This week, a key World Intellectual Property Organization committee is debating policies related to the protection of traditional knowledge, traditional cultural expressions (folklore) and genetic resources with an eye to helping local communities, often indigenous, get the full market value and public use of their traditions through fair negotiations with outside patent applicants. But some told the United Nations body that they would be better off simply with stronger rights of their own.

The joint statement of tribal group says: “Any attempt to develop IPR-based mechanisms to ‘protect’ IK [indigenous knowledge] actually poses much more threat to our knowledge, as a whole, than it can ever claim to prevent. Rather than protect, the imposition of IPRs over IK actually would serve to facilitate the alienation, misappropriation, and commercialization of IK.”

”We believe patent applications that include or are based on IK should be specifically excluded from patentability. In IP terms, we’re sure you understand that these patent claims would fail to meet the test of innovation, novelty or inventiveness. But more importantly for Indigenous peoples, such patent claims should be denied because IK is in the Indigenous domain; that is, it is already under the jurisdiction of Indigenous legal systems, which protect the IK in perpetuity as the inherent and inalienable cultural property of Indigenous peoples.

The statement was read in the committee on 5 December by Debra Harry, executive director of the Indigenous Peoples’ Council on Biocolonialism, and a member of the Paiute tribe in the United States.

WIPO/GRTKF/IC/10
Geneva, 30 November - 8 December 2006

Agenda Item 9: Traditional Knowledge
Re document: WIPO/GRTKF/IC/10/5 (Revised Draft Objectives and Principles on the Protection of Traditional Knowledge)

Mr. Chairman, we have some general comments regarding document 10/5 on traditional knowledge. As we noted yesterday, TCEs cannot exist without TK, therefore, the comments we gave yesterday regarding TCE’s also apply to this agenda item. And in particular, we would like to reiterate that we qualify our comments on this document by the following understanding: our provision of comments on the Draft Objectives and Principles does not imply any ascension to the process or document as a whole. To be clear, it is entirely premature for our organizations to indicate a preference for a legally binding instrument based on this draft document.

Until the substantive provisions are entirely illuminated, it would be irresponsible of us to make such a commitment. Unfortunately, the Committee’s work to-date has been developed without the broad-based participation of Indigenous peoples. Until this process has much broader participation by Indigenous peoples, it would be inappropriate to endorse any standard-setting or legally binding instrument that would impact on all Indigenous peoples all around the world.

TK is a topic of utmost concern to Indigenous peoples because traditional knowledge, and more specifically, Indigenous knowledge, is all encompassing in that it represents the collective cultural heritage of our Peoples. IK is the foundation of Indigenous cultures, and therefore, any policy-related or standard-setting discussion about the protection of our knowledge poses significant implications to the lives and livelihoods of Indigenous peoples and are of critical concern.

Before discussing how the Committee can propose to protect TK, it is necessary to understand the different meanings of protection. Protection, from an intellectual property law perspective, means that the owner of a patent, a copyright, a trademark or some other IP has a legal right to exclude others from using or reproducing it. The IP forms of protection for intellectual creations and innovations are time limited, individualistic, monopolistic and exist for economic benefit.

By contrast, when most Indigenous peoples speak of protecting Indigenous knowledge, we mean it in a much broader sense that includes safeguarding its continued existence and development and protecting the whole social, economic, cultural and spiritual context of that knowledge. Indigenous peoples are seeking mechanisms that protect the holistic, inalienable, collective, and perpetual nature of Indigenous knowledge systems for purposes far more expansive than profit motives.

Any attempt to develop IPR-based mechanisms to “protect” IK actually poses much more threat to our knowledge, as a whole, than it can ever claim to prevent. Rather than protect, the imposition of IPRs over IK actually would serve to facilitate the alienation, misappropriation, and commercialization of IK.

Furthermore, dividing IK into artificial categories, rather than safeguarding its holistic and dynamic nature, poses a serious threat to its continued existence and development. It must be clear that any attempt to recast IK in IP terms fundamentally changes the nature of the IK from that of belonging to the cultural heritage of Indigenous peoples, to being private property in western law.

Policy Objectives

With regard to the Policy Objectives, we have some general coments.

Regarding section (iii), in order to “meet the actual needs of holders of TK,” our rights must not only be respected, but more importantly these rights must be recognized.

Regarding section (vii), when referring to the specific intellectual traditions of Indigenous peoples, the term Indigenous knowledge (IK) should be utilized. IK is holistic in nature, and cannot be separated into distinct categories. IK is intrinsic to specific Indigenous peoples, and is fundamental to sustaining this distinct knowledge for future generations. As such, IK does not exist for the benefit of others but rather the Peoples to whom the knowledge belongs. Protection of Indigenous peoples’ rights over their knowledge should be a priority, rather than trying to balance the interests of users of IK at the expense of compromising the rights of IK holders.

Regarding section (xi), free prior informed consent of the affected Indigenous peoples must be ensured. Existing and developing national and international regimes governing access to genetic resources have not consistently recognized our right to FPIC, therefore, we expect the Committee not just be consistent with the other regimes, but to uphold the highest degree of recognition of our right to FPIC.

Regarding section (xiv), the list of means to preclude the grant of improper IP rights does not meet the needs and aspirations of Indigenous peoples. Disclosure of source and origin in a patent application and providing evidence of PIC and benefit sharing for the country of origin is insufficient. In fact, we believe patent applications that include or are based on IK should be specifically excluded from patentability. In IP terms, we’re sure you understand that these patent claims would fail to meet the test of innovation, novelty or inventiveness. But more importantly for Indigenous peoples, such patent claims should be denied because IK is in the Indigenous domain; that is, it is already under the jurisdiction of Indigenous legal systems, which protect the IK in perpetuity as the inherent and inalienable cultural property of Indigenous peoples.

General Guiding Principles

IK belongs to the originators of such knowledge, as do the genetic resources originating from their territories. IK systems can best be protected by ensuring the right of self-determination of Indigenous peoples, including the right to territory and permanent sovereignty over natural resources. We are concerned about comments by some States that wish to strike any reference to the rights of Indigenous peoples in the Committee documents. We note with particular concern Canada’s intervention today that the language of the document should be changed to reflect only “IP rights.” The rights we are seeking here are far beyond IP rights; We seek recognition of our human rights to our self-determination, cultural heritage, and right of free, prior informed consent. Indeed, it is precisely these rights that provide the legal framework for the protection of Indigenous peoples’ TK, TCEs and genetic resources.

Substantive Provisions

Some topics clearly fall within the purview of intellectual property, namely copyrights, patents and trademarks among others. IK is not one of them. Therefore, any comments on the substantive provisions would be premature.

Conclusion

True protection of IK, responsive to the needs and aspirations of Indigenous peoples, is fundamentally based upon the recognition of the rights of Indigenous peoples, as established in international human rights laws. Given the mandate of WIPO to promote IPRs, and the fact that IPRs cannot adequately protect IK, perhaps this discussion should best be carried out in the human rights arena.

Thank you for your indulgence.