Negotiators Aim For Progress On Traditional Knowledge Protection Treaty

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Country delegates will try to make progress on a treaty text to protect traditional knowledge from misappropriation at the World Intellectual Property Organization next week. The hope of many is to bring it far enough for the annual members’ meeting in October to schedule a high-level treaty negotiation next year.

A text featuring draft articles was successfully put together last year, but several persistent differences remain such as the inclusion of sacred traditional knowledge, whom the beneficiaries should be, or the scope of protection of the potential treaty.

The 21st session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), will take place from 16-20 April.

This session will solely focus on traditional knowledge. The 20th session was devoted to genetic resources (IPW, WIPO, 23 February 2012), folklore should follow in July. The 19th session in July 2011 dealt with the three areas of the IGC. The report from the 19th session is available here [pdf].

“The main goal of this session is to make further progress on the draft articles that were produced during IGC 19 in July 2011,” Wend Wendland, director of the Traditional Knowledge Division at WIPO. “The text is now beginning to show distinct choices that have to be made by member states. A number of remaining issues have to be discussed and the aim is to work on the draft articles so as to have fewer and even more distinct options,” he told Intellectual Property Watch.

On traditional knowledge, “four articles have been extensively discussed in the previous sessions and are at a more advanced stage: Article 1 (subject-matter of protection), Article 2 (beneficiaries of protection), Article 3 (scope of protection), and Article 6 (exceptions and limitations),” Wendland said. The remaining articles, “still in a rougher, drafting state, are somewhat dependent on the decisions made on those four more ‘fundamental’ articles,” he added.

In the current draft document [pdf], most articles still have two options.

The document also includes comments of the two facilitators designated at the last session; Andrea Bonnet López of Colombia and Nicolas Lesieur of Canada.

Options Show Divergence between Countries

The options presented in the draft articles still reveal substantial differences between approaches. For example, according to the facilitators, in Article 1, “some delegations have expressed a desire to include a definition of secret TK. However, some delegations wondered what the boundaries of sacred TK were, and whether this issue should be addressed by this kind of instrument.”

In Article 2 (beneficiaries of protection), option 1 stipulates that the beneficiaries of protection of TK are indigenous peoples/communities and local communities. Option 2, however, goes beyond that and includes families, nations and individuals. Including nations as beneficiaries of protection has been heatedly debated in the past.

The scope of protection, according to the facilitators, “has proved to be particularly challenging to untangle,” said the facilitators. As it stands, Article 3 (scope of protection), has two options. Option 1 saying that “Adequate and effective legal, policy or administrative measures should be provided, as appropriate and in accordance with national law” to achieve protection seems to indicate that, as the facilitators said, “Members States should have maximum flexibility to define the scope of protection.”

Meanwhile, option 2 says that “Member States shall ensure, that the beneficiaries, as defined in Article 2, have the following exclusive collective rights to” protect and use their TK”. It also says that “Member States shall provide adequate and effective legal measures to” ensure the rights are enforced, presenting, according to the facilitators, “a rights-based approach with stronger obligations for Member-States.”

Concerns were raised by some developing countries at the 19th session about a reference – as found in one of the alternatives to sub-articles under Article 6 (exceptions and limitations) – that states that “there shall be no right to exclude others from using knowledge” that has been independently created, or derived from sources other than the beneficiary, or is known outside of the beneficiaries’ community.

Like-Minded Developing Countries’ Contribution

At the 19th session of the IGC, in July 2011, a group of developing countries defined as “like-minded countries” proposed a contribution to the draft articles, submitted by Indonesia.

The document is now a working document for the 21st session. According to Wendland, the document “could not be fully discussed then. Delegates agreed to have the document transmitted as a working document to this session.” The contribution addresses Articles 1 (subject matters of protection), 2 (beneficiaries), and 3 (scope of protection).

IP and its Role in Protecting TK, WIPO’s Perspective, CBD

The IGC, established in 2000 by the WIPO General Assembly, appears to have mainly been convened in response to growing worries of developing countries about the protection of their traditional cultural expressions, traditional knowledge and genetic resources against misappropriation and use for commercial purposes, without adequate benefit-sharing.

The work of the IGC on the protection of GR, TK and TCEs is mentioned in the 18th recommendation of the 45 adopted recommendations under the WIPO Development Agenda, in 2007, which “urge the IGC to accelerate the process … without prejudice to any outcome, including the possible development of an international instrument or instruments.”

“WIPO’s work addresses the role that intellectual property (IP) principles and systems can play in protecting TK and TCEs from misappropriation, and in generating and equitably sharing benefits from their commercialization and the role of IP in access to and benefit-sharing in genetic resources,” according to WIPO.

The WIPO website further explains that IP issues in the context of TK “break down into two key themes”: defensive and positive protection, where defensive protection of TK include “measures which ensure that IP rights over TK are not given to parties other than the customary TK holders.” Positive protection, is “the creation of positive rights in TK that empower TK holders to protect and promote their TK.”

A compilation of legislative texts on the protection of TK in various countries is provided on the WIPO website.

The issue of access and benefit sharing of genetic resources has also been addressed in the context of the United Nations Convention on Biological Diversity, with the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.

Article 7 of the protocol is devoted to access to traditional knowledge associated with genetic resources. The article mainly requires prior and informed consent or “approval and involvement” of the indigenous and local communities holder of traditional knowledge associated with genetic resources.

Signed by 92 countries, the protocol has been ratified by three countries. The third country, Rwanda, ratified it on 20 March, according to a CBD press release [pdf]

The consistency with the general legal framework is the object of Article 10 of the draft articles. The reference to the Nagoya Protocol is currently entirely bracketed.

Indigenous Peoples Participation

At the last session of the IGC, in February, working on genetic resources, the International Indigenous Forum withdrew from the discussions, saying that their efforts at effective participation had remained futile and their proposals had been ignored or left in brackets in negotiation texts (IPW, WIPO, 22 February 2012).

The group then decided to reconsider their decision and come back to the discussions on 23 February, at the last hour of the meeting.

According to Wendland, “indigenous peoples, as far as WIPO is aware, are expected to participate in this session as before.”

Diplomatic Conference in Hands of Member States

The two-year mandate of the IGC was renewed at the last WIPO General Assembly last October (IPW, WIPO, 17 October 2011). The mandate [pdf] states that the committee should “expedite its work on text-based negotiations with the objective of reaching agreement on a text(s) of an international legal instrument(s) which will ensure the effective protection of GRs [genetic resources], TK [traditional knowledge] and TCEs (traditional cultural expressions).”

The committee has been requested by the General Assembly to submit the subsequent text(s) to the 2012 General Assembly, which will then “take stock of and consider the text(s), progress made and decide on convening a Diplomatic Conference, and will consider the need for additional meetings, taking account of the budgetary process,” according to the General Assembly resolution.

However the three tracks of the IGC are not in the exact same stage of advancement, with genetic resources – though a single text was achieved at IGC 20 in February – still lagging behind.

“The next General Assembly could decide to convene a diplomatic conference on all three issues of the IGC, only on certain of the issues, or not at all,” Wendland told Intellectual Property Watch. “These decisions are entirely in the hands of the member states.”

Catherine Saez may be reached at info@ip-watch.ch.

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