Shared Genetic Resources And Traditional Knowledge: National, Regional Efforts

The issue of genetic resources or traditional knowledge that are shared among different countries was discussed at a World Intellectual Property Organization seminar this week. Panellists presented national and regional efforts to protect such resources.

The seminar took place from 23-25 June. Four panels were organised to discuss several topics (IPW, WIPO, 25 June 2015), one of them focusing on regional and international experiences on transboundary (shared) genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs or folklore).

Luis Enrique Chávez Basagoitia, Ambassador of Peru to the United Nations in Geneva and moderator of the panel, said Peru has a particular vision when it comes to TK and how it should be protected. In his opinion, he said, the general regime that protects IP was never designed to be applied in its current state to TK. In the preamble to the 1967 convention establishing WIPO, member states wish to “encourage creative activity, to promote the protection of intellectual property throughout the world,” he said.

In the spirit of the legislators who created WIPO, the IP regime was designed to stimulate intellectual activities, he said. The heart of the discussion is how TK, which does not constitute an innovation, can be protected. It has to be decided whether or not a special system is required to protect TK, he said.

Fetching a bicycle wheel from behind the stage, he said the wheel was once invented and then evolved. How could patenting of the wheel be justified? he asked. “This is how the indigenous peoples feel when their TK is used,” he said.

Rosa Fernandez, intellectual property rights specialist at the Philippines IP office, gave examples of shared GR, TK and TCEs, such as bamboo instruments and textile designs that strong indications show indigenous peoples share with counterparts in Indonesia and even as far as India.

She noted that the Association of South East Asian Nations (ASEAN) is seeking to develop a regional database. ASEAN members are: Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand and Vietnam

She presented a draft administrative order between the Intellectual Property Office of the Philippines (IPOPHL) and the National Commission on Indigenous Peoples (NCIP).

According to the IPOPHL website, the order seeks to provide institutional arrangements between IPOPHL and the NCIP to prevent the misappropriation of the TK of the indigenous peoples and indigenous cultural communities and encourage tradition-based creations and innovations.

The first public consultations was carried out in April 2015, according to the website. Fernandez said a second public consultation will be organised in August.

Indigenous Peoples Spread Across Different Countries

José Carlos Morales, Brunca Indigenous People of Costa Rica, listed a number of legal provisions in international instruments protecting the rights of indigenous peoples. These include the United Nations Declaration on the Rights of Indigenous Peoples, International Labour Organization Convention 169 (dealing with the rights of indigenous and tribal peoples), and UN Universal Universal Declaration on Human Rights. He also cited the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

He said indigenous peoples have used resources for thousands of years and expressed concerns about policies favouring agricultural modernisation, putting pressure on indigenous peoples, in particular transgenic culture.

On transborder issues, in which the GRs or TK occur in a region that lies across borders, he said the situation might have been different in Central America if indigenous peoples had been able to trace their own borders. Some peoples are divided in three or four different countries, he said.

Patent Landscaping Reveals Shared Knowledge

Daniel Robinson, senior lecturer and coordinator, Institute of Environmental Studies, University of New South Wales, Australia, said he conducted a patent landscaping of 321 Australian native “economic plants” with known indigenous uses.

Hundreds of patents and applications were identified, he said, many of which mentioned Australia, but only two mentioning “aboriginal knowledge.”

Many mentioned TK existing for plants found across the Asia Pacific region, showing similarities in TK between countries, he added.

Often the source and origin are not clear or not specified in the patents, and he highlighted the potential benefits of a disclosure of origin requirement to ensure that prior informed consent and benefit sharing is occurring where they are relevant.

He said Australia has ratified the Convention on Biological Diversity (CBD) and signed the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD, and was undergoing consultation toward ratification of the protocol. He added that ABS system exist in most states and territories of Australia. Robinson’s presentation is here [pdf].

International, National Instruments Adequate?

Benoit Müller legal advisor, International Video Federation (IVF), said transboundary or shared TCEs arise in different contexts. One of them is when identical or similar expressions of the traditional culture of indigenous peoples or a community are located across the borders of several countries, which can be the result of the way in which borders have been drawn following colonisation.

Another case is when TCEs and/or creative works incorporate or are inspired by foreign cultural expressions. Finally, it also arises when there is performance, access, preservation, citation, or other uses of TCEs in a foreign country, he said.

Several international instruments can be used to address these cases, according to Müller, in particular the Hague System for the International Registration of Industrial Designs, the WIPO Copyright Treaty, and the Berne Convention for the Protection of Literary and Artistic Works.

In national laws, either copyright or sui generis laws can be used, he said, as well as bilateral or regional agreements. This array of instruments offer at least partial solutions to issues at stake, he said. It is not unusual for intellectual property to require strategic utilisation of various tools available to reach the goals of beneficiaries, he said.

Traditional culture is not static, he said, and the relationship with creative work is a symbiotic one, as creative work can help preserve and keep traditional culture alive, he said. There is a need for balance between the freedom of expression and respect for traditional cultures. Müller’s presentation is here [pdf].

Also speaking on the panel was Solange Dao Sanon, chef, service du droit d’auteur et des questions émergentes (copyright and emerging questions), Organisation Africaine de la Propriété Intellectuelle (OAPI).

She said OAPI does not have much experience in the matter as for the moment there is no legal instrument in force. Instruments protecting TK, TCEs and GRs have been adopted by ministerial conferences, but none of those instruments has been ratified by member states. All three instruments stipulate that regional protection is not granted, she added, and leave it to national protection given the specificity of resources.

She said it would be important to have legal provisions at the international level.

Lolona Ramamonjisoa, director, Silo National de Graines Forestières (forest seeds national repository) in Madagascar, documented her country’s efforts to protect GRs and TK. She said local communities are willing to share their knowledge but are largely illiterate and do not have the capacity to negotiate.

The country is working on legislation to develop a strategy to protect GRs and TK. However, in general terms, she said, GRs, TK and TCEs need better governance and institutional structures.

In a related development, the African Regional Intellectual Property Office (ARIPO) recently announced that that the Swakopmund Protocol on the protection of traditional knowledge and expressions of folklore entered into force in May. The protocol includes provisions on transboundary shared TK, it said.