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WIPO meet next week on IPRs and traditional knowledge

by Kanaga Raja

Geneva, 25 Apr 2001 - - Access to genetic resources and benefit sharing, the protection of traditional knowledge and expressions of folklore are among the questions to be addressed by the World Intellectual Property Organization’s (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources , Traditional Knowledge (TK) and Folklore holding its first session here next week (30 April to 3 May 2001).

Some of these subjects are also covered by the WTO’s TRIPs Agreement, the UN Convention on Biological Diversity - with some TRIPS provisions conflicting with those of the CBD. The CBD is more universal in its membership than TRIPs; but the US is not a CBD member, but an observer, and is using a handful of members to block the CBD process, which, unlike that of the WTO/TRIPs council, is open to NGOs.

At the TRIPs Council itself and at the WTO Committee on Trade and Environment (CTE), some of the contradictions between CBD and TRIPS have been raised, with some detailed presentations by Brazil and India among others - including ways the TRIPS could be made to reconcile with CBD. But the US has been cool and has been stalling the issues there.

The CBD provides for benefit sharing of genetic resources (and the traditional knowledge for its use) and the commercialisation of these via the IPR route.  While some ‘benefit-sharing’ agreements have been reached - between traditional communities and corporations or academic research institutions - there have been considerable debates and disputes about these benefit-sharing arrangements, and how far they have been based on informed consent.

At the WTO, and in the TRIPs Council itself, the US has been insisting on the claim that the rights and obligations under TRIPs and the WTO over-ride others, a viewpoint that is facilitated by the way the WTO’s dispute settlement process and the appellate body functions and rules on such matters. As such, the general US approach has been to mark time and get some of these issues settled through disputes and panel/appellate body processes - and meanwhile engage in a forum game, and preferring a ‘harmonization’ approach that could be pursued at the WIPO.

Also, the United States law, in granting patents, takes account of US oral traditions and knowledge (in terms of what is already public and not patentable), but does not recognize such traditional knowledge and oral traditions abroad, but only material ‘published’ in scientific or other journals. This coupled with the ability of the US corporations, and academic institutions, to explore and appropriate both the traditional knowledge outside the United States and the genetic resources of other countries, and patent them in the US (and attempt to enforce it as a global monopoly elsewhere).

The WIPO General Assembly’s 26th session (September 2000) had debated these issues, and established the intergovernmental committee, that meets next week, with a revised draft agenda listing the issues of access to genetic resources and benefit-sharing, the protection of traditional knowledge and expressions of folklore.

The meeting will have before it, apart from the WIPO bureau documentation, two documents submitted by the Dominican Republic on behalf of the Group of Latin American and Caribbean countries (Grulac) to WIPO General Assembly last year.

One Grulac document addresses the question of why traditional knowledge needs to get adequate intellectual property protection, while the second addresses the questions of relationship between IPRs, Genetic Resources and Traditional Knowledge.

The first Grulac document argues the case as to why such traditional knowledge, albeit without application of strict ‘scientific’ methods could provide solutions to problems not solved in the ‘modern’ world. A range of these are cited in the Grulac paper - natural healing processes or natural medicine, acupuncture etc used to complement or substitute for socalled modern medicine.  Grulac also cites from legal literature to argue how forms of protection could be devised to realise the intrinsic commercial value of that knowledge and the innovations that can ensue.

In economic terms, contends Grulac, an IPR system for knowledge and innovations of local and indigenous communities is of fundamental necessity to enable adequate means of wealth creations and ensure certainty in economic relations between the communities and the companies that consider the knowledge to be useful and marketable.

GRULAC also underscores the need to take account of principles of justice and equity to ensure sharing of benefits of any practical, commercial or industrial benefits emerging from the intellectual efforts of indigenous and local communities.

Among the objectives sought via an IPR system for traditional knowledge and associated innovations and practices are promotion of: respect for and the preservation and protection of traditional knowledge and innovations; the fair and equitable distribution of the benefits deriving from that knowledge; use of that knowledge and innovations for the benefit of mankind; the creation of legal and economic systems that will permit the sustainable development of the communities that possess that knowledge; and help maintain traditional biodiversity conservation schemes.

Among possible ideas for protection systems, GRULAC cites the increase in recent decades, of sui generis systems for IPR protection including the Common Regime for Access to Genetic Resources of the Andean Community, the Costa Rican and Peruvian laws and a system of sui generis databases.

But regardless of whether a sui generis system route is taken or existing IPR systems are revised, Grulac insists that it is necessary to examine and agree on the beginnings of a solution that will satisfy not only Member states and the public at large, but also the indigenous and local communities themselves.

In its proposal to the WIPO Assembly, GRULAC had asked for a Standing Committee on access to the genetic resources and traditional knowledge of local and indigenous communities. The Standing Committee’s work should be directed to defining internationally recognized practical methods of securing adequate protection for the IPRs in TK, including folklore, whether associated with genetic resources and biodiversity or not; and develop recommendations and legislative texts.

Among IPRs systems that GRULAC considers have not been sufficiently exploited by holders of traditional cultural knowledge, and on which the committee should focus, are copyright and related rights; inventions arising out of genetic resources and TK (patents for products isolated, synthesized or developed from genetic structures, micro-organisms and plant or animal organisms existing in nature; plant varieties, where new plant products, cultivars and varieties of all species of plants may be protected with plant breeders’ certificates); industrial designs; trademarks; trade names; geographical indications and appellations of origin; and repression of unfair competition to protect undisclosed traditional knowledge, for instance, traditional secrets kept by native and indigenous communities.

Among other matters, GRULAC has said the proposed WIPO standing committee should consider and settle the issue of private domain and public domain; the appropriateness and feasibility of recognizing rights in traditional works and knowledge currently in the public domain, and investigating machinery to limit and control certain kinds of unauthorized exploitation.

Also to be recognized are collective rights. Much traditional knowledge is generated, maintained and passed on in a collective fashion, by a specific community or group of communities. Thus, the inability to attribute knowledge directly to a person or a number of persons should not be a reason for allowing unauthorised access to the work or knowledge, and its reproduction and exploitation. Ways of safeguarding such collective rights, and investigating its breach and unauthorized exploitation is another area for work.

Also to be tackled are questions of use and exploitation of genetic resources and their potential for making products and processes that are eligible for IPRs, specially patents - how to control the use and exploitation of genetic and biological resources, machinery for the equitable distribution of profits in the event of a patentable product or process developed from a resource, model contracts and clauses for transfer of genetic and biological resources, linked to future profits.

Grulac also calls for exploration of possible options for defining sui generis systems for the protection of genetic resources and biodiversity - an issue raised by a considerable number of WIPO and WTO members in the context of Art.27.3(b) of the TRIPS agreement.

The GRULAC document also raises issues relating to “biopiracy” of biological and genetic material and traditional knowledge in connection with its use, and some of the current regulatory systems that seem not capable of resolving certain situations that arise from the use and exploitation of biological or genetic material existing in nature, or of putting an end to certain practices that produce results prejudicial to those possessors.

Issues relating to products from nature, that should be made non-patentable, and achieving consensus at international level to avert situations where patents are taken out for micro-organisms, plants or other biological material encountered in nature, as also in relation to new plant variety titles, to avoid a situation where woodland plants or discoveries in nature are appropriated by means of plant variety certificates.

Other issues calling for study include issues of ‘absolute novelty’ - patent laws generally require an invention to be universally novel to qualify for a patent - and non-grant of a patent where a product or process is part of the state of art at the time of the filing of the patent application.

This principle may be difficult to apply in practice - since the only information about the state of the art is either in written or printed documentation or public access databases etc. However undocumented material existing in nature or in TK products, processes and knowledge of communities are not considered as ‘part of the state of art’ - even if these are known or used for many years or even centuries.

Thus, the shortcomings of the system for publicizing what is regarded as being within the state of the art has the effect of allowing a third party to claim a patent application on products or processes that are already known.

This problem needs to be looked into and settled in such a way as to include within the state of the art also that which has become known through use, traditional marketing, oral disclosure or any other means and/or made known to the public.

Ways and means need to be studied to allow for checking the legitimacy of use and exploitation of biological and genetic resources and traditional knowledge, when an invention purporting to be developed from them is claimed.

Sanctions need to be developed to discourage or restrain the illegal use of these resources. Also to be investigated is the extent to which the unlawfulness of access might affect the acquisition of a patent for an invention developed on the basis of illegally acquired material or knowledge, or the validity of a patent granted that way.

While it might be necessary to define principles for the international harmonization of these criteria, in order that an unlawful act committed in one country may be recognized as unlawful or sanctionable in other countries. In the absence of central harmonization at the international level, biopiracy will be punished only in those countries that are victims to the unlawful act, and not in those where the products of biopiracy are commercially exploited.

There is also need to simplify the procedures on revocation and claim on patents, and making the process economical, the process of revoking patents granted on the basis of genetic or biological processes or traditional knowledge illegally acquired in a foreign country, and also the process of claiming rights in those resources and that knowledge. – SUNS4884

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