Protecting Traditional Knowledge: WIPO Members Back To The Drafting Table

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World Intellectual Property Organization delegates are meeting once again this week to try to advance a text that could become an international instrument to protect traditional knowledge. Substantial work needs to be done on the draft text, and developing countries generally favour a legal binding instrument while developed countries would prefer a softer instrument.

The 24th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 22-26 April.

On the menu of this session are draft articles [pdf] on the protection of traditional knowledge, including a number of bracketed text and alternatives showing that delegates will have to find consensus on some core issues to streamline the text. The version issued at the end of the week is expected to be sent in autumn to the WIPO General Assembly, which will consider progress on the text and decide on convening a high-level meeting to complete an international instrument to protect traditional knowledge, according to the 2012 General Assembly decision [pdf].

The same decision states that this session of the IGC should focus on, “but not limited to,” four core articles of the draft document: the subject matter of protection, beneficiaries, scope of protection, and limitations and exceptions.

The IGC has three areas: genetic resources, traditional knowledge and traditional cultural expressions (folklore). The 23rd session, held from 4-8 February, dealt with genetic resources, the 24th session is devoted to traditional knowledge, and the 25th session will address traditional cultural expressions from 15-24 July. The three last days of the 25th session are expected to be devoted to taking stock of the texts produced by the 2013 IGC meetings, and prepare a recommendation for the September Assemblies.

IGC Vice-Chair Alexandra Grazioli, of the Swiss Federal Institute of Intellectual Property, presented the work plan this morning, with the week alternating closed-door informal drafting sessions and plenary sessions to report on progress. As in the February session of the meeting, Grazioli asked that integrity of smaller expert groups be respected and warned against any kind of transmission being made about the closed negotiations.

This methodology was adopted at the February session to facilitate drafting progress as the “experts feel they have the freedom to make suggestions and comments not on the basis of attribution and without being held to a national position for such intervention,” Wayne McCook, Jamaica ambassador and chair of the IGC, said at that meeting (IPW, WIPO, 5 February 2013).

Preparatory Meeting in South Africa

An informal preparatory meeting, gathering a number of member states, was convened by South Africa last week in Pretoria to discuss core issues of the draft instrument, according to some sources. Prior to the February IGC meeting, India had convened a similar meeting.

During the plenary meeting this afternoon, the South African representative spoke about the non-negotiating Pretoria meeting, saying he wished to take the spirit of what happened without making a report on the meeting. Some 18 member countries attended and “discussions were held in a friendly and mutually-respecting environment,” he said, adding that because the purpose of the meeting was not to discuss the text of the IGC, it allowed participants to explore concerns around the work undertaken in the IGC.

South Africa, he said, invited the countries who had attended the meeting in India prior to the February session, although it had hoped to invite more countries to promote and foster transparency.

The aim of the meeting in Pretoria, he said, was to seek consensus and basic issues, such as “what does the protection of IP means in WIPO, generally,” or why the discussion on the protection of TK is taking place at WIPO and not in the United Nations Convention on Biological Diversity or other organisations, or whether WIPO is a forum for national law or meant for international norms.

Participants also looked at issues such as “is the protection of TK appropriate for this audience,” or “is IP protection relevant to TK,” is the protection of TK using conventional IP or a sui generis system, he said. Other questions were raised and “debated very robustly by members,” such as some related to the public domain: “where does it originate from,” or “is it a legal concept.”

The questions “were not threatening to anybody” and they were not associated with a text, the delegate said, asking members to ponder the grounds of their discussion and what kind of instruments WIPO administers, whether it was political declarations or treaties. “We need to find the focus on why we are here,” he said, “otherwise we are speaking past each other.”

More Documents to Discuss, Although Not Focus

Also on the table this week are three other documents which were already discussed in the previous session of the IGC and are expected to be discussed again during this session, according to sources.

Joint Recommendation [pdf] on Genetic Resources and Associated Traditional Knowledge, was submitted by the delegations of Canada, Japan, Norway, South Korea and the United States. This joint recommendation focuses on the prevention of the erroneous grant of patents and offers measures to allow this prevention.

There is also a proposal for the Terms of Reference [pdf] for a “Study by the WIPO Secretariat on Measures Related to the Avoidance of the Erroneous Grant of Patents and Compliance with Existing Access and Benefit-Sharing Systems.” The document was submitted by Canada, Japan, South Korea, and the US. It requests that a WIPO technical study on patent disclosure requirements related to genetic resources and traditional knowledge be updated in an effort to have a “fact-based analysis” of whether disclosure requirements as well as access and benefit-sharing address the concerns about erroneous patents and misappropriation, “without reducing the incentive to innovate…”

Finally, there is another Joint Recommendation [pdf] on the “Use of Databases for the Defensive Protection of Genetic Resources and Traditional Knowledge Associated with Genetic Resources.” The document was submitted by Canada, Japan, South Korea and the US.

McCook issued an “informal issues paper” [pdf] giving background information on main issues and cross-cutting issues to be discussed this week, such as the definition of the protectable subject matter, which issues should relate to national legislation, and which others should relate to international legislation. The paper also gives information about divergent views on some of the articles, such as Article 7 (term of protection), Article 5 (administration of rights), and 5bis (application of collective rights).

WIPO Report on Customary Law

By Tiphaine Nunzia Caulier for Intellectual Property Watch

Separately, a report by WIPO and the UN University circulated last week explains how customary law can help in the protection of the TK rights of indigenous communities. With a regional focus, the report examines the interrelations between customary law, national and international regulations of TK, and human rights.

Drawing on workshops held in the Andean and South Pacific Island countries a few years ago, the report shares examples of countries where customary law is recognised in the constitution.

The analysis, authored by Brendan Tobin of the Australian Centre for Intellectual Property in Agriculture, highlights the various difficulties and challenges that surround the concept of customary law. For instance, regarding the example of the Andean countries, the report highlights that issues remain regarding the enforcement of such customary laws. The analysis also shows that there is a multiplicity of existing customary law systems which thus precludes the harmonisation and adoption of a one-size-fits-all solution.

The report can be found here [pdf].

Tiphaine Nunzia Caulier contributed to this report.

 

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

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