Indigenous Peoples: WIPO Should Reflect Changing World Order

The World Intellectual Property Organization committee on genetic resources and traditional knowledge routinely holds an indigenous panel during the first day of its meeting. This week, several of the panellists called for delegates working on potential treaties to consider the particular status of indigenous peoples.

The indigenous panel was held in the context of the 28th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The IGC has been working for years on drafting international instruments that would prevent the misappropriation of genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs, or folklore).

Dalee Sambo Dorough, chair of the United Nations Permanent Forum on Indigenous Issues, did not mince words at the panel.

In her statement [pdf], she underlined the right to culture and cultural heritage of indigenous peoples. She also gave her perspective on the outstanding issue “concerning the necessary normative framework that should be operationalised” in the context of the IGC’s efforts to agree on text(s) “that genuinely recognise and respect the status and human rights of indigenous peoples.”

Sambo Dorough cited Article 31 of the UN Declaration on the Rights of Indigenous Peoples [pdf] as “the main provision addressing indigenous cultural heritage.”

A number of scholars, she said, “have carefully reviewed the question of the status of the UN Declaration,” and have concluded that although the whole of the UN Declaration cannot be considered binding, “they assert that some of its fundamental provisions correspond to ‘established principles of general international law’ and as such create legally binding international obligations that states are bound to uphold.”

Human Rights over Business Interests

“Though states and the corresponding interests of pharmaceuticals, multinational corporations and others have been primarily focused upon their interests throughout these discussions, the ‘political, moral, and legal imperative’ for all should be acutely focused upon upholding international obligations related to the human rights of Indigenous peoples, including our rights to culture, our cultural heritage, and ultimately our identity as distinct peoples,” she said.

She illustrated the “emerging trend for the international community” to ensure that businesses, corporations and financial systems take into account human rights, as reflected by the recent Human Rights Council decision to establish an open-ended intergovernmental working group on a legally binding instrument on transnational corporations with respect to human rights.

She called for “emerging treaties” from WIPO on IP and TK to “anticipate this changing world order on international trade.”

“Rather than attempting to fit indigenous peoples into the copyright, patent, trademark, trade, and industrial design rules, policies, and laws,” WIPO should develop an innovative regime that properly safeguards indigenous peoples cultural heritage, cultural rights and identity, she said. This regime would not exclude indigenous peoples from the current IP system, she added.

As concluding words, she addressed a number of question to the plenary, such as, “Will the language safeguard indigenous peoples’ cultural rights and all their manifestations from misappropriation?,” and ” Will indigenous peoples, nations and communities be able to fully control, protect and develop their intellectual property consistent with their own conception of the right to development? ”

GR, TK and TCEs a Whole, Holistic International Approach Needed

Marcial Arias, policy advisor for the Asociación Kunas Unidos por Napguana, Panama, said that the analysis of cross-cutting issues should consider some general principles, such as the right to self determination and prior and free consent of indigenous peoples. He said GRs,TK and TCEs cannot be treated separately as they constitute a whole.

Arias also raised concerns about cross-cutting issues. He outlined differences in interpretations that indigenous and non-indigenous peoples can have on definitions, which can lead to discrimination. On the question of public domain, he said there is a need to find a balanced term, without “encroaching upon the rights to traditional knowledge of indigenous people.”

Discussions in the IGC are key and should be harmonised with discussions in other fora to avoid any contradiction, said Lucy Mulenkei, executive director of the Indigenous Information Network (IIN) in Kenya.

When talking about cross-cutting issues, it is also important to look at regional instruments, she said, taking the example of the African Regional Intellectual Property Organisation (ARIPO) which “brought up quite good recommendations we can put on the table to move forward.”

It is important that this process extends to the ground to reach indigenous communities,“as they move on to the globalised world where genetic resources become a trade and we really need to make sure they know how to protect their own resources,” she said.

The financial support is important not only for the participation of indigenous peoples but also to set up some crucial ground activities, she added.