WIPO Members Consider Future Of Committee On Traditional Knowledge, Folklore

The fate of the World Intellectual Property Organization committee addressing misappropriation of the cultural heritage of indigenous peoples will be decided by the annual WIPO General Assembly in October. But the committee this week is expected to provide recommendations on its future work, on the renewal of its mandate, and whether work accomplished over the last two years can lead to a high-level negotiation on one or several treaties giving indigenous peoples increased rights over their culture. 

The 34^th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 12-16 June.

WIPO headquarters

The IGC is expected to pursue work on the protection of traditional cultural expressions (TCEs or folklore), and to take stock of progress and find agreement on the fate of the committee, and in particular the possibility to convene a high-level meeting (diplomatic conference) in the next two years, as its mandate ends in October.

Countries are trying to escape the unfortunate situation in 2014, when the IGC had to be suspended for a year, because member states could not agree on the work programme of the committee.

IGC Chair Ian Goss, from Australia, prepared two information notes for this session, plus one procedural one about methodology.

One of the two primary information notes is an informal document [pdf] with an informational purpose only, as Goss underlined, that describes progress made in the last two years, and options for the IGC future work.

The IGC deals with three separate topics: TCEs, genetic resources (GR), and traditional knowledge (TK). For GR, one of the options suggested in the chair’s document is to continue negotiations around the current working texts in the attempt to find a single approach, which could be brought to a conclusion at a diplomatic conference.

For TK and TCEs, one of the options is to continue negotiations around the working text with the aim of reaching a consensus on core issues and the nature of the instrument.

Solutions include the mention that positions might not change, and it might be possible that a way forward would start with non-normative solutions.

Standing Committee, Treaty Are Open Questions

The IGC is a committee originally set up at the request of developing countries. Some developed countries, such as the European Union countries, and the United States, have been reluctant to engage in negotiations leading to binding international instruments to protect GRs, TK and TCEs. Some of the developed countries have advocated for a robust public domain, and argued that many types of traditional knowledge has been used for a long time and may now be considered as generic.

In opening statements today, some regional groups underlined the necessity of one or several treaties, such as most of the members of the Asia and Pacific Group, the African Group – which also requested that the IGC becomes a standing WIPO committee -, the Group of Latin American and Caribbean countries (GRULAC), and the group of Like-Minded Countries (LMCs). LMCs include countries from the African Group, the Asia and Pacific Group and GRULAC.

The Group of Central European and Baltic States insisted on the current lack of common understanding of the issues at stake in the framework of WIPO, and the necessity of “realistic” outcomes. Group B developed countries concurred. Group B as well as the European Union highlighted the need for legal certainty and an evidence-based approach to the issues, through the sharing of national experiences and initiatives.

The EU also underlined that TCEs may be protected through existing IP mechanisms, such as copyright, trademarks and geographical indications.

Changing Winds?

The African Group used to be the main demandeur of the IGC becoming a standing WIPO committee. But now other groups might join, according to sources.

For example, Brazil would not oppose a standing WIPO committee, and some members of the Asia and Pacific Group would also be supportive of it, the sources said.

The general reluctance of Group B for one or several binding instruments has met with softened positions by countries such as Switzerland, Australia, and New Zealand.

What seems to be a change in Canadian politics, with Canada apparently engaging in a reconciliation process with its three categories of indigenous peoples: Inuit, First Nations, and the Métis Nation, might also bring a different voice to the general line of Group B.

In December, Canadian Prime Minister Justin Trudeau delivered a statement on advances made in the reconciliation with indigenous peoples.

According to the Canadian government, Section 67 of the Canadian Human Rights Act prevented First Nations people from getting full access to human rights protection. In 2008 the legislation was repealed, allowing First Nations individuals to make complaints of discrimination to the Canadian Human Rights Commission.

TCEs Text Work This Week

The second document [pdf] by the IGC chair details past TCEs discussions, and more specifically on core elements on which countries have to find consensus. Those core elements are the policy objectives, the subject matter, and the scope of protection of a potential treaty, as well as who would benefit from it.

Also considered as core elements are exceptions and limitations to the rights bestowed upon TCE owners, the relationship with the public domain, and the definition of misappropriation.

IGC members this week are expected to work from draft articles [pdf], last edited at the 32^nd session of the IGC in November 2016.

Image Credits: Catherine Saez