• Home
  • About Us
    • About Us
    • Subscribe
    • Privacy Policy
  • Advertise
    • Advertise On IP Watch
    • Editorial Calendar
  • Videos
  • Links
  • Help

Intellectual Property Watch

Original news and analysis on international IP policy

  • Copyright
  • Patents
  • Trademarks
  • Opinions
  • People News
  • Venues
    • Bilateral/Regional Negotiations
    • ITU/ICANN
    • United Nations – other
    • WHO
    • WIPO
    • WTO/TRIPS
    • Africa
    • Asia/Pacific
    • Europe
    • Latin America/Caribbean
    • North America
  • Themes
    • Access to Knowledge/ Open Innovation & Science
    • Food Security/ Agriculture/ Genetic Resources
    • Finance
    • Health & IP
    • Human Rights
    • Internet Governance/ Digital Economy/ Cyberspace
    • Lobbying
    • Technical Cooperation/ Technology Transfer
  • Health Policy Watch

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

17/12/2018 by Catherine Saez, Intellectual Property Watch 1 Comment

Share this:

  • Click to share on Twitter (Opens in new window)
  • Click to share on LinkedIn (Opens in new window)
  • Click to share on Facebook (Opens in new window)
  • Click to email this to a friend (Opens in new window)
  • Click to print (Opens in new window)

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.

Governor of Zia Pueblo, Anthony Delgarito, at WIPO last week

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 38th 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 39th 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 39th session of the IGC, and would reflect on the documents in the interim period, to provide comments at the 39th 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 40th 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 40th 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 38th 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.

 

Share this:

  • Click to share on Twitter (Opens in new window)
  • Click to share on LinkedIn (Opens in new window)
  • Click to share on Facebook (Opens in new window)
  • Click to email this to a friend (Opens in new window)
  • Click to print (Opens in new window)

Related

Catherine Saez may be reached at csaez@ip-watch.ch.

Creative Commons License"WIPO Members Agree On Revision Of Draft Treaty On Protection of TK, Folklore" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

Filed Under: IP Policies, Language, Subscribers, Themes, Venues, Biodiversity/Genetic Resources/Biotech, Copyright Policy, English, Trademarks/Geographical Indications/Domains, Traditional and Indigenous Knowledge, WIPO

Comments

  1. Anthony Delgarito says

    27/03/2019 at 5:00 pm

    it was nice to be part of this special event as Governor of Zia Pueblo. This event was intense for my wife and I but we certainly enjoyed it. The experience was great traveling from one side of the world to the other.

    I hope my presentation on the Zia Sun Symbol was educational to all who were part of my presentation. I enjoyed being part of everyone who participated in the WIPO event. I certainly did! If you have email addresses for the WIPO members, please forward.

    Anthony Delgarito (a.delgarito@att.net)

    Reply

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

  • Email
  • Facebook
  • LinkedIn
  • RSS
  • Twitter
  • Vimeo
My Tweets

IPW News Briefs

Saudis Seek Alternative Energy Partners Through WIPO Green Program

Chinese IP Officials Complete Study Of UK, European IP Law

Perspectives on the US

In US, No Remedies For Growing IP Infringements

US IP Law – Big Developments On The Horizon In 2019

More perspectives on the US...

Supported Series: Civil Society And TRIPS Flexibilities

Civil Society And TRIPS Flexibilities Series – Translations Now Available

The Myth Of IP Incentives For All Nations – Q&A With Carlos Correa

Read the TRIPS flexibilities series...

Paid Content

Interview With Peter Vanderheyden, CEO Of Article One Partners

More paid content...

IP Delegates in Geneva

  • IP Delegates in Geneva
  • Guide to Geneva-based Public Health and IP Organisations

All Story Categories

Other Languages

  • Français
  • Español
  • 中文
  • اللغة العربية

Archives

  • Archives
  • Monthly Reporter

Staff Access

  • Writers

Sign up for free news alerts

This site uses cookies to help give you the best experience on our website. Cookies enable us to collect information that helps us personalise your experience and improve the functionality and performance of our site. By continuing to read our website, we assume you agree to this, otherwise you can adjust your browser settings. Please read our cookie and Privacy Policy. Our Cookies and Privacy Policy

Copyright © 2021 · Global Policy Reporting

loading Cancel
Post was not sent - check your email addresses!
Email check failed, please try again
Sorry, your blog cannot share posts by email.