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    In “Great Shame,” WIPO Fund For Indigenous Peoples’ Participation Running Dry

    Published on 26 April 2013 @ 8:13 am

    By , Intellectual Property Watch

    indigenous panelThe participation of indigenous peoples at the United Nations World Intellectual Property Organization has become compromised as the voluntary fund allowing the organisation to invite indigenous peoples representatives is running dry. At the outset of this week’s WIPO committee seeking to produce an international instrument providing protection to traditional knowledge, an indigenous panel mapped out international agreements recognising their specific rights.

    On the first day of the 24th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) taking place from 22-26 April, WIPO Director General Francis Gurry and IGC Vice-Chair Alexandra Grazioli called for members to contribute to the voluntary funds allowing indigenous peoples to participate in IGC sessions.

    The voluntary fund is out of money, Gurry said, and “the situation could not be more dramatic.” He said he has written to all potential donors, to no avail. Gurry urged delegations to assist WIPO with the fund in particular “in this critical stage of negotiations in this process.”

    Indigenous panel insists on rights of self-determination for indigenous peoples. (Photo Credit: Catherine Saez, IP-Watch)

    Indigenous panel insists on rights of self-determination for indigenous peoples. (Photo Credit: Catherine Saez, IP-Watch)

    Grazioli said the fund was created in 2005 to support the participation of indigenous peoples’ representatives and has benefitted from different contributors including Australia, the Christensen Fund, France, Norway, South Africa, and Switzerland. Beyond IGC 24, there is no longer sufficient funding to cover the participation of any indigenous representative to any future session of the IGC, she said.

    “This regrettable situation is a great shame,” said the Swiss delegate, and could have the effect of harming the credibility of the IGC.

    The WIPO secretariat has initiated a fundraising drive and also explored other options, such as inviting member states which have funding trust with WIPO to divert some of these funds to the voluntary fund, and have sought the assistance of prominent indigenous peoples representatives to intercede to their governments for funds, without success, as no additional fund have been pledged, she said.

    “The situation could not be more dramatic” – WIPO Director General Francis Gurry

    The need is financially rather small, she said, as financing five applicants would require about US$18,500. Alternative financing solutions might be explored, and member states might have to consider the possibility of inviting the annual WIPO General Assembly to amend the rules of the fund in order to allow the WIPO budget to contribute to the fund, the vice-chair said, calling member states to consult about “this regrettable situation” with their capitals and their regional groups.

    An indigenous panel followed the opening of the 24th session of the IGC. Speakers described the United Nations Declaration on the Rights of Indigenous Peoples and how it should be considered in the IGC discussions, noting that most WIPO members had signed the declaration.

    The UN declaration, in Article 31, states that “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing art.” Article 31 further states that “They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.”

    It is neither feasible nor wise for the IGC to conclude drafting of the text without due acknowledgement of the rights of indigenous peoples to self-determination, said Robert Leslie Malezer, co-chair of the National Congress of Australia’s First Peoples.

    For Lucy Mulenkei, executive director of the Indigenous Information Network in Kenya, indigenous peoples look at resources as part of them and traditional knowledge is a living body of knowledge developed, sustained and passed from generation to generation as part of a cultural and specific identity.

    She said the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity is expected to help communities try and protect their intellectual property rights and resources and allow fair and equitable benefit sharing. As such, it is important that the IGC consider the Nagoya Protocol, and important for the IGC to involve indigenous peoples in negotiations and thus contribute to the voluntary fund, she said.

    Public Domain, Databases, Prejudicial Concepts, Representative Says

    Preston Hardison, natural resources treaty rights policy analyst for the Tulalip Tribes of Washington, United States, said the UN Declaration on the Rights of Indigenous Peoples was intended to give states and indigenous peoples the flexibility to work out their own constructive agreements in national contexts, but was not meant to allow the states to have the flexibility to circumvent the intentions of the UN declaration to promote state recognition of indigenous peoples and their rights.

    The issue of the public domain has been a sore point in IGC negotiations, as some countries such as the United States and the European Union have raised concerns about protecting knowledge that was already considered as being in the public domain. But Hardison said the public domain is an intellectual property concept, stemming primarily from copyrights. It assumes, he said, that IP law holds supremacy over the regulations of traditional knowledge.

    This concept of public domain is prejudicial against sui generis rights, could be prejudicial to inherited rights under human right laws, and deprives indigenous peoples of their right to self-determination over traditional knowledge that has been classified as being in the public domain, he said. Some states, he said, have the ability to “claw back materials from the public domain,” citing a US case Golan v. Holder, in which the US Supreme Court decided in 2012 to restore copyright protection to foreign works found in the public domain, to comply with its obligation under the Berne Convention for the Protection of Literary and Artistic Works.

    On databases, which have been proposed by a group of member states (Canada, Japan, South Korea and the United States), as a mean to protect traditional knowledge, Hardison said the proposal to make databases only available to patent offices was a step in the right direction but provides no security from corruption, hacking, leakages or changes in policy and law.

    William New may be reached at wnew@ip-watch.ch.

     

    Comments

    1. Meeting review: WIPO IGC 24 | Traditional Knowledge Bulletin says:

      [...] … Download the revised draft articles on TK [pdf] … Read the IP Watch article of 28 April … Read the IP Watch article of 26 April … Read the IP Watch article of 24 April [...]

    2. WIPO In Marathon Two Weeks To Advance On Protection Of TK and Folklore | Intellectual Property Watch says:

      […] of indigenous peoples representatives in the sessions of the IGC has been drying up for some time (IPW, WIPO, 26 April 2013). Appeals have already been made by the secretariat and some member states, to no […]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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