India
• state registers: the holistic register in Panama and national and local registers of TK relating to biodiversity in Peru

...Depending on the specific objectives of any regime, registers and databases may play a substantial role in protection of TK. They can amongst other things, serve to:

• promote documentation, preserve and maintain TK
• provide a means to assist patent search procedures and identify prior art
• identify communities which might be entitled to benefit-sharing, and assign exclusive rights
• provide the means for recording the existence of TK over which positive rights have been recognised under national or customary law
• serve as the mechanism for obtaining protection of TK through sui generis database protection

However, databases and registers alone do not provide a means for the effective protection of TK. Rather they must be seen as one element or mechanism in a wider system of TK governance including customary law and practice, national access and benefit-sharing legislation, and sui generis TK law and policy.

Development of any TK regime must be guided by the customary law and practice of indigenous peoples and local communities. Considering the number and diversity of indigenous peoples and local communities and consequently the diversity of their customary laws and practices, any international system for the protection of TK must be based upon flexibility, sensitivity to local realities and adaptability.

There is a need for the full participation of indigenous peoples in the development not only of registers per se but also in the process for development of any regime, sui generis or otherwise, for the protection of TK.

All reasonable efforts need to be made to ensure that prior informed consent is obtained from the relevant indigenous peoples for inclusion of their TK in databases or registers, whether TK is in the public domain or not. For information not already in the public domain, prior informed consent should be a mandatory condition of inclusion of information in any database for scientific or commercial use whether or not the relevant database is open or subject to restricted access.

Explicit institutional policies need to be developed by museums, botanical gardens, universities, companies and all entities working with biological materials and related TK. Acceptance of the rights of indigenous peoples over their TK should be a precondition for access to databases and registers. Database owners of existing databases holding TK should consider the development of a common code of conduct to govern the holding of TK. To this end, database owners should consider adopting a system establishing a fiduciary obligation to hold any TK in trust for the benefit of indigenous people. In the development of any such policies database owners should liaise closely with indigenous peoples.

Databases and registers provide a good opportunity for benefit-sharing with indigenous peoples and local communities through repatriation of information in user-friendly format and where possible in local languages...

Editor's note: Footnote numbers were omitted from the above selection.