New WIPO Text On Traditional Knowledge Protection Cleaner But Issues Remain

The main goal has been achieved for World Intellectual Property Organization delegates who started last week with the task of improving a document to become an international instrument protecting traditional knowledge. Consensus has not been met on core issues, but a cleaner text has emerged, reflecting a clearer understanding of positions, sources said.

A new revised version [pdf] (Rev. 2) of the draft instrument text was issued this morning, on the last day of the 24th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which met from 22-26 April. The text will be transmitted to the WIPO General Assembly in September.

According to IGC Chair Ambassador Wayne McCook of Jamaica, given the complexity of the negotiations this week, only four key articles were discussed: Article 1 (Subject matter of protection), Article 2 (Beneficiaries of protection), Article 3 (Scope of protection), and Article 6 (Exceptions and Limitations).

The new text is a leaner version of Rev 1, since it does not include comments by the facilitators. Article 1 contains an additional paragraph 1.4 referring to the limits of the protection, and mentioning that the protection should not extend to traditional knowledge in the public domain, and an additional paragraph 1.5 on the use of databases to prevent the erroneous grant of patents. Both of those elements have been contentious and defended by some developed countries, such as European Union members, Japan, and the United States.

Article 3 still has two major options, one which is rights-based, granting rights to beneficiaries, and the other measure-based, concerning measures to be adopted to ensure the protection of traditional knowledge. Some countries, such as those in the African Group, said both options should be combined into a single one because of their complementarity. But this was opposed by some members such as the EU and Canada.

Article 6 now contains two defined types of exceptions to the protection: general exceptions, and specific exceptions.

If all country delegates who took the floor to offer comments hailed progress on the text and the leadership of McCook, they also said some issues are still unresolved.

A number of developing country delegations had issues with Article 1.2 on the definition of TK associated with genetic resources. In particular, the African Group suggested this could be put in a list of terms. On the new paragraph 1.4 of Article 1, they said it seemed to be an attempt to put limits on the subject matter of protection and suggested that this paragraph be moved to Article 6 on exceptions and limitations.

TK in the Public Domain: A Core Issue

In Article 6, the definition of the public domain has been a challenge in the IP system at the national and international level, the South African delegate said on behalf of the African Group. “We would not want to burden TK with the indecision of the IP system collectively in defining the public domain,” the delegate said. “It cannot be a responsibility of TK to solve an ancient long problem.”

The South African delegate told Intellectual Property Watch later that the public domain is not defined internationally. It also is treated in different ways by different areas of IP, such as copyrights and patents. “It is a contested domain,” he said. There is no disagreement on the fact that it needs to be discussed, he added, but “we need to draw contours around this idea.”

The issue of the public domain present common challenges for many countries, he said, in particular on the proposal to protect TK in perpetuity. As long as it meets the criteria, and as long as TK is used and maintained by indigenous peoples and local communities, it could be protected, contrary to most IP protection, he said.

The EU, seconded by Canada and the US, repeated their insistence that the public domain is an issue of “great importance,” and is a key part of the definition of TK.

Additional Developed Country Texts Turned Away

Three additional texts were on the table of this 24th IGC session: a joint recommendation [pdf] on GR and Associated TK, submitted by the delegations of Canada, Japan, Norway, South Korea and the US; terms of reference [pdf] for a study by the WIPO secretariat which would measure the merits of mandatory disclosure requirements; and a another joint recommendation [pdf] on the use of databases for TK protection. The two last documents were submitted by Canada, Japan, South Korea and the US.

The introduction of these texts in previous sessions had already raised concerns from developing countries which considered them as attempts to side-track discussions of the IGC on the text of an instrument that they wish would become a legally binding instrument.

The proponents of these documents presented them on Friday as means to prevent the erroneous grant of patents by helping IP offices to access prior art information. The study, they said, would measure the costs and benefits of a mandatory disclosure requirement in patent applications. A mandatory disclosure requirement would require patent applicants to disclose the origin of genetic resources in patent applications, and in the present case, genetic resources associated with TK.

Brazil on behalf of the Development Agenda Group, said the DAG only speaks in the IGC to discuss procedural matters. The three documents have been presented before, and were taken note of during the IGC session on genetic resources (IPW, WIPO, 8 February 2013), the delegate said, adding that the mandate given by the General Assembly stipulates work on the existing draft articles. After 12 years of discussions and gap analyses, he said, the three new proposals would only create a parallel effort that would jeopardise discussion in the IGC. This was supported by India, South Africa, and China.

Chair McCook reminded proponents that the mandate was to discuss the draft articles and not any other documents. “We will not have a contest of documents,” he said.

Algeria, speaking on behalf of the African Group, said it had great concerns with the three proposals and did not see the link with the mandate and the document currently being negotiated. They said they were wary of the potential prejudice the proposals could have on the outcome of the IGC.

Specifically on the terms of reference of the study by the WIPO secretariat which would measure the merits of mandatory disclosure requirements, developing countries said many studies had already been carried out on the subject. South Africa said the terms of reference of the study display a biased approach by focussing only on the erroneous granting of patents instead of also taking into account the impact of misappropriation on indigenous communities. Peru said the study was only taking the perspective of patent offices.

On databases, the African Group said databases were an important issue that could be addressed once an international binding treaty is established. India concurred.

The three documents were noted by the IGC. The WIPO Secretariat issued draft decisions of the 24th session [pdf], which were approved with no modification except the addition of a mention in item 5 of the draft decisions stating that the three tabled documents have been noted.

Several delegations pointed out that the text, as it stood, needed more work and some differences still needed to be breached. They said they were looking forward to the stock-taking exercise which is expected to take place in July, at the end of the IGC session on traditional cultural expressions, from 15-24 July. The EU said key issues were not solved and policy approaches divert widely as the EU, for example, thought the protection of TK should be addressed by a non binding instrument. The IGC was established by the WIPO General Assembly in October 2000. Its mandate has been renewed several time and the current mandate expires in 2013.

The texts achieved in IGC 23 on GR and IGC 24 on TK are expected to be transmitted to the General Assembly and are not meant to be reopened, McCook told Intellectual Property Watch, although member states might decide to make some comments or additions.

An Unusual Mirrored Exercise

As noted by a developing country delegate, in the IGC, developing countries are the demandeurs of a legally binding instrument protecting TK, GR and traditional cultural expressions. In this context, developed countries put forward much of the same arguments that developing countries present in other negotiations in order to retain flexibility and policy space. For example, the delegate said, developed countries in the IGC are keen to reduce the subject matter of protection, and its scope, but are insistent that exceptions and limitations are widely available.