What next to protect and promote indigenous knowledge?
- Pressure is mounting on a small group of countries in relation to a patent disclosure of origin requirement for genetic resources in the WIPO IGC.
- Ratifications and accessions continue to accrue to the Nagoya Protocol to the Convention on Biological Diversity, with more than 100 parties (105 total).
- Several patent landscape studies have provided evidence of issues relating to the grant of erroneous patents, misappropriation and use of traditional knowledge and genetic resources towards patents.
The 36th session of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) finished week-long discussions about genetic resources (GRs) on June 29, 2018, preceded by a Group of Experts meeting that considered different options to close existing gaps.
As explained in a recent ICTSD edited book, Protecting Traditional Knowledge, the IGC has followed a familiar pattern which has led to frustrations from many participants, including the indigenous representatives. The consolidated documents have over the past few years gradually narrowed down some of the text, but there remain critical differences of opinion about the modalities for preventing “misappropriations” of genetic resources and traditional knowledge.
On the one hand, a few advanced economies have argued for databases together with due diligence mechanisms to be used to improve patent examination processes. A much larger group of countries have been arguing for a patent disclosure requirement of origin or source of genetic resources. In the latest IGC meeting, pressure has increased on those few countries still resistant to the idea of a patent disclosure requirement.
There are pros and cons to the drawn-out WIPO IGC process.
It can be argued that multilateralism is under threat, as seen with Brexit, in many of President Trump’s sentiments about the United Nations, and as trade and investment agreements have shifted towards the regional and bilateral. Having a global forum focused on the protection of indigenous knowledge allows for a concentration of ideas and policy, has led to gradual improvements in the patent examination process to help prevent erroneous patents and biopiracy, and has provided for WIPO Indigenous Fellows and invites and supports indigenous attendees through the voluntary fund.
On the other hand, the 36th session saw the Chair highlighting limited funding for this voluntary fund, and the indigenous attendees often highlight that they do not have an equal party at the table – as observers and non-WIPO members – despite the substantive focus of the forum being on their knowledge and cultural expressions.
In addition, indigenous attendees have often queried the merits of discussing legal protections over nature as “genetic resources” and indigenous knowledge in an intellectual property forum, with the concept of intellectual property often at odds with indigenous or customary forms of knowledge and natural resource governance.
In the meantime, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity has created a new impetus for countries to develop regulations relating to genetic resources and associated traditional knowledge, and this has driven some progress at the national level.
For example, there are now 105 parties to the Nagoya Protocol who have committed to (or have already developed) access and benefit sharing regulations to control access to genetic resources and associated traditional knowledge. In addition, some 33 countries or regional groups have developed some form of disclosure of origin patent requirement.
Why are governments taking these actions?
Over several years, research has emerged in a number of countries to highlight the scale of patent filing occurring which relates directly or indirectly to genetic resources and associated traditional knowledge.
In a wide ranging study of Biological Diversity in the Patent System, Paul Oldham and his team identified more than 700,000 of patents which mention the Latin name of 76,000+ species. They also note more than 136,000 patent documents which mention 25,000+ species in the claims section of the patent. Robinson and Raven in 2017 undertook a study matching Indigenous Australian ethnobotanical information with patent filings, finding more than 1300 patents from 321 species names with known Indigenous uses. In addition, forthcoming research has identified 77 “families” of patent applications for inventions that are of potential concern because of how they aim to use plant species from New Zealand / Aotearoa connected to traditional Māori knowledge.
Arising from these significant numbers of patents are a range of questions about appropriation, fairness and equity, ownership and consent, as well as ethical, cultural and economic concerns. And while the Nagoya Protocol deals with “access and benefit-sharing” regimes which provide some form of protection relating to the genetic resource and associated knowledge, it does so under the “sovereign rights” framing of the Convention on Biological Diversity (CBD).
These regimes also may not provide a holistic form of protection for indigenous or traditional knowledge or traditional cultural expressions – holistic protections have existed through customary law, but which have been eroded through colonialism. This still leaves the door open for the WIPO IGC to continue to try to make negotiated progress on these issues as it tries to walk the delicate diplomatic balance between the varying interests and proposals of member states and the interests and concerns voiced by indigenous peoples who attend the forum.
The ultimate outcome of the WIPO IGC remains uncertain – some biodiverse developing countries are keen to see a diplomatic conference convened to move towards the development of binding international instruments for some or all of the substantive areas: genetic resources; traditional knowledge; traditional cultural expressions.
Some countries have suggested that the IGC become a standing committee, much like the other WIPO Standing Committees on the Law of Patents, Copyright and Related Rights, and the Law of Trademarks. However, there are also reservations about this idea from various sides.
So for the time being the WIPO IGC continues to deliberate gradually, with a clear outcome still some time away but with interesting signals that an understanding on a disclosure requirement of the origin and/or source of genetic resources, with reservations by some important economies, is in the making.
Daniel Robinson is ICTSD Research Fellow and Associate Professor at the University of New South Wales, Sydney Australia. His is co-editor, with Ahmed Abdel-Latif and Pedro Roffe, of the book Protecting Traditional Knowledge: The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.