WIPO Negotiators Work From New Text On Traditional Knowledge

World Intellectual Property Organization delegates negotiating this week for a possible agreement on protection of traditional knowledge have advanced the text from which they are working, according to a copy obtained by Intellectual Property Watch. Meanwhile, the brand-name pharmaceutical industry sought to explain an alleged biopiracy case at a side event at WIPO today.

Delegates this week are trying to find consensus on negotiating texts provided by experts during the lead-up to the meeting.

Halfway through the week, delegates have proceeded to read through the text on traditional knowledge and start work on genetic resources. This afternoon a reworked set of draft articles [pdf] on the protection of traditional knowledge was distributed to delegates. Drafting groups are at work to provide streamlined texts to plenary sessions. According to a source, drafting groups are open-ended and informal.

The 18th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 9-13 May.

In order to help the work of the IGC, three experts’ groups were convened to draft negotiating texts on the three tracks of the IGC: traditional cultural expressions, traditional knowledge, and genetic resources (IPW, WIPO, 6 May 2011).

The draft articles on the protection of traditional knowledge, as provided today, show a different landscape than on the draft articles produced by the second intersessional working group (IWG 2), which took place from 21-25 February.

At the start of the week, delegates were given a document [pdf] collecting the draft articles prepared by the informal drafting groups of IWG 2, and incorporating all comments and texts proposed by individual experts.

The new document incorporates text proposed by country delegates, with attribution to the countries. For example, Article 1 on the subject matter of protection has a new option 3 under “Definition of traditional knowledge,” proposed by the EU stating that “for the purpose of these provisions, traditional knowledge refers to the know-how, skills, innovations, practices, and learning resulting from intellectual activity in a traditional context.”

The new text also shows a number of brackets. Article 2 on the beneficiaries of protection shows many alterations from the IGW 2 version, the text now shows alternatives, with, for example, Colombia proposing that “beneficiaries of protection are indigenous and local communities that create, generate, protect and preserve and transmit knowledge in inter-generational context in accordance with Article 1.”

According to a developing country source, the first four articles of the document are the most contentious. Article 1 is on definition, Article 2 on beneficiaries, Article 3 is on the scope of protection, and Article 4 is on sanctions, remedies and exercise of rights.
In Article 6 on exceptions and limitations, Indonesia made a proposal on secret and traditional knowledge. “Secret and sacred traditional knowledge shall not be subjected to exceptions and limitations,” it said.

This morning, delegates started to work on draft objectives and principles relating to intellectual property and genetic resources, working from a text [pdf] prepared by the third intersessional working group (IWG 3).

According to a developing country source, “if we put our head to it, there is a chance we could have a good text on traditional knowledge” by the end of the week.

Another developing country source expressed regret that the IGC did not concentrate first on the issue that “is more mature”, referring to traditional cultural expressions. The traditional cultural expressions negotiating text was the first to be addressed by the first intersessional working group (IWG 1) and has already gone through one session of the IGC from 6-10 December.

Pharma Discusses Biopiracy Case

On the side of the IGC today, the International Federation of Pharmaceutical Manufacturers & Associations (IFPMA) organised an event on traditional knowledge and biopharmaceutical innovation.

According to Andrew Jenner, IFPMA director for innovation, intellectual property and trade, pharmaceutical research and development is a long, complex and costly process. Finding adequate compounds in natural products equals a “huge amount of work,” he said, and even if prospects are exciting, it is a difficult area, in particular because risks are higher with natural products that there may be adverse side effects.

Manisha Desai, assistant general patent counsel for Eli Lilly, presented the case of the rosy periwinkle, a plant used by the pharmaceutical company for cancer drugs, and often cited as a case of biopiracy.

According to Desai, the rosy periwinkle belongs to the vinca species that is geographically widespread. They have been referenced and their uses have been publicised for centuries, she said.

She said that researchers focused on the alleged property of the plant related to diabetes, and only recently a new use was discovered related to cancer.

In the 1950s, Eli Lilly began research on the plant for multiple applications, including endocrine, oncology, antimicrobial, and antiviral. Eli Lilly received the first sample from a commercial biological supplier, she said, and plant material for commercialised products was sourced worldwide, from any available supplier, so the company did not go and collect the plant from countries, she added. The plant was later supplied from Texas growers.

In 1961, the company issued two cancer drugs based on their research on the plant. “I don’t see this as a case of biopiracy,” Desai said. In the light of the articles being drafted at the IGC, she asked if the case of the rosy periwinkle met the definition of traditional knowledge. There is no evidence to suggest a distinctive association with a single traditional community, customary practices or intergenerational transmission of TK, she said.

Who would have the right to “prevent the granting of IP rights,” she asked. Would it be the people of Madagascar, where the plant presumably originated, or of Jamaica because the plant was used for anti-diabetes purposes there, or some other countries whose researchers studied the plant?

She called for exceptions for independent inventions, under Article 6 of the draft negotiating document being discussed on traditional knowledge.

The company fully supports the United Nations Convention on Biological Diversity, she said, but a lot of countries do not have national laws governing access and benefit sharing.

Recently, Eli Lilly attempted to secure an access and benefit-sharing agreement with Cameroon but it failed “for that very reason,” she said.” It could not get passed the first step of government approval.”

The interest in rosy periwinkle was driven by peer-reviewed research, not traditional knowledge, she said. There is no evidence of traditional knowledge relating to the use of the plant to treat cancer, she added.

Some African delegates at the event said that the case of the rosy periwinkle was a very special case, and does not represent the most common cases of biopiracy. They maintained the argument that traditional knowledge was involved in the case.