Divergences Clarified On Protection Of Traditional Knowledge At WIPO

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From the outset of a World Intellectual Property Organization meeting to advance a potential treaty text on the protection of traditional knowledge, discussions on draft articles of the possible treaty confirmed divergence of views, notably between developed and developing countries. [Update: Objectives and principles text added]

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

A new version of the draft articles [pdf] was released this afternoon.

Due to the lack of time, only the draft articles have been revised. The revised objectives and principles should be available tomorrow, the facilitators said. [Update: the objectives and principles document is here, pdf.]

The IGC Chair, Wayne McCook of Jamaica, laid out his work programme on 16 April and reminded delegates that this session of the IGC is “a working negotiating session.” A second vice-chair was elected, Bebeb Djundjunan of Indonesia, seconding the first vice-chair, Alexandra Grazioli of Switzerland, elected at the previous session.

McCook said he consulted extensively with regional coordinators and the indigenous peoples caucus prior to the meeting and said the meeting would remain guided by transparency, equity, focus and discipline. The text before delegates “is not new,” he said, as it was first drafted in 2004, but significant changes have been made since.

“Many complex issues remain unresolved” McCook said, in particular the definition of traditional knowledge (Article 1), beneficiaries of protection (Article 2), the scope of protection (Article 3) , and exception and limitations to the protection (Article 6).

The key target, said the chair, is to submit to the annual WIPO General Assembly in October a text revised in its entirety, even though the main focus of the session will be on the four keys articles. His hopes are that by the end of the session, the IGC will be able to transmit a text further consolidated and with fewer options.

Nicolas Lesieur of Canada and Andrea Bonnet López of Colombia, facilitators for IGC 19, were reappointed, and Walid Taha of Egypt was appointed as a third facilitator. Facilitators are tasked with producing revised versions of the draft articles, and objectives and principles.

McCook said that the objective of this session was not to further expand the text unless “truly new ideas” were put forward, as the text had already gone through several rounds of discussions.

Assessing the Draft Articles

The first two days of the session were spent in plenary to go over the draft articles as presented in document WIPO/GRTFK/IC/21/4 [pdf].

Countries voiced their preferences for specific options and proposed alternative texts that were transmitted to the secretariat for the attention of the facilitators.

On 16 and 17 April, the first reading of the draft articles confirmed divergences, as countries restated their position and added comments on the text or new text to be added.

On Article 1 (subject matter of protection), including the definition of traditional knowledge, developing countries predominantly were in favour of the second option of the draft text, which gives a broader definition, including references to a knowledge “that is dynamic and evolving … passed on from generation to generation.” This second option also includes traditional knowledge associated with biodiversity, traditional lifestyles and natural resources.

The European Union countries said that the definition of TK is fundamental and they preferred a simpler and clearer definition, such as presented in option 1 of Article 1. They said they considered option 2 as being “too open ended.” All developed countries that took the floor were in favour of option 1.

Article 1 also included the criteria for eligibility and developing countries were in favour of option 2 of the sub-article, giving a broader scope of eligibility, while developed countries preferred option 1, which gives a list of criteria.

On Article 2 (beneficiaries of protection), option 1, names “indigenous peoples/communities and local communities” as beneficiaries, while option 2 gives a more exhaustive list including families and nations. Some developing countries were in favour of option 2, saying that this option would better fit the different scenarios met by different countries, which for example, may not have a concept of indigenous peoples. But some preferred option 1 because they disapproved of the inclusion of nations in option 2. Developed countries taking the floor supported option 1.

In Article 3 (scope of protection), option 2, includes a mention of prior informed consent of TK holders and the establishment of mutually agreed terms to prevent misappropriation, as well as the mandatory disclosure of the identity of the TK holders and the country of origin in patent or trademark applications.

The EU said it supported option 1 and could not accept the reference of mandatory disclosure in option 2. Norway said although the country supports mandatory disclosure, the reference should not be in Article 3. Developed countries who took the floor supported option 1, which gives flexibility to countries to define the scope of protection, while developing countries mostly approved option 2, which supports a more prescriptive policy approach and stronger obligations for member states.

On Article 6 (exceptions and limitations), the US proposed additional paragraphs, in particular, to exclude from protection TK that is already “available without restriction to the general public,” and “diagnostic, therapeutic and surgical methods for the treatment of humans or animals.” The EU said they could not support a text referring to secret and sacred TK.

The facilitators said that the text they produced today contains all the various elements presented by countries during the two first days of the session. In square brackets and bolded are the elements that the facilitators found gave ground to the most discussions in plenary, and were the most important ones. Some other elements are in square brackets but not bolded, as deemed less important. New contributions made by delegations, the facilitators said, are underlined and in square brackets since they were not discussed in plenary. The brackets indicate absence of agreement.

Included in this first revision of the draft articles are comments by the facilitators noting the elements of convergence, and the elements of divergence on most of the articles.

Egypt, on behalf of the African Group, noted that so far that IGC 21 “did not conduct text based negotiations with the objective of reaching agreement on a text of an international legal instrument which will ensure effective protection of TK,” but was limited to expressing previously known positions. The group called for cross regional informal negotiations to advance the process in particular on the four articles mandated by the General Assembly (Article 1, 2, 3 and 6).

The African Group also said it reserved the “right to conduct a comparative assessment” between the draft articles presented at the beginning of the session and the text produced by the facilitators “in order to accurately and faithfully achieve our mandate by the General Assembly,” the delegate said.

Delegates will discuss the revised articles tomorrow.

WHO in Favour of Traditional Medicine, Access Necessary

During the discussion on principles and objectives of the potential instrument, on 17 April, the World Health Organization offered comments.

“The WHO has acknowledged and embraced traditional medicine as part of health care systems worldwide for many years and developed its first official traditional medicine strategy in 2002,” Zafar Mirza, coordinator in the WHO Department of Public Health, Innovation and Intellectual Property, told the meeting. “There is therefore an overlap between the work of this committee and the work of the World Health Organization,” and the decisions made by the IGC, “may very well have an impact on public health.”

It is in the interest of public health that the potential of traditional medicine is realised and made accessible to a wider population, he said. Therefore “it is important that any alternative intellectual property protection system for traditional knowledge does not restrict access to traditional medicine to the detriment of efforts to further develop existing treatments, to develop new products or to provide access to such treatments in a wider patient population,” he added.

“From the perspective of public health, a new system of protecting traditional knowledge should not only provide for a fair and equitable sharing of benefits but also should support public health objectives,” he said adding that any new protection system should not only provide protection for the owners of TK but also “allow the development of new treatments based on traditional medicine and more broadly allow for innovation for public health and the sharing of any benefits arising from commercialization of resulting products and therapies.”

The WHO Commission on IP, Innovation and Public Health pointed out in 2006 that there is a risk that “introducing a form of intellectual property protection for traditional knowledge may actually have the effect of restricting access by others, thereby inhibiting downstream innovation,” he said.

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

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