The quest for effective traditional knowledge protection: Some reflections on WIPO’s recent IGC discussions

18 June 2012

Members of the World Intellectual Property Organization's Intergovernmental Committee (IGC) met recently to engage in a text-based negotiation on an international instrument relating to the protection of Traditional Knowledge (TK). When compared to reports of WIPO's February meeting on genetic resources, discussions at the most recent IGC session (16-20 April) went relatively smoothly. However, some observers remain sceptical over how much progress has actually been made on the proper legal protection for TK over the past ten years of discussions.

For some, the push to provide some legal, political, and economic recognition of TK stems from a perceived reaction to the World Trade Organization and the Trade Related Intellectual Property Systems (TRIPS) Agreement. The multilateral agreement ushered in a world of global free trade with intellectual property as one of its cornerstones. Expanding the trade regime of the GATT, the WTO addresses trade in services, foreign direct investment, and the transfer of technology across the borders of bilateral trading partners. The perception in the developing world is that developed countries and multinational corporations of rich nations are the primary beneficiaries of the WTO and TRIPS. Traditional Knowledge provides a touchstone for the recognition of the rights of traditional and indigenous groups within developing countries and for interest convergence between the government of these countries and such groups.

In many ways, however, the Traditional Knowledge agenda is consistent with that of the WTO and flows from the philosophy of TRIPS. The goal of the TRIPS Agreement is to require member states to reform their intellectual property regimes to meet substantive minimal standards set forth in the treaty. Requirements on subject matter, scope and duration, and limitations and exceptions serve to harmonise intellectual property law and assure predictability as member states trade with and invest in other states. Recognising intellectual property protection in Traditional Knowledge is a logical extension of these principles. As the World Bank stated in the title to its study on Traditional Knowledge, intellectual property can serve to unlock the economic value of "poor people's knowledge." Presumably, this economic value is realised through international trade and the economic transactions across nations envisioned within the WTO and TRIPS. When understood this way, the Traditional Knowledge agenda is an extension of, not a reaction to, our new world trade order.

The contradiction, however, is that Traditional Knowledge is often highly local and specialised. Although intellectual property covers a range of divergent subject matter, including software, pharmaceuticals, processes for producing chemicals, video games, films and television programs, educational materials, intellectual property laws are written in broad enough terms, such as creation and invention, to encompass a wide range of activities and industries. Traditional Knowledge does not find a comfortable fit within the broad category of intellectual property. Traditional know-how is often more mental than technological, engaging with culturally defined ways of thinking, rather than complex machines or technologies. While the products of intellectual property are designed to promote change, the fruits of traditional change are meant to ensure a stable set of knowledge rather than to invite innovation and change. Nonetheless, the subject of Traditional Knowledge, such as the benefits of plants for medicinal or nutritional purposes, is often innovative for those in the developed world who may not have had the experience of the exotic fauna or their uses. Fitting Traditional Knowledge within intellectual property requires a balance between the values of stability and the mind-set devoted to newness and innovation, sometimes for its own sake.

Not only is the idea of Traditional Knowledge somewhat disconnected from intellectual property, the concept may also be inherently incoherent. First of all, Traditional Knowledge subsumes the knowledge of indigenous groups as well as groups that have a more recent history. This problem in definition raises issues of the relevant beneficiaries. Furthermore, Traditional Knowledge covers a wide range of fields from medicine to music. In its deliberations, the World Intellectual Property Organization has separated Traditional Knowledge from Traditional Cultural Expressions (TCE), with the latter being the subject of a separate agreement. But even with this bifurcation, Traditional Knowledge encompasses specialised knowledge that is often geographically local and culturally specific. This knowledge as a subject of global trade is very different from the freely mobile capital and technology of intellectual property law in the contemporary trade system.

These notable differences explain the need for a separate agreement on Traditional Knowledge and the set of large scale and specific issues that are the subject of negotiation. They help to identify the fault lines in the negotiations and the sources of continuing debate and tensions.

The large scale issues have to do with the conceptual framework for Traditional Knowledge protection. Should the framework be a defensive one, preventing the misappropriation of Traditional Knowledge through patenting by multinational corporations, or should it be an offensive one, allowing carefully defined stakeholders to manage and appropriate value from property rights? If both defensive and offensive goals are desired, then how should the promotion of a rich public domain be balanced with commitments to protecting economic, social, and cultural rights of designated owners?

The devil continues to be in the details as members wrestled with the basic definition of Traditional Knowledge and the equally challenging questions of defining the scope and enforcement of rights. The highlights of the negotiations were the following issues: definition, scope and duration of rights, enforcement, and exceptions and limitations.

What is Traditional Knowledge?

There seems to be no disagreement that the definition of Traditional Knowledge includes "know-how, skills, innovations, practices, teachings, and learnings." But some members attending the April IGC expressed disagreement over other details of the definition. Should the definition include reference to the intergenerational aspect of such knowledge? That it is handed down from generation to generation? Or would such a qualification limit the scope of Traditional Knowledge to that which has actually been preserved? Alternatively, should the definition emphasise that Traditional Knowledge is dynamic and evolving so as to incorporate changes to such knowledge over time? To what extent should the form of Traditional Knowledge be emphasised to make clear that such knowledge is protected in oral and other forms, codified and not? Furthermore, how is the knowledge base to be defined in terms of indigenous people and communities as well as regional communities and families? Finally, should the definition be connected to other points of contention such as genetic resources and to broader policies such as biodiversity, environmental degradation, and healthcare?

Several hours were spent on the definition during the first stages of the IGC deliberations. One reason for the length of time had to do with process issues on how to structure text-based negotiation. But a more compelling reason is the tension over the underlying policies for Traditional Knowledge protection. For some members, the goal is preservation of Traditional Knowledge in order to maintain a knowledge base for future generations. For others, the goals are political and economic, allowing disadvantaged groups to develop a stake in their knowledge that can provide a basis for political and economic advantage. Others, in addition, see Traditional Knowledge as a means to pursue other ends such as combatting biopiracy and providing mechanisms for environmental protection, biodiversity promotion, and healthcare. As deliberations on other portions of the draft articles indicated, these underlying policy tensions continue to inform the debate and may perhaps not be settled soon.

Scope and duration

As to the scope of protection for Traditional Knowledge, there is convergence on the need for mechanisms to regulate use and access as well as on acknowledgement of source and benefit sharing. The disagreement rests on whether the scope should be defined through a measures based or a rights-based approach. The measures-based approach established general guidelines for the management of TK such as goals of preservation and nondisclosure. A rights-based approach provides a set of trumps that would allow knowledge holders to prevent certain uses of TK for either commercial or non-commercial purposes. Particularly controversial under the rights-based approach are the requirements for mandatory disclosure that a product was derived from or includes Traditional Knowledge and for prior informed consent (PIC) before Traditional Knowledge can be utilised.

The divergence over scope reflects a difference in conceptualising Traditional Knowledge. Should protection be analogised to trade secret misappropriation where the underlying act is the misuse of the protected information through improper means, which can include either a breach of confidence or an illegal act like criminal trespass? Or should protection of TK be analogised to copyright or patent infringement where the taking of the protected information is itself the harm? Alternatively, there may be need for another paradigm altogether, one that recognises the sacredness and inalienability of Traditional Knowledge. This third way may be analogised to a moral rights approach except the object of protection is not the personality of the rights holder but the inherent value of TK itself. There appears to be general agreement that the scope of rights should not be entirely left to national law. The purpose of the draft articles is to provide some limits on what national government can and cannot do in protecting Traditional Knowledge as well as to provide normative guidelines for domestic legal systems. But conceptual problems make formulating these potential guidelines difficult.

A concern with delegating too much to national law is reflected in disagreements over duration and beneficiaries. Under the draft articles being discussed, the duration of Traditional Knowledge is perpetual so long as the knowledge at issue meets the definition of TK. However, some member states emphasised that value should also be a factor in determining duration. In addition, there was a concern that duration should not simply be a matter of national law. Similar concerns were voiced on the issue of defining the beneficiaries of TK protection. The draft articles define these beneficiaries to include at a minimum, indigenous peoples and communities and local communities. But discussion focused on including other groups as beneficiaries, including traditional communities, families and nations. Although definitions of traditional and indigenous groups under national law can guide the understanding of beneficiaries, continued debated focused on how the draft articles should guide national law in determining the scope, duration, and recipients of TK protection.

Limitations and exceptions; administration and enforcement

The tensions over policy understandings and deference to national law appear also in draft articles on exceptions and limitations to Traditional Knowledge protection and to legal institutions for administering and enforcing rights. As for exceptions and limitations, independent creation seems to provide one area of convergence. But there is no agreement as to provisions that would be analogous to fair use or fair dealing or experimental use. The scope of adaptation rights is narrow, reflecting perhaps the moral rights-like protection for TK. Questions of PIC also riddle the understanding of exceptions and limitations. Should such consent be required in order to exercise an exception or limitation, or would such consent make exceptions and limitations meaningless?

Overarching questions about administration and enforcement remain. Although national institutions will provide the basis for protecting Traditional Knowledge in practice, great differences in legal and administrative institutions raise questions about the efficacy of TK protection under national law. These institutional issues will undoubtedly persist and may prove to be a stumbling block. Will there be TRIPS-like transition provisions for compliance for countries still developing legal systems, or could there be consensus on some dispute resolution system at the global level? The problems of administration and enforcement reveal the heart of the divergence in the negotiations. On the one hand, recognition of Traditional Knowledge is part of the political and economic recognition of indigenous and traditional communities under national law. At the same time, national law may be a source of suspicion if it represents majority will. Negotiating that tension will be critical for further progress in the deliberations.

Final thoughts

When looking at the 18-20 April IGC negotiations in the context of the past decade of the Traditional Knowledge debate, it is clear that the provision of economic and political clout to underrepresented groups in global civil society continues to be the most crucial issue at stake. Compared to the negotiations over genetic resources, the Traditional Knowledge debates have shown signs of progress. But difficult issues related to identifying the set of policy objectives from a range of conflicting alternatives remain. Determining the best way to integrate effective Traditional Knowledge protection within national law institutions will continue to be particularly vexing. But as these debates continue, the Traditional Knowledge community's understanding of intellectual property and other knowledge systems will continue to be refined. This refinement of understanding may also aid in giving voice to often overlooked communities and sources of knowledge in our construction of the global commons guided by politics and economics.

Shubha Ghosh
Vilas Research Fellow & Professor of Law, University of Wisconsin

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