Shared Experiences Of Indigenous Peoples In The WIPO Negotiating Process

Members of indigenous communities this week shared their experiences in negotiating for their rights at the World Intellectual Property Organization and gave their advice on negotiations for potential treaties on genetic resources, traditional knowledge and folklore.

A panel was held at the outset of this week’s WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), entitled “IGC Draft Articles on the Protection of Traditional Knowledge: Indigenous Peoples’ and Local Communities’ Perspectives.”

The keynote speaker and two respondents, each members of local indigenous communities, shared their experiences of negotiating indigenous people’s rights and gave their advice on the negotiation processes of the IGC draft articles [pdf].

Huinca Pictrin of the Mapuche community in Chile chaired the panel.

The keynote speaker was Laila Susanne Vars, member of the Sámi People in Norway and of the Sámi Parliament, negotiator on the UN Declaration on the Rights of Indigenous Peoples, and director of Gáldu – Resource Centre for Rights of Indigenous Peoples in Norway. She shared some examples of traditional knowledge by her community: the Sámi people. Vars also shared some of her experiences in negotiation of what works and what does not and how transboundary cooperation can inform the discussions at the IGC.

Vars gave example cases of the misuse of their traditional knowledge in her presentation. Fake Sámi dresses have been made, hats worn incorrectly and constructions such as the Sámi house, Lavvu, have been copied for commercial purposes with no regard for traditional rules as to use and layout.

Vars pointed to one of the greatest challenges, which is lack of knowledge and the people who hold this knowledge do not have the resources to distribute their knowledge to wider society. Likewise, often indigenous communities do not have much knowledge about the international legal system, she said.

Vars recommended, “When it comes to traditional knowledge, you need to take the indigenous communities along in the process and ask them what kind of protection do they actually need.” In Vars’ view, to reach a common understanding there is a need to sit down and discuss what is actually trying to be produced and why there is the need to protect traditional knowledge.

Simultaneously, strengths of indigenous peoples should be taken into account. Indigenous people have their own institutions and organisations, as well as traditional knowledge systems and legal systems.

With regards to the draft articles by the IGC, Vars made several comments and recommendations. For example, the IGC should look at the preamble as an important indication of scope, include a non-diminishing clause on the rights of indigenous people and uphold a strict application of former prior informed consent upon the assignment of a national custodian, she said.

Respondent Jennifer Tauli Corpuz, member of Kankana-ey Igorot People of Mountain Province in the Philippines and legal coordinator of the Tebtebba – Indigenous Peoples’ International Center for Policy Research and Education, described the context for indigenous peoples and communities in the Philippines, with at least 110 ethnolinguistic groups spread throughout the archipelago.

On the national level of protection of traditional knowledge, Corpuz set out the surrounding policy, laws and legal acts, which are based on the United Nations Declaration on the Rights of Indigenous Peoples. The Intellectual Property Office of the Philippines (IPOPHL) and the National Commission on Indigenous Peoples Administrative Order gives the scope for examination and registration on IP applications that use indigenous traditional knowledge, including mandatory disclosure requirements outlined Corpuz.

Regarding the IGC draft articles’ policy objectives, Corpuz put forward that indispensable objectives, which could be further streamlined, are the prevention of misappropriation, the promotion of equitable distribution of benefits and the prevention of granting erroneous intellectual property rights, not just patents.

Jim Walker, member of the Iman and Goreng Goreng Peoples in central Queensland, Australia, the Board of Directors of the Murri Mura Aboriginal Corporation and of the Foundation for Aboriginal and Islander Research, commented on the draft articles.

In agreement with Vars and Corpuz, Walker put forward that traditional knowledge is a lot more than the definition included in the instrument. “That depth of what it means to us is an important basis of why we will discuss/argue points of view in and around its protection,” he said.

In particular, Walker expressed strong disagreement with a footnote under Article 2, where if a member state’s constitution did not recognise indigenous or local communities, it may act as a beneficiary with regards to the traditional knowledge. For a constitution not to recognise indigenous people, does not mean they fail to exist in Walker’s view and he urged this footnote to be rethought.

In going through each article of the IGC draft document, Walker also contended that governance and ownership by indigenous peoples themselves is required. Depth of knowledge is needed to be held in national IP offices as well, he added.

Lastly, traditional knowledge, as well as its commercial value for the economic and social development of indigenous communities should be protected, not just the status quo, according to Walker.

Later in the discussions, Corpuz added that the beneficiaries should always be indigenous people and local communities, not the state, as this is a legal construct that does not create knowledge.

Alexandra Nightingale is a researcher at Intellectual Property Watch. She completed her Bachelors in Law at the University of Sussex and holds an LLM degree in International Law from the School of Oriental and African Studies in London. During her Masters, she developed a strong interest in Intellectual Property, particularly patents and the aspects relating to global health. Her research interests now also include geographical indications and trademarks.

 

Image Credits: WIPO