Misappropriation of Traditional Knowledge Discussed at CBD Working Group

21 February 2002

Misappropriation of Traditional Knowledge Discussed at CBD Working Group

The Ad Hoc Open-ended Inter-Sessional Working Group on Article 8(j) and Related Provisions -- established by the Conference of the Parties to the Convention on Biological Diversity (CBD) -- held its second meeting from 4-8 February in Montreal. Some of the liveliest discussions centred on intellectual property, including possible measures to prevent the misappropriation of traditional knowledge (TK) -- a politically charged issue that the WTO, the World Intellectual Property Organization (WIPO) and the UN Conference on Trade and Development (UNCTAD) are also grappling with.

Differences remain over traditional knowledge issues

One specific area of difference was that of TK databases. Some governments believe they can prevent patents being improperly awarded for 'inventions' that are essentially identical to TK. Databases could help patent examiners -- who must screen applications so only those describing novel and inventive discoveries may receive legal protection -- to filter out spurious inventions. Indigenous groups in attendance proposed that databases be maintained locally and under the control of indigenous and local communities. They and other groups also opposed the registration of TK without the holders' consent. India is a keen supporter of international TK databases because of concerns about biopiracy, including recent cases of Indian TK being the subject of patents held in the US and Europe, such as the patenting of turmeric powder as a wound-healing agent and of basmati rice. Many developing countries, however, are closer to indigenous organisations, worrying that international databases may encourage biopiracy rather than prevent it.

Another controversial issue is that of harmonising CBD provisions on TK protection with patent law. NGOs, indigenous groups and some developing country governments, including India, have been proposing that patent applicants be required -- where applicable -- to disclose the source of biological material forming the subject matter of their inventions. Some proposals have gone further than this by suggesting (a) that applicants be required to provide evidence that national authorities regulating access to genetic resources had consented to the use of the relevant resources, and (b) that traditional community members whose knowledge was used in the development of an invention had also given their prior informed consent to the application and been guaranteed a share of any benefits arising from the patent. Such measures are popular with many developing countries, including Brazil, but were strongly opposed by both the US and Switzerland, both of which have economically important life-science industrial sectors that benefit from access to imported biological resources and from being able to patent inventions derived from.

An interesting feature of the Working Group meeting is that while TK holding representatives and most developing countries agreed on several key issues such as their shared suspicion of international TK databases, basic differences remain. For indigenous groups, TK protection is a rights-based issue, while many governmental representatives regard it as a matter of international equity or national development. The same divide exists in other intergovernmental forums in which TK protection is debated. Indigenous peoples' organisations and TK holders sometimes suspect that the subject is being used by their governmentsto secure trade advantages that will be of no benefit to them. They see particular irony in a situation in which governments of countries where indigenous peoples are victims of human rights abuses are among those calling for protection of TK as a matter of justice in international trade.

In the event, the Working Group made several recommendations for the 6th Conference of the Parties to the CBD, to take place in The Hague from 7-19 April 2002. In particular, they called on the Conference to encourage the disclosure of the origin of relevant TK in intellectual property rights (IPR) applications, and urged Parties to (a) consider taking into account the CBD provisions of prior informed consent and mutually agreed terms in IPR applications, and (b) take TK into account in the examination of novelty and inventive step in patent applications. In addition, the Working Group invited Parties and governments to examine the feasibility of establishing national and community registries of TK, considering issues such as modalities and terms of access.

TK discussions in related forums

Similar discussions are ongoing at both WIPO and the WTO. WIPO has established an Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folkore. Its last meeting in December 2001, inter alia, discussed possible means of preventing improper patenting by facilitating the availability of published TK to patent examiners (see BRIDGES Trade BioRes, 20 December 2001).

Traditional Knowledge has also become an important issue in trade negotiations. Since 1999, several developing countries including the African Group of countries, Bolivia, Colombia, Ecuador, Nicaragua and Peru have submitted proposals to the WTO calling for new rules to protect TK, perhaps through a revision of the WTO Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS). In response to such demands, the November 2001 WTO Ministerial Declaration instructs the TRIPs Council "to examine, inter alia, the relationship between the TRIPs Agreement and the Convention on Biological Diversity, [and] the protection of traditional knowledge and folklore" (see BRIDGES Trade BioRes, 22 November 2001). It is difficult to see where such an examination will lead, but there is no doubt that this issue remains of great importance to many developing countries. Discussions will continue at the next session of the TRIPs Council, currently scheduled for 5-7 March.

Background

The Working Group on Article 8(j) was established in 1998 by the Conference of the Parties to the CBD to help further the implementation of the CBD's provisions relating to the knowledge, innovations and practices of indigenous and local communities.

Article 8(j) requires contracting parties to the CBD to "respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices". The article responds to concerns about TK being exploited by commercial interests without fair and equitable benefit-sharing. Since the CBD was opened for signature in June 1992 at the Earth Summit, deliberations have been on-going, but few countries have introduced national laws and policies to implement the article.

Additional resources

Officials documents for the meeting are available online. For daily coverage, see IISD Linkages.

ENB Vol. 9, No. 228; ICTDS Internal Files.

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