After Two-Year Hiatus, WIPO Resumes Discussions On Protecting Traditional Knowledge

How can traditional knowledge be protected against misappropriation and who should benefit from this protection is at the heart of discussions at the World Intellectual Property Organization this week. After over a two-year hiatus, WIPO delegates are resuming discussions this week on a potential treaty protecting traditional knowledge. The week’s focus is to find common understanding of core issues, such as the definition of traditional knowledge, and the scope of protection.

The 31^st session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore is taking place from 19-23 September.

WIPO Director General Francis Gurry called for flexibility and pragmatism to reach common understanding, and for countries to help replenish the Voluntary Fund, which allows the participation of indigenous and local communities’ representatives in the IGC, and has been depleted for several years.

IGC Chair Ian Goss of Australia issued a few weeks ago an information note [pdf] for delegates which provided: key elements of the 2016-2017 IGC mandate as established by the WIPO General Assembly in October 2015; a summary of core issues; as well as a summary of the work undertaken by the IGC on TK since text-based negotiations begun in 2010.

Goss said one of the objectives of this session is to draft a list of outstanding issues to be tackled in the 32^nd session of the IGC, from 28 November to 2 December.

He also provided a methodology, according to which discussions are expected to start in formal setting this afternoon, to be continued in informal sessions if needed. He envisages a first revision of the draft treaty text on 21 September and a second revision on 23 September.

According to the chair’s document, the IGC mandate instructs delegations to focus on narrowing existing gaps, and points of view, with the objective of reaching an agreement on an international legal instrument(s) relating to intellectual property, which will ensure the balanced and effective protection of genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs).

The work programme of the IGC is divided between those three subject matters. The 31^st and 32^nd session of the IGC are focused on TK.

Core Issues, Definitions, Scope, Beneficiaries

The issue of protecting GRs, TK and TCEs from misappropriation and misuse was pushed by developing countries. Some developed countries have been seen by developing countries as trying to delay negotiations on a treaty or treaties. Developed countries have been saying that such a treaty should be considered in the current IP international framework, and needs robust clarity so as not to come in the way of innovation and creativity.

One of the core issues on which delegates are expected to focus this week is objectives – what the treaty or any other form of instrument should do.

A number of objectives have been identified in the draft text [pdf] on which delegates started working in 2010, according to the chair’s document. This includes that the instrument should prevent the misappropriation and inequitable uses of TK, enable beneficiaries to control ways in which their TK is used beyond the traditional and customary context, and the instrument should promote the equitable sharing of benefits arising from their use with prior informed consent.

Other core issues concern who should benefit from a treaty protecting TK; the subject matter of the treaty, and the criteria of eligibility for protection.

The scope of protection is also expected to be discussed this week. In 2014, a notion of “tiered approach” was introduced with some success (IPW, WIPO, 7 April 2014). According to the chair’s document, a tiered approach to scope of protection would allow different kinds or levels of rights or measures that would be available to rights holders depending on the nature and characteristics of the TK, the level of control retained by the beneficiaries, and its degree of diffusion.

“This approach suggests that exclusive economic rights could be appropriate for some forms of TK (for instance, secret TK, and TK uniquely attributable to specific indigenous peoples and local communities), whereas a moral rights-based model could, for example, be appropriate for TK that is disclosed, already publicly available but still attributable to specific indigenous peoples and local communities,” says the chair’s document.

Also expected to be discussed as core issues are limitations and exceptions to the protection provided by the treaty, and the relationship of such instrument with the public domain. Defining what is the public domain, and what constitutes misappropriation, are also on the delegates’ plate this week.

Goss said delegates would be expected to work on those core issues, and proposals made during this session, between the 31st and 32^nd session of the IGC, both devoted to TK. There is a need to rationalise draft articles, he said, underlining the need to make progress.

Developing countries insisted again on the need to have a treaty, such as the Asia and Pacific Group, the African Group, the Group of Latin American and Caribbean Countries (GRULAC), China, and the Like-Minded Countries.

Developed countries agreed to work on narrowing gaps and continue discussions, keeping in mind the “unique” nature of the subject.

The European Union suggested a study [pdf] on national experiences, as submitted in a document to be tabled this week. “The study should focus on recently adopted legislation and initiatives on TK in general in the Member States of WIPO or regional areas,” said the document.

 

Image Credits: WIPO