WIPO Committee Issues Revised Text On Traditional Knowledge Protection

After an intense day of drafting led by member country experts in small groups in closed rooms, the World Intellectual Property Organization secretariat released a new set of draft articles of what could become an international instrument aimed at protecting traditional knowledge.

The new text [pdf] issued today was discussed in plenary session as country delegates were asked to give their comments on the text. The 24th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 22-26 April.

Articles addressed during closed drafting sessions and in plenary were Article 1 on the subject matter of protection, Article 2 on the beneficiaries of protection, and Article 3 on the scope of protection.

One of the facilitators of the drafting group, Nicolas Lesieur of Canada, presented changes made to the original document [pdf] from which discussions were based. Article 1 now has an additional paragraph (1.2) on the definition of traditional knowledge associated with genetic resources, which is entirely bracketed. A list of optional additions that were in the original document has been collapsed into paragraphs, with some text deleted. Deleted text is now contained in an annex at the end of the document. The same approach was taken for Article 2, which now includes two paragraphs, and one alternative paragraph.

Article 3 remains a long article with two options and one alternative to option 2. This article has been described by several delegations as being at the core of the text and the future instrument. Option 1, according to Lesieur, would confer certain rights to beneficiaries while option 2 would leave countries the flexibility to implement their own measures domestically to achieve the objective of the instrument.

Although all delegations praised the work of the facilitators on the new set of articles, some issues were raised. Among issues raised in comments by country delegates this morning was the issue in Article 1 of language in the definition of traditional knowledge (TK) relating to TK “resulting from intellectual activity.” It is bracketed and some countries, such as the African Group, the Dominican Republic for the Group of Latin American and Caribbean countries, Peru, and Thailand said they would like to delete it.

The European Union raised the concern that there is no reference in Article 1 to the public domain, this item of the original list of optional additions having been relegated to the “deleted text” annex. They requested that it be put back into the next revision of the draft text, along with other options such as a reference to TK “not protected by an intellectual property right, not widely known or used outside the community of the beneficiaries as defined in Article 2.” The European Union also asked that the word “peoples” be bracketed throughout the document. It is used in references to “indigenous peoples.”

The African Group said that paragraph 1.2 contains entirely new elements and as such should not be included in the core of the document, which was challenged by the United States, as they said the language had been introduced in plenary at the opening of the session. The request not to add new text was supported later by the IGC Chair, Wayne McCook of Jamaica, and some delegations such as Indonesia.

The United States proposed to introduce a new paragraph 1.4 which would read “Traditional Knowledge that is contained within databases may be used to prevent the erroneous grant of patents.”

Some countries said that they did not have a distinct group of indigenous people within their territory, such as Bangladesh, Egypt, and Algeria. Those concerns have been tentatively addressed in Article 2.2 and its alternative 2.3. The African Group had concerns about alternative 2.3, saying it creates confusion and asked that the alternative be deleted.

In Article 2, the European Union said the language in Article 2.2 appeared to extend protection to knowledge that is already in the public domain and asked that 2.2 be bracketed or removed. Switzerland said it had concerns with Article 2.2 and 2.3 as it was unclear what it would mean in terms of national law and to society at large, and asked that both be bracketed.

McCook said this issue of countries not having indigenous peoples or communities as such was a point of dissent and was “one of the bridges that we have to cross.”

The new draft text is about 40 pages long and includes: policy objectives; guiding principles; 12 articles; comments by the facilitators on most articles presenting elements of convergence and divergence as well as observations; and an annex with deleted text.