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Role of customary law in protecting traditional knowledge and traditional cultural
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overview customary law
Role of customary law in protecting traditional knowledge and traditional cultural
expressions The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was established by the WIPO General Assembly in October 2000. Negotiations are currently underway in the IGC towards the development of an international legal instrument for the effective protection of TK and TCEs, and to address the IP aspects of access to and benefit-sharing of GRs. The WIPO draft articles on the protection of TK and TCEs and a number of national sui generis laws and the conventional IP law set out several possible roles for customary law which have already been developed or applied in practice. Customary law can serve as: • The fundamental legal basis or source of law for indigenous peoples and local communities’ legal rights over TK or TCEs. • A factual element in establishing indigenous peoples and local communities’ collective rights over TK or TCEs. • One element of the definition of TK or TCEs, or can otherwise establish the relationship to indigenous peoples and local communities that is central to the concept of TK and TCEs. • A means of determining or guiding the procedures to be followed in securing indigenous peoples and local communities’ free prior informed consent. • The basis of specific user rights or exceptions, exempting the continuing customary uses and practices from other legal restrictions on the use of TK or TCEs. • Guide for the assessment of cultural or spiritual offence or damage caused by inappropriate forms of use of TK or TCEs. • A determinant of or guide for how benefits from the use of TK or TCEs should be equitably shared within a community. • A means of determining appropriate forms of remedies, sanctions or restitution following the breach of rights over TK or TCEs. • An avenue for resolving disputes over ownership or other forms of custodianship over TK or TCEs. • A guide on the transmission of rights over TK or TCEs from one generation to a following generation. Download 303.69 Kb. Do'stlaringiz bilan baham: |
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