Report Seeks To Advance Discussions On Shared Traditional Knowledge

A new report from the International Centre for Trade and Sustainable Development (ICTSD) proposes solutions to advancing the global debate on the protection of traditional knowledge shared among different indigenous communities.

The study suggests the creation of a financial mechanism as a viable scheme to compensate indigenous people for the use of their traditional knowledge (TK). It also suggests including a new draft article on trans-boundary cooperation in the current text of a potential international instrument protecting TK under negotiation at the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The IGC is meeting from 15-24 July.

The report, titled “Shared and Widely Distributed Traditional Knowledge: Issues, Challenges and Options,” was authored by Manuel Ruiz Muller of the Peruvian Society for Environmental Law. It was launched at a side event to the this week’s meeting of the IGC, where WIPO members in the first week discussed a draft text for the protection of traditional cultural expressions (IPW, WIPO, 15 July 2013). The final three days of the IGC are devoted to stock-taking to determine the mandate of the committee for the next two years, including whether to move to high-level treaty negotiations on the draft legal instruments.

Shared TK is the Rule, not an Exception

The paper, focused only on TK related to biodiversity and not to folklore, shows that only few international legal instruments incorporate specific provisions addressing the issue of disseminated TK. However, the author claims that “in most cases, indigenous people, often in different countries, share similar knowledge related to similar resources, so it is not an exception: knowledge is broadly shared among communities.”

In a situation in which widely distributed TK is the rule rather than an isolated case, the implementation of contractual approaches contained in existing international agreements – including the Nagoya Protocol on Access and Benefit Sharing – proved to be particularly difficult. Indeed, the report highlights that when TK is shared, an overarching problem for TK users is to identify the right-holders entitled to negotiate an agreement and give prior informed consent to the use of their TK. In addition, ensuring fair and equitable benefit-sharing to all indigenous communities with similar TK can be equally problematic.

Multilateral Fund would Reduce Costs, Grant Benefit-Sharing

The paper lists several IP and non-IP tools to protect shared but still confidential TK and TK already available in the public domain. Among a number of possible options, the study identifies the institution of a compensatory fund under an international agreement as one of the most cost-effective solutions to overcome the issues arising from all forms of trans-boundary TK.

The report proposes to finance a multilateral fund by collecting a fixed percentage “of existing taxes on sales of a certain category of products,” such as “natural products, biotrade products, natural cosmetics [and] pharmaceuticals.” It highlights that the adoption of a compensatory approach would eliminate the transaction costs of negotiating an agreement between a company and different communities. Furthermore, such a financial mechanism could avoid the problem of identifying the TK right-holders by entitling all indigenous peoples and communities to participate in the fund’s benefits.

The study also hints that monetary benefits should be shared with indigenous people and communities even when their TK has already entered the public domain, an issue on which WIPO members found themselves at odds last April, during the text-based negotiations on the document to become an international instrument protecting traditional knowledge (IPW, WIPO, 28 April 2013).

With regard to the IGC negotiating process, the report suggests to include a new article in the draft text on TK protection. The proposed language calls on the future contracting parties to “collaborate to identify develop and implement, with participation of indigenous peoples and communities, appropriate, feasible, fair and equitable protection mechanisms,” when TK is “shared across borders, between two or more indigenous peoples or communities, in two or more countries.” At present, no consensus appears to have been achieved on Article 12 of the draft text on trans-boundary cooperation and different options are still on the table.

“If we look at what happened since 1992, the contractual approach is not generating any type of benefit in terms of access to genetic resources,” Ruiz concluded. “The recognition of sovereign rights over genetic resources which are in fact shared between different communities is a problem that we have to deal with. I think we should take further analyses and more in-depth studies on whether and how a multilateral funding can operate more effectively.”