Special Report: Traditional Knowledge And IP: View From The Ground Up 17/01/2014 by William New, Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Participants at a recent conference in South Africa offered insights and some optimism about prospects for local communities to exploit their traditional knowledge to help their economies while at the same time protecting that knowledge. The issue of traditional knowledge has caught the attention of advocates and academics as it was discussed for the first time at the annual Global Congress on IP, Innovation and the Public Interest held last month in Cape Town, South Africa. This was the third annual Global Congress, held from 9-13 December. The previous two congresses were held in Washington, DC and Rio de Janeiro, Brazil. Next year’s congress will be held in Kuala Lumpur. WIPO, Regional Organisations Representatives of the World Intellectual Property Organization and the two regional groups in Africa (ARIPO and OAPI) were present at the event. Wend Wendland, director of the WIPO Traditional Knowledge Division and a South Africa native, talked about documentation of traditional knowledge, and highlighted a draft “TK Documentation Toolkit” developed at WIPO. As noted by the WIPO website, “concerns and questions have been raised regarding documentation and its potential effects on the rights, cultures and livelihoods of indigenous peoples and local communities, including through the placing of TK and TCEs in the “public domain”, the loss of control, the making of TK and TCEs publicly available, the loss of the secret nature of some TK and TCEs, etc.” The WIPO draft toolkit “provides useful practical guidance on how to undertake a TK documentation exercise as a process and how to address critical IP-related issues and questions, as they surface during this effort,” it says, noting that much of the information in the toolkit might also apply to traditional cultural expressions. The toolkit offers “a menu of alternatives to be taken into account by documentation projects and efforts,” it says, and is published for “consultation and field-testing.” A more final version is expected to follow eventually, and meanwhile, comments invite to be sent to the Traditional Knowledge Division. A representative of the African Regional Intellectual Property Organization (ARIPO), located in Harare, Zimbabwe, said the intergovernmental organisation is documenting traditional knowledge, with some help from WIPO. The aim is to prevent illicit patents on regional TK, he said, but they also take into account the risks of documentation, which he acknowledged can lead to misappropriation. A later speaker said that documenting TK does not mean the community has to make it public. For instance, one group pooled their knowledge and are together in negotiations with outside users, she said. The ARIPO speaker said the group is working to move the region to the realm of innovation, following the example of China, where TK is being developed into new products and uses. He also mentioned objectives for the development of an ARIPO TK digital library, such as avoiding granting patents for TK-based inventions and avoiding costs for TK holders and third parties of challenging such patents, facilitating implementation of the Nagoya Protocol on prior informed consent and access and benefit-sharing, promoting TK-based industries, and educational programmes on TK. In 2014, ARIPO will hold “roving seminars” in member countries, to create awareness, build partnerships and exchange views. The Organisation Africaine de la Propriété Intellectuelle (OAPI), the regional IP group of mainly French-speaking African countries located in Yaoundé, Cameroon, has draft TK language that is being developed and is expected to be binding on all members. The issue of creating a sui generis system for traditional knowledge is being debated, said an OAPI official. And the OAPI approach leaves documentation to the national level, she said. There also is a question of whether TK should be made public, she said. WIPO Negotiations WIPO’s Wendland also described the ongoing process at WIPO to negotiate an international treaty (or instruments) on traditional knowledge, traditional cultural expressions, and genetic resources. The process is “challenging” on many levels, he said. It is not a North-South issue, and there is a diverse set of views among member states, with some large developing countries being mega-diverse environments, some countries having significant indigenous populations, and some being big IP exporters. There is still a long way to go, he said, though there is now tremendous impatience among some after 13 years of negotiations, and a strong wish for an outcome. Wendland said that TK can be viewed as a product of the mind and therefore a form of intellectual property, and as such should not be denied protection just because it is older. Efforts are not to fit TK into the existing IP system, but perhaps to develop a system of protection that was not foreseen by the creators of the IP system. The WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) will meet three times during 2014, starting with the week of 3 February. A South African representative noted that the African Group at WIPO supports text of a treaty that will be binding (which is opposed by developed countries). The representative also said it is “very dangerous” to link the Nagoya Protocol to efforts in the WIPO IGC, since so few countries from the region have ratified Nagoya. South Africa has been working on a bill to protect its traditional knowledge. The debate over protecting TK and genetic resources in some ways reverses country roles. With other IP rights, northern countries own most of them and tend to argue for strong protection and against exceptions to the rules, whereas in this case they argue the opposite, seeking access and a robust public domain. Local Perspectives A representative of Peru’s IP office discussed their extensive efforts to analyse patent documents worldwide in order to identify any that include Peruvian traditional knowledge and might be infringing. There is a website set up on biopiracy. In their search, thousands of patent documents were found in various patent offices that referred to resources found in Peru. For instance, one species, jacond, found 2,800 patents in Russia, leaving Peruvian authorities surprised to find such a big market for it there. But most were valid patents, contained an innovative step, and were not considered biopiracy, the official said. Some 19 cases were deemed biopiracy, with patents based on traditional knowledge or resources of Peru. Six patents were dropped through the commission’s intervention, he said. Technical documents were sent through their embassies. Most cases are about the traditional knowledge of Peru, not the resources, he said. There was one involving a resource that only comes from Peru, so it was easy. But otherwise, it can be difficult as Peru shares resources with neighbouring countries. There are other issues as well. For instance, there was an apparent case of jacond in Japan, but it turned out they had gotten it from New Zealand. In another case, they found maca is already being cultivated and patented through biotechnology in China, and in fact is found to be superior to the Peru version. When the IP Office (Indecopi) is presented with knowledge, it has to decide if it is in the public domain, whether it goes in the public register or confidential register. Sometimes communities come and have to be told the disheartening news that their knowledge is already published, so it has to be in the public domain, he said. India’s TKDL From India came an update on the landmark Traditional Knowledge Digital Library (TKDL), the result of work of the Indian government over 10 years working in various languages. Traditional knowledge is “associated with almost everything we do,” said the Indian presenter, so it is important to know what it is. It is getting lost, and a lot of resources are spent on defending the knowledge. The government thought it would be useful to get a lot of knowledge in place so it could be the first to know before granting a patent. But in a country like India there are hundreds of languages. They also had to consider formats used for patent applications. Now the library is available in major international languages. India’s experience with the European Patent Office grant of a patent on neem, EPO patent 1994 EP436257, was that it was overturned, but it took 10 years, dozens of documents back and forth, numerous hearings, numerous lawyers and examiners in each hearing, making it very time intensive and expensive. And millions of dollars were spent fighting patents on Basmati rice in the US and Pakistan. “So we thought would be good to have a system that prevents these cases,” he said. Through a process at WIPO, an international patent classification for TK was adopted. The Indian TKDL is now considered prior art, but most of what existed to show prior art in India was available in medical texts in the ancient Indian language of Sanskrit, so they had to translate. Now information amounting to 34 million items is in there. He said it should not cost as much for other countries as India had more languages and more information. Access to the TKDL is limited. It can only be used by patent examiners for research, and there is an access agreement with international patent offices. The TKDL has led to a 44 percent drop in patent applications filed at the EPO using Indian medical systems, he said. Examiners may have different opinions on novelty and inventive step, but the Indian Patent Act has a provision that says TK cannot be patented. “It’s a defensive tool,” he said. Kukula Traditional Healer Organization A people whose area reaches across two provinces in South Africa, they are working with international organisations to improve the sustainability of protected areas, mainstream biodiversity, and enhance existing initiatives. The aim includes providing additional support to host institutions to attain their respective core mandates, creating jobs, and building capacity. The Kukula plan is to collect information from members on the most sought-after species. “We are inviting investors to come to us. We have the knowledge.” Some of the knowledge they have is not in the public domain. “Why are people coming to us?” asked a representative. “They are coming to us because they don’t know. They want us to tell them.” The group started with eight healers in 2009, and now has hundreds. There are many healers who are not members of this particular organisation, and may be members of other organisations, he said. He also noted that, “For us to share something with you, you have to go to training.” Egypt A representative of the Medicinal Plants Association, supporting the Saint Katherine community in Egypt, presented on its efforts to conserve natural resources and TK, and provide income to the community. The group has nearly 300 members, and has its first woman as chair of the board. In their case, they were looking at using medicinal plants for revenue, but found it was too difficult to collect from the wild, so started cultivated and marketing. Now it has a revolving funds programme, is focussed on supporting women entrepreneurs, and is producing items like wild honey. The community, which is considered one tribe and is geographically isolated, has set up a school for training healers. They wanted to ensure a next generation of healers, so they discussed it with the best-known healer, who agreed to start a school, which takes 3 years and trains in collection and documentation. The idea of a school raised some interest among the conference audience. A school could help with reducing stigma, said one audience member. Also, they said, their healers do the training, taking apprentices into the forest to show them, but it has not been put into a more structured approach. Another audience member noted that they call their training process informal but there is a very formal process, like the school, just not written down in law like the western approach. The Saint Katherine people are working on an IP law, and would work with universities to do some research in this area, he said. They think they could benefit from geographical indications, as the community is isolated by high mountains and is one tribe. They have already made an agreement with the community on land conservation and with another association to create a traditional law, which he said was near ratification. Maasai A representative of the Maasai people said they have had cases of people stealing their TK. He said there are three definitions of TK: Nagoya, UNESCO (UN Educational, Scientific and Cultural Organisation), or sui generis. They complement each other, he said, like the three stones his people use to cook a pot over a fire. “If there are only two, the pot falls down.” He commented on the ARIPO process of developing a TK digital library, saying it treats Africa as one country, when in reality African people are different. “We are Maasai. You did not involve us,” he said. He also compared TK resources to having gold in your land: it is better to leave it there until the situation is right to exploit it. The ARIPO representative said the group is member state driven, that he sees a need for more indigenous representation, and clarified that for data collection, ARIPO does not enter countries, but rather just uses national data. And there may be knowledge that the countries do not want shared. “We are very much conscious of that,” he said. A representative of another indigenous South African people, the San, presented on how they successfully obtained recognition as the primary knowledge holders of the benefits of Hoodia. “Everyone else is learning from us,” he said, urging people to “stand up for your rights until you have your agreement in place like we do.” Secrecy of Traditional Knowledge In discussing strategies to protect common property, Helen Chuma-Okoro of the Nigerian Institute of Advanced Legal Studies in Lagos said people are not willing to share information without permission from their local market association, as it is the long practice that such knowledge can only be shared within themselves. But she said they tell such groups that it is not an advantage to do this because they have no legal protection. Conclusions to their study (which appears in Innovation & Intellectual Property: Collaborative Dynamics in Africa) found that they might benefit from a communal trademark model, either certification marks, collective marks, or geographical indications. They found that among the activities they studied, a textiles cluster in particular might have the right structure for implementation of a communal trademark, probably a geographical indication. This could help them standardise quality, and protect against counterfeiters. Another study presented by Teshager Dagne, assistant professor in the Faculty of Law, Thompson Rivers University, Kamloops, British Columbia, Canada, argues in favour of GIs, or possibly certification or even honour marks, for agricultural products in Ethiopia. The study looked at the role of IPRs, and found there are different strategies leading to different standards. An audience member pointed out that GIs are costly to establish, market and defend. They require legal protection and monitoring of international markets. But it was argued that the existing strategy already is very expensive and that a GI system could work under one framework. But this would require the collaboration of all partners. Marisella Ouma, executive director of the Kenya Copyright Board, said their studies of indigenous groups in the region showed that knowledge is passed down in one family, and not open to others. There is no documentation and they are unwilling to have their information out there, though they did find the notion of protection desirable. Britta Rutert, a South African-based researcher from the Free University in Berlin, said her study of indigenous groups in South Africa showed knowledge is transferred from one healer to another within a school of healers, of which each ethnic group had several. There are some 8,000 healers in that region of northern South Africa, and about 400,000 healers in South Africa altogether. Knowledge in her study group was perceived as sacred. Bernard Maister, a Dutch researcher at the Intellectual Property Law and Policy Research Unit, School of Law, University of Cape Town, said their study on Kukula healers came up with the idea of a “trust” for knowledge sharing. In the community they studied, there is process for administering the sharing of knowledge, as well as rules about gathering and using the plants, applying to an area over several hundred miles. An executive committee of six people oversee the decisions in the studied community. Furthermore, the plants they use might lend themselves to protection like breeders’ rights. Dagne said all of the groups were looking at IPRs as they were situations where the owners wanted to open up their traditional knowledge. An audience member questioned whether these efforts might be a form of “colonising the commons,” with multiple actors, each with their own self-interest. Ultimately, efforts could lead to a “tragedy of the commons.” Ouma noted that they were just looking at ways to use traditional knowledge for development without disadvantaging the community. Another audience member asked what the tradeoffs would be to adopting existing IP systems. Dagne said they are looking for ways to make the IP system fit to the existing system. Chuma-Okoro said traditional knowledge is already threatened so this might have a positive impact. That knowledge is dying, so in the end, there will be nothing left to protect, she said, adding that they had recommended further study and a cost-benefit analysis. Ouma also said the Maasai group in Kenya has experienced misappropriation of its traditional knowledge without benefit to them, so they are looking at what needs to be done, such as a digital library. TK in the Global Congress The Open African Innovation Research (Open A.I.R.) conference and the Global Congress on IP & the Public Interest was hosted by the University of Cape Town, and was funded by Canada’s International Development Research Centre (IDRC), and Germany’s Gesellschaft für Internationale Zusammenarbeit (GIZ), among others. “We realised if we want to discuss appropriate IP regimes in the African context, we have to discuss traditional knowledge,” said co-organiser Tobias Schönwetter, head of the IP Unit at the University of Cape Town law school. They identified some experts who are “doing meaningful work,” he said. The aim was to look at “how can traditional knowledge work with IP, but continue sharing traditional knowledge with the community as before,” he said. “If we do it in an overzealous way we will have a problem.” Schönwetter said that people are innovating in Africa even without IP protection, and a group like his based in Africa cannot just say increase protection as much as possible, “otherwise we are just doing what the global North does.” Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related William New may be reached at email@example.com."Special Report: Traditional Knowledge And IP: View From The Ground Up" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.