Traditional Knowledge: International and National Aspect, Egypt Case
- Sang Jo Jong
- 법과대학 법학과(지식재산전공)
- Issue Date
- 서울대학교 대학원
- 학위논문 (석사)-- 서울대학교 대학원 법과대학 법학과(지식재산전공), 2017. 8. Sang Jo Jong.
- Traditional Knowledge or TK is the unforgotten knowledge which survived the time to reach the descendants as a precious heritage and last forever. Another aspect of protection had been introduced through the thesis for one of the TK types which is the Traditional Culture Expressions or the TCEs. IP laws introduced through the TRIPs agreement had come to fail in treating the TK in the same way as the patents, copyrights, trademarks and others covered by the TRIPs agreement. The main reason behind this failure is not related to the TRIPs agreement as it obtained a great success in dealing with other IP branches but it rather says that TK is a Sui generis or one of its kinds. To be a Sui generis explains the need for having a special set of legislations meant for the TK decided by an international outline defined through a treaty.
The Traditional Culture Expressions or TCEs is one of the categories listed under the TK and strongly eligible to be protected under it. WIPO revised articles determined the main outline for the TCEs on an international level, starting from its definition and what it should be considered as one of it, going through the eligibility standards and ended with the term of protection.
The articles are broad enough to cause confusion regarding some legal issues. For instance, promotion through sharing with a third party as a concept recited in the article (1) is not limited and directly from the examples and cases introduced in the thesis is not applicable in the TCEs market. There are many debates for the TCEs protection term and whether it there should be a definite term of protection or an indefinite one which will reflect on the agreement or the contractual nature between the indigenous people and the third party in case of sharing.
The articles did not state the case for the TCEs protection on a national level, leaving the decision to the national legislation to each country.
There are several cases introduced in the thesis which represent the violation of the TK protections’ right on the international level and on the national one. The former cases found under sharing benefits section which will be demonstrated as an eternal mistake while the latter face the fact that they lack the required protection to be claimed under.
In each case provided in the thesis, a fact just flows to the surface: The right holders or the legal guardian to the indigenous people should step forward to claim their right in their TK, otherwise, no one will do for them and the TK will simply transfer to another to value it. Legislated laws are the indigenous people’s shield in the battle of claiming their right in their TK. In case there are no legislations to decide the rules and regulations related to the TK, the customary law should step in as an equal replacement to the legislations in the legal system.
Egypt is one of the countries which does not have a TCEs and that can be clear enough from the market and the handcrafters suffering where a lot of knock off goods intrude causing all kind of harm to them. The strategy introduced in the thesis is one of the methods of the positive protection to save the market from the severe attack on it. The main target of the strategy is to eliminate the existence of the third party from the TCEs market but gradually since the elimination at once was not successful until now.
The strategy includes several steps should be performed in sequence but with respecting with the time factor it will be efficient to be performed in parallel. The strategy is based on the WIPO articles, Egyptian constitution and observations on the market.