Propiedad intelectual y recursos genéticos, conocimientos tradicionales y expresiones culturales tradicionales.

Abstract

With the approval of the new constitutional text of Ecuador for the year, 2008 a variety of substantial changes were made in the legal estates of the Ecuadorian State that sought the establishment of a State of Law and Social Justice. Proof of this was the adoption of the Code of Social Economy of Knowledge Creativity and Innovation (2016), which would have as its purpose the approach in areas such as Scientific Research, Innovation, Intellectual Property and Traditional Knowledge treating the latter to a Sui generis protection regime associated or not with genetic resources. This normative body emphatically establishes the principle of prior informed consent, thiscomes for a third party to have access to a knowledge, expression, genetic resource and use it should consult with the holder of the same and conclude with it an agreement to establish the Conditions. The problem is that once prior informed consent traditional knowledge has been given to a third party. The third party would enter into open confrontation with the interests of indigenous communities as the authorized third parties can stop innovation or impoverish the public domain. It is also difficult to apply in practice, it is for this reason that a critical analysis is presented in relation to the perception made by the legislator in the application of the Ingenious Code and its impact on the rights of indigenous communities.