Perpetual Protection Of Traditional Knowledge “Not On Table” At WIPO

Protection of traditional knowledge under intellectual property rights may have a time limit, though determining duration of protection measures will be more difficult than it is with Western scientific innovation, World Intellectual Property Organization Director General Francis Gurry said yesterday.

“I think perpetual protection is not on the table,” Gurry told journalists on 21 October. WIPO members at their annual meeting earlier this month agreed to negotiate a legal instrument on traditional knowledge protection in the next two years.

There is a conceptual difference in duration of protection, Gurry said. In Western science there is a moment of discovery, a date from which protection can proceed, whereas traditional knowledge tends to be communal, collective, and passed on from generation to generation, he added.

Finding ways to accommodate traditional knowledge, and also to deal with misappropriations from the past, is “the intellectual challenge.” But the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) now has a “clear mandate” to tackle this challenge.

The recent WIPO General Assemblies achieved a “breakthrough and a giant step forward,” Gurry said. “The way forward is clear, with a very robust and clear mandate.”

The IGC received its strongest mandate yet at the assemblies, and is now tasked with undertaking text-based negotiations towards an “international legal instrument” for the effective protection of genetic resources, traditional knowledge, and traditional cultural expressions (IPW, WIPO, 3 October 2009).

The committee has produced a large amount of information and some in-depth studies of misappropriation problems over the past nine years of its existence, but has thus far not produced any concrete actions to prevent these misappropriation problems.

The last two IGC meetings had stalled in arguments over how to accelerate the work of the committee towards achieving an outcome, with demandeurs of a legally-binding solution growing increasingly frustrated with the lack of progress, to the point of questioning the role of WIPO if it could not pull together a solution on the issue (IPW, WIPO, 30 September 2009, 6 July 2009, 18 October 2008).

Heading into the general assemblies, it was unclear how WIPO members would find agreement on a way forward for the committee to even continue its work. Gurry yesterday called the eleventh-hour decision to undertake text-based negotiations the “most significant” agreement reached at the assemblies.

“Theoretically, we should not continue to have a procedural argument,” he said. The objective of the IGC is that the IP system “addresses a knowledge base that is universal, by addressing traditional knowledge systems as well.”

One of the most important principles that should carry forward is benefit-sharing, he said, which might mean a number of different things depending on the needs of the people who owned the knowledge.

The director general also weighed in on issues of copyright.

On the secretive Anti-Counterfeiting Trade Agreement, Gurry said that WIPO too did not know a great deal about the talks.

“Naturally we prefer open, transparent international processes to arrive at conclusions that are of concern to the whole world,” he said, citing WIPO’s role as an international, United Nations agency. And, he added, “IP is of concern to the whole world.”

On copyright protection in the internet age, the “problem we have is massive,” he said, citing the example of the newspaper industry and the music industry, both suffering as new technology necessitates changes in old business models.

This problem “deals with the financing of culture in the 21st century,” he added, saying that whatever legal model goes into place to facilitate cultural exchange “should be technology neutral.”

Gurry further mentioned the WIPO Development Agenda, reiterating that it aims to “mainstream development” throughout the UN agency, and is not intended to be “sitting in one corner of the organisation,” but rather should be reflected in “every single aspect of the organisation.”

William New contributed to this report.