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    Indigenous Peoples Present Their Perspectives On Traditional Knowledge At WIPO

    Published on 25 March 2014 @ 12:11 pm

    By for Intellectual Property Watch and for Intellectual Property Watch

    Representatives of indigenous peoples opened a key meeting at the World Intellectual Property Organization with a discussion of the definition of traditional knowledge (TK), the presence of TK in the public domain, and respect for indigenous peoples’ rights under the United Nations Declaration on the Rights of Indigenous Peoples.

    The panel of speakers formed part of the 27th session Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), taking place from 24 March – 4 April.

    The theme of this year’s panel is: “Intellectual property, Traditional knowledge and traditional cultural expressions: Indigenous Peoples’ ‘right to maintain, control, protect and develop their intellectual property’ under Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples” [pdf] (UNDRIP).

    Pavel Sulyandziga, president of the Batani Fund and member of the UN working group on the issue of human rights and transnational corporations and other business enterprises, emphasised that it would be impossible to resolve issues with particular indigenous peoples if there is no protection of their basic rights.

    The development of indigenous peoples is one of the most important issues for the committee and it is “a great pity” that it is not much discussed, Sulyandziga said. “The defense of traditional knowledge and traditional cultural expressions does not mean conservation or stagnation,” as some people still pursue a traditional economy and way of life, he added.

    Sulyandziga said he regretted that the WIPO voluntary fund for indigenous people to attend the negotiations is has no funds, because participation and information of indigenous people is important to the process. He called for a focus on the development of indigenous peoples’ potential, underlining that some countries have started to develop educational programmes.

    Edith Bastidas, legal advisor for the Entidad Promotora de Salud Indígena Mallamas in Colombia, said that there is a need to join the efforts made in various arenas in which TK and TCEs are discussed in order to avoid contradictions. She mentioned the human rights, environmental and cultural arenas.

    “Participation, consultation, consent and self-determination” are key in developing “an instrument that recognises the rights of indigenous peoples’ cultural expressions and knowledge,” she said.

    On the issue of the meaning of “tradition,” Bastidas argued that the term “ignores the fact that indigenous peoples’ knowledge is changing and dynamic.” Evolving and updating of knowledge cannot be excluded from protection.

    “If we were to put it into a box we wouldn’t be opening it up to full protection,” she said.

    With regards to nations being beneficiaries of protection, Bastidas believes that this could “distort protection” but that nations may have a role as “grantor for an instrument of protection.” She believes that indigenous communities should produce organisations to assume protection when the proprietors of knowledge might not be known.

    Bastidas said the current definitions of ‘misuse’ and ‘appropriation’ in the context of patents do not apply to traditional knowledge. These terms require economic investment, whereas the ‘investment’ in TK may be “spiritual” for example. She also said that after sharing their knowledge, not only should indigenous people have a right to compensation but they should also retain “the right to administer that knowledge.”

    Bastidas also said that information in the public domain should be given the same protection. It is “not appropriate to exclude knowledge in the public domain because we do not know how it got into public domain.”

    Preston Hardison, policy analyst for the Tulalip Tribes of Washington state (US), warned the IGC that there would be a “large asymmetry in the consequences of policy failures,” as the burden would mainly be among indigenous people if IP systems are not well designed.

    According to him, there are stewardship obligations related to the use of TK. In the view of indigenous peoples, if knowledge is shared there is an obligation to use it in a correct way. The sharing of knowledge should also lead to a long-term relationships, thus the benefit-sharing should not be reduced as a single transaction. He also underlined that the indigenous peoples’ main objective is not money, but to live well and correctly.

    However, indigenous peoples are facing a lot of difficulties such as climate change, habitat fragmentation, and pollution, Hardison said. Free and prior informed consent (FPIC) and access and benefit sharing (ABS) in exchange for TK are “embedded in the wider economical and social context”. Thus a broad FPIC requires a “whole-of-ecosystem assessment of risks and benefits,” he added.

    The concept of public domain creates problems as it “means exhaustion of our rights,” Hardison said. Terms like ‘public domain’ or ‘common heritage’ have to be crafted very carefully and with the contribution of indigenous people.

    On the IGC draft text, he said he regretted to see that reference to customary law has disappeared from the draft articles and that spirituality is not part of the definition of TK. He criticised the distinction between sacred and non-sacred knowledge, as he considered that all TK “are sacred in a way.” About the definition of traditional, it could be characterised by “the way the knowledge is acquired and used,” he said.

    The recognition of harms and benefits “should be compatible with customary law,” said Hardison, as indigenous peoples’ rights should be protected by existing or sui generis IP laws. The UNDRIP and the International Labour Organisation (ILO) Convention n°169 should be considered as the minimum standards, he concluded.

    Questions from Member States

    After the speeches, the panel took questions from delegates. The delegate from Trinidad and Tobago raised the issue of who the beneficiaries should be in small territories such as in the Caribbean region where there are no indigenous people per se, but the population as a whole has TK and TCEs. He stated the “need to establish a national entity under national law who deal with the administration of the TK or TCEs on behalf of the population who live in these countries.”

    Paraguay asked participants to share experiences where words taken from local community dialects had been registered as trademarks, and what kind of compensation was made available. One example provided was where a name of a community was registered in Brazil as a trademark for a toilet paper company and the group had called for its cancellation. The need for prior informed consent was raised as a solution in these circumstances.

    Indonesia asked for a clarification of the term “secret” knowledge as opposed to shared knowledge. Hardison explained that sharing of knowledge extends from wide sharing to use only in highly constrictive rituals by a restricted group for example.

    It is “not just an issue of being secret or not,” he added, as some knowledge is shared publicly but the subsequent use of the available knowledge may continue to be restricted. For example, there might be a family song, sung in public, but only members of that family may sing it. He said that the issue depends on the expectations and aspirations of indigenous peoples when they are sharing knowledge.

    Maëli ASTRUC is an intern at Intellectual Property Watch. She has a Master’s Degree in International Law from Aix-en-Provence University and a LL.M from Ottawa University. During her studies, she developed a high interest in intellectual property issues in particular related to agriculture and traditional knowledge.

    Julia Fraser is an intern at Intellectual Property Watch. She is currently training to be a solicitor and will start work at an international law firm in London in 2015. She has a BSc Honours in Biology from Edinburgh University where she developed an interest in public health related intellectual property issues.

    Maëli Astruc may be reached at info@ip-watch.ch.

    Julia Fraser may be reached at info@ip-watch.ch.

     

    Comments

    1. IP-Watch Interns Provide Fresh Perspective, Solid Reporting | Intellectual Property Watch says:

      […] Property and Genetic Resources, Traditional Knowledge and Folklore, where she focused on indigenous peoples’ perspectives, and other issues. While covering conferences in Geneva, she has also discovered a strong interest […]


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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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