WIPO Members Working On Evolving Draft Of Potential TK Treaty

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World Intellectual Property Organization member states today are trying to agree on the draft text of a potential international instrument to protect traditional knowledge from misappropriation.

A new set of draft articles was issued yesterday, and WIPO member states’ reactions are expected to be reflected in an updated draft being issued at press time. A key area of continued divergence yesterday was how to consider widely diffused traditional knowledge.

The second revision circulated today at press time is available here [pdf], and a story will follow soon.

The WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 24 March to 4 April. The segment of the meeting on traditional knowledge ends today, and the remainder will be devoted to traditional cultural expressions (folklore).

A first revision of the draft articles [pdf] was released yesterday, prepared by facilitators. The text was presented in plenary and one facilitator explained the changes made from the original document. The original document on which drafting had been based was issued at the last session of the IGC dealing with traditional knowledge (TK) (IPW, WIPO, 27 March 2014).

Yesterday’s version of the text (referred to as “Rev 1”) was received positively in the plenary session in which the text was presented, but delegations also raised areas of further work. They then reconvened in small groups for informal discussions and further drafting.

Indonesia, on behalf of the group of “like-minded countries,” said the developing country group was ready to negotiate on the basis of the text. But, it said, issues such as the subject matter of the future instrument, its scope, the beneficiaries, and sanctions and remedies, still needed to be addressed.

Those are issues that have been at the heart of the discussions for the past sessions of the IGC.

India said it has reservation on a new Article 3bis, on complementary measures. The article groups together measures that did not “easily fit” in the revised Article 3, one of the co-facilitators explained during the morning session. Article 3bis includes, for example, the development of TK databases for the defensive protection of TK, provides for possible opposition measures that will allow third parties to dispute the validity of a patent, and encourages the development and use of voluntary codes of conduct.

The Indian delegate said those measures cannot be made mandatory and that databases can only concern widely known traditional knowledge.

Kenya for the African Group, welcomed the revised version and said “it is a big step in the right direction,” as the text was much clearer.

EU Requests Brackets

The European Union had a number of detailed comments and asked that some brackets be inserted to the new text, to reflect areas of disagreement.

In particular, the EU asked that the word “misappropriation” be bracketed in the policy objectives and said they would favour alternative language such as unfair use, or misuse or abusive use.

Still in the policy objectives, the European Union delegate asked that the word “reward” in the sentence “encourage and reward [and protect] tradition-based creativity and innovation” be bracketed as “it is not usually the function of IP instruments to offer rewards,” he said. He also requested that the words “prior informed consent”, “mutually agreed terms” and “benefit-sharing” be bracketed as what constitutes TK is still subject to wide-ranging interpretations, he said.

In the “use of terms,” regarding the definition of “publicly available,” he said what this instrument protects and safeguards is still under discussion and thus the definition should be bracketed.

In Article 2 (beneficiaries of protection), the EU delegate asked that the word “nations” be bracketed in paragraph 2.1. He said that paragraph 2.2 (b to d) appear to define TK which is not linked to indigenous and local communities and thus would consider TK that might lie outside of the scope of Article 1.

Iran commented on the fact that the policy objectives and the preamble did not include reference of protection or enforcement, while the main objective of the instrument is the effective protection of TK.

Canada said that the sharing of benefits should not be an objective of this instrument as it is the objective of other existing instruments such as 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. But, the delegate added, “We do not deny that the sharing of benefits could be a possibility under this instrument.”

Canada also asked that the word “nations” in Article 2 (beneficiaries of protection) be bracketed. Canada expressed concerns about Article 4 (sanctions, remedies and exercise of rights/application) mentioning a new dispute mechanism.

Public Domain, As Illustrated by Blue Jeans

The issue of how to address knowledge that is widespread and sometime considered to be in the public domain has been one of the prickly issues of the discussions.

In his opening statement on Monday, the US delegate gave an example of some concerns.

Publicly available and widely diffused TK, and traditional cultural expressions (TCEs, or folklore) should not lend themselves to protection by exclusive rights, he said, as the origin of this TK and these TCEs may be difficult to trace.

He then gave the example of Italian sailors, who used to wear heavy blue plants. “French manufacturers thought to produce these pants, using local production techniques and materials,” he went on. “US manufacturers then improved upon this fabric and used the fabric to make what is now blue jeans for the use by gold miners in California.”

“While the origination of blue jeans in the United States can be traced to a private company in about 1850, if the method of making denim and blue jeans is traditional knowledge, what community does it belong too?” he asked, “The Italian community whose sailors wore blue pants, the French community that produced a sturdy fabric emulating the Italian blue pants, or the US company?”

The Indian delegate said in his opening statement that the issue of widely diffused TK is crucial. “Finding solution to the coverage of widely spread TK will enable us to resolve the divergent views expressed in determining the definition of TK/TCEs and beneficiaries and help us move forward.”

“If you recall,” he said, “it was the wide spread misappropriation of publically available TK/TCEs that lead to the formation of the IGC to discuss protection for TK/TCEs and this is evident from the WIPO report of the fact finding mission.”

“We would like to reiterate that the concept of public domain which does not have a conceptual clarity in the area of IP is not the appropriate concept to determine the nature of TK to be protected,” he added.

“The solution for the concerns raised by some of the distinguished delegates on the free availability of TK and TCE’s is not to exclude them from protection but to find appropriate remedies to those concerns by addressing it on the scope of protection and limitations and exceptions.” However, he called for limitations and exceptions not to “unreasonably dilute the level of protection afforded” to TK and TCEs.

Sacred Knowledge not in the Same Box

A representative of the Tulalip tribe said several questions should be answered about the issue of the public domain. “What is the actual threat to the public domain of protecting TK and TCEs?”, and “what is the potential for creativity and innovation that is harmed if these are protected,” he asked.

He then went on to give an example of a pueblo kiva in which a sacred ceremony was taking place in 1984. An airplane flew over the kiva and took pictures of the ceremony down into the hole at the top of the kiva, and then published that picture.

“At the time the law said, ‘we’re sorry, that is open public airspace and if you want to protect your ritual, cover your kiva’,” he said. We want to know is the failure to take precautions is the kind of things that are requested. If you request that traditional practices be changed to accommodate the current IP system, we have some issues there,” he said.

He also said the example of the blue jeans could not be put into the same box as a sacred ceremony.


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

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