WIPO Seminar Displays National Efforts To Protect TK, Folklore

A recent seminar convened by the World Intellectual Property Organization shed light on national and regional legislations protecting traditional knowledge, folklore and genetic resources, and provided examples of misappropriation. WIPO has a committee dealing with these issues but disagreement among members on its work programme prevented the organisation from organising any meeting of the committee so far this year. [Note: Article 1 of 2]

The Seminar on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions: Regional, National and Local Experiences, took place from 30 March – 1 April.

The programme [pdf] featured four roundtables: Experiences with Regional and National Systems for the Protection of Traditional Knowledge and Traditional Cultural Expressions; Commercial and Non-Commercial Uses of Traditional Knowledge and Traditional Cultural Expressions – Examples and Lessons learned; Regional, National and Local Experiences with the Meaning and Relevance of the “Public Domain” in the Context of Traditional Knowledge and Traditional Cultural Expressions; and National Experiences with Disclosure Requirements related to Genetic Resources and Associated Traditional Knowledge.

WIPO Director General Francis Gurry said at the outset that the seminar was a timely event and sought to encourage an exchange experiences of treatment of traditional knowledge (TK), traditional cultural expressions (TCEs) and intellectual property related to genetic resources (GR) at the national, local and regional level.

“This is an extremely important part of the programme of the organisation,” said Gurry. The director general expressed gratitude to the government of Australia for funding in support of the seminar. The Australian government contributed some Australian$100,000 to facilitate two seminars, he said. The second seminar is expected to take place on 23-25th June.

In his opening address, Justice Joseph Williams of the High Court of New Zealand spoke on “facing WIPO and the world.” The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is “at a delicate point,” he said. The seminar was an opportunity to take stock, evaluate why the subject is important in the world legal order, and why movement is required, he said.

Misappropriation of TK, GR Cited; Industry Defends a Case

Several speakers mentioned cases of misappropriation of TK. Williams gave the example of the New Zealand “All Blacks” rugby team using “Ka Mate,” a traditional Maori haka from the Ngāti Toa tribe. Until five years ago, the world-renowned team did not ask permission for the use of this haka, Williams said. And no benefits came to the Maori people after their permission was granted to use their knowledge.

Terri Janke, solicitor director, Terri Janke & Company Pty Ltd, Australia presented the case of a hotel in Poland that used aboriginal art on carpets, table tops and glass windows, and did not want to attribute the connection with aboriginal art. The hotel designers found there was no infringement since the design was in the public domain, she said.

She also cited the Parisian Musée du Quai Branly, which contrary to the Polish hotel displays aboriginal art as part of its structure but worked with the Australia Council for the Arts and local communities.

James Anaya, professor, University of Arizona College of Law (US), gave several examples of misappropriation of indigenous names and images, such as the “Jeep Cherokee”, with the name “Cherokee” registered in some 90 trademarks, the word “Navajo” in some 30 trademarks, and “Apache” also in a number of registered products.

Manisha Desai, assistant general patent counsel, Eli Lilly and Company, commented on a case involving Eli Lily drugs launched in the 1950s, which some alleged was a classic case of biopiracy, depriving Madagascar of benefit-sharing.

The example relates to two oncology drugs for childhood leukaemia and the use of periwinkle. The plant species is widespread around the world, Desai said and the first scientific research conducted in the 1920s looked at anti-diabetic properties of the plant. The late 1950s research found the plant useful in treatment of cancer. No reference was made to Madagascar (which was allegedly deprived of benefit-sharing) in research publications or documents, she said. The development of periwinkle drugs for cancer was unrelated to any traditional uses or prior scientific studies which focused on diabetes, she said.

National, Regional Legislation

A number of speakers presented their national legislation protecting TK and TCEs.

Manuel Ruiz Muller, director and principal researcher of the International Affairs and Biodiversity Program at the Peruvian Society for Environmental Law, said that in 2002, Law 27811 [pdf in Spanish] protecting the collective knowledge of indigenous peoples related to biodiversity was enacted.

The law provides protection against unfair “revelation” and access to TK without the informed consent of indigenous peoples, unless the knowledge is in the public domain, he said in his presentation [pdf]. Indigenous peoples can negotiate licence agreements for access and use of their TK, he added.

No less than 10 percent of sales of products derived from the TK is to be given to the Indigenous Peoples Development Fund, although parties may decide on a higher percentage, he said.

Marcus Goffe, manager, Trademarks, Designs and Geographical Indications Directorate at the Jamaica Intellectual Property Office, talked about a proposed regional framework for the protection of GR, TK and TCEs in the Caribbean region. In his presentation [pdf], he said the draft law aims to protect the rights of states, indigenous peoples and local communities over their GR, TK and TCEs and to encourage tradition-based creativity and innovation.

The proposed legislation is a basis for Caribbean countries to enact legislation for the protection of GR, TK and TCEs, he said. The draft legislation is expected to be submitted to the Caribbean Community and Common Market (CARICOM) for review and comments, and further presented to CARICOM IP ministers in 2015, he said.

There are eight indigenous peoples in Panama, Zoraida Rodriguez, deputy permanent representative at the Permanent Mission of Panama to the WTO, said in her presentation [pdf]. The legal framework defining a special IP regime on collective rights of indigenous peoples for the protection of their cultural identity and TK is Law 20 of 26 June 2000, and Decree 12 of 20 March 2011.

The scope of the framework is the recognition of collective rights of musical instruments, music, dances, oral and written expressions contained in their traditions; traditional arts and techniques, she said. The framework identified some 77 objects eligible for protection. However, only 10 objects out of the 77 have been registered so far, she explained.

There is a need for more active participation of indigenous groups and to promote greater use of the law, she concluded.

Romania, Finland

Christian Florescu, head of the International Relations and Projects Department at the Romanian Copyright Office, said in his presentation [pdf] that the national legislation does not give a definition of TK. However, a provision on disclosure requirement was introduced in the law but is not mandatory

Anna Vuopala, government counsellor, Department of Culture and Art Policy, Copyright Policy and Economy of Culture, Ministry of Education and Culture, Finland, talked about [pdf] the Sami people of Finland. Some 10,000 Sami people are currently living in Finland, with cultural autonomy regarding their language and culture.

Finland is working on its national implementation of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD), and the European Union regulation on GRs. The government has been working on a draft bill which she said will not be an IP solution. Any IP instrument should be dealt with at the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), she said.

Thailand, Pacific Islands

In Thailand, there is no sui generis system for protecting TK and TCEs, said Sudkhet Boriboonsri, counsellor, Permanent Mission of Thailand to the WTO. In his address [pdf], he said certain TK and TCEs are protected under specific laws. For example, the Protection and Promotion of Thai Traditional Medicine Intelligence Act B.E. 2542, the Archaeological Sites, Artifacts, Artistic Objects and National Museum Act B.E. 2504 (Amendment No. 2 in B.E. 2535), and the draft Intangible Cultural Heritage Act.

Thailand also seeks to promote TK-based and GI products, he said, and encourages the registration of GI products in the country and outside the country.

Mere Falemaka, Permanent Representative of the Pacific Islands Forum to the WTO, presented [pdf] model laws developed by the Pacific Islands Forum. The Pacific Islands Forum is a political grouping of 16 independent and self-governing states, she said (Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu). The primary goal of the Pacific Islands Forum is to provide policy advice to its members, she said.

Model laws were developed in response to calls from members to protect culture, TK and GR in the face of increasing exploitation and inappropriate commercialisation of the Pacific Islands expression of culture and GR, with no economic benefits.

Two model laws were developed in 2002, she said: Model Law on TK and expression of culture (EC) and Model Law on TK, biological resources, innovations and practices.

The policy objective of the model laws is “to protect the rights of traditional owners in their TK and EC … and permit tradition-based creativity and innovation, including commercialisation, subject to prior informed consent and benefit sharing,” she said.

Individual countries are free to adopt and/or adapt the provisions as they see fit in accordance with national needs, she said. She also stressed the importance of an international legal framework, in particular for small nations without the economic strength to negotiate.

United States, Africa

Karin Ferriter, intellectual property attaché, Permanent Mission of the United States to the WTO, said in her presentation [pdf] that there is a large number of communities in the US. Native Americans and Alaskans represent over 6 million people, while native Hawaiians and other Pacific islanders represent over 1 million people, she said, and there are 566 federally recognised tribes.

The United States Patent and Trademark Office hosts a database of Native American Tribal Insignia, she mentioned. The database includes the official insignia of federally and state-recognised Native American tribes, and is available for trademark examiners to use.

She also cited the US Indian Arts and Crafts Act of 1990. According to the US Department of the Interior, the Act prohibits misrepresentation in marketing of Indian arts and crafts products within the US. She underlined the importance of learning from national and regional experiences to make some progress at the IGC.

Emmanuel Sackey, chief examiner at the African Regional Intellectual Property Organization (ARIPO), underlined [pdf] the “extensive misappropriation and bio-piracy” occurring in Africa and the inadequacy of the conventional IP system to provide effective protection for TK and TCEs. In particular, he said the direct protection via copyright and industrial property presents several issues linked to duration, management of shared TK and TCEs, criteria of patentability, and administrative cost, and it does not take into account the holistic nature of African TK and TCEs.

Sackey said effective protection of TK and TCEs should be done through a bundle of rights approach and the limited use of the conventional IP system. He mentioned the positive protection offered by the Swakopmund Protocol on the Protection of Traditional Knowledge and Expression of Folklore, and its defensive approach.

[This is article 1 of 2. The second article is available here.]

Image Credits: Flickr – Jun – Judy Napangardi Watson – Warlpiri people – Alice Springs region – Australia – Pitt Rivers Museum