Experts Work On WIPO Traditional Knowledge Draft Treaty Text

A group of country experts are gathered at the World Intellectual Property Organization this week to elaborate a draft text on intellectual property and traditional knowledge.

The positive momentum set by the results obtained by experts on traditional cultural expressions last July paved the way for this week’s agenda.

The Second Intersessional Working Group of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 21-25 February with the aim of producing a negotiating text to be presented at the next full session of the IGC from 9-13 May.

The three areas covered by the IGC are being discussed in intersessional working groups gathering experts in each of the fields in order to speed up the process towards an international instrument. Those working groups are open to all membership and observers but only one participant from each party can attend, according to a WIPO official.

The first intersessional working group (IWG 1), held in July 2010, covered the protection of traditional cultural expressions and produced a negotiating text discussed during the IGC in December, and to be presented in May (IPW, WIPO, 11 December 2010).

The second group (IWG 2) is focused on traditional knowledge, and a third group (IWG 3) will meet next week on genetic resources.

“We need to roll up our sleeves,” meeting Chair Ian Heath of Australia told the plenary, according to participants. He said the expert meeting is not a negotiating group but that the IGC had given them a mandate to provide expertise and try to develop a cleaner, clearer text.

The approach taken at the IWG 1, which broke out the discussion among a series of subgroups to look at particular articles, has been successful, Heath said, and he proposed the same approach for this meeting, some participants said.

The experts are working from a document [pdf] prepared by the WIPO secretariat, which is a revised version of a previous document [pdf], and reflects the comments and proposals made by countries and observers from the 15th to the 17th sessions of the IGC and intersessional commenting processes.

According to WIPO, structural changes have been made to the document so that its structure is closer to the document recently drafted for cultural expressions.

The first day and a half of this week’s meeting will be devoted to a read-through of the text seeking comments from the experts in plenary, Heath told the plenary. Those discussions should guide the work of the subgroups, he said.

This morning experts discussed Article one on “subject matter of protection.” The chair said that in the context of an international instrument, there was a need to acknowledge the breath of traditional knowledge, but also maybe to look at a narrower path for the scope of protection.

The expert from South Africa said that it would be useful to separate the scope and subject matter of traditional knowledge from the subject of eligibility criteria. Several experts approved this suggestion.

Article one is “a horrible mess,” said the expert from the United States, calling for a simplification of the text, according to participants. The real concern in article one, he said, was that it was not disclosing the existing tensions on the notion of public domain issue, as the US is keen to protect a robust public domain. He cited the WIPO Development Agenda and its call to “support a robust public domain in WIPO’s Member States.”

A representative of an indigenous peoples tribes said the public domain was about 40 to 50 years old in the intellectual property system. Things in the public domain “just do not fall into the public domain, they are put in the public domain by law,” he said.

There is no equivalent to the public domain in traditional cultures, he said. This is an important point, he added, as knowledge placed into the public domain could be accessed without limitation and permission in a manner that disregards customary uses and laws of indigenous communities.

According to the IGW 2 working document, several points of views will have to be reconciled. Among them is the issue of the public domain, the beneficiaries of the protection, and when the protection should be given to a community or to individuals. Others are prior informed consent of indigenous peoples or local communities before using indigenous knowledge, recognition of customary laws, and the definition of traditional knowledge.

The recent adoption of the UN 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 [pdf] should influence the debate, according to several sources, as it covers and addresses some of the issues relating to traditional knowledge. It will also apply to next week discussion on genetic resources.