Differences Plague WIPO Negotiations on Traditional Knowledge

25 April 2012

Negotiations last week at the World Intellectual Property Organization (WIPO) over a legal instrument intended to protect traditional knowledge (TK) saw mixed progress. Though a draft text will be forwarded to WIPO's General Assembly that includes some areas of convergence, various disagreements on the definition of TK, its beneficiaries, and the scope of a potential instrument marred the week-long discussions.

The 21st session of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC) met from 16-20 April in Geneva, Switzerland.

The Committee was created in 2000 amid concerns by biodiversity-rich countries and indigenous peoples regarding the misappropriation of their genetic resources and associated traditional knowledge.

The IGC's mandate was renewed last year at the WIPO General Assembly, with countries setting the goal of engaging in text-based negotiations to reach agreement on an international legal instrument(s) for the effective protection of genetic resources, traditional knowledge, and traditional cultural expressions. With this goal in mind, the first IGC of this year - held in February - saw members focus solely on genetic resources (See Bridges Weekly, 22 February 2012).

The IGC was also asked to submit texts to this year's WIPO General Assembly, where members will consider progress made and decide on whether to convene a diplomatic conference (See Bridges Weekly, 28 July 2011).

"We probably won't have a nice, clean text necessary to convene a diplomatic conference tomorrow," Chair Wayne McCook of Jamaica conceded on Friday, urging delegates to think of innovative ways to advance the committee's work in the future.

No agreement over definition of TK, beneficiaries of protection

Last year's renewed mandate urged the Committee to advance negotiations at last week's session on four key issues: subject matter of protection, beneficiaries, scope of protection, and limitations and exceptions.

To this end, discussions at last week's meeting were based on the draft articles text prepared in two revisions by three facilitators from Canada, Colombia, and Egypt, respectively.

Member states were unable to find common ground on whether a definition of traditional knowledge should be broad in scope or more detailed and descriptive.

South Africa underlined the need to define TK as ‘dynamic and evolving', given that "traditional knowledge changes in the passage from generation to generation."

"If we remove the terms ‘dynamic and evolving' it becomes a static, frozen concept," added the South African delegate.

Bolivia, for its part, asked that TK be defined as ‘inalienable, indivisible and imprescriptible', as TK "cannot be given away by indigenous people, it cannot be fragmented, it is a unit."

Some developed countries, however, urged members to instead adopt a broader definition without descriptive terms.

"Increasing elements decreases the value of the definition," Australia argued.

Differences also persisted over who should be the potential beneficiaries of protection under a potential TK instrument, with several members arguing against a proposal that would include individuals, families, nations, and other national entities as beneficiaries of protection.

The EU, for instance, highlighted that "references to families and individuals are ambiguous" and "nations should not be considered as beneficiaries."

Other proposals spark disagreements

Developed countries asked for the insertion of extensive exceptions and limitations in the draft articles. In particular, the US presented a proposal by which national authorities may exclude from protection "diagnostic, therapeutic and surgical methods for the treatment of humans or animals" and "traditional knowledge that is already available without restriction to the general public."

In addition, Norway presented a proposal for a disclosure requirement regarding any process or product related to TK in patent and plant variety applications. India welcomed the proposal, but considered it should go beyond patents and plant varieties to encompass all intellectual property rights.

WHO: link between TK and public health
During the session, a representative from the World Health Organization (WHO) highlighted the growing importance of traditional medicines, as well as their widespread use in Africa, Asia, and South America.

Noting the overlap in the work of the IGC and the WHO, the representative stated that an IP system for the protection of TK should not  "restrict access to traditional medicine to the detriment of efforts to further develop existing treatments, to develop new products or to provide access to such treatments."

Indigenous participation

The IGC also discussed proposals to reform the rules of participation for observers and indigenous people groups in the committee.

During the last session of the IGC, indigenous groups staged a walk-out from the committee and avowed to withdraw their participation until member states "change the rules of procedure to permit our full and equitable participation at all levels of the IGC." (See Bridges Weekly, 22 February 2012)

At last week's meeting, member states agreed to a proposal by the Indigenous Caucus - a group of indigenous peoples' organisations at the IGC - requesting that the Secretariat prepare an information document on the practical, procedural, and financial implications of greater involvement of indigenous peoples' representatives in the work of the Committee. The information document is expected to be circulated for members' consideration at the next IGC session in July, which will focus solely on traditional cultural expressions.

The WIPO General Assembly will review the IGC's work in September.

ICTSD reporting.

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