WIPO Committee On Traditional Knowledge Agrees On Revised Text For Further Discussions

World Intellectual Property Organization delegates last week agreed on a revised set of draft articles to be further discussed at the next session of the committee working on a potential treaty to protect traditional knowledge. Views differed on the achievements of the week. For the proponents of a binding treaty, the text reflects a better understanding of issues, and some reduction in differences. However, for some developed countries not in favour of a treaty, gaps are still wide open and much work remains.

A new revision of draft articles  [pdf] was issued on the last day of the 32rd session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which took place from 28 November to 2 December.

Two facilitators worked in informal meetings with member states all week to produce text reflecting all positions while maintaining clarity. A first revision of the text was produced on 30 November (IPW, WIPO, 30 November 2016).

According to several delegates belonging to countries in favour of a binding treaty, the reducing of differences came mainly from the convergence of the positions of the African Group and the Group of Like-Minded Countries, including countries from the African Group, the Asia and Pacific Group, and the Group of Latin American and Caribbean countries.

Some developed countries, including the United States, South Korea, the European Union and Canada, said at the close of the meeting that much remains to be done as understanding on some core issues. These include whether the beneficiaries should include states and nations, and what should be the scope of the instrument.

Main Changes in the Second Revision (Rev 2)

In the Policy objectives section (Article 1), a new alternative has been added, duplicating point d) of alternative one (encourage and protect tradition-based creation and innovation, whether or not commercialised), but without the words “tradition-based.”

Some language has also been reintroduced, which was removed in the first revision of the document (Rev 1). The reintroduced language is point 2 of alternative one, which is about the prevention of the grant of erroneous IP on traditional knowledge (TK).

Subject matter of the instrument has a new alternative (alternative 4). This alternative, submitted by Chile, is a duplicate of alternative 3 on criteria for eligibility, without the temporal criteria. Alternative 3 sets a time limit to the criteria for eligibility: that the traditional knowledge has been transmitted from generation to generation for a term not less than for 50 years or a period of five generations.

Article 5 scope of protection has been reorganised but still has 3 alternatives. The chapeau of alternative 2 now includes a reference to a new article 14 (Non-Derogation), whose language has been now set in a separate article and which states that nothing in the instrument may be construed as diminishing or extinguishing the rights that indigenous peoples or local communities have now or may acquire in the future. This was proposed by the Indigenous Caucus and supported by some member states.

Rev 2 now has an Article 5bis (Database, complementary and defensive protection). The text of new Article 5bis was Article 6 in Rev 1. Article 5bis now includes a section on database protection, with three different types of voluntary databases of traditional knowledge, and a section on complementary/defensive protection.

A number of developing countries remarked that Article 5bis should be brought back as a standalone article as they found it creates confusion with the rest of the article. They also remarked negatively about the insertion in the title of Article 5 now proposed as Scope of [and conditions of][positive] protection. They said the word positive protection should be removed.

In what is now Article 6 (Sanctions, remedies and exercise of rights/application), a new paragraph has been added to the second alternative. 6.7 states that if an infringement of the rights protected by this instrument is determined, the sanctions may consider the inclusion of restorative justice measures, according to the nature and effect of the infringement.

Article 7 (Disclosure Requirement), which had not been revisited by the facilitators until Rev 2, is now organised into 4 alternatives. The first alternative is newly proposed by member states, and it reads: Where required by national law, the users of traditional knowledge shall comply with requirements concerning source and/or origin of traditional knowledge.

The two other alternatives have mostly the same content as the original text which had been approved by the last IGC meeting in September (IPW, WIPO, 23 September 2016). The content has been organised in a clearer way, reflecting different positions, according to the facilitators.

The fourth alternative suggests no mandatory disclosure of origin relating to traditional knowledge in patent applications, “unless such disclosure is material to the patentability criteria of novelty, [inventive step, or enablement].”

In Article 13 (Relationship with other International Instrument), the language referring to non-derogation of indigenous peoples’ rights has become Article 14. Two new paragraphs have been added, referring to the United Nations Declaration on the Rights of Indigenous Peoples.

A developed country source told Intellectual Property Watch that the divide in positions is too broad to be thinking of proposing to the WIPO General Assembly that a diplomatic conference be convened to conclude treaty negotiations. The issue of beneficiaries, and whether they should only be indigenous peoples, an option favoured by countries such as the United States, the European Union, as well as some members of GRULAC is one such issue, as is the scope of the instrument, he said.

Draft decisions [pdf] of the session, which are brief summaries by the chair, were swiftly adopted on 2 December.

Pressure on Multinationals on Alleged Case of Biopiracy

Meanwhile, the case of the use of stevia, a natural sweetener, by large multinational companies which do not share benefits with the holders of the indigenous peoples who discovered it, is gaining attention.

According to a 16 November press release by Swiss non-profit organisation Public Eye (formerly Bern Declaration), the Guarani (indigenous peoples in South America), who discovered stevia’s sweetening properties “do not receive any share of the benefits arising from its commercial use, in clear breach of the Convention on Biological Diversity,” and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.

Public Eye remarks that Evolva, a Basel-based company, which has a joint venture with Cargill to produce steviol glycosides using synthetic biology, indicated its willingness to negotiate an agreement with the Guarani. Nestlé, according to the release, said supports the CBD principles, and “currently evaluating the possibility of further engaging into the issue.”

However, Coca-Cola, which is one of the main users of steviol glycosides, “is not even acknowledging the basic problem.” A petition has been launched to “convince the American soft drink giant to end its biopiracy,” they said.

According to a Public Eye report [pdf], “some of the Swiss companies seem to be willing to accept their responsibility,” the release said.

 

Image Credits: WIPO