Where There Is A Will There Is A Way: Speakers At WIPO Event Discuss Indigenous Knowledge Protection

An event held on the side of the World Intellectual Property Organization committee on traditional knowledge meeting last week looked at ways to move discussions forward in the light of the committee’s expected renewed mandate. Speakers explored different perspectives and possible new avenues for indigenous and local communities to protect and manage their knowledge and cultural heritage, without the threat of misappropriation.

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

A side event to the IGC was organised by the Centre for International Governance Innovation (CIGI) on 14 June, entitled “Charting the Future: Global Knowledge Assets and the IGC.”

Oonagh Fitzgerald, head of the CIGI International Law Research Program, who chaired the event, presented CIGI as a non-partisan, independent think tank, based in Ontario, Canada. CIGI has been in existence since 2001, she said, and since 2014, an international law research programme has been established. A main focus of that programme is intellectual property law, and along with economic law, and environmental law.

Indonesian Amb. Michael Tene, deputy permanent representative and vice-chair of the IGC, underlined the importance of the IGC subjects for many local communities. He said traditional-based knowledge and cultural expression developed over hundreds of years, long before the intellectual property system was established.

Indigenous communities need better recognition of their moral and economic rights over genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs, or folklore). If the current international IP system facilitates the grant and enforcement of exclusive rights, he said, it does not provide sufficient safeguards against misappropriation and misuse of GRs, TK and TCEs.

The system also allows the grant of patents and other types of IP rights that fail to meet the requirement of novelty and inventiveness normally required to obtain a patent, he said.

He underlined the importance of the upcoming WIPO annual General Assembly (from 2-11 October) in defining the next IGC mandate (on 16 June, the IGC recommended to the General Assembly that it continue its work in the next biennium – 2018/2019) (IPW, WIPO, 19 June 2017).

For the next General Assembly “we need to really focus on what can be delivered realistically and be more creative on how to move the process forward on the three issues within the IGCs,” he said. “We need to recognise that different progress has been made in different areas…. We cannot simply work under the least common denominator.”

Tene also advised that the IGC demanders do their “homework” between IGC sessions, in particular at the national level, with various stakeholders, adding that work done during the IGC sessions is not enough to move forward. He explained that the IGC demanders are seeking a legally binding solution that is workable. The new international instruments should set new minimum international standards for the protection of TK, TCEs and GR.

Digital Technology, ‘Speed Dating’

While the IGC was negotiating solutions over the last 18 years, “the world changed dramatically,” said Kim Connolly-Stone, from the New Zealand Ministry of Business, Innovation and Employment, and former lead facilitator of the IGC on TCEs.

With the rise of digital technology, the sharing and posting of material, the IP system, and in particular copyright has been struggling to keep up, she said.

Designers are finding “fabulous images” on Google, and do not even realise that those pictures represent TCEs, she said she had been told by indigenous representatives. She added that issues which stemmed out of the digital revolution are an opportunity for the IGC to consider those behavioural changes.

As a policy analyst, she said “you can have legal norms until the cows come home, but if people don’t buy into what you are trying to achieve,” those legal norms will be of little use.

She suggested that member states actively engage with industry associations, advertisers, programmers, and designers. There must also be opportunities to engage with entities, such as Google, Facebook and YouTube to see what they can to do to educate the people, she added.

Progress is limited if participants do not fully understand the issues at the IGC, she said, which complicated the quest for common ground and makes it difficult to get delegations off their positions. Participants in the IGC change often, she said, adding they are often too busy to look thoroughly through the material and sometime do not fully appreciate what is at stake. “It is easier to say no than to say yes,” she added.

To remedy some of those issues, she suggested some solutions, including the concept of co-design. Co-design is usually understood as an attempt to involve all stakeholders in the design process, and in what she said was a “slightly crazy idea,” she mentioned “IGC speed-dating,” so people understand each other better.

Indigenous People Seek Equity

Indigenous peoples are a unique group, which have often been around for a long time, with unbroken governance, who have their own ways of doing things, and want to maintain this uniqueness, Preston Hardison of the Office of Treaty Rights, Tulalip Tribes, said.

On the other hand, he went on, they also need to change and adapt to change, such as modification in their social, and political environment.

The issue that indigenous peoples face is that the normal concept of fairness in the IP system, developed in the idea of benefit-sharing can actually create problems for them, he said.

Indigenous peoples and local communities are often minorities and they are looking for equity, he said, adding that “being a minority, they can be exposed to the tyranny of the majority.”

“Minorities are not necessarily protected in democracies,” he said.

One of the issues in many international agreements is the issue of non-retrospectivity versus restorative justice, Hardison explained. If the IGC delivered a legally binding instrument, that instrument would only concern unrevealed TK and TCEs at the time of the entry into force of that instrument, he added. However, indigenous peoples customs and culture had not really been respected in many legal systems for a very long time, he said.

The question is how those historical injustices are going to be redressed, he said.

“When we started [discussions] we had this idea of a sui generis regime within the IPR regime,” he said but whatever instruments comes out of the IGC negotiations, they have to respect all the other legal international rules that countries have adopted.

Brazilian Experience

Daniel Pinto, IP Division of the Brazilian Ministry of Foreign Relations, said the bottom line is that Brazil cannot imagine WIPO without the IGC, as it is a question of legitimacy. He described the Brazilian legislation protecting the country’s biodiversity.

In 1998, the new Brazilian constitution included rights for indigenous peoples, and that led many people who were registered as “whites”, to acknowledge their true ethnicity origin. As a result, an estimated 1 million indigenous peoples are living in Brazil today, he said

Brazil adopted a provisional act in 2001 (2.186/2001 on Genetic Heritage & Traditional Knowledge), which was enacted for 15 years, and aimed at preventing “at all costs” the unfair access to GR or associated TK.

However, the stringency of the provisional act deterred efforts from genuine researchers and good-faith enterprises to access resources in Brazil. It was then estimated that Brazil was losing some US$5 billion a year by not making better use of its biodiversity, “everybody lost,” he said.

After all stakeholders were consulted, in 2015, a new regulatory framework was agreed upon, which is the law in force today, he said, adding that the process to access GR is now much faster, and much more harmonised with the Brazilian innovation system.

The mandatory disclosure requirement is still in this new law, and the industrial property office in Brazil is the check point, he said, explaining that patent requests must display the disclosure of the origin and the access and benefit sharing arrangements.

The Genetic Heritage Council is today much more representative than it was, and a permanent participation of indigenous peoples and traditional communities, he said.

Pinto underlined the need to also consider synthetic biology when talking about biopiracy.

TK Ancestor of Modern Science

TK is the oldest from of knowledge and existed before any IP system, said Chichi Umesi of the Nigerian Ministry of Foreign Affairs, and former chair of the Africa Group.

This ancestral knowledge provided solutions before modern science, such as in agriculture and health, she said.

In that context, it is difficult to appreciate why IGC issues are treated as if they are “such unknown quantity,” when it is easy to link GR, TK, and TCEs to value and results.

One of the challenges of the IGC discussions is to find ways to allow GR, TK, and TCEs to exist in the modern IP system. There has to be a way to at the same time protect them and maintain incentives for innovation, “it is not such an unknown environment that solutions cannot be found,” she said, concluding, “where there is a will, there is a way.”

 

Image Credits: Catherine Saez