New Draft Articles For The Protection Of Traditional Knowledge On Table At WIPO

New draft articles published this morning at the World Intellectual Property Organization committee on traditional knowledge show signs of progress in terms of reducing options. Meanwhile, the United States introduced a proposal for a discussion of what should be protectable and what is not intended to be protected. Delegates have to deliver their take on both documents this afternoon.

The first revision [pdf] (Rev 1) of the draft articles of what could become an international treaty protecting traditional knowledge was issued this morning, on the third day of the 32^nd session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Yesterday, the two facilitators tasked with streamlining the text and at the same time reflecting all delegations’ points of view issued first suggestions [pdf] (IPW, WIPO, 29 November 2016).

The 30 November revision (Rev 1) provides the entirety of the articles, while the first suggestions of yesterday addressed only policy objectives, subject matter of the instrument, beneficiaries of protection, and administration of rights.

Delegates met in informal consultations yesterday for most of the day. They worked from the text [pdf] approved by the IGC in its last session, in September.

IGC Chair Ian Goss of Australia and the two facilitators, Margo Bagley of Mozambique and Ema Hao’uli of New Zealand, underlined the fact that Rev 1 has no status until it is accepted by the plenary.

According to some sources, main progress achieved during informal discussions are on the scope of protection of the instrument, the beneficiaries, and the administration of rights.

The articles in Rev 1 have been renumbered as policy objectives, and are now proposed Article 1. This is in conformity with other international instruments, whether binding or non-binding, and so does not prejudge the outcome of the instrument, Bagley said. The Use of Terms also was turned into Article 2.

New US Proposal on Protectable/Non-Protectable TK

Today, the US tabled a proposal [pdf] entitled, “Identifying examples of traditional knowledge to stimulate a discussion of what should be protectable subject matter and what is not intended to be protected.”

The document lists a number of products and activities “rooted in traditional knowledge,” such as popcorn, football, syringes, chocolate, antibiotics, tea, coffee, chewing gum, and gorgonzola.

This proposal is expected to be discussed in the meeting and will be more fully explained in a coming story.

Beneficiaries, Scope of Protection

Beneficiaries of protection is now Article 4. Compared to the September draft articles, the article has two alternatives, one less alternative than in the September document, like in the suggested articles of 29 November. However, there is the inclusion of “states and/or nations” instead of other beneficiaries in alternative 2.

The Scope of Protection is now under Article 5, which is shorter than in the September version. Alternative 3 has been deleted as it was no longer enjoying support by any member states, Bagley said. The Article now has three alternatives instead of four.

This article attempts to distinguish between knowledge which is secret, sacred, narrowly diffused or widely diffused. The concept of a tiered approach was introduced some sessions ago as a way to establish different treatments whether TK is secret/sacred, and then its degree of diffusion over time.

Alternative 2, which according to a source is supported by the African Group and the Group of Like-Minded Countries (cross-geographical developing countries), does not mention widely diffused TK. But in a paragraph (5.4) it states that concerning TK which is not protected by the previous paragraphs (secret, sacred, and narrowly diffused), member states should use best endeavours to protect the integrity of TK, in consultation with beneficiaries where applicable.

The Group of Like-Minded Countries (LMCs) is a coalition of some 60 countries belonging to the African Group, the Group of Latin-American and Caribbean countries (GRULAC), and the Asia and Pacific Group.

Alternative 3 has different wording and states that member states should use best endeavours (in consultation with indigenous and local communities), to protect the integrity of protected traditional knowledge that is “widely” diffused (and sacred), which is supported by some developed countries, such as the US.

Administration of Rights

Administration of rights, now Article 9, has one less alternative than the 29 November “suggestions” document.

Alternative 3 under Art. 9 is a new proposal that was presented in the informal meeting yesterday, said Hao’uli. The article relates to publicly accessible national TK databases provided by the treaty.

Former alternatives 2, 3, and 4 have been streamlined into one alternative referring to a competent authority to administer the rights provided for by the instrument.

Subject Matter, Defensive Measures

Subject matter of the instrument, which is now Article 3, is unchanged from the 29 November document, and has one less alternative than the September document.

Article 3 bis, which had been introduced by the US and supported by some developed countries some sessions ago, now has its own number: Article 6. And its proposed name changed from complementary measures to defensive measures. Some developing countries find this article to be outside of the scope of the potential treaty. The article proposes the establishment of national TK databases, the development of voluntary codes of conduct, and guidelines for prior art search during patent examination. It also proposes to codify oral information related to TK.

Limitations and Exceptions

Article 10 on Limitations and Exceptions now has two alternatives instead of one. Alternative one was proposed in informals yesterday, Hao’uli said. It simply states that member states, in special cases, may adopt justifiable exceptions and limitations necessary to protect the public interest provided such exceptions and limitations shall not unduly prejudice the implementation of the instrument.

The second alternative details general exceptions and specific exceptions, as in the September version. In informals yesterday, a delegation asked that in 10.3 (c), which describes exceptions due to national emergency, the phrase “to protect public health or the environment,” be added.

A new point 10.3 (e) was also added, stating: “to exclude from protection diagnostic, therapeutic and surgical methods for the treatment of humans or animals.”

In the article on the relationship with other international agreements, now Article 14, one paragraph has been added, saying: “nothing in this [instrument] may be construed as diminishing or extinguishing the rights that indigenous [peoples] or local communities have now or may acquire in the future.”

 

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