New WIPO Publications To Help Policymakers With Protection Of TK, Folklore

For years, the intellectual property system, created to protect products of the mind including inventions, held little interest for the continually evolving ancestral culture of indigenous peoples. But the rights of indigenous peoples and local communities are now discussed in many fora, including the World Intellectual Property Organization, where the focus is how to use the IP system to protect indigenous knowledge and genetic resources from misappropriation and exploitation. And the UN organisation just issued two publications on possible ways to use the IP system to do just that.

On the side of the 34th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) held from 12-16 June, WIPO launched two new publications. The first is a Practical Guide [pdf] to Intellectual Property for Indigenous Peoples and Local Communities. The second is Key Questions [pdf] on Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge.

The Practical Guide, authored by Begoña Venero Aguirre from WIPO, and Hai-Yuean Tualima, WIPO Indigenous Fellow, aims at helping indigenous peoples and local communities better understand the intellectual property system to be able to make more informed decisions about the use of IP to protect their knowledge.

The guide says that the IP system was not designed to protect traditional knowledge (TK) and traditional cultural expressions (TCEs, or folklore). Although both well predate the IP system, “they were not considered worthy of intellectual property protection until quite recently,” it states.

A better understanding of IP would help indigenous peoples and local communities to protect their TK and TCEs, and promote products and services based on those TK and TCEs. It would also “stop others from using the intellectual property system to claim ownership of creations or inventions that are based on or have been developed using TK or TCEs without complying with the relevant legal requirements,” and ” reduce the risk of free-riding by others on the successful use of TK and TCEs in marketable products in national and international markets,” according to the guide. Those two last descriptions are usually known as misappropriation.

Practical Examples

The guide provides several examples of IP tools, such as copyright, patents, certification marks, geographical indications, and trade secrets, which can be used to protect TK and TCEs.

One of the examples is from Australia, where a collaborative research project led to a patent. The Chuulangun Aboriginal Corporation and the University of South Australia undertook research based on bush medicine plants. Certain compounds were identified to be used in the treatment of inflammation. Patent applications were filed and a patent was granted to the University of South Australia and the Chuulangun Aboriginal Corporation. Through the agreements signed and the patent jointly owned, both patent owners can decide how the compounds are commercialised, and will share the commercial benefits.

Another example is about the Cowichan tribe, located in the Cowichan Valley region of Vancouver Island in British Columbia, Canada, which knit clothes, including what has become known as the Cowichan sweater. In 1995, the Cowichan Band Council of British Columbia filed a trademark application with the Canadian Intellectual Property Office for “COWICHAN,” which covers clothing including sweaters, vests, ponchos, hats, toques, mittens, scarves, socks and slippers.

In Ecuador, the Montecristi straw hat, made in the town of Montecristi in Manabi province, dates back to the 16th century. In 2005, a group of toquilla fiber (of which the hat is made) producers filed an application to register an appellation of origin (a kind of geographical indication) with the Ecuadorian Institute of Intellectual Property, which was granted in 2008.

Another example from Australia shows that laws on confidential information (trade secrets for example) can be used. In that case, the Pitjantjatjara Council of Australia prevented the sale of a book containing secret ceremonial information of the Pitjantjatjara people. The Pitjantjatjara Council was granted an injunction preventing the sale of the book in Western Australia.

Disclosure Requirements, Misappropriation

The other publication focuses on patent disclosure requirements, and is more technical in nature. Authored by Claudio Chiarolla, former WIPO legal officer in the Traditional Knowledge Division, and Burcu Kılıç, WIPO consultant, the publication analyses the choices available to policymakers regarding patent disclosure requirements related to genetic resources and traditional knowledge.

The publication documents “the variety of issues at stake and the many options available,” through examples from different national and regional jurisdictions.

This exploration of options is meant to help policymakers to reach informed decisions and facilitate understanding, implementation and training, in particular by focusing on key questions to be considered at each stage of the policy development process, according to the authors.

One example describes a case of misappropriation in Gabon, involving Brazzein berries. A patented product called “Brazzein” is derived from the Oubli berry, a West African fruit. The protein derived from the berry is “500 to 2,000 times sweeter than sugar.” Brazzein is recognised as a low-calorie sweetener, able to be used in food manufacturing, and suitable for diabetics.

Originally discovered and nurtured by the West African people of Gabon, the berries were observed and brought back by a researcher from the University of Wisconsin. The protein was subsequently isolated and reproduced and the University of Wisconsin was granted three US, and one European patents.

The protein can now be reproduced in a laboratory, obviating the need to collect and cultivate the plant in Gabon. No recognition or benefit-sharing was given to the people of Gabon. It is claimed that the synthetic substitution has caused a significant fall in the price of Brazzein, and many Gabonese women who used to harvest the fruit have lost their source of income, while the global market for artificial and high-intensity sweeteners is estimated to be worth around US$3 billion.

Meanwhile, a US company has acquired a license to produce Brazzein and commercialise it under the brand name Cweet, as a cost-effective alternative to stevia for example.

The same kind of story about stevia, another sweetener, has been told by Public Eye (formerly Bern Declaration). According to the group, the Guarani people from Paraguay and Brazil, who discovered the plant’s sweetening powers, did not receive any share in the profits. The Guarani people are getting organised, according to Public Eye, to have their rights recognised.

According to the WIPO publication, several countries have adopted particular disclosure requirements for GR and TK. In particular, they asked for the disclosure of the origin and/or source of GR and TK, evidence of prior informed consent, and evidence of having established a contractual arrangement (mutually agreed terms) for the fair and equitable sharing of the benefit derived from the use of GR and TK.

The publication also describes the rationale of those opposed to the disclosure requirements. Opponents, it says, are concerned that those requirements may add a layer of uncertainty to the patent system. They also argue that the patent system is not suited for, and should not serve to implement access and benefit-sharing objectives, because “this would compromise its integrity.” They further say that the disclosure requirement process would be burdensome, expensive, and time-consuming for parent applicants and patent offices.

Successful Story of Benefit-Sharing

The document contains an example of successful benefit-sharing with the Arogyapaacha-based drugs. Indian scientists at the Tropical Botanical Garden and Research Institute (TBGRI) in Kerala used tribal TK and know-how to develop an anti-stress and anti-fatigue drug based on the medicinal plant Arogyapaacha.

The change in the Indian patent law to include provisions on mandatory disclosure of source and geographical origin of biological material and associated TK led to patent applicants to refer to the traditional use of Arogyapaacha. Subsequently, a trust fund was established to share the benefits arising from the commercialisation of the drug derived from the plant.

“The benefit-sharing agreement between TBGRI and the Kani people has been acclaimed as a model for similar agreements around the world, the publication said. “It is acknowledged as pioneering example of the effective use of IP in concert with benefit-sharing agreements with an indigenous community that held this knowledge.”