First Attempt At Bridging Textual Gaps On Traditional Knowledge Protection At WIPO

A new text suggested by facilitators in the ongoing discussions on the protection of traditional knowledge at the World Intellectual Property Organization attempts to tighten options to facilitate further discussions. They focused on the policy objectives of the potential treaty, what it should cover, and who should benefit from it – whether only indigenous peoples or states as well. Separately, Switzerland made a suggestion for a way forward with “positive” protection of TK.

Meanwhile, indigenous peoples might not be able to further attend the WIPO committee working to protect their knowledge, as the voluntary fund supporting their attendance remains dry.

The set of draft articles [pdf] was elaborated after the close of the plenary meeting on 28 November by facilitators appointed by the chair of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), meeting from 28 November-2 December.

The facilitators, Margo Bagley of Mozambique and Ema Hao’uli of New Zealand, presented a set of draft articles on four subjects: policy objectives, subject matter of the instrument, beneficiaries of protection, and administration of rights.

The language of those draft articles comes from earlier draft articles [pdf] inherited from the last session of the IGC (IPW, WIPO, 21 September 2016) and comments from member states during the first day of the meeting this week.

The objective of the week, as explained by IGC Chair Ian Goss of Australia at the opening of the meeting, is to narrow existing gaps, and consider options which could be adopted for an international instrument.

Policy Objectives, Swiss Suggestion for Positive Protection

On policy objectives, the facilitators added a new alternative, based on a Swiss suggestion from the opening of the session. The Swiss delegate suggested that a way forward might be to take the same approach as 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, in particular Article 12.

Article 12 of the Nagoya Protocol (Traditional Knowledge Associated with Genetic Resources) provides that countries take into consideration indigenous and local communities’ customary laws, community protocols and procedures with respect to traditional knowledge associated with genetic resources. Article 12 also includes a benefit-sharing provision.

The Swiss delegate suggested that taking a positive approach, such as in the Nagoya Protocol, focusing on the appropriate use of TK instead of focusing on illegal actions and referring to misappropriation, might be a way forward. That would serve to ensure the appropriate use of TK according to national laws, taking into account customary law, he said. Today in the plenary session, he remarked that this was just an idea, not a formal proposal.

Also under policy objectives, alternative 4 offers a perspective according to which the treaty should contribute toward the protection of innovation to the mutual advantage of holders and users. The United States proposed yesterday to include language saying that the instrument should prevent the erroneous grant of IP rights that are “directly based on protected traditional knowledge obtained by unlawful appropriation.”

This language stems from the US proposal for an Article 3bis (complementary measures), some sessions ago.

Subject Matter of the Instrument

Draft Article 1 on subject matter has been reorganised by the facilitators to avoid repetition. It now contains three alternatives, ranging from a very simple declaration that the instrument applies to traditional knowledge, to a more detailed definition, and the last alternative states criteria for eligibility, including a time limit for this eligibility.

Indigenous peoples, who are expected to be the main beneficiaries of the treaty, have said repeatedly that they do not consider TK as being limited in time.

Several countries remarked that the term of protection was addressed in Article 7 and should not be included in the subject matter of the instrument.

Beneficiaries, Administration of Rights

Article 2 (Beneficiaries of Protection) and Article 5 (Administration of Rights/Interests) both relate to the question of whom the treaty should benefit, and in particular in cases where the TK cannot be attributed to an indigenous community.

Some countries have also remarked that they have no indigenous communities, such as Egypt and China. European Union countries are in favour of having only indigenous peoples and local communities as beneficiaries of the treaty.

The new Article 2 has been reduced to two alternatives, one stating that beneficiaries are indigenous peoples and local communities, holders of protected traditional knowledge, the other including also other beneficiaries as may be determined by national law.

Goss remarked that this morning’s draft articles have no status and do not represent a revision of the original text agreed upon at the last session of the IGC in September.

He also called delegations, going into informal discussions this afternoon, to take the perspective of indigenous peoples.

TK Not a Species of IP, Indigenous Peoples Representative Says

During a panel for indigenous peoples organised during the first day of the IGC, Preston Hardison from the Tulalip Tribes located in Washington state (US) said TK has been brought into the IGC because it has been recognised that the IP system “needs to respond to some narrow areas where traditional knowledge interacts with the system.” However, he said, this does not make TK a species of intellectual property.

The modern IP system separates the tangible and the intangible, and generally thinks of knowledge as a product of the mind, while indigenous peoples have complex systems for regulating the circulation of knowledge, he said.

The copyright and patent systems are designed so that temporary rights are granted in return for the full exhaustion of those rights and the passage of information into the public domain, he said. However, TK is linked with inherent rights, human rights and human dignity in many national and international legal instruments outside of the intellectual property system, he remarked. He called for an instrument which respects the diverse way in which TK systems are treated.

At the opening of the session, WIPO Director General Francis Gurry, Goss, and some indigenous peoples remarked on the urgent need to replenish the voluntary funds allowing for indigenous peoples to attend the IGC.

 

Image Credits: WIPO