Stage Set For WIPO To Advance On Traditional Knowledge, Folklore Protection

By Kaitlin Mara
The World Intellectual Property Organization committee on traditional knowledge and genetic resources meets next week with a new sense of purpose. New on the table are two detailed reports from the secretariat highlighting areas where international policy may be needed, an African Group proposal calling for an international instrument, and the encouragement of the new director general to achieve concrete outcomes after many years of debate.

The 13th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) will meet in Geneva from 13 to 17 October.

While no major breakthroughs are expected, there is a sense among member states and the WIPO secretariat that the two new “gap analysis” reports – assessing where there are gaps in international policymaking concerning the protection of traditional knowledge and of traditional cultural expressions – have set the stage for a productive week.

The African Group proposal [pdf] expresses the opinion that the “ultimate objective of this process should be the development and adoption of a legally binding international instrument for the protection of traditional knowledge, traditional cultural expressions and genetic resources” and presents detailed comments on the draft analyses as well as recommendations for the way forward. Thailand has also submitted comments on the gap analyses.

Developing countries have been trying for several years to move discussions in the IGC to negotiations for a treaty or other instrument to help protect their resources. But some developed nations have sought to delay that outcome, arguing that more understanding is needed or that matters are adequately handled at national level.

New WIPO Director General Francis Gurry, who took office on 1 October, in his acceptance speech said of the IGC that it is “time to move this process to concrete outcomes.” While this does not represent an express mandate, it does create the expectation that member states will have something solid to report to the General Assemblies in autumn 2009, a WIPO official said.

Using the Gap Analyses

The “gap analyses” – one on traditional knowledge (TK) and the other on traditional cultural expressions (TCEs), or folklore – draw from all of the IGC’s previous work in outlining where there are protections for these areas, where there are gaps in protection, and potential ways forward.

A key concern of both documents is definition – there are no international standards for what constitutes TK or TCEs; much protection is predicated on having a clear idea of what is to be protected, the reports note.

The working definition for TCEs used for the analysis is: “products of creative intellectual activity” handed down through generations, reflecting an often-evolving cultural/social identity and/or heritage, made by “communities” or “authors unknown,” and usually containing spiritual or religious elements.

The working definition of traditional knowledge is: “the content or substance of knowledge resulting from intellectual activity in a traditional context,” including know-how, skills, innovations, practices, and learning both within and comprised in the behaviour of traditional systems. It can range fields, including “agricultural, environmental and medicinal knowledge, and knowledge associated with genetic resources.”

Gaps in the protection of TCEs exist, for example, in: rights held in community, term limits, confidential information that might cause spiritual or cultural harm (as opposed to economic) if disclosed, and the use of traditional or tribal symbols in ways morally objectionable in a way specific to the holders of the TCE.

Gaps in the protection of TK exist in what parts of TK are subject to legal protection, and the goals of protection. Many objectives, such as recognising the value of traditional knowledge systems and innovation, the need to conserve it, and the need to repress the misappropriation of TK or prevent improper granting of IP rights over it, have not been stated formally at the international level.

TK gaps also occur in subjects not covered under existing IP law (because they are not novel or have been disclosed publicly), lack of recognition of rights holders, especially where the rights owners are a community, and in the lack of a disclosure requirement for TK used in inventions.

It still must be determined how the two gap analyses will be used. Authored by the IGC secretariat at the request of member states at the 12th session last February, it is unclear whether the “working documents” will be background, informational documents or working products that will be continually refined and elaborated upon, said the WIPO official.

A member of the Asian Group said the analyses reaffirm the conclusion that the existing IP system is insufficient to the task of protecting traditional knowledge and genetic resources. But “we would like to see [the IGC] lead somewhere other than confirming existing gaps that we always knew about,” the official said.

A US official said the analyses were helpful in order to clarify existing norms, but said “at this point [the IGC] is still evaluating what solutions” there are. The IGC, explained the official, is “not yet at a prescriptive stage.” Discussions should continue, the official added, and expressed hope that “the gap analysis will help bring us together in terms of understanding” those issues.

A separate developed country official said that the group of developed nations “need to await qualitative discussions” and plans to “finalise its position on Monday morning.”

Instruments and Intersessionals

Another idea to be discussed next week is to increase progress through intersessional meetings, held between the formal IGC meetings. The Asian official said that the intersessional meetings should not just be “mini-IGCs” but instead should work on more specific issues that can later come back into full session.

The official mentioned expert working groups as one possibility, and also said the informal discussions leading up to the adoption of the WIPO Development Agenda in late 2007 could be a possible model. Most within the Asian Group support intersessional meetings of some kind, according to the Asian source, but there are no terms of reference proposals as yet.

The African Group plans to submit a proposal early next week, including terms of reference, for expert intersessional working groups aimed at submitting outcomes to the next IGC meeting, in 2009, for formal discussion. Mohamed Abderraouf Bdioui of the permanent mission of Tunisia said the African Group is “serious” about having a legally-binding instrument.

The IGC is moving toward “a focussed objective,” Bdioui said, but we “need to accelerate the work.” Informal meetings can play an important role in guiding processes such as this one, he added.

The US official suggested that online exchanges might be a beneficial way to organise intersessional work.

Jaya Ratna of Singapore, the former chair of the IGC, has been called back to his capital, so a new chair must be elected. At the time of publication, only the Group of Latin American and Caribbean countries has forwarded a suggestion for chair; they expect to nominate Ambassador Rigoberto Gauto Vielman from Paraguay.

Likely the meeting will focus on “managing the gaps,” said a WIPO official: prioritising the work and clarifying what is a norm-setting issue, what is a practical issue, what is a legal issue, and at what levels – i.e. national or international – they must be addressed.

Even if member states come to a concrete decision this week, such as on creating a binding international instrument, this is only the beginning of the process, said the official, as the IGC does not itself make binding international law. The process is that committees make recommendations to the assembly, which decides whether to move to a negotiation.

Kaitlin Mara may be reached at kmara@ip-watch.ch.