TWN Info Service on Biodiversity and Traditional Knowledge (Mar14/02)
27 March 2014
Third World Network

WIPO: Slow negotiations on traditional knowledge and traditional cultural expressions

Geneva, 27 Mar (Alexandra Bhattacharya) – Differing views continue to be expressed at the World Intellectual Property Organization (WIPO) negotiations on the protection of traditional knowledge and traditional cultural expressions.

WIPO’s Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting for its 27th session from 24 March to 4 April in Geneva. It is mandated to conduct text-based negotiations to conclude an international legal instrument(s) to protect genetic resources (GR), traditional knowledge (TK) and traditional cultural expressions (TCEs). The focus this session is on TK and TCEs. Ambassador Wayne McCook (Jamaica) is the current IGC Chair.

The IGC spent the second day and most of the third in an informal expert group mode to seek further convergence of views on cross cutting issues of the texts on TK and TCEs, particularly on the 4 issues mentioned in the Chair's non-paper. (See TWN IP Info/TWN Info Service on Biodiversity/TK on WIPO: Call for “red lines” on genetic resources, traditional knowledge and folklore dated 27 March 2014.)

The Chair’s suggested non-exhaustive cross cutting issues are:

  • the meaning of “traditional”;
  • the beneficiaries of protection, in particular, the role of states or “national entities”;
  • the nature of the rights, including the meanings of “misappropriation” and “misuse”;
  • the treatment of publicly available and/or widely diffused TK and TCEs.

The expert group has focused on cross cutting issues pertaining to both the texts on TK (WIPO/GRTKF/IC/27/4) and TCE (WIPO/GRTKF/IC/27/5). There has not been direct engagement with the text as such, but rather the country experts have put forward their thoughts on key concepts of a cross cutting nature.

The facilitators, Ian Goss (Australia), Margo Bagley (Mozambique) and Nicolas Lesieur (Canada) will now incorporate the discussion into a revised document (Rev. 1) which will be made available on Thursday morning (27 March) and also be presented to the plenary. This will be further discussed in the expert group. A Rev.2 document is expected by the end of the week. 

(The plenary which the IGC Chair had wanted to convene for Member States to put forward their views as to the nature of the document did not take place.)

Below are some of the key ideas that have emerged from the expert group discussions.

1.  The meaning of “traditional” 

Nigeria put forward the view that “traditional” was more about its linkages to those who may live in less modern, less mechanized conditions. At a minimum, it was linked to lifestyles and communities that have been sustainably managed or governed with that body of knowledge evolving over time.

New Zealand said that “traditional” did not have to associated with antiquity and time, rather traditional knowledge was dynamic and evolved over time. The importance was in the link with culture and not with time.

Bolivia also agreed that traditional knowledge should not be considered through the “age or time factor” and the definition of TK should be broader. This was also agreed by Indonesia.

India said that from a legal point there were three key elements which were of importance: the issue of creation, transmission and maintenance.

The Indigenous Caucus said that it was worried about the attempt to define traditional as some people would be left out of the definition and it would be discriminatory. It stated that the concept of “traditional” was linked to lifestyle.

New Zealand was cautious about including “dynamic and evolving” in the definition as not all TK and TCEs were dynamic and evolving. What was important was the link between practices and cultural identity. It also proposed defining different types of TK and the protection for each different type of TK.

Japan said that if there was a clear “linkage” established then there was no need to define precisely the scope of “traditional” or TK in the definition. It stated that the three elements mentioned by India and “dynamic and evolving” were essential to TK but suggested that the starting point should be confining the beneficiaries to indigenous people.

The USA said that there was a big challenge to find one concise definition of TK. It focused on the element of “intergenerational” noting that this does not need mean successive generations. 

The European Union had a similar view to the USA, whereby it thought that TK had a link to community and was also intergenerational. 

South Africa said there was a need for a simpler, flexible and broad definition of TK. 

The Chair in summarizing the discussion said that one of the concerns was that TK might not lend itself to exclusive rights (as pointed out by Japan through the example of sushi). 

2.  Beneficiaries of protection, in particular the role of States or “national entities”

The Chair stated that there seemed to be broad agreement that local communities were also beneficiaries. 

Peru stated that the beneficiaries should be indigenous peoples and local communities. It added that the member state could be defined as a beneficiary but under domestic legislation whereby the State could appoint an entity to represent the State.

Indonesia said that the State must play a role and it was especially important when the TK and TCE was not confined to a community or the community could not be identified. It stated that the role of the State should be as holder and administrator.

Mexico said that the role of the State should be left to national legislation.

Uruguay also said that the State should be a beneficiary because one could point to specific things and say that it belonged to the State (this was especially true for Uruguay which was a small country basically of immigrants with strong traditions coming from settlers).

Ecuador also noted the role of the State when there were different communities present.

Sweden expressed the concern about States as beneficiaries and the nexus with regard to developing TK and passing it on from generation to generation.

The USA said that governments did not produce TK/TCEs and should not be included. This was supported by Canada who added that although it did see that the State had a role to play but it was more of an administrator and not as beneficiary.

The Chair suggested an “informal informal” to move further on this issue of state as a beneficiary.

[The outcome of the “informal informal” was presented by co-facilitator Ian Goss on Wednesday morning. He said that the “frank exchange” had focused on examples where a nation could be a beneficiary. This was relevant when the subject matter was not confined to a specific local community, like India, Indonesia or Australia or where the State managed the benefits for the community. 

He stated that Egypt had a single collective cultural identity, so the nation is the beneficiary. This also  reflected Ecuador’s approach although  there would  need to be a link between then nation and the subject matter]

The Indigenous Caucus said that it was preparing a list of countries which ratified the Convention on Biological Diversity (CBD), the Nagoya Protocol on access and benefit sharing (under the CBD) and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). It said that Egypt has ratified the CBD and Nagoya Protocol, and that Algeria had ratified the CBD and both these documents included direct language on indigenous peoples and local communities. So even though they have a constitutional bar, politically they found a way to accede to these conventions. It expressed its apprehension about States having rights as beneficiaries. This concern was also expressed by the EU and Canada.

Iran also said that the beneficiaries of the instrument should be the indigenous communities. 

India noted that it had legislation in place which recognized a national authority to manage relations with local communities for Nagoya Protocol purposes. 

Ethiopia stated that it was Party to the CBD and Nagoya Protocol and also had national ABS laws. It said that its concern was regarding transboundary TK in the federation and cultural TK. In this context, there was a need for the State to play a role.

Morocco stated that its insistence on the “nation” being a beneficiary did not mean denying rights to indigenous peoples and in this context wanted “nation” to remain in the text.

3.  The nature of the rights, including the meanings of “misappropriation” and “misuse”

The EU said that it had heard a diverse range of practices regarded as “traditional”, but all were in some way contemporary or spread over a large range of countries or groups and in some sense in the public domain. It stated that it had difficulty in this context recognizing intellectual property-like protection, which excludes others from doing something.

Indonesia said that there was practical value to determine the level of rights by the nature of the TCE and TK in question. Such an approach would allow to determine the character of TK/TCE and designate rights accordingly. 

Nigeria said that the African Group had identified two categories of rights, viz. economic rights and moral rights, and there should be room for both. It stated that for widely diffused TK, rights of attribution should be one of the moral rights recognized. It was of the opinion that when there had been transgression in a territory that resulted in diffusion there should be compensation. 

The Indigenous Caucus pointed out the difficulty in applying intellectual property (IP) terms to protection of TK because it did not capture the standards indigenous peoples applied to uses of their knowledge. For example, in IP law something may be termed as “performance” but this could be different in the customary sense. It also added that the missing chapter in the discussion was education and awareness and how to make the public aware and reduce transgressions. 

Brazil said that widely diffused TK should have no compensation but moral rights in the form of attribution would be good. It added there should be different levels of protection based on the level of diffusion.

The Chair in summing up said that some delegations had expressed concerns that in some contexts, TK and TCEs did not lend themselves to exclusive rights, whilst others felt that widely diffused TK had certain characteristics that should lend itself to higher levels of protection. The facilitators would take the text in the Rev. 1 document in a direction which would mix level of rights and obligations.

4. The treatment of publicly available and /or diffused TK and TCEs

South Africa said that the method of diffusion was a critical issue and should be discussed further. There was also a need to understand further the definition of “publicly available”. 

Nigeria said that it was hesitant to talk about “publicly available” because the IGC process would change the way communities behaved and viewed their knowledge.

Pakistan said that there should be a public database so that all member countries could verify the source of the TK/TCE; so that if anyone wanted to get a patent, the source would be known.

5. Principles and objectives

Australia said there was a need to keep principles and objectives as focused as possible and that these should be presented as outcomes and should not be merely aspirational.

This was supported by Nigeria who said that some of the principles could be put forward as preambular language. It stated that the only important policy objectives for the African Group included the prevention of misappropriation, promotion of innovation and creativity, and the recognition of value.

Brazil said that principles were not “isolated parts” but should be analyzed in the form of case studies presented.

The USA said that the main objectives should be the promotion of innovation and the principle of responding to the interests of those who make and use TK. It added that knowledge in the public domain was the common heritage of all mankind; and that the interests of users and creators should be supported.

Canada said that the main objectives should be the prevention of misappropriation and unfair use; promoting innovation and recognizing value; and also documenting and conserving TK. It added that the user’s rights and interests was another cross cutting issue.