TWN Info Service on Intellectual Property Issues (Mar08/04)
15 March 2008
Third World Network

Please find below news report on the outcomes of the 12th Session of the WIPO Intergovernmental Committee on IP, and Genetic Resources, Traditional Knowledge and Folklore (IGC) that concluded its work on 29th February 2008.

It was first published in SUNS and is reproduced here with permission.


Best Regards
Sangeeta Shashikant
Third World Network
email: ssangeeta@myjaring.net

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WIPO: Traditional knowledge group concludes meeting
Published in SUNS #6431 dated 10 March 2008


Geneva, 4 Mar (Sangeeta Shashikant) -- The 12th Session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) concluded its meeting last week with agreement on its future work.

In relation to traditional cultural expressions/expressions of folklore (TCEs/EoF) and traditional knowledge (TK), it was agreed that the Secretariat will prepare for the next IGC a working document that will:

(a) describe what obligations, provisions and possibilities already exist at the international level to provide protection for TCEs/EoFs; (b) describe what gaps exist at the international level, illustrating those gaps, to the extent possible, with specific examples; ( c) set out considerations relevant to determining whether those gaps need to be addressed; (d) describe what options exist or might be developed to address any identified gaps, including legal and other options, whether at the international, regional or national level; (e) contain an annex with a matrix corresponding to the items mentioned in sub-paragraphs (a) to (d) above.

The Secretariat will also make explicit the working definitions or other bases upon which its analysis is conducted.
According to the decision, this document will be made available in draft form by 31 May 2008 and the IGC participants will have the opportunity to comment on the draft before June 30 after which a final draft of the document will be published by August 15 for consideration by the 13th session of the IGC.

On genetic resources, the decision also mentioned that the Secretariat will also reissue document titled "Genetic Resources: List of Options" (WIPO Doc. WIPO/GRTKF/IC/12/8(a)) and update document titled "Genetic Resources: "Factual Update of International Developments" (WIPO Doc. No. "WIPO/GRTKF/IC/12/8/(b) for full in-depth discussion at the 13th session. Member states and accredited observers will be invited to submit comments on the documents in advance of the next session if they so desire.

It was also agreed that at the next IGC, the Committee will consider taking a decision on the proposed modalities and terms of reference for the establishment of intersessional mechanisms or processes, as well as other possibilities, to continue and to build on the progress achieved so far, in a structured and focused manner the technical work of the Committee on the three substantive items (GR, TCE, EoF) and between its sessions, on the basis of the proposals submitted.

Several of the IGC participants mentioned that the gap analysis should not only focus on IP protection but should be more broad based.

The Tulalip Tribes, a US-based indigenous peoples organization said the gap analysis should be gauged from the perspective of the UN Declaration on the Rights of Indigenous Peoples.

In the course of the meeting, the African Group proposed setting up an "expert group" to further "study the outstanding issues thereby building consensus to advise the Committee". However, the proposal did not survive informal discussions held towards the end of the week, although decision on the future work keeps the option of an intersessional process open for the next IGC.

Brazil with support of many developing countries proposed that the WIPO IGC focus its work on traditional cultural expressions, since there was more progress in WTO on the issue of mandatory disclosure requirements in the patenting of biological resources and associated traditional knowledge than in WIPO.

However, Brazil's proposal encountered resistance from developed countries. Developed countries frequently use the existence of discussions at the IGC forum as an excuse to not discuss the issue of IP and Genetic resources (particularly mandatory disclosure requirement of use of genetic resources and associated traditional knowledge in patent applications) in more significant forums such as WTO (which has binging rules) and the Convention on Biological Diversity (CBD) which is developing an international framework for access and benefit sharing.
For this reason, the decision on genetic resources calls for a re-issuance of previous documents, which pertain to a list of options and a factual update of international developments.

A topic that was significantly discussed at the IGC was databases and registers for the protection of traditional knowledge and genetic resources. The meeting discussed the merits and demerits of documenting GR and TK.

Some favoured it as a defensive measure against misappropriation although some others such as Brazil pointed out weaknesses in such an approach, highlighting issues that should be considered even when using it as a measure for defensive protection.

China said that databases were only a means to prevent the erroneous granting of rights and it should not be a precondition of TK protection. It said there were weaknesses in the system; for example, once TK is included in public databases, it would no longer be confidential.

Brazil said that the databases would not really prevent the erroneous granting of patents as TK which is not openly disclosed to the broader public would then not form prior art. Even if TK is compiled in a database, it may not be considered as part of prior art since often the invention is derived from TK, and it is the invention (and not TK) that is then patented. Thus such a database may not be useful for either defensive or offensive protection.

Brazil said that ultimately databases of TK would simply disseminate TK and expose it to misappropriation. It thus urged caution against the idea of documenting TK in databases.

What is important, said Brazil, is to include safeguards that will involve traceability of the use of TK in invention seeking patents. A proposal on the mandatory disclosure of the use of GR or traditional knowledge in patent applications is already sponsored by developing countries in the WTO.

India stressed the principles of the Convention on Biological Diversity (CBD) i. e. of prior informed consent and sharing of benefits arising from the use of GR and associated TK.

Egypt said that databases should not be a condition for protection of TK. It said that recording TK was one way of protecting TK; however, its misuse should be subject to penalties. Ecuador stated that TK protection does not lie in databases but in keeping them alive in communities, as TK is important for the survival of the communities.

New Zealand stressed the need for fostering respectful, better and fair behavior among users, the universities, industry, etc and the way to go about this is to appeal to the ethics and morality of these users.

Mexico said there should be measures to safeguard the confidentiality of databases, and other mechanisms to ensure that TK owners have access to the databases and to deal with disputes concerning the TK in these databases.

Brazil responded that if the TK information is made public and if by chance that TK contained an element of patentability, then the community from which it came would no longer be able to apply for a patent on its own TK.

It added that if a certain TK were placed in a database today, it would be irrelevant as prior art for assessing existing patent applications. There is no way TK placed in databases today can be considered as prior art to deny existing patent applications, it added.

The Indigenous Peoples Council on Biocolonialism (IPCB) expressed skepticism on the use of these databases and its ability to protect TK effectively. The "catch-22" situation is that if it is not documented then it would not be considered part of existing body of knowledge while if it is placed in a database then it will be open to the threat of misappropriation and misuse. While indigenous knowledge may be known legitimately or illegitimately, it is not public in the sense that anybody can use it.

The Tulalip Tribes of the USA said that the indigenous peoples were not only concerned about unjust enrichment but also violations of customary law and petty misuse. They were more interested in cultural survival.

A representative from the Assembly of First Nations, an indigenous peoples group from Canada raised the issue of the security of the databases which if breached might make TK a part of the public domain. It also said that in their experience it is often the case that the indigenous peoples that provided the data could not even access that data to promote their own interests. +