WIPO Seminar Looks At Protection Of TK, Genetic Resources Across Borders

Keen on maintaining momentum in the discussions on the protection of traditional knowledge and genetic resources, while the normative agenda on the issue is suspended, the World Intellectual Property Organization is holding a seminar on the subject this week.

This is the second seminar on intellectual property and genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs – or folklore), taking place from 23-25 June. It is focussed on regional and international dimensions. The first seminar focused on regional, national and local experiences and took place from 30 March – 1 April (IPW, WIPO, 8 April 2015).

According to WIPO Director General Francis Gurry, addressing the event at UN headquarters from a video message, the seminars are complementary to the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

The IGC is not meeting this year due to irreconcilable differences on its work programme at the last WIPO General Assembly. The next Assembly in October is expected to make a decision on renewing the mandate of the IGC and agree on its future work.

According to the seminar programme [pdf], issues to be addressed by four roundtables are: cross-border protection of IP and its relevance to the protection of TK and TCEs; regional and international experiences: transboundary (“shared”) GRs, TK and TCEs; an overview of other relevant international instruments; and a roundtable on collections, registers and databases relating to GRs, TK and TCEs: Issues and practical experiences.

Speakers at the roundtables came from the academic, indigenous community, international organisations such as the Convention on Biological Diversity and The United Nations Educational, Scientific and Cultural Organization, government representatives, and IP offices.

Gurry remarked on the contributions of the governments of Australia and Switzerland to the seminar. Australia contributed some Australian $100,000 to facilitate two seminars, and the Swiss Federal Institute of Intellectual Property (IPI) contributed CHF 60,000 to make it possible “for around 15 indigenous people to participate” in the seminar this week, according to a press release [pdf].

Two Schools of Thoughts on Protection

Prof. William Fisher, Wilmer Hale professor of intellectual property law at Harvard Law School, said there are two opposing perspectives on the way to protect the unauthorised use of GRs, TK and TCEs. Some are of the opinion that tighter rules should be implemented by governments, and say for example that stronger protection would provide an incentive to current indigenous groups to preserve and disseminate their knowledge.

Those opposed to stronger protection say, for example, that cultural expression is not stable and culture is and should be ever-changing, and restriction would impair the evolution of culture, according to Fisher. This group also says that everyone benefits from some use of TK and GRs, in particular when they bring solutions to modern problems such as medical problems.

According to Prof. Susy Frankel, from Victoria University of Wellington, New Zealand, protection of GRs, TK and TCEs can be achieved through national treatment. The rationales and goals of national treatment include economic and cultural justifications, such as assimilating foreign works and owners into the national system and creating an even playing field.

One alternative to national treatment, she said, is material reciprocity in which a state agrees to extend to foreign nationals the same legal rights that the foreign government extends to its own citizens inside its state. However, this is not the preferred approach of international IP, and is not widely used she added.

Mutual recognition between IP offices might also be used for examination, she said. Combining national treatment and mutual recognition can be useful as mutual recognition allows foreign standards to be recognised in national systems.

Cross-Border Protection Difficult

For Prof. Margo Bagley of the University of Virginia School of Law, a technical expert to the government of Mozambique, national treatment enables IP owners to take advantage of national IP protection laws around the world.

National treatment and other cross-border protection facilitation tools tend to work “relatively well” for holders of conventional IP rights. However, while holders of GRs, TK and TCEs may have the same general goal of protecting their work, “they are generally unable to effectively make use of cross-border IP protection tools for their work due to a dearth of national laws,” she said.

Mutual recognition tends to be rare in patent law, according to Bagley. However, unilateral recognition of rights is less rare, she said. Unilateral recognition consists of validating rights in a second jurisdiction that have been granted by a first jurisdiction that does not recognise the rights that are granted in the second jurisdiction, she explained. This is an old concept now being used at the regional level, such as the European Union, she said.

Nagoya Protocol, Game Changer

According to Bagley, the 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, which entered into force on 12 October 2014, could be a game changer.

The Nagoya Protocol is not an IP treaty, she said, and is not under WIPO, but many WIPO member states are also party to the CBD and/or the Nagoya Protocol and will be implementing over time. An IP office is a logical Nagoya Protocol compliance checkpoint in particular in countries with legislation including a disclosure of origin requirement for patent applicants, she said.

The Nagoya Protocol requests that countries provide compliance checkpoints and to provide that GRs utilised within their jurisdiction have been accessed in accordance with domestic prior informed consent and benefit-sharing rules of another party, and to cooperate in case another party domestic access and benefit sharing legislation has been violated, she said.

Cross-border cooperation against non-compliance with national GRs and TK laws can affect denial or granting or patent rights, she added.

The existence of national disclosure requirements in an increasing number of countries implementing the Nagoya Protocol could act as a deterrent to non-compliance with national laws, she said. The current interplay between IP, GRs, TK, and prior informed consent and access and benefit sharing is likely to increase with the implementation of the Nagoya Protocol, she said.

An international instrument for the protection of GRs, TK and TCEs developed by WIPO IGC would facilitate the development of national protection legislations and make cross-border tools more relevant, she noted.

Beyoncé Sued Over Roma Singer Alleged Use of Voice

In the area of TCEs, Péter Munkácsi, senior adviser, Department for Codification of Competition, Consumer Protection and Intellectual Property at the Hungarian Ministry of Justice, remarked on a lawsuit brought by Hungarian Roma singer Mitsou (Mónika Juhász Miczura) against blockbuster singer Beyoncé.

The American singer allegedly used Mitsou’s voice in her single “Drunk in Love.” The decision is still pending, he said.

He said there is a need for a widely accepted definition of TCEs, arguing that TCEs still face a “global protection challenge.”

 

Image Credits: Flickr – Brodle Guy