WIPO Traditional Knowledge Committee Begins Work On Core Issues; Indigenous Peoples May Be Left Out

The World Intellectual Property Organization’s committee seeking to find solutions against misappropriation of traditional knowledge opened this morning. While delegates are expected to negotiate wording of a potential treaty, the fund allowing indigenous peoples to participate in the discussions is empty with no foreseeable new donors, described by the chair as a historical situation. The committee is also trying to agree on recommendations for the upcoming WIPO General Assembly next month. On core issues, such as what the protection should cover, who would benefit from it, and under which conditions, delegates still have to find common positions.

The 37^th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 27-31 August.

According to the IGC mandate [pdf], defined by the 2017 WIPO General Assembly, the subjects of traditional knowledge (TK) and traditional cultural expressions (TCEs) are to be addressed together, considering that there are a number of common issues and circumstances. They previously were addressed separately. IGC37 is the first of four sessions on cross-cutting discussions of TK/TCEs.

IGC Chair Ian Goss of Australia, wrote an information note [pdf] on the different issues of TK and TCEs. The note details policy and legal issues that are common to TK and TCEs, and how they are dealt with in the two separate sets of draft articles.

For example, the note says, the TK text [pdf] carries a proposed definition of misappropriation, while the TCEs text [pdf] does not. Criteria for eligibility are slightly different between the two texts, and on beneficiaries the TK text includes two alternatives, while the TCEs text includes four.

Goss describing the programme for the week [pdf] listed three main tasks for the IGC. The first is to undertake negotiations on TK/TCEs with a focus on unresolved and cross-cutting issues, such as the scope of the potential instrument, the beneficiaries, subject matter, and limitations and exceptions. The second is to consider possible recommendations to the 28^th WIPO General Assembly, from 24 September to 2 October, and the third is to consider the possibility of establishing an expert panel.

Positions Unchanged, Narrowing Differences Main Goal

During the 36th IGC meeting focusing on genetic resources, from 25-29 June, a revised version of draft articles on core issues almost made it but was blocked at the last minute by the US, supported by Japan, in a move that developing countries viewed as a delay tactic, according to sources (IPW, WIPO, 2 July 2018), and criticised by a number of delegations.

Goss, however, said at that time that he would prepare a chair’s text of the 40th session of the IGC (June 2019), time for a stock-taking exercise before the end of the IGC mandate, and recommendations to the 2019 WIPO General Assembly.

The demandeurs of a legally binding instrument (or instruments) to prevent what they describe as rampant misappropriation are opposed by some countries that argue that binding rules might hamper research and innovation, and whose applications would be burdensome on IP applicants and IP offices.

Groups taking the floor this morning reiterated known positions. Indonesia, on behalf of the Asia and Pacific Group, said most of its members support legally binding instruments for an effective protection of TK and TCEs. The Indonesian delegate also underlined the interest of most members of the group for an approach based on a differential level of protection, depending on the nature of the TK and TCEs.

Most countries of the group, the delegate said, find that although the main beneficiaries of the instruments should be indigenous and local communities, some provisions should be made for cases in which TK and TCEs are not directly attributable to a particular community, in which cases national law should apply.

Morocco for the African Group also underlined their demand for an international legally binding instrument, the lack of which is allowing ongoing misappropriation of TK and TCEs.

For Group B (developed countries), said Switzerland speaking on behalf of the group, progress has been made but more work is needed to reach a common understanding on core issues, and on practical application and implications of different proposals. The protection of genetic resources, TK, and TCEs should be made in a manner supportive of innovation and should recognise the unique nature and importance of these three subjects, the delegate said.

The Like-Minded Countries group noted that limitations and exceptions to rights awarded by the instruments should not be too extensive so as not to compromise the protection. The group agreed on a recourse to national law in cases where TK and TCEs holders cannot be attributable.

Updated WIPO Documents Analysing Gaps in Protection

Following the 2017-2019 IGC mandate, the WIPO secretariat has updated two documents relating to the current protection of TK and TCEs and the possible gaps in protection of those resources.

The gap analysis [pdf] on the protection of TK states that there is no internationally accepted definition of traditional knowledge as such, but rather generally accepted characteristics of TK. The document provides a list of existing obligations, provisions, and possibilities for protection, such as patents, unfair competition law, copyright, and distinctive signs such as trademarks and geographical indications.

The document also details possible gaps in policy rationales of protection, existing legal mechanisms, subject matter which is not covered under the existing IP law, beneficiaries or right holders not recognised, and forms of protection not provided under existing international standards.

Also explored by the document are options that exist or might be developed to address any identified gaps. Those include a binding instrument, interpretations or elaborations of existing legal instruments, a non-binding normative international instrument, and a high level political resolution, declaration or decision. Also in the list is capacity building and substantive materials for legal and policy processes, the strengthening of practical capacity of TK holders, and interagency cooperation and coordination with the United Nations system.

The document includes a matrix with existing measures, gaps identified, and considerations and options.

The gap analysis [pdf] on the protection of TCEs follows the same format.

The WIPO secretariat also re-tabled a report [pdf] on the Compilation of Materials on Databases Relating to Genetic Resources and Associated Traditional Knowledge, and a report [pdf] on the Compilation of Materials on Disclosure Regimes Relating to Genetic Resources and Associated Traditional Knowledge.

Proposals on Database, Studies, Re-submitted

A number of proposals have been resubmitted by member states, mostly to suggest alternative ways of protection to a binding treaty, or mandatory disclosure requirements.

Among them is a Proposal for the Terms of Reference for a Study [pdf] on Traditional Knowledge, tabled by the European Union, and a EU Proposal [pdf] for a Study on Traditional Cultural Expressions.

Also re-submitted is a Joint Recommendation [pdf] on Genetic Resources and Associated Traditional Knowledge tabled by Canada, Japan, Norway, South Korea and the United States; a Joint Recommendation [pdf] on the Use of Databases for the Defensive Protection of Genetic Resources and Traditional Knowledge Associated with Genetic Resources, tabled by Canada, Japan, South Korea, and the US.

Canada, Japan, Norway, South Korea, Russia, and the US also re-submitted a Proposal [pdf] for the Terms of Reference for the Study by the WIPO Secretariat On Measures Related to the Avoidance of the Erroneous Grant of Patents and Compliance with Existing Access and Benefit-Sharing Systems

The United States re-submitted a document [pdf] on the Economic Impact of Patent Delays and Uncertainty: U.S. Concerns about Proposals for New Patent Disclosure Requirements.

 

Image Credits: WIPO