Revised Text On TK Protection On Its Way To WIPO Assembly

Just like the draft text on the protection of genetic resources last month, a set of draft articles on the protection of traditional knowledge have cleared a hurdle and will be forwarded to the World Intellectual Property Organization General Assembly next autumn.

Midway into a two-week meeting on the protection of traditional knowledge (TK) and protection of traditional cultural expressions (TCEs), WIPO delegates on 28 March went over a second revision [pdf] (OER version here) of a set of draft articles forming a draft international legal instrument. The text is heavily bracketed reflecting differences. The first revision was issued on 27 March (IPW, WIPO, 28 March 2014).

The 27^th WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 24 March to 4 April.

As agreed by the IGC on 28 March, the text will be transmitted to the General Assembly and will only be subject to any adjustments or modifications on cross-cutting issues that might arise from the 28th session of the IGC in July, according to Jamaican Ambassador Wayne McCook, chair of the committee.

Facilitators tasked with drafting revised versions of the articles presented the new document (the second revision above) titled, “The Protection of Traditional Knowledge: Draft Articles Rev. 2”.

An updated version of Rev2 is expected to be published on 31 March, reflecting any errors or omissions pointed out by member states on 28 March.

Rev2, issued on 28 March, presents several changes from Rev1, issued a day earlier. In particular, one of the facilitators of the drafting group said they added some language in the preamble/introduction to reflect proposed additions.

Further restructuration of the policy objectives was achieved, he said, “based on our understanding of what are the core objectives of the text according to discussions here [plenary] and in the expert group.”

In Rev2, the policy objectives section is much shorter, and now lists four core objectives. Terms such as “misuse” “unauthorised use”, “unfair and inequitable uses” were added as proposed alternatives to the word “misappropriation.”

The section on the “use of terms” is much longer in Rev2. The facilitator said definitions were added, in particular; misuse, public domain, unauthorised use, and traditional knowledge. And the section now includes a list of examples of areas with which TK could be associated, such as agriculture, the environment, healthcare, and biodiversity.

Article 1 (subject matter of protection/instrument) now includes a section on criteria for eligibility, and a title to which the word “instrument” was added.

In Article 2 (beneficiaries of protection), the facilitators included “nations” in the list of beneficiaries in paragraph 2.1. Another alternative to that paragraph does not include nations. This has been a hotly debated issue at the IGC. The facilitator who presented the changes said that the facilitators proposed an alternative formulation to this article that would see the issue of nations addressed in a footnote.

Article 3 (scope of protection) has additional language, the facilitator said. Paragraph 3.1 deals with sacred and secret TK. Sub-paragraph 3.1 (b) now includes an alternative relating to the establishment of terms of use in agreement with the beneficiaries, he explained.

Paragraph 3.2 deals with TK still held, maintained and used by indigenous peoples or local communities and is publicly available but neither widely known, sacred, nor secret.

Paragraph 3.3 concerns TK that is publicly available and widely known, and protected under national law.

In Article 3bis (complementary measures), the facilitators merged provisions regarding databases that were previously found in Article 8 (formalities) and Article 12 (transitional measures), which led to a simplification of the two latter articles, he said.

Article 4bis (disclosure requirement) now has a new alternative (no disclosure requirement), and Article 5bis (application of collective rights) has been deleted because it now overlaps with Article 5 (administration of rights) as it now stands, he said.

The facilitator underlined that work remained to be done on Article 6 (exceptions and limitations). Article 7 (term of protection/rights) has been shortened, the optional additions to the former Article 7 have been removed. The facilitator also said that Article 11 (national treatment) had been challenging and required additional consideration.

Comments from Member States, More Brackets

Most member states who took the floor asked that further brackets be added to the text, reflecting areas of disagreement.

The European Union asked for example that the terms “secret and sacred” be bracketed in Article 3 since the definition has not been fully explored. The delegate also asked that the word “peoples” be bracketed and asked that the language used in the UN Convention on Biological Diversity, or the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization be used. The Protocol uses “indigenous and local communities.”

An indigenous peoples’ representative argued that the Nagoya Protocol was aligned with the CBD’s language, but that WIPO is under no such constraint. She also said the CBD was reconsidering this terminology to refer to indigenous peoples.

Kenya for the African Group commented on the criteria of eligibility of Article 1. One of the criteria for being eligible is that TK “has been used for a term as has been determined by each [member State]/[Contracting Party] but not less than 50 years.” The whole paragraph is bracketed. He said that criterion was “a very insensitive and discriminatory provision” given that most African countries did not have independence for more than 60 years.

Australia remarked on the same issue, saying that traditional communities are living and evolving communities and might still be developing.

Canada reaffirmed that “this future instrument should be for the benefits of indigenous and local communities,” and Canada “continues to oppose attempts to make the state the beneficiary,” unless that, in particular situations, such communities identify the state as legitimate and appropriate custodian

Several delegations asked that entire articles be bracketed, such as Article 3, Article 3bis, and Article 10 (relationship with other international agreements).

Japan said that the concept of tiered protection, as presented in Article 3, should be tested against specific examples, such as sushi, or mate.

Chair McCook concluded by saying that brackets signal how much work lies ahead and engaged delegations to work out their differences to see where brackets could be removed. “We cannot be complacent,” he said.

Joint Recommendations: A Plus or a Distraction?

On 28 March, proponents of a series of joint recommendations on the protection of TK – in particular through the prevention of erroneous patents – presented the rationale for their documents and their request for a study on the potential harmful effects of a mandatory disclosure requirement.

A Joint Recommendation [pdf] on the Use of Databases for the Defensive Protection of Genetic Resources and Traditional Knowledge Associated with Genetic Resources was put forward by Canada, Japan, South Korea and the United States.

A Joint Recommendation [pdf] on Genetic Resources and Associated Traditional Knowledge was tabled by Canada, Japan, Norway, South Korea and the US, and a Proposal for the Terms of Reference [pdf] for the Study by the WIPO Secretariat on Measures Related to the Avoidance of the Erroneous Grant of Patents and Compliance with Existing Access and Benefit-Sharing Systems was co-sponsored by Canada, Japan, Norway, South Korea, Russia, and the US.

A new document [pdf] was also issued by Canada, Japan, Norway, South Korea and the US, titled “Responses to questions regarding national-level databases and an international portal,” which compiles questions that have been asked in the IGC or outside of the IGC on the creation and use of databases for genetic resources and/or TK. The document also compiles answers from different countries: Canada, Japan, Norway, South Africa, South Korea, Sweden, and the US.

Proponents insisted that those proposals were complementary to the negotiations leading to a legal international instrument, and by no means an effort at distracting negotiations, as suggested by some developing countries. Most developing countries that took the floor said ample material is already available and that the IGC should concentrate its energy and its resources at advancing text-based negotiations on the draft articles.

An indigenous representative suggested that field studies on indigenous peoples’ experience be carried out so that it could feed into the IGC discussions and the content of the negotiated articles.

On 31 March, IGC delegates are expected to start a discussion on cross-cutting issues between TCEs and TK.

Interns Julia Fraser and Maëli Astruc contributed to this story.