Negotiators Work From New Text Of Traditional Knowledge Treaty At WIPO

Experts gathered at the World Intellectual Property Organization to produce a negotiating document on traditional knowledge produced a cleaner text yesterday.

The text released yesterday is a collection of draft articles prepared by open-ended drafting groups set up earlier in the week.

The original text the experts worked from was a document prepared by WIPO [pdf], titled the protection of traditional knowledge: revised objectives and principles included preliminary language of different articles along with footnotes and comments made by countries and observers from the 15th to the 17th sessions (the last three meetings, reaching back to December 2009) of the IGC and intersessional commenting processes.

In an effort to advance negotiations at the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), the IGC convened intersessional working groups, to work on the three issues separately. The First Intersessional Working Group (IWG 1) addressed traditional cultural expressions, the Second Intersessional Working Group (IWG 2), meeting from 21-25 February, is working on traditional knowledge, and the Third Intersessional Working Group (IWG 3) will address genetic resources from 28 February-4 March.

The mandate of the IWGs is not to negotiate texts but to take the result of their work forward to the next IGC meeting in May, according to Ian Heath, chair of the second working group.

On 23 February, after two days of going over the initial document prepared by the WIPO secretariat, the experts were divided into six small, open-ended groups and given responsibility for some articles of the document in an effort to come up with a cleaner and shorter version of the original document. (IPW, WIPO, 23 February 2011)

The chair then worked with the conveners of the small drafting groups on 23 February at the end of the day, to draft a complete text compiling all the articles. A new text [pdf] was circulated yesterday morning, and then replaced by an updated version [pdf] in the afternoon.

The experts were then called back to plenary after the second version of the text was distributed, to discuss the text and give their comments to be recorded.

This morning the plenary resumed discussions on this version of the text.

The new document shows that discussions could not come to common language in most articles, in particular on Article 1 on the subject matter of protection of traditional knowledge, including the definition of traditional knowledge, the criteria for eligibility, and on secret traditional knowledge. To accommodate different opinions, several options were listed in the draft document.

Article 3 on the scope of protection shows the same difficulties in attempting to reach common language on a list of options, so does Article 4 on sanctions, remedies and exercise of rights, and Article 6 on exceptions and limitations.

Yesterday afternoon, Article 1 on the subject matter of protection, and Article 2 on beneficiaries of protection were discussed in plenary, and according to sources, many country experts added comments to the text.

According to some sources, the South African expert claimed that his proposed text proposal was now unrecognisable in the formatting of the second version of the text. He told Intellectual Property Watch that in Article 1, paragraph 2, the third option, which he had proposed, and which was present in the first version of the document, did not appear in the second version. The option was about criteria for defining protection of traditional knowledge.

Also in Article 1, which was one of the most difficult to address due to its length and presentation in the document prepared by WIPO, because of accumulated footnotes and comments, one of the options mentions the fact that among eligibility criteria, protection should extend to traditional knowledge not widely known outside that community, which could imply that traditional knowledge already in the public domain would not be considered as eligible.

A representative of the Indigenous Peoples Council on Biocolonialism told Intellectual Property Watch that the language in Article 1 might be misconstrued as intellectual property language and it was important that Article 1 really reflect the integrity of traditional knowledge in its cultural context as a dynamic knowledge transmitted from generation to generation to serve the interest of the community.

Article 2 only contains two brackets signifying lack of agreement, one of which is around the word “nations” as beneficiaries of protection. Some countries would like the protection to include indigenous peoples, local communities and nations. The representative of the Indigenous Peoples Council on Biocolonialism said beneficiaries should be TK holders themselves, and not nations.

A developed country source also told Intellectual Property Watch earlier that indigenous peoples and local communities are holders of traditional knowledge and should be beneficiaries and managers of their rights, but that nations could not be beneficiaries of the instrument being elaborated as this would be a dangerous mixture between IP rights and public heritage protection.