First Revised Articles Of Potential Treaty Protecting TK At WIPO Issued Today

A new set of draft articles of a potential treaty protecting traditional knowledge from misuse and misappropriation was issued this morning. Facilitators on the discussions worked late last night to produce a document with a number of alternative texts, reflecting points of views of member states.

The first revision [pdf] of draft articles concerns the preamble, policy objectives, use of terms, subject matter, beneficiaries, and scope of protection.

Three delegates, not acting in their national capacity, were tasked at the beginning of the week with the arduous work of preparing revised versions of the original draft articles [pdf], inherited from the last session of the IGC focussing on traditional knowledge, in 2014, taking into account divergent points of views expressed by delegations.

The three facilitators are Margo Bagley of Mozambique, Emilio Uzcatégui-Jiménez of Ecuador, and Ema Hao’uli of New Zealand.

The 31st session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 19 – 23 September.

As an example of the text, in the preamble, an alternative has been added, as proposed by Colombia, stating: “Innovation based on traditional knowledge may contribute to the transfer and dissemination of knowledge for the benefit of the holders and legitimate users of traditional knowledge, as long as it contributes to the facilitation of social and economic welfare and the balance of rights and obligations remains the same.”

In the policy objectives, some countries, such as China and Iran, had suggested that nations be included as beneficiaries, which is now reflected in the revision.

A suggestion from the United States, also in the policy objectives, is reflected in the alternative paragraph. It states that the instrument’s objective is “to benefit mankind by preserving to the holder of traditional knowledge certain limited in scope and duration rights in a manner conducive to social and economic welfare, balances rights and obligations, and that is mutually advantageous to holders and users of traditional knowledge”; as well as the “value of a vibrant public domain.”

Since a “tiered approach” was considered at the last traditional knowledge (TK) IGC discussion, by which different rights might be awarded to different types of TK, the facilitators have provided tentative definitions in the use of terms for four types of TK: secret TK, sacred TK, narrowly diffused TK, and widely diffused TK.

All textual proposals by the facilitators will have to be approved by at least one member state to be kept in the draft articles, according to IGC Chair Ian Goss.

The draft revision’s use of terms also contain three options defining misappropriation. A new option (3) proposed by Ghana defines misappropriation as “any access or use of traditional knowledge of the beneficiaries in violation of customary law and established practices governing the access or use of such traditional knowledge.”

Option 2, which was already in the original draft articles gives a more flexible approach,  as confirmed by the US on 20 September during formal discussions. It focuses on what does not constitute misappropriation, such as acquisition of TK through lawful means, such as independent discovery or creation, reading books, receiving from sources outside of intact traditional communities, reverse engineering, and inadvertent disclosure resulting from the holders’ failure to take reasonable protection measures.

Article 1 on the subject matter of protection is now notably longer than the original draft article, with for example an alternative (3) introduced by India that provides a thorough description of what the instrument should protect, including TK widely spread or not, “and that is linked with the social identity and/or cultural heritage of indigenous peoples and local communities…”

India also suggested the inclusion (reflected in the same alternative 3) of fields of application, such as agriculture, the environment, healthcare, and indigenous and traditional medical knowledge, and know-how of traditional architecture and construction technologies.

On Article 2 – Beneficiaries, two new alternatives reflect views supported by China (alternative 1), and introduced by the European Union (alternative 2). Both include variations of implementation by national laws, and the establishment of national authorities. This is particularly important when holders of the TK cannot be identified or when several local communities share the same TK.

The scope of protection of the treaty, which is the object of Article 3, is “a rather complex article,” according to the facilitators.

New alternatives were added to the original draft text. For example the EU suggested alternative 1, in which they call for the instrument to be implemented in accordance with national law and in a “reasonable and balanced manner.”

The facilitators have introduced alternative 2, in which they have set different provisions depending whether the TK is secret, or narrowly diffused.

Delegates were expected to come back this afternoon with comments on the first revision of the draft treaty articles.