Harriet Deacon, June 2015

This seminar was organized by WIPO in the context of a pause in the work of the Intergovernmental Committee developing an international instrument for the protection of intellectual property associated with genetic resources, traditional knowledge and traditional cultural expressions (GR/TK/TCEs).

Conventional IP regimes do not fully accommodate the needs of communities, especially indigenous and minority communities, to control access to and use of their GR/TK/TCEs, or require attribution and benefit sharing when use is made thereof for commercial purposes. Currently, a minority of countries have developed laws conferring some additional IP rights protection on GR/TK/TCEs, but there is no international standard for the regulation of IP rights in this area. The IGC on GR/TK/TCEs has thus been considering a set of Draft Articles in moving towards the development of an international agreement in this area. These Draft Articles still contain a number of drafting options and are not yet finalized. Whether or not they do end up becoming an international standard, they can still provide a useful guide for policy-makers and others who see the importance of protecting IP rights associated with TK and TCEs outside of current IP regimes.

The seminar programme involved a range of high-level speakers from indigenous communities, States members of the IGC, academic institutions, intergovernmental organizations and NGOs. I attended the meeting as a representative of SIMBDEA, but did not make any formal interventions during the meeting.

In the first session, Prof William Fisher from Harvard University outlined the main advantages and challenges facing the development of a sui generis international instrument for the protection of IP associated with GR/TK/TCEs, complementary to conventional IPR regimes. The advantages of a sui generis regime include (a) the recognition of the entitlements to respect, compensation and attribution of communities when their GR/TK/TCEs are used by others; (b) providing incentives for communities to innovate and preserve and/or disseminate information about their GR/TK/TCEs; and (c) some form of redress for historical exploitation of indigenous communities and minorities. Arguments raised against such an instrument include (a) the fact that TK and TCEs were authored a long time ago (and thus do not fall within the scope of authors’ rights in conventional copyright law); (b) neither communities nor TK/TCEs are stable entities, changing frequently over time; and (c) everyone benefits from some uses of GR/TK/TCEs when harnessed to modern problems. Added to these difficulties are the very diverse kinds of TK and TCEs, and the diverse contexts in which problems or conflicts over IPRs arise. This may explain why it has been so difficult to reach agreement on a new international instrument in this field.

The speakers in the first session discussed a number of legal mechanisms for cross-border IPR protection of TK and TCEs where states already provide some protection through national law, such as requirements for declaration of origin of genetic resources (DOO), or recognition of objections to trademark registration where a sign is considered offensive by a local community. The legal mechanisms enabling such approaches to be used across national borders include national treatment (prescribed in most international IP agreements and treaties, providing that foreign and local IP holders are treated the same), coupled with mutual recognition of IPR recognised in the other country. A number of speakers in other sessions came back to the importance of countries requiring DOO in patent applications, as a starting point for communities, and policy-makers, being able to track down possible unethical (and in some jurisdictions, illegal) utilisation of GRs without prior informed consent, and to seek access and benefit sharing agreements where possible. International patent law does not make DOO part of the minimum standard but some countries – especially those that have ratified the Convention on Biological Diversity and its Nagoya Protocol (2014) – now require disclosure of DOO, as well as ABS (access and benefit sharing) and (F)PIC (free, prior informed consent) in relevant cases.

Speakers in subsequent sessions also discussed amendments to conventional IPR regimes that can help to protect community rights in TK and TCEs. The recently concluded WPPT Treaty and the Beijing Treaty on Audiovisual Performances both refer specifically to these forms of creative activity and provide some protection, for example, to performers of folklore. The Geneva Act of the Lisbon Agreement provides some protection to transborder geographical indications. Recent developments in other fields, such as indigenous rights (UNDRIP, 2007), ECOSOC, and at the FAO (supporting farmers’ rights), safeguarding (including inventorying) of intangible heritage under the UNESCO 2003 Convention, and the documentation of community resources under the Climate Agreement, support the general trend towards acknowledging the moral obligation to take community rights in their GRs, TK and TCEs into account. However, it should be remembered that different kinds of international agreements, treaties and conventions are drafted by different groups of interests with different purposes in mind.

There was a useful lunchtime session on Indigenous perspectives, and a number of presenters in the main track of the meeting represented indigenous communities, raising a number of issues that were of concern to indigenous people in various parts of the world. Reference was made several times to a tiered system of access rights to TK/TCEs, ranging from open access, to regulated use controlled by the community, and finally to secret or sacred knowledge. Indigenous participation has been promoted in relation to the work of the IGC through a number of mechanisms:

–        Indigenous website portal

–        Accreditation to IGC through indigenous organisations, institutions and NGOs

–        WIPO voluntary fund

–        IGC panels on IP and LC – takes place on the Sunday before the IGC begins

–        WIPO Indigenous fellowship programme

–        Training (distance learning course and practical workshops) open to all

WIPO’s work focuses on the GR, TK and TCEs of indigenous and local communities (the Draft Articles offer the alternative of adding ‘nations’ to this group, or using the broader term ‘beneficiaries’ instead). This latter term ‘beneficiaries’ of used, overlaps with the approach of the UNESCO 2003 Convention which focuses on ICH (TK and TCEs) associated with any ‘communities, groups and individuals concerned’. While it refers to indigenous peoples in the Preamble, the Convention does not limit States to considering the ICH of ‘indigenous and local communities’.

On the morning of the final day there was a session specifically discussing databases of TK and TCEs, and how these can be used for defensive protection. There was discussion about the range of rights and redress sought by indigenous and local communities (which include but are not confined to IP rights), and the need for positive as well as defensive protection. Several contributors mentioned the lack of trust that often exists between communities and any outside agencies compiling databases of TK and TCEs, and the need to manage rights in documentation and in the database itself. Creating a database is useful for patent offices to check for prior art in patent examination: checking whether patents have simply reproduced or aggregated ideas already known in TK, which would invalidate the patent. There was confusion in the meeting about requirements for disclosure and secrecy in patent examination, as opposed to every day understandings of disclosure, public knowledge and secrecy. Communities who do not wish to create a database of their TK can instead choose to simply lodge third party observations or oppositions to patents during or after their examination and grant. There are ways of signing up for notifications in the patent prosecution system (for example through ESPACENET) that can trigger a warning when patent applications in certain categories come into the system.

The meeting closed with an overview of WIPO’s various capacity-building initiatives many of which are freely available in the form of online resources and training programmes on their website. This includes a specialised training course on IPR relating to GRs, TK and TCEs