WIPO Members Agree On Revision Of Draft Treaty On Protection of TK, Folklore

After weeklong negotiations on potential treaty language defining traditional knowledge and folklore, how they would be protected, and under which conditions, World Intellectual Property Organization member states agreed on draft articles, qualified as a work in progress by the committee chair.

The revised draft articles will move to the next meeting of the WIPO committee working on the protection of traditional knowledge and folklore, to be further refined. Meanwhile, with the WIPO Voluntary Fund entirely depleted, the participation of indigenous peoples, proclaimed by all as indispensable, remains uncertain.

The 38^th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) took place from 10-14 December.

The second proposed revision of draft articles on the protection of traditional knowledge (TK) (REV2 – with track changes [pdf]), and the second proposed revision of draft articles on the protection of traditional cultural expressions (TCEs – folklore) (REV2 – with track changes [pdf]), were issued on 14 December.

The two facilitators of the drafting process were Paul Kuruk, vice-chairman, Ghana International Trade Commission (GITC), Ministry of Trade and Industry, and Lilyclaire Bellamy, executive director, Jamaica Intellectual Property Office (JIPO).

They worked from the first revision of the texts (REV1 [pdf] of draft articles on the protection of TK, and REV1 [pdf] of draft articles on the protection of TCEs.), from the work of contact groups, convening a small group of representatives of WIPO regional groups to work on specific subjects, and from comments provided by member states after the release of the two REV1 documents (IPW, WIPO, 13 December 2018).

The decisions [pdf] from the session, adopted on 14 December, noted that the IGC agreed on the convening of an ad hoc expert group on TK and TCEs prior to the 39^th session of the IGC, instead of initially foreseen prior to the 40th session. The meeting of the ad hoc expert group has been scheduled for 17 March. The next IGC session will take place from 18-22 March.

Changes in Revision 2 Texts: Subject Matter, Tiered Approach

The REV2 documents contain a number of alternatives, some re-established from the initial versions of the working documents on the protection of TK [pdf], and TCEs [pdf], from which delegates starting work from at the beginning of the session.

For example, draft Article 3 (Subject matter of the instrument) of the TK text, includes three alternatives. Alt 1 is a simple definition: “This instrument applies to traditional knowledge;” Alt 2 gives a set of criteria, including the fact that the knowledge should be transmitted (collectively), between or from generation to generation, whether consecutively or not; and

Alt 3 has another set of criteria, including a time dimension “… as well as transmitted from generation to generation for a term as has been determined by each Member State, but not less than 50 years or a period of five generations.”

The Alt 3 has been reinstalled at the request of the United States, in both revisions of the TK and TCE texts.

Some member states as well as indigenous peoples have remarked that such a timeframe is not adequate in the context of TK and TCEs.

The “tiered pricing” approach, which provides for a differentiated level of protection according to the type of knowledge and folklore, has additional language in the TK REV2 draft articles (Alternative 2).

In particular, a reference to customary law and practice of indigenous peoples and local communities has been added to the definition of the tiers: restricted TK, narrowly diffused, and widely diffused TK.

Also restored from the initial texts is an alternate definition (Alternative 2) of secret TK. Alt 2 states that secret TK should not be “generally known or readily accessible to the public; has commercial value because it is secret; and has been subject to measures to maintain secrecy of the knowledge.”

IGC Chair Ian Goss, from Australia, remarked on the fact that the revising efforts carried out by member states, contact groups and facilitators were meant to streamline the texts and bridge gaps, not widen them by adding new alternatives, or new language. The draft texts are crafted to maintain the integrity of known positions, he explained, and any attempts to modify those positions by one or more member states would inevitably lead to additional alternatives.

A new definition of “traditional” was proposed by the facilitators in REV2 TK and TCEs texts. The definition states that “a cultural expression is traditional when, in the course of time, it has acquired a form and content which is emblematic and characteristic of the cultural or social identity, or the cultural heritage, of an indigenous people and local community/beneficiary.”

Regional group representatives said member states could work with REV2 documents as a basis for further discussions at the 39^th session of the IGC, and would reflect on the documents in the interim period, to provide comments at the 39^th session.

IGC Without Indigenous Peoples: ‘Unthinkable’ but No Funding Offers

Goss reminded delegates that the WIPO Voluntary Fund, which allows indigenous peoples to participate to the IGC, is completely empty. WIPO members have failed to provide a sustainable way for indigenous participants to attend the negotiations. The fund’s depletion is not a novel situation and calls for replenishment have gone without effect, although a number of member states claimed to deplore the fund’s depletion.

Goss said at the close of the meeting that he did not want to “sound like a broken record,” but underlined the “critical” importance of supporting indigenous peoples’ participation in the deliberations of the IGC. He stressed the importance of such participation at the 40^th session of the IGC because “some critical decisions” will be made.

According to the IGC mandate [pdf] (2018/2019) decided during the 2017 WIPO General Assembly, the 40^th session of the IGC should include a stock-taking exercise of progress made on the genetic resources, TK, and TCEs texts, and make a recommendation to the 2019 WIPO General Assembly.

The session decisions note that the IGC “strongly encouraged and called upon members of the Committee and all interested public and private entities to contribute to the WIPO Voluntary Fund for Accredited Indigenous and Local Communities.” IGC members are also encouraged to consider other alternative funding arrangements, the decisions say.

An Indigenous Caucus representative remarked that due to the lack of funding, the 38^th session of the IGC did not have any indigenous peoples from Africa, which has “millions of indigenous peoples,” adding that indigenous peoples from all regions should be represented, including the Artic.

She said the Indigenous Caucus hopes that the states saw value in indigenous peoples presenting cases on what is happening on the ground, referring to a presentation of the Zia sun symbol on 10 December on the side of the IGC (IPW, WIPO, 10 December 2018).

New Finish Study On Sámi people IP Protection

Separately, the Finnish delegate announced a publication [pdf] by the Ministry of Education and Culture, launched on 12 December, entitled, “Needs of the Sámi people for intellectual property protection from the viewpoint of copyright and trademarks – especially with regard to duodji-handicrafts and the Sámi dresses.”

The study aims to map out the middle ground between the collective needs of the Sámi people and existing legal instruments, according to author Tuomas Mattila.

The study looks how copyright and the rest of the IP system “are already used or could be used to protect the Sámi traditional culture, and, on the other hand, the extent to which the current system does not recognise the needs and special characteristics that the protection of the cultural heritage of indigenous peoples requires,” it says.