38 Fabien Girard et al.
on the land, transhumant, nomadic and semi-nomadic communities, and the landless, engaged in the above-mentioned activities (Article 1.3). Finally, it also applies to
hired workers, including all migrant workers (Article 1.4).
56 Legal academic and novelist, Stephen Gray, arguably played a pivotal role in discussions on cultural protocols (Gray, 2004). He has subsequently investigated bioprospecting in relation to Indigenous biological resources (see Rimmer, 2015, p. 8).
57 Acuerdo intercomunal para el reparto y distribución justa y equitativa de los beneficios derivados
de la utilización por parte de terceros del patrimonio biocultural colectivo de las comunidades
campesinas del Parque de la Papa, Pisac, Cusco, 6 April 2011 (consultations began in
2007).
58 On the influence of the “Potato Park” on the negotiations of the Nagoya Protocol,
see Study on Compliance in Relation to the Customary Law of Indigenous and Local
Communities, National Law, Across Jurisdictions, and International Law, UNEP/
CBD/WG-ABS/7/INF/5, 6 March 2009, pp. 8–9.
59 See https://biocultural.iied.org/community-biocultural-protocols.
60 See note 2.
61 De lege ferenda means “the law as it should be” and de lege lata “the law as it exists”.
62 Peru has ratified the ITPGRFA and the Nagoya Protocol, and Law No. 27811/2002
(introducing a Protection Regime for the Collective Knowledge of Indigenous
Peoples derived from Biological Resources) (2002) creates space for community PIC
when access involves associated TK. Specifically, the text provides for the authorisation granted by an Indigenous organisation that is representative of the Indigenous peoples who hold collective knowledge, in accordance with the rules (customs
and practices) that are recognised by them (Art. 2). Following the same law, Indigenous peoples or rural communities may submit an application to the Instituto
Nacional de Defensa de la Competencia y de la Proteción de la Propiedad Intelectual (INDECOPI) in order to have certain collective knowledge related to genetic resources
registered in the National Public Register or the National Confidential Register.
They can also use local registers of collective knowledge (Nemogá-Soto, 2013). To
date, INDECOPI has recognised 6,585 registers (https://www.gob.pe/institucion/
indecopi/noticias/320687-el-indecopi-otorgo-96-registros-de-conocimientoscolectivos-sobre-el-uso-de-la-biodiversidad-a-la-comunidad-nativa-alto-mayo).
Furthermore, National Decree No. 003-2009-, MINAM (2009), Art. 5, recognises
and protects the rights of Indigenous peoples to make decisions concerning their
innovations, practices, and knowledge associated with genetic resources. In addition, Law No. 28216 (2004) on access to biological diversity and associated collective knowledge of Indigenous peoples established a National Commission against
Biopiracy. Finally, the regional norm on access to genetic resources and associated
traditional knowledge in the territories of the farmers and native communities of
Cusco should be noted, which essentially establishes an institutional mechanism to
prevent and address cases of biopiracy in the region and promotes the conservation
of and research into genetic resources (Peru, Regional Ordinance - Ordenanza del
Gobierno Regional de Cusco, No. 048-2008).
63 BCPs are also expressly referred to in the draft inter-ministerial order No. .../2019
laying down implementing rules for Decree No. 2017-066 of 31 January 2017, Art.
22 and Annex III.
64 In Kenya, the Protection of Traditional Knowledge and Cultural Expressions Act,
2016 (No. 33 of 2016) provides for the protection of cultural expressions and TK, to
the exclusion of genetic resources which remain within the ambit of “relevant legislations relating to genetic resources” (notably the Environmental Management and
Coordination Act No. 8 (1999)) (Mwangi, 2019; Nwauche, 2017; Nzomo, 2015). In
Panama, a robust framework for the protection of Indigenous peoples was laid down
by Executive Decree No. 19 of 26 March 2019 Regulating Access to and Control of
the Use of Biological and Genetic Resources in the Republic of Panama (Artt. 16
on the land, transhumant, nomadic and semi-nomadic communities, and the landless, engaged in the above-mentioned activities (Article 1.3). Finally, it also applies to
hired workers, including all migrant workers (Article 1.4).
56 Legal academic and novelist, Stephen Gray, arguably played a pivotal role in discussions on cultural protocols (Gray, 2004). He has subsequently investigated bioprospecting in relation to Indigenous biological resources (see Rimmer, 2015, p. 8).
57 Acuerdo intercomunal para el reparto y distribución justa y equitativa de los beneficios derivados
de la utilización por parte de terceros del patrimonio biocultural colectivo de las comunidades
campesinas del Parque de la Papa, Pisac, Cusco, 6 April 2011 (consultations began in
2007).
58 On the influence of the “Potato Park” on the negotiations of the Nagoya Protocol,
see Study on Compliance in Relation to the Customary Law of Indigenous and Local
Communities, National Law, Across Jurisdictions, and International Law, UNEP/
CBD/WG-ABS/7/INF/5, 6 March 2009, pp. 8–9.
59 See https://biocultural.iied.org/community-biocultural-protocols.
60 See note 2.
61 De lege ferenda means “the law as it should be” and de lege lata “the law as it exists”.
62 Peru has ratified the ITPGRFA and the Nagoya Protocol, and Law No. 27811/2002
(introducing a Protection Regime for the Collective Knowledge of Indigenous
Peoples derived from Biological Resources) (2002) creates space for community PIC
when access involves associated TK. Specifically, the text provides for the authorisation granted by an Indigenous organisation that is representative of the Indigenous peoples who hold collective knowledge, in accordance with the rules (customs
and practices) that are recognised by them (Art. 2). Following the same law, Indigenous peoples or rural communities may submit an application to the Instituto
Nacional de Defensa de la Competencia y de la Proteción de la Propiedad Intelectual (INDECOPI) in order to have certain collective knowledge related to genetic resources
registered in the National Public Register or the National Confidential Register.
They can also use local registers of collective knowledge (Nemogá-Soto, 2013). To
date, INDECOPI has recognised 6,585 registers (https://www.gob.pe/institucion/
indecopi/noticias/320687-el-indecopi-otorgo-96-registros-de-conocimientoscolectivos-sobre-el-uso-de-la-biodiversidad-a-la-comunidad-nativa-alto-mayo).
Furthermore, National Decree No. 003-2009-, MINAM (2009), Art. 5, recognises
and protects the rights of Indigenous peoples to make decisions concerning their
innovations, practices, and knowledge associated with genetic resources. In addition, Law No. 28216 (2004) on access to biological diversity and associated collective knowledge of Indigenous peoples established a National Commission against
Biopiracy. Finally, the regional norm on access to genetic resources and associated
traditional knowledge in the territories of the farmers and native communities of
Cusco should be noted, which essentially establishes an institutional mechanism to
prevent and address cases of biopiracy in the region and promotes the conservation
of and research into genetic resources (Peru, Regional Ordinance - Ordenanza del
Gobierno Regional de Cusco, No. 048-2008).
63 BCPs are also expressly referred to in the draft inter-ministerial order No. .../2019
laying down implementing rules for Decree No. 2017-066 of 31 January 2017, Art.
22 and Annex III.
64 In Kenya, the Protection of Traditional Knowledge and Cultural Expressions Act,
2016 (No. 33 of 2016) provides for the protection of cultural expressions and TK, to
the exclusion of genetic resources which remain within the ambit of “relevant legislations relating to genetic resources” (notably the Environmental Management and
Coordination Act No. 8 (1999)) (Mwangi, 2019; Nwauche, 2017; Nzomo, 2015). In
Panama, a robust framework for the protection of Indigenous peoples was laid down
by Executive Decree No. 19 of 26 March 2019 Regulating Access to and Control of
the Use of Biological and Genetic Resources in the Republic of Panama (Artt. 16