2 Definitions/ TK/TCEs/GRs Principles/ Public domain use of terms Objectives/ Preamble IGC 27 introduced into the TK and TCE texts a definition of the term “public domain.” and Use of Terms This fundamental concept is integral to the balance inherent in the IP system. of the TK and TCE Exclusive rights are balanced against the interests of users and the general public, with texts the intent to foster, stimulate and reward innovation and creativity. Article 3.3 of the Some argue that the public domain is essential to give rise to further creativity and that TK text without a rich and robust public domain, creativity could be stifled. Hence. the scope of Article 3.3 and protection of TK and TCEs should be limited in order not to encroach too far on or Article 3.2 of imperil the public domain. Option 2 of the TCE text In contrast, some contend that the protection of TK/TCEs overrides certain concerns Article 4.1 (d) GRs about the public domain, and that robust protection against misappropriation and text misuse is essential. The definition of in the TCE text makes reference to and “public domain” “tangible the TK text only makes reference to intangible material. intangible material,” whereas The IGC could consider aligning the definition in both texts. This concept links to understandings of the related concepts of and “publicly available” as discussed notably in document WIPO/GRTKF/IC/17/INF/8 (Note on the “prior art”, Meanings of the in the Intellectual Property System with Special Term “Public Domain” Reference to the Protection of Traditional Knowledge and Traditional Cultural Expressions/Expressions of Folklore). The IGC could reflect upon whether the definition of is relevant in “publicly available” the TCE context. Note that in the definition of this term in the Use of Terms, the reference to should be changed to cultural “traditional knowledge” “traditional expressions.” The IGC is invited to consider those concepts more attentively, as this is directly linked with the under Article 3 of the TK and the TCE texts (see “tiered approach” deployed
2 Definitions/ use of terms TK/TCEs/GRs Principles/ Objectives/ Preamble and Use of Terms of the TK and TCE texts Article 3.3 of the TK text Article 3.3 and Article 3.2 of Option 2 of the TCE text Article 4.1 (d) GRs text Public domain IGC 27 introduced into the TK and TCE texts a definition of the term “public domain.” This fundamental concept is integral to the balance inherent in the IP system. Exclusive rights are balanced against the interests of users and the general public, with the intent to foster, stimulate and reward innovation and creativity. Some argue that the public domain is essential to give rise to further creativity and that without a rich and robust public domain, creativity could be stifled. Hence. the scope of protection of TK and TCEs should be limited in order not to encroach too far on or imperil the public domain. In contrast, some contend that the protection of TK/TCEs overrides certain concerns about the public domain, and that robust protection against misappropriation and misuse is essential. The definition of “public domain” in the TCE text makes reference to “tangible and intangible material,” whereas the TK text only makes reference to intangible material. The IGC could consider aligning the definition in both texts. This concept links to understandings of the related concepts of “publicly available” and “prior art”, as discussed notably in document WIPO/GRTKF/IC/17/INF/8 (Note on the Meanings of the Term “Public Domain” in the Intellectual Property System with Special Reference to the Protection of Traditional Knowledge and Traditional Cultural Expressions/Expressions of Folklore). The IGC could reflect upon whether the definition of “publicly available” is relevant in the TCE context. Note that in the definition of this term in the Use of Terms, the reference to “traditional knowledge” should be changed to “traditional cultural expressions.” The IGC is invited to consider those concepts more attentively, as this is directly linked with the “tiered approach” deployed under Article 3 of the TK and the TCE texts (see