WIPO Members Update Draft Text on Protecting Traditional Knowledge

8 December 2016

Members of the UN’s intellectual property agency reportedly made some headway last week in updating a draft text relating to the protection of traditional knowledge, though many items remain unresolved.

The work took place during the 32nd session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) of the World Intellectual Property Organization (WIPO), held at the agency’s Geneva headquarters.

The committee, established almost two decades ago, provides a forum for negotiations among member states to determine the legal nature of a final instrument(s) for the protection of traditional knowledge and expressions of folklore, and for governance over access to and equitable benefit-sharing of genetic resources.

Ensuring these areas receive due recognition, including legal protection, is considered crucial for supporting biodiversity-rich countries and indigenous peoples, due to concerns that these resources may otherwise be misappropriated or exploited, particularly given their potential economic worth.

Traditional knowledge is considered to be knowledge within those communities – such as relating to traditional medicines, or hunting or fishing skills – that is transmitted across generations and is in constant evolution.

“For me, a striking feature of the 32nd session was that many demandeur countries presented a coordinated view on many of the key outstanding issues and adopted quite a pragmatic stance on several of them,” said Wend Wendland, Director of WIPO’s Traditional Knowledge Division, in comments to Bridges.

“This contributed to a streamlining of a number of the articles. Views continue to differ, however, on the degree to which the new version of the draft international legal instrument reflects a narrowing of the gaps,” he added.

Revisions to the draft articles

The draft articles on traditional knowledge which could eventually form part of an international treaty were revised twice from the version approved by the Committee in its 31st session in September. The 16 draft articles define a range of issues including the objectives, subject matter, beneficiaries, an origin/source disclosure requirement, administration of rights, and the relationship with other international agreements, according to a copy posted online by IP Watch. (See Bridges Weekly, 9 June 2016)

This revision process unfolded over the course of the week-long meeting through a series of informal consultations bringing together delegates and two facilitators, Margo Bagley of Mozambique and Ema Hao’uli of New Zealand. These aimed to ensure that all member state positions were reflected in the text in a clear manner.

The revisions, issued first on 30 November and then updated further on the closing day of the meeting, saw progress in the scope of protection and subject matter of the instrument, as well as the beneficiaries of protection.

The issue of the beneficiaries of protection is now under the domain of Article 4, and has been reduced to two alternatives from the earlier three in the September document.

A debate has endured surrounding whether indigenous people and local communities (IPLCs) should be the only beneficiaries (Alternative 1), reportedly supported by the US and EU, as well as certain GRULAC countries, or whether it should also extend to other beneficiaries (Alternative 2). GRULAC refers to the Latin American and Caribbean Group, under UN terminology.

Alternative 2 has now been revised to include the terminology, “states [and/or nations],” which is bracketed, along with “other beneficiaries.”

The second alternative is preferred by those delegates “noting the significant divergences in national laws and environments where [traditional knowledge] can be found, that flexible policy space be provided to take account of these differences,” according to an information note prepared by the IGC Chair, Ian Goss of Australia.

Article 5 now deals with the scope of protection, where the second revision updated the title of the article to “Scope of [and conditions of] [positive] protection,” and has been reduced to three alternatives from the earlier four. The article distinguishes between secret and sacred traditional knowledge, as well as the degree of diffusion, whether narrow or wide.

“The characteristics of TK (and TCEs) throughout the world vary greatly, hence the importance of identifying those high-level and universal characteristics that belong in an international instrument,” said Goss in the information note, referring to the debate over how narrowly to define the scope of what should be covered under an international instrument.

The chair also noted that while a “precise” definition has been backed by some as useful for transparency, using a broader definition of what could be protected under the accord would likely mean adjusting the exceptions and eligibility criteria in a way that would serve as a “limiting filter.”

The second and third alternatives under the “scope of protection” section are based on a tiered approach, first introduced in the IGC’s 27th session, allowing for differentiated protection according to the availability of the traditional knowledge to the general public. Alternative 2 enjoys support from the African Group and the Group of Like-Minded Countries, whereas Alternative 3 is backed by certain developed countries, including the US, according to IP Watch.

The Group of Like-Minded Countries includes various developing countries spanning different regions, including from Africa, Asia, and South America.

“The 32nd session of the IGC made important progress in some core issues regarding traditional knowledge, such as scope of protection and beneficiaries,” said one developing country delegate familiar with the talks.

“Nevertheless, members could not reach consensus regarding other aspects of this protection. Perhaps differing views could be attributed to the novelty of the subject. We believe the best way forward would be to encourage more in-depth discussions and to compile diverse viewpoints on the matter,” said the same official.

The subject matter of the instrument, including various alternatives for describing and defining traditional knowledge, is now addressed under Article 3. It features four alternatives, including one which sets a minimum of half a century – or five generations – as the minimum period that this knowledge must be passed along within a community to qualify for protection.

The US delegation submitted a document which identifies concrete examples of traditional knowledge in order to facilitate discussion on what should be termed protectable subject matter, along with what should be left unrestricted. These examples include food and beverages such as popcorn, chocolate, and coffee; products with medicinal applications, such as syringes, antibiotics and anaesthetics; and sports, including surfing and football.

The US document also notes the value some of these products have on the international market. Tea, for example, is estimated to be worth US$40 billion annually, while chocolate revenue was well over US$100 billion in 2014.

Alternative instruments and next steps

Several member states offering support for a non-binding instrument submitted proposals for alternatives to a treaty, including a joint recommendation on the prevention of erroneous patent granting, tabled by Canada, the US, Japan, South Korea, and Norway.

An additional joint recommendation sponsored by the same group, with the exception of Norway, explores the use of a database search system for the protection of genetic resources and traditional knowledge.

As the meeting drew to a close, certain member states, including the United States, South Korea, the European Union, and Canada, said that much remains to be done in order to reach an understanding on some central issues, according to IP Watch.

The draft articles will be discussed further at the next session, and the revised text will be transmitted to the 34th session of the Committee to be held in June. It will then be submitted to the WIPO General Assembly in 2017, in accordance with the Committee’s mandate for 2016-2017 and the work programme for 2017.

ICTSD reporting; “WIPO Committee On Traditional Knowledge Agrees On Revised Text For Further Discussions,” IP WATCH, 5 December 2016; “Popcorn, Football And Chocolate – US Idea To Prompt Discussions at WIPO TK Committee,” IP WATCH, 1 December 2016; “New Draft Articles For The Protection Of Traditional Knowledge On Table At WIPO, IP Watch, 30 November 2016.

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