WIPO Traditional Knowledge: Text Passes Committee Approval, Goes To Next Session

World Intellectual Property Organization delegates today agreed on a text compiling divergent views on how traditional knowledge should be protected in the intellectual property system to be forwarded to the next session of its committee on the protection of traditional knowledge. Some clear dividing lines remain, such as traditional knowledge which is widely known and could have been placed in the public domain, or if conditions of eligibility should be part of a potential treaty.

The 31st session of the Intergovernmental Committee on Intellectual Property and Genetic Resources (GRs), Traditional Knowledge (TK)and Folklore (IGC) took place from 19-23 September.

The three facilitators designated at the beginning of the week to reflect countries’ positions into revisions of draft articles of the treaty produced the second revision [pdf] of the text today.

Countries agreed that this could serve as a basis for discussion at the next session of the IGC from 28 November to 2 December. A large number of paragraphs and alternatives are bracketed, reflecting there is no agreement on language, as this text was meant to reflect different positions.

The work programme of the IGC is divided between those three subject matters. The 31^st and 32^nd sessions of the IGC are focused on TK.

One of the objectives of the 31st session was to draft a list of outstanding issues to be addressed at the 32^nd session of the IGC, according to IGC Chair Ian Goss of Australia.

Outstanding Issues for Next Session

An indicative list of outstanding issues was submitted and approved by member states this afternoon. The list includes major divergences between countries, such as reflected in textual alternatives in the second revision of the draft treaty article published today. The first revision of the text was issued on 21 September (IPW, WIPO, 21 September 2016).

Some of the issues listed relate to eligibility criteria. Some countries, such as the United States, want eligibility criteria to be part of the potential treaty, while other countries such as Bolivia disagree.

Another divergent point of view between countries is whether to include nations or states as beneficiaries.

Also part of the pending issues to be tackled are the terms to express the nature of harm for which protection is sought, such as “misappropriation,” “misuse,” unauthorised use;” “unlawful appropriation,” and “illicit appropriation.”

The list also mentions issues such as whether a tiered approach, which would establish rights according to different types of TK, such as secret, or widely known, should be considered.

Second Revision a Go, But Concern Over New Concepts

Countries decided that the second revision of the draft articles would be a good basis for discussion at the November session of the IGC. Some countries expressed reservations about new concepts and new elements introduced during the week by delegations, such as the concept of protected TK, introduced by the United States in the use of terms, and the introduction in the preamble of a paragraph on human rights, also introduced by the United States.

Indonesia, speaking on behalf of the Like-Minded Countries, said more discussions on those concepts would be necessary at the next session, joined by Thailand and India.

Chile, for the Group of Latin American and Caribbean countries, expressed reservations on the inclusion of the paragraph on human rights, which they said came partially from the Universal Declaration of Human Rights. They said they did not understand the reason for selecting this particular text, which does not seem to be protecting the rights of indigenous peoples. Iran remarked that this paragraph was “fully out of context.”

India, for the Asia and Pacific Group, also remarked on new elements which “could lead to confusion…” and could derail future discussions. Iran said new elements and concepts are not working to narrow gaps between positions but to the fragmentation of the instrument, and depart from the IGC mandate [pdf] as given by the WIPO General Assembly in 2015.

The delegate from Egypt said the new elements could “put us back to square one.” He said he was at the first meeting of the IGC over 16 years ago, “still quite young and enthusiastic, and dynamic.”

“I am over sixty,” he said, and “we would like to be present at the birth of a child whose delivery has been long and arduous.”

The facilitators as well as the chair said today that the concept of protected TK is worth exploring at the next session of the IGC.

Voice of Indigenous Caucus, Voluntary Fund Still Dry

The representative of the Tulalip Tribes for the Indigenous Caucus said as the IGC was discussing the contribution of the IGC to the WIPO Development Agenda, that the goals of the Development Agenda have been developed in the context of the global intellectual property system.

“Many goals relate to innovation and the need for their wide dissemination,” he later told Intellectual Property Watch. “Indigenous peoples may choose to promote the dissemination of some of their traditional knowledge, but this is rarely an aim of the majority of holders of traditional knowledge.”

“The sustainable development principles developed only in regards to intellectual property are not by themselves able to respect the rights and meet the needs and aspirations of indigenous peoples,” he said today in his statement [pdf].

Goss again called for countries to contribute to the Voluntary Fund so that indigenous peoples can attend the IGC. The US contributed to the Fund and that contribution catered to some indigenous peoples representatives for this session, but there is nothing left for the next session, he said, underlining the importance of the participation of indigenous peoples at the IGC.

A representative of “France Libertés” (France Freedom), a foundation started by Danielle Mitterand, the wife of former French President François Mitterand, working against biopiracy, said the concept of public domain is disregarding indigenous peoples customary law, and those two concepts might be mutually exclusive. He called for countries to give a legal status to traditional knowledge in their national legislation based on customary laws, as most legislations confine TK outside of the IP systems and place it in the public domain.

France Libertés also called on countries to follow Article 12 (Traditional Knowledge Associated with Genetic Resources) of 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. This calls for countries to take into consideration indigenous and local communities’ customary laws, community protocols and procedures.

 

Image Credits: WIPO