Shaxrizoda Mamasolieva

Image source: WIPO

In recent years, indigenous peoples, local communities, and governments have been demanding the protection of intellectual property forms of free traditional creativity and innovation considered public domain and a fee for any use under the conventional IP system. From this point of view, legal documents and international agreements aimed at legal regulation of these areas of Intellectual Property Law have been adopted. Admittedly, Uzbekistan needs a sufficient legal basis and robust mechanism for the protection of traditional knowledge(TK), traditional cultural expressions (TCE), and genetic resources(GRs). The blog post discusses the importance of these directions for Uzbekistan by studying the world experience on legal regulation of TK, TCE, and GR and making several proposals for creating a legal document.

Why protect traditional knowledge?

The usage of TK by third parties for commercial purposes without the respective nation’s permission urges implementing some measures on legal protection. Some countries, including Costa Rica, Kenya, Peru, and Zambia, have already adopted laws protecting traditional knowledge. Moreover, some have joined the ranks at the regional level to protect traditional knowledge. In 2010, nineteen African Regional Intellectual Property Organization member states adopted the Swakopmund Protocol on the Protection of Traditional Knowledge and Traditional Cultural Expressions. 

The protection of TK should be protected not only in the national mechanism but also on the international scale because national protection is limited only in the territory of a particular country, which limits the scope of protection and stimulates the illegal use of intellectual property by other nations for commercial purposes. Even if an international mechanism is developed, laws protecting such knowledge will not be applied in countries where such laws have not been developed. It also helps to ensure sustainable food security and maintain the diversity and variability of animals, plants, and soil properties. In addition, a study of two Balkan ethnic groups living close to each other showed that traditional knowledge of local plant resources could help communities cope with periods of famine and help preserve biodiversity. There should be a harmony of national and international legislation on the protection of type of knowledge. However, Uzbekistan has not yet been able to form a precise mechanism for the protection of TK, and there is no legislation in this direction.

Analysis of international regulation of TK, TCE, and GRs

Since 2011, the WTO has been negotiating IP protection forms within the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge, and Folklore framework. Although the WIPO administers many international treaties related to IP, it is unfortunate that none specifically address the TK issue. If we dwell on the social benefits of protecting this knowledge, it is worth remembering that the medical knowledge of the Kani tribes in South India led to sports development. Jeevani is an anti-stress and anti-fatigue drug based on medicinal plants. Indian scientists at the Tropical Botanic Garden and Research Institute used tribal knowledge to develop the drug. Failure to protect this knowledge nationally and internationally means, in any case, a violation of the rights and interests of relevant communities. Traditional knowledge related to neem, turmeric, and hoodia is an example. In each case, the knowledge of indigenous and local communities was crucial in the subsequent pharmaceutical use of these plants. However, this contribution was not initially recognized or rewarded in each case. 

         Notably, Article 27, Article 3(b) of TRIPS excludes certain biological materials or intellectual innovations from patenting. Paragraph 19 of the 2001 Doha Declaration on TRIPS extended the review-to-review Article 27 and the rest of the TRIPS Agreement. The TRIPS Agreement and the 1992 Convention on Biological Diversity include the relationship between traditional knowledge and folklore and their protection. Similarly, the UN Declaration on the Rights of Indigenous Peoples (Article 31) recognizes the rights of indigenous peoples to “support, control, protect and develop,” including their traditional knowledge and genetic resources, as well as intellectual rights to such knowledge. The Nagoya Protocol on CBD Access and Benefit-Sharing deal with traditional knowledge related to genetic resources, prior and informed consent, fair remuneration, and ensuring public laws and procedures, as well as addresses issues such as routine use and sharing. The sui generis system has worked for the Indian government to protect traditional knowledge. This systeminvolves the creation of new national laws or establishing international norms that protect the intellectual property related to genetic resources or biological diversity and, as a result, biotechnology. 

Suggestions for national protection of TK, TCE, and GRs in Uzbekistan

Initially, Nagoya Protocol on Accession and Benefit Sharing to the Convention on Biological Diversity is more advisable. Nagoya Protocol

  •  provides information on how to apply for prior informed consent in order to ensure legal certainty, clarity, and transparency of their internal access rights;
  • provides a clear and transparent written decision by the authority, in a cost-effective manner and in a reasonable time by the authorized citizen,
  • ensuring that a permit or its equivalent is issued at the time of entry as evidence of a decision to grant prior informed consent.

Secondly, establishing a clear and strict limit on the monetary and non-monetary benefits of taking advantage of traditional knowledge, traditional cultural expression, and genetic resources belonging to Uzbekistan’s people is likely workable. According to the Nagoya Protocol, commercialization license fees and special payments to conservation funds are defined as monetary benefits. Non-monetary benefits can be defined as follows:

1. Institutional and professional relations and interest-sharing agreements that may arise because of the introduction and further cooperation activities

2. Benefits for food and livelihood security;

3. Social recognition;

4. Joint ownership of relevant intellectual property rights

Many international laws are based on the provisions of existing national laws. For example, the Paris Convention attempted to harmonize national patent laws, which proved insufficient in protecting inventors operating across national borders. Similarly, the Berne Convention builds on existing national copyright laws to establish minimum international standards for copyright protection. However, countries with limited national laws make it more challenging to develop an international framework based on existing laws when protecting traditional knowledge. Protection of traditional knowledge strengthened in India; Indian patent laws do not allow protection of traditional knowledge under Section 3(p) of the Indian Patent Act, 1970. An invention that is in practice traditional knowledge or a combination or duplication of specific properties of traditionally known components is not considered an invention. In addition, in Australia, in September 2020, the Queensland government introduced the Bio discovery and Other Legislation Amendment Act 2020, which introducedsafeguards for accessing and using First Nation peoples’ traditional knowledge for biodiscovery. Therefore, Uzbekistan should form a national legal framework to protect traditional knowledge. In particular, it is necessary to adopt the Law “On the protection of intellectual property rights to traditional knowledge, traditional cultural knowledge, and genetic resources” and develop a regulation on granting patents based on them.

Regarding the practical application of the rules on legal protection and patenting in Uzbekistan, the issue of implementing the rules for folk medicine is questionable. In particular, the regulation of the Ministry of Health “On the procedure and scope of medical activity using folk medicine methods” defines invasive (violation of skin integrity); non-invasive; biologically invasive; use of diet and herbal remedies; phytotherapy methods. Providing legal protection and patent for folk medicine as starvation treatment is advisable. Adequate international protection of the traditional knowledge belonging to the nation would be ensured, obtaining economic benefits.

Thirdly, the government should develop The Traditional Knowledge Digital Library (TKDL) to protect traditional knowledge at the national level. In particular, this experience is a pioneer in preventing the exploitation of traditional knowledge of India and protecting it in Patent Offices worldwide in collaboration with the Council of Scientific and Industrial Research (CSIR) and the Ministry of Ayush. Through the TKDL system, Uzbekistan can protect medical treatment methods, folk medicine, folklore examples, famous stage works, visual arts, craft skills, languages, legends, song lines, dance, and architecture through a single electronic system. Based on the Australian Biodiversity Act, I recommend including the following norms in the newly adopted document:

1. Identify the custodians of traditional knowledge

2. Obtain free, prior, and informed consent

3. Benefit-sharing on mutually agreed terms

4. Publicly accessible traditional knowledge

5. Claims of custodianship after bio discovery have begun

6. Evidence of compliance with the code

In particular, from the principles of protection of traditional knowledge, Free, prior, and informed consent (FPIC) must be obtained before using traditional knowledge for biodiscovery. FPIC is continuing and iterative, aimed at building a series of good-faith engagements, empowering communities, and fostering lasting relationships between the biodiscovery entity and custodians. Benefit-sharing arrangements, including: — types of benefits to be shared — the timing of benefits to be shared — mechanisms for sharing benefits — the parties who will receive a benefit. 


Uzbekistan should adopt existing IP laws and legal systems for the national protection of traditional knowledge, IP rights specifically directed or adapted to TK, TCE, and GRs, and new sui generis autonomous systems developed specifically for them. In addition to studying the experience and legislation of India and Brazil in creating this system, Uzbekistan also adopted the Nagoya Protocol on Accession and Benefit Sharing to the Convention on Biological Diversity and the UN Declaration on the Rights of Indigenous Peoples. People, Convention on Biological Diversity, World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), Rio Declaration, and other international conventions should be thoroughly studied. 

Cite as:  Shaxrizoda Mamasolieva, “Development of TK, TCEs, and GRs in Uzbekistan: the need for the adoption of the new law”, Uzbekistan Law Blog, 09.03.2023.