WORLD TRADE
ORGANIZATIONIP/C/W/246
14 March 2001
(01-1254)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  Spanish
COMMUNICATION FROM PERU
By means of a communication from its Permanent Mission, dated 13 March 2001, Peru has
requested that its submission to the Committ ee on Trade and Environment, circulated on
27 October 2000 in document WT/CTE/W/176, also be circulated as a TRIPS Council document.
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PERU'S EXPERIENCE OF THE PROTECTION OF TRADITIONAL
KNOWLEDGE AND ACCESS TO GENETIC RESOURCES
I. INTRODUCTION
1. Peru is situated in the west-central part of the South American continent and in the south
eastern part of the Pacific basin.  The conditions in this tropical and sub-tropical geographical area are
of global importance from a scientific, economic and social standpoint and the region's marine eco-
system has substantial hydrological potential;  the Cordillera of the Andes;  the Amazon basin with its
considerable biological potential;  and the Titicaca basin, the highest lake in the world.
2. This geographical setting places Peru among the ten countries with the most extensive
biodiversity in the world, which are also known as "mega-diverse countries", because of their range of
eco-systems, species, genetic resources and indigenous cultures with valuable knowledge.
3. Peru has the second largest forest area in Latin America (13 per cent of the Amazonian
tropical forest) and the fourth at the global level.  There are 11 eco-regions, comprising the cold seas,
the tropical seas, the coastal desert, the dry equatorial forests, the tropical forests of the Pacific, the
steppe, the high wet forests (high forests), Amazonian tropical forests (low forests), and the palm
savannah.  Of the 107 biozones recognized at the global level, 84 can be found in Peru.  The widediversity of eco-systems has led to the development of many groups of people with their own cultures
and notable technological, culinary and cultural accomplishments.
4. Peru also has a wide diversity of species.  It is estimated that there are approximately
25,000 species of flora, of which 30 per cent are endemic.  Regarding fauna, Peru has the greatest
diversity of fish in the world, it has the second largest number of species of birds and the third ofamphibians and mammals.  There are also a large number of micro-organisms, soil and seabed
organisms.
5. The diversity of genetic resources means that Peru is one of the most important global centres
for germplasm.  Peru has the widest variety of potatoes, chili peppers, Andean grains, Andean roots
and tubers.  It has the second largest number of varieties of maize, a wide variety of fruit, medicinal,ornamental, and food plants and indigenous domestic animals.  This great diversity of resources andIP/C/W/246
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favourable natural features gives Peru significan t comparative advantages that allow diversified
agricultural production throughout the year.
6. In addition to this natural wealth, mention should also be made of Peru's cultural diversity.
14 groups of languages have been identified, together with at least 44 distinct ethnic groups, of which
42 are in Amazonia.  These aboriginal groups possess important knowledge about the uses andproperties of species, the diversity of genetic resources (4,400 plants have known uses and there are
thousands of varieties), as well as cultural and technical ways of managing their eco-systems.  These
indigenous and local communities are, however, increa singly threatened by the colonization of the
Amazonian forest and by the introduction of inappropriate technology.  Recent studies have shown
that 11 indigenous ethnic groups have disappeared since 1950.  Consequently, the conservation of the
natural habitat and cultural traditions are of the utmost importance.
7. Despite Peru's exceptional wealth of natural resources, these have not always been used
properly to generate economic benefits and employment and provide funds to assist sustainable
development, the people's welfare and progress in the country.  This is due in part to the
implementation of inappropriate policies, the lack of financial resources, problems related to the drugs
traffic, critical poverty, insufficient technical experience and low levels of education.  Consequently,
there is growing recognition of the need for a jo int effort by the Government, production sectors and
civil society as a whole in order to put into effect appropriate policies to raise the people's standard of
living and utilize natural and ecological resources in a sustainable way.  The process of introducing
environmental variables and factors into Peru's policies, both at the national, regional and
international levels, has already begun through the enactment of appropriate legislation and active
participation in the competent international forums.
II. NATIONAL LEVEL
8. The protection and sustainable use of biodiversity, genetic resources and traditional
knowledge, are the subject of growing concern and a new approach by the Peruvian Government, with
emphasis on global consideration of this issue, in  order to bring society into harmony with nature
through sustainable development and to include social aspects and environmental protection in
economic activities.  In order to provide an appropriate legal framework that will allow these
objectives to be met, in recent years up-to-date legislation has been drawn up and enacted and a
national strategy developed.  The main legal instruments in this respect are:  the Environmental Code
– Legislative Decree No. 613;  the National Strategy and the Law on the Conservation and
Sustainable Use of Biological Diversity – Law No. 26839;  the Law on National Protected Areas –
Law No. 26834;  the proposal on a Protection Regime for the Collective Knowledge of Indigenous
Peoples and Regulation of Access to Genetic Resources.  Mention should also be made of the Forestand Woodland Fauna Law – Law No. 27308 – and the Law on the Sustainable Use of Medicinal
Plants – Law No. 27300.
9. In addition, special constitutional mandates on the sustainable use of natural resources,
environmental protection, the development of Amazonia and the integral development of groups
originating in Amazonia have been added to Peru's political constitution.  Provisions on "ecologicalcrimes" have also been included in the new Penal Code.  In the early 1990s, two decentralized public
authorities were created (the National Institute for Natural Resources – INRENA – and the National
Environmental Council – CONAM), whose task is to promote and conserve natural resources and
sustainable development.
A. 
ENVIRONMENTAL AND NATURAL RESOURCES CODE
10. The Environmental and Natural Resources Code (Legislative Decree No. 613) was enacted on
7 September 1990.  It is the first comprehensive domestic legal instrument on the environment and it
sets out the major objectives, policies, principles and provisions for the implementation of the actionIP/C/W/246
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programmes essential for sustainable development in Peru.  The Code states that Peru's ecological and
biological systems and its genetic diversity are to be considered part of the national heritage and that
their protection and conservation are of social interest.  Other important features of the Code are the
provisions on scientific research, the use of clean technologies, the precautionary principle, the
establishment of protected areas and nature reserves , greater participation by civil society, NGOs and
interest groups such as indigenous and local co mmunities in the development of environmental
policies, environmental dissemination and education, and safety measures concerning the discharge of
contaminants and toxic waste.  The Code also pr omotes the use of local clean technologies of the
indigenous communities (Article 29).  A number of amendments have been made to the Code since
1990 in order to adapt it to new situations and requirements.  The latest updating was on
20 January 1998.
B. NATIONAL STRATEGY AND LAW ON THE CONSERVATION AND SUSTAINABLE USE OF
BIOLOGICAL DIVERSITY
11. The national strategy elaborated in 1994 has the following objectives:  (a) to conserve the
biological diversity of the essential ecosystems, species, genes and ecological processes on which the
survival of species depends;  (b) to promote fair and equitable sharing of the benefits arising out of the
utilization of biological diversity;  (c) to prom ote education, the building of human and institutional
resource capacity, the exchange of information, scientific research, and the transfer of technology;
and (d) to promote Peru's economic development on the basis of sustainable use of biological
diversity and the promotion of active participation by the private sector.  The national strategy
recognizes that the conservation and sustainable use of biological diversity calls for a comprehensive
approach that includes all sectors of civil society.  In order to achieve the objectives set, a number ofmeasures have been adopted, for example, the development of projects and action programmes,
quantification of the national heritage, classification of the major ecosystems and principal ethnic
groups, dissemination of information and training of  technical staff.  The CONAM is the national
body responsible for putting the national strategy into effect.
12. The Law on the Conservation and Sustainable Us e of Biological Diversity – Law No. 26839 –
was enacted on 8 July 1997 in order to put into effect the principles and definitions in the Convention
on Biological Diversity.  It also underlines the importance of the national strategy as the major tool
for implementing the Law.  It states that all Ministries, decentralized public bodies and other
competent bodies must introduce and implement the requirements laid down in the national strategy.
Another important aspect of the Law is the recognit ion of the value of the knowledge, innovations and
practices of farming and indigenous communities for the conservation and sustainable use of
biological diversity.  It therefore includes the principle of the fair and equitable sharing of the benefitsarising out of traditional knowledge and the use of biological diversity, as well as prior informed
consent for their utilization.
C. 
LAW ON NATIONAL PROTECTED AREAS
13. The Law on National Protected Areas – Law No. 26834 – was enacted on 17 June 1997 with
the aim of providing a legal framework for the es tablishment and management of protected natural
areas.  Since 1961, a number of protected natural areas have been established, including the
following:  the National Park and Biosphere Reserve of Manu, the National Reserve of Pacaya-
Samira, the National Mangrove Sanctuary of Tumbes, the Reserve Zone of Tambopata-Candámo, the
National Park of Huascarán, the Nature Reserve of Paracas, the National Reserve of Pampa Galeras,
the National Sanctuary and Lagoons of Mejía, the National Reserve of Lomas de Lachay and theNational Sanctuary of Ampay.  The establishment of national protected areas has greatly contributed
to the conservation of many species, several of them in danger of extinction or virtually extinct.  In
order to develop and implement appropriate action programmes, in 1999 a Master Plan for Protected
Natural Areas was approved and the National Strategy for Protected Natural Areas was adopted.IP/C/W/246
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D. PROPOSED PROTECTION REGIME FOR THE COLLECTIVE KNOWLEDGE OF INDIGENOUS PEOPLES
AND REGULATION OF ACCESS TO GENETIC RESOURCES
14. In recognition of the importance of having an appropriate legal framework to protect the
traditional knowledge of the indigenous peoples and of regulating access to genetic resources, in 1996
the Peruvian Government set up a Multilateral Committee to conduct studies and draw up draftlegislation.  The Committee was composed of fifteen national bodies with competence in various
sectors, including officials dealing with intelle ctual property, the environment, research and
development, public health, trade and industry, agriculture and fisheries.  The first draft was
terminated in May 1998.  Broad consultations were then held with the private sector, NGOs and
sectors representing indigenous communities.  This process yielded a number of constructive
suggestions and recommendations which proved very us eful for the new text of the draft, which was
published in the official journal " El Peruano"  of 21 October 1999.  A new round of consultations then
took place and led to a revised version of the proposal for the Protection Regime for the Collective
Knowledge of Indigenous Peoples and Regulation of Access to Genetic Resources, which was
published in the official journal " El Peruano " on 31 August 2000.
15. The proposed legislation is ambitious and comprehensive.  The objectives of the legal
framework for the protection, conservation and sustainable development of genetic resources andtraditional knowledge are:  (a) to ensure that both the Peruvian State and indigenous peoples receive
fair compensation for the use and commercial exploitation of these resources;  (b) to promote national
and foreign private investment, as well as scientific research, to develop new resources and
knowledge;  (c) to prevent the irrational exploitation of the resources.
16. The proposed Protection Regime for the Collective Knowledge of Indigenous Peoples
recognizes that the traditional knowledge of the indigenous peoples helps to conserve and make
sustainable use of the components of biodiversity.  It establishes a " sui generis " system to give
adequate protection to those possessing traditional knowledge.  The proposed Regime recognizes the
indigenous people's ownership and associated rights over their traditional knowledge, as well as their
right to decide on how it should be used.  A voluntary register is to be set up within the NationalInstitute for the Defence of Competition and the Protection of Intellectual Property (INDECOPI).  The
text also states that indigenous peoples may enter into "knowledge licensing contracts" which specify
the terms for the use of their knowledge.  One requirement for access to knowledge that is not within
the public domain is prior informed consent by the people possessing the knowledge.  An innovative
and extremely important feature of the Regime is the creation of a Fund for the Development of
Indigenous Peoples, which will receive 0.5 per cent of the sales resulting from the marketing of
products developed on the basis of traditional knowledge, even if it is within the public domain.
17. The Regulation of Access to Genetic Resources lays down the following requirements:  (a) a
firm or laboratory making an application must submit it to the national competent authority
1, attaching
a proposal for access;  (b) the applicant, a national support institution (research centre, university, etc.)
and a resource provider (the State, indigenous peoples, research or conservation centres, etc. must
participate in the project);  (c) the following are some of the minimum conditions for access projects:
(c.i) the participation of Peruvian professionals in the collection and research activities, (c.ii) an
undertaking to transfer the knowledge acquired from  the access-related activities, (c.iii) a commitment
to keep the national competent authority abreast of the progress and results of the research, and
(c.iv) a commitment to pay the national competent auth ority 5 per cent of the value of the transaction
agreed between the resource provider and the applicant and 2.5 per cent of the gross profit marginobtained from commercial exploitation of the resources or their by-products;  and (d) the creation of a
                                                     
1 The National Genetic Resources Committee – CONARGE – composed of representatives of the
Ministry of Fisheries, Ministry of Agriculture, INRENA, the Peruvian Institute of the Sea (IMARPE), and theNational Agricultural Research Institute (INIA).IP/C/W/246
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Fund for the Conservation and Development of Genetic Resources financed from the aforementioned
resources.
18. In drawing up this legislation, the interests of various government sectors and civil society
were taken into account.  After the legislati on enters into force, an intensive information
dissemination campaign will have to be initiated because the vast majority of potential beneficiariesdo not have any access or only limited access to normal channels of information.  In view of the
objectives outlined, it is also extremely important to ensure that the legislation is implemented as a
whole and to establish monitoring mechanis ms to ensure full compliance with it.
III. REGIONAL LEVEL
19. At the regional level, two legal instruments in particular should be mentioned:  the Andean
Community Common System for Access to Genetic Resources
2 (Decision No. 391) and the Amazon
Cooperation Treaty.3  It should also be pointed out that on 14 September 2000 the new Andean
Common Industrial Property Regime (Decision No. 486) was adopted to replace Decision No. 344
and it will enter into effect on 1 December this year.  Article 26 on patent applications includes a
requirement on submission of the agreement on access to the genetic resource or the licensing
agreement or authorization to use traditional knowledg e.  Article 26(h) in particular states that, "where
applicable, a copy of the access agreement, where the products or processes for which a patent isbeing sought have been obtained or developed from genetic resources or their by-products and if any
of the member countries is the country of origin", and Article 26(i) states:  "where applicable a copy
of the document attesting to the licence or authorization to use traditional knowledge of indigenous,
Afro-American or local communities in member countries where the products or processes whose
protection is being sought have been obtained or de veloped on the basis of such knowledge and if any
of the member countries is the country of origin, pursuant to Decision No. 391 and its amendments
and regulations in force".  In addition, bearing in mind regional experience and the current legal
framework, the member countries of the Andean Community proposed the inclusion of issues related
to the protection of traditional knowledge and access to genetic resources in the work programme of
the Negotiating Group on Intellectual Property of the Free-Trade Area of the Americas (FTAA).
A. AMAZON COOPERATION TREATY
20. The Amazon Cooperation Treaty was signed in 1978 and was the first regional initiative
aimed at protecting the environment and promoting sustainable use of the Amazon basin.  The Treaty
states that the use and exploitation of natural resources is a sovereign right of each State in its
respective territory.  In order to preserve the ecological balance and conserve species through the
rational use of the Amazon's flora and fauna, the member countries agreed the following:  (a) topromote scientific research and the exchange of information and technical experts in order to enhance
knowledge of the flora and fauna in their respective Amazon territories;  and (b) to establish an
appropriate system for the exchange of information on environmental conservation policies and
measures in their respective territories.
21. Since it was signed, the Amazon Cooperation Treaty has carried out an active programme of
economic and ecological zoning, reassessing and restoring traditional knowledge and techniques of
the indigenous and local communities, as well as cooperation in developing products of commercial
value.
                                                     
2The Andean Community of Nations (originally called the Andean Pact or Cartagena Agreement) is a
sub-regional social, political and economic integration agreement adopted in 1969 and its members are Bolivia,
Colombia, Ecuador, Peru and Venezuela.
3Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela.IP/C/W/246
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22. Peru chaired the Pro-Tempore Secretariat of the Amazon Cooperation Treaty from 1994 to
1997.  During this period, a large number of seminars and workshops were organized and they helped
to enhance contacts among specialists and enabled the compilation of valuable information and
national experience.  Several regional projects of great importance in a number of areas were
submitted to member countries, for example:  soil regeneration, administration of fisheries resources,institutional training, training of human resour ces, and economic and environmental zoning.  One of
the major achievements during this period was the development of the "Criteria and Indicators of
Sustainability in the Amazon Forest", also known as the "Tarapoto Proposal".  A number of
consultations with the public and private sectors a nd NGOs were held in Boli via, Colombia, Ecuador,
Peru and Venezuela.  These showed that there was widespread support for the proposal.
B. ANDEAN COMMUNITY
23. Recognizing the importance of the conservation of biological diversity for the environment
and pursuant to the provisions of the Convention on Biological Diversity, in 1996 the member
countries of the Andean Community adopted the Andean Common System for Access to Genetic
Resources.  The main objectives of the Common System are the following:  (a) to create the
conditions for just and equitable sharing of the benefits derived from access;  (b) to lay down thebases for recognition and utilization of genetic resources, their by-products and their intangible
components, especially in relation to indigenous , Afro-American or local communities;  (c) to
promote the conservation of biodiversity and the sust ainable use of genetic resources;  (d) to promote
the strengthening and development of scientific, technological and technical capacity at the local,
national and subregional levels;  and (e) to reinforce the negotiating capacity of the member countries.
24. The aim of the provisions in the Common System is to promote regional and international
cooperation so as to achieve the conservation and sustainable use of genetic resources, as well as fair
and equitable sharing of the benefits derived from biodiversity.  Ways of harmonizing systems for the
protection of intellectual property with the objectives of the Convention on Biological Diversity are
also proposed through equitable access to genetic resources and sharing of the benefits.
25. The Common System introduces a novel and very interesting concept, namely, intangible
components , defined as "knowledge, innovation or individual or collective practices, of actual or
potential value, that are associated with genetic resources or their derivatives or the biological
resource containing them, whether or not protected by intellectual property regimes".  Although some
sectors have expressed concern at the possible legal impact of the concept of intangible components ,
because knowledge that is not protected by the existing intellectual property regimes would be
removed from the public domain, this concept has rightly been included in order to give local andindigenous communities legal protection against misappropriation of their knowledge and to facilitate
negotiation of access contracts.
26. As far as the traditional knowledge of indigenous, Afro-American and local communities is
concerned, the Common System recognizes its historical contribution to the conservation,
development and sustainable use of biological diversity and genetic resources.  Article 7 states that"pursuant to this Decision and supplementary dom estic legislation, the member countries recognize
and uphold the rights and decision-making authority of indigenous, Afro-American and local
communities, over their knowledge, innovations and traditional practices associated with genetic
resources and their derivatives".
IV. CONCLUSIONS
27. Peru is a multi-faceted country with special geographical and natural resources that give it a
great wealth of genetic resources, biological diversity and hydrological resources.  It also has
considerable human resources and broad ethno-linguistic and cultural diversity.  Peru has started to
take practical measures to utilize this potential wealth.  In recent years, substantial progress has beenIP/C/W/246
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made in the legislative framework for the cons ervation of the environment, regulating access to
genetic resources and the protection of traditional knowledge, and this is reflected in the enactment of
domestic legislation on the conservation of natural areas and in the ratification of relevant
international treaties.  Nevertheless, this respon sibility should be shared between the public and
private sectors at the national level;  and between countries which provide and countries which usegenetic resources and traditional knowledge at the international level.
28. It should be stressed that the efforts being undertaken by many countries, including Peru, to
put into effect the principles laid down in Agenda  21 of the United Nations and in the Convention on
Biological Diversity should be accompanied by the development of an international regulatory
framework and appropriate implementation measures in order to give effect to the intellectual
property rights of local and indigenous communities and regulate access to genetic resources.
29. International recognition of traditional knowledge would give those possessing it the legal
possibility of asserting their rights outside their own countries and would result in economic benefits.
It would also limit misappropriation and unauthori zed exploitation of this knowledge and would
provide alternatives that would take into account at the international level, inter alia , the aspects
related to the protection of new plant varieties in Article 27.3(b) of the TRIPS Agreement, as well as
the obligation to respect, preserve and maintain the knowledge, innovations and practices ofindigenous and local communities provided in the Convention on Biological Diversity.
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