Ethiopia Urges Progress Towards International Regime On TK, TCEs

Ethiopia is an active participant at the 3-12 July World Intellectual Property Organization meeting of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). Ethiopia is among the developing countries eager to see an international regime for the protection of traditional knowledge (TK) and traditional cultural expressions (TCEs). Below follow some of the statements made by Allehone Mulugeta, second secretary at the Permanent Mission of Ethiopia, at the meeting. Ten issues each for TK and TCEs are being discussed and in the statements, Ethiopia talks about the definition of TK, who should benefit, what is the objective, and whether there should be exceptions and limitations to such rights, and with regards to TCEs, which issues should be dealt with internationally and which at a national level.

Allehone Mulugeta:

Traditional Knowledge
Issue Number I: Definition of traditional knowledge that should be protected

Our comment on this topic relates to article 3 and 4 of the text which is presented to us as Annex to WIPO/GRTKF/IC/11/5/(c ) [“The Protection of Traditional Knowledge: Revised Objectives and Principles,” prepared by WIPO].

It seems that the Committee [IGC] is under an enormous difficulty of making a difference between Traditional Cultural Expressions (TCEs) and Traditional Knowledge (TK). Under the current definition, there are a number of tangible and intangible cultural assets of communities that may fall both under the definition of TCEs and TKs. We suggest that such clarity is maintained. One possible solution is to define TKs as covering issues excluding traditional TCEs.

We have also noted that there are different terminologies used to refer to holders of TKs. Some of these terminologies include: indigenous communities, people, local communities, nation, ethnic group, minorities and so forth. Whereas article 3 uses indigenous and local communities, article 4 introduces new description such as people and traditional communities. Our national experience also indicates that we have indeed multiple identification or designation. FDRE [Ethiopian] Constitution uses the phrase “nations, nationalities and peoples.” Our Proclamation No. 482/2006: Access to Genetic Resources and Community Knowledge, and Community Rights Proclamation, on the other hand, uses “local communities.” The African Human Rights System has an enormous body of jurisprudence over the concept of peoples in the plural. Other descriptions are also made reference to in the comments provided by members of the Committee.

Now we have some questions regarding this. Do we intend to create hierarchies of rights among these groups? Do we need definition to these concepts as a part of our definition to traditional knowledge? Our position is that all these groups enjoy similar and equal rights to their traditional knowledge. Our draft text should not overly burden itself with this question [as it] is largely answered through the development of public international law and national experience. Moreover, we also would like to reiterate our previous view that communities should be provided the opportunity to be involved in certain level of self-definition.

Another point we would like to point out is the reference to “codified knowledge systems” under paragraph 2 of article 3 of the text. Our view is that traditional knowledge is essentially oral and therefore making reference to codified knowledge system effectively excludes a great body of heritage. We are also not sure what is meant by traditional knowledge systems as referred under the same paragraph. Are traditional knowledge and traditional systems the same thing or not?

We would like to recommend the merging of article three and four under a heading “Scope of Protection” and the inclusion of the two paragraphs as third paragraph of the same. In terms of the substance, however, we would like to express our satisfaction with the richness of article 4 in providing us the modality of definition of TKs. We see that there are two important elements to these criteria: one is what is referred to as “minimal linkage” and the second is the intergenerational linkage. We note here that we have used different standards for TCEs for reasons not clear to Ethiopian delegations. We feel that TCEs are also intrinsically associated with the identity of their holders and are inter-generational. We recommend content of article 4 be common article for both TCEs and TKs whereby we see all TCE passing this threshold enjoy protection. We recommend the merging of the last two paragraphs since they are talking of the same thing, namely the association of traditional knowledge to the identity of their holders. Finally, communities should enjoy certain space for a role in determining what is important and vital for their identity. We can achieve this by allowing the application of customary law in determining what is TKs and how that is related to their identity.

Issue II: Who should benefit from any such protection or who hold the rights to protectable TK?

With regard to the question who should benefit from protection of TKs, our position is consistent. The beneficiaries of such protection should be the knowledge-holders, i.e., traditional communities. We consider article 5 as a solid foundation for our deliberation. But we caution the reference to “recognise individuals” as beneficiaries. We are of the view that such determination be left to customary laws and to the communities themselves. We note that article 5 states that entitlements to protection shall as far as possible take into account customary laws. We think that the application of traditional knowledge should not be placed as an important element of such determination. We have article 14 dealing with eligible foreign nationals and the protection of their interest.

Issue III: What objective is sought to be achieved through according intellectual property protection (economic rights, moral rights)?

We once again reiterate our view that the objective under such protection mechanism should be to recognise existing rights under international law and international human rights law.

The Committee has stated that this right is also enjoyed by Communities (paragraph 8). We are of the view that no outcome can invent new rights and entitlements to groups and individuals. Rather it can only recognise them as they already exist under international law and human rights laws. We note with satisfaction the fact that recognition of rights is included as Guiding Principle under section II of the draft text. But we suggest that complimentarity with human rights system be an important element of these core principles.

It can therefore be argued that the international protection should give concrete realisation of these norms. This in fact highlights the inter-related nature of what we are discussing within the mandate of this committee with other human rights norms.

Traditional Knowledge
Issue IX: Which issues should be dealt with internationally and which nationally or what division should be made between international regulation and national regulation?

We salute the text prepared and placed before us under 11/5/(c ) [“The protection of traditional knowledge: Revised objectives and principles”]. The inclusion of international protection in this text is indeed a remarkable development. Yet this provision needs to take into account a number of elements.

Firstly, article 14 does not cover the issue of the division of labour that should exist between the international regime and national or domestic systems. In this regard, Ethiopia fully supports the position expressed by Algeria on behalf of the African Group.

Secondly, this article does make reference to what it calls “international standards.” Yet it does not define the nature and component of these standards. We call for the clarification of the concept. The commentary on page 46 under the same provision states that “an essential element of addressing this dimension is to establish standards of treatment which apply to foreign nationals in respect of the protection of TK.” Ethiopia holds that the protection and treatment of foreign nationals is just one element of the international dimension of the outcome we wish to see emerging from this Committee. Indeed issues such as national treatment, assimilation, fair and equitable treatment and so forth may form a part of the international regime. Ethiopia holds that the same text we are discussing may form part and parcel of the international regime.

Governments, through their national laws, should work towards greater attention and resources to the aspects of preservation, conservation, documentation, development and legal protection of traditional knowledge and folklore. The quest for international regime has its long pedigree. WIPO’s instruction to the IGC in 2003 was that the Committee accelerates its work and focus on international dimension. This is a task given to us to clarify the boundary between national and the international dimension of the work.

We reckon the experience of WIPO and UNESCO [United Nations Educational, Scientific and Cultural Organization] Group of Experts on the International Protection of Expression of Folklore via IP in 1984. At the time, few said that the time is not ripe for the development of an internationally binding instrument. Ethiopia and the hundreds of traditional communities we represent are grieved by the fact that twenty years later, still the same group tell us that it is premature to discuss this issues.

We encourage participants from international organisations whose seat is currently empty to declare themselves upon the documents before us. I would like to bring my comment to conclusion by quoting the former special rapporteur on discrimination against minorities Mme. Erica Irene Daes who said as far back as 1996 that,

“At the present supplementary report makes it clear, parallel efforts to reach an intergovernmental consensus for protection of the heritage of Indigenous Peoples are underway in several different United Nations organs and specialised agencies. There is an obvious and urgent need for communication and coordination to ensure and mutually reinforcing results.”

Traditional Cultural Expressions
Issue V: Should there be any exceptions or limitations to rights attaching to protectable traditional cultural expressions/ expressions of folklore?

Article 5 of the Revised Provision as produced in document WIPO/GRTKF/I C/11/4/(c ) [“The protection of traditional cultural expressions/expressions of folklore: Revised objectives and Principles”] states under paragraph three that measures for the protection of TCEs [traditional cultural expressions] should not apply to utilisation of TCEs in the case of criticisms or review. We don’t think that “criticism or review” is an independent enterprise or undertaking. It is rather undertaken as a method of teaching and learning, research (be it commercial or non-commercial), reporting, use in the course of legal proceeding and so forth. Thus we consider the inclusion of “criticism or review” as an independent ground for exception and limitation as inappropriate.

With that note, we consider that article 5 is a solid foundation for future deliberation. It is noted, in the Commentary of Article 5, first paragraph, that overly strict protection may stifle innovation and cultural exchanges. It is true that innovation and cultural exchange are to the benefit of traditional communities themselves. Whether such fear is justified or not however, we have to note that the premise and considerations for the protective measures for TCE on the one hand and the promotion of innovation and cultural exchange on the other are quite different. Protection of TCEs emerges from the fact that traditional communities have the right. We can not [say] of the same about innovation and cultural exchange. In our considered view, innovation and cultural exchange can not be limitations to these rights.

Article 5, Para III also excludes from protection measures the making or recordings and other reproductions of TCEs for purposes of their inclusion in an archive or inventory for non-commercial cultural heritage safeguarding purposes. We are of the view that the conservation of traditional cultural expressions through the establishment of inventory or archival centres is the primary responsibility of the state in which these communities are located. We can also imagine a situation where such conservation measures can be taken as the international level through multilateral commitments. But for us it is very difficult to accept a situation whereby an inventory, albeit for not commercial purposes, is kept outside the context of traditional communities without their consent, and the involvement of the state in which they are located.

If we allow this to happen, we will find ourselves in a situation of proliferation of self-declared non-commercial archival centres where access becomes unacceptable to these communities. How can an Ethiopian local community protect its traditional folklore if a library whose establishment is not based on its consent [is] found in a distant part of the world. We, therefore, recommend that archival, collection or inventory be excluded from the list of rounds for limitation or exception.