Genetic Resources, Traditional Knowledge and Folklore

Recap of the 35th session of the IGC

Rice field in Madagascar (Photo: UN Photo/Lucien Rajaonina).

From March 19^th to 23^rd, 2018, the World Intellectual Property Organization’s (WIPO) IGC met for its 35^th session in Geneva, Switzerland. The Draft Agenda for the session outlines the tentative topics of discussion, such as an update on the operation of the Voluntary Fund pertaining to the participation of Indigenous peoples and local communities, a summary of which can be found here. Also on the draft agenda for discussion are reports, recommendations, and proposals pertaining to genetic resources, which can also be found in the summary of documents.

In regard to the Voluntary Fund, the Information Note on Contributions and Applications for Support provides an exhaustive list of the voluntary contributions paid to the fund by nations, the amount of resources available, and the list of persons who were recommended for funding as of January 26^th, 2018, as well as those who are seeking support to attend the IGC’s 36^th session. Here, it is worth noting that Canada proposed in its 2018 Federal Budget Plan that it will be allocating an investment of $1 million over the span of five years to allow Indigenous peoples to attend and participate in WIPO meetings pertaining to traditional knowledge and cultural expressions as a way of promoting intellectual property rights amongst its Indigenous communities.

During the course of the meetings, new proposals were submitted, and while some nations accepted them, others resisted. For instance, a revised proposal for a potential treaty preventing the misappropriation of genetic resources received much resistance from developing countries on the grounds that the U.S. introduced new issues this week that were not mentioned in the previous version (Saez). In response, a second version was created for consideration by member states, and the committee chair also created a proposal indicating the need to create an expert group to prevent the misappropriation of genetic resources prior to the next session of the IGC, and this proposal was met with positive reception (Saez).

What will be discussed at the upcoming GRTKF meeting?

The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore will meet from February 27 to March 3, 2017 for their 33rd session. On the agenda, the discussions will mostly focus on Traditional Cultural Expressions. Under the WIPO IGC, a primary focus of the work of the IGC is to reach a common understanding on core issues, including whether certain Traditional Cultural Expressions (TCEs) are protected.

Photo: WIPO – Emmanuel Berrod.

“Treasures of South Africa” Exhibit Held on Sidelines of 2016 WIPO Assemblies

In anticipation of the meeting, the Permanent Delegation of the European Union in Geneva, on behalf of the European Union and its Member States, submitted a proposal for a compilation study of national experiences and domestic legislation and initiatives in relation to the safeguarding of Traditional Cultural Expressions (TCEs). The study asks to clarify and define the scope and limitations of the current IPR (Intellectual Property Rights) regime, as well as alternative regimes, posing questions such as “how have the policy objectives been defined?”, “how have key definitions such as TCEs/subject matter, “traditional”, misappropriation, scope, duration, exceptions and beneficiaries been defined?”, or “when a tiered approach is included, how have the different levels been defined, and how can they be distinguished from each other?”

Overall, the EU proposal for a study is aiming to:

Set out, in an objective manner, domestic legislation and specific regimes for the safeguarding of TCEs, and provide concrete examples of subject matter covered.
Take into account the variety of measures that can be taken.

In addition to the EU proposal, another document entitled “Traditional Cultural Expressions: A Discussion Paper” was submitted to the agenda by the Delegation of the United States of America. This paper is intended to advance the work of the IGC by identifying examples found in the United States and in different cultures that may be regarded as TCEs. The paper identifies for instance Bikram Yoga as a Ritual TCE, or Tango as a Dance TCE. It also sets out examples for sports, musical instruments, architecture, arts and handicrafts, food, hair styles and body adornments, music and sound TCEs, verbal and written TCEs. This document will be useful as a reference to put the TCEs and their preservation into the current cultural context.

The committee will also review “The Protection of Traditional Cultural Expressions: Draft Articles Rev. 2” (WIPO/GRTKF/IC/33/4), initially drafted during the 27th session of the GRTKF in 2014, and discussed and revised multiple times since inception. This document was also discussed during the last GRTKF meeting in November 2016, when it was reminded by the Chair that the multiples revisions were “to aid in the development of a cleaner, simpler, more streamlined text that captured and reflected common positions on core issues.”

The meeting will be preceded by a half day panel on February 27, chaired by a representative from a local or indigenous community, titled “IGC Draft Articles on the Protection of Traditional Cultural Expressions: Indigenous Peoples’ and Local Communities’ Perspectives”.

Canada’s Interventions at the IGC 32

WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) 32nd session took place from November 28 to December 2, 2016. A Seminar on Intellectual Property and Traditional Knowledge was held on November 24 and 25, 2016, just prior to the IGC session.

On the agenda for this meeting, Item 6: Traditional knowledge was predominantly discussed. The committee reviewed “The Protection of Traditional Knowledge: Draft Articles” (WIPO/GRTKF/IC/31/4) last revised on March 28, 2014. The Chair introduced the discussion by reminding the committee that “in reviewing the objectives, Member States could reflect on which of the concepts detailed in the Policy Objectives set out in document WIPO/GRTKF/IC/31/4 were most directly related to IP, noting the mandate of the IGC was to “reach an agreement on an international legal instrument(s) relating to IP” for the balanced and effective protection of TK.”

Photo: WIPO – Emmanuel Berrod.

The Delegation of Canada, in response to a speech from the Delegation of Greece expressing the hope that “IGC would develop a common understanding on core issues and advance in a meaningful way”, conveyed their support and agreement, but questioned the concept of national authorities as beneficiaries. Currently, the draft article reviewed designates the Indigenous Peoples, local communities, and nations as beneficiaries of traditional knowledge, potentially offering national authorities power of control over ways in which traditional knowledge is used beyond the traditional and customary context. No formal agreement on the term used in the draft resulted from the meeting, with other delegations such Algeria suggesting to replace “nation” or “national authority” by national bodies or competent bodies. The Delegations of Ghana, Nigeria and Thailand indicated that on the contrary, they were in favor of a definition that would be as inclusive as possible to identify and recognize IPLCs (Indigenous Peoples and Local Communities) and States as beneficiaries.

In another response, the Delegation of Canada expressed their concern over the wording of the draft article, mixing the definition of Traditional Knowledge, the subject matter of the instrument and the scope of protection. They suggested that the IGC “had to come up with one clear, well-drafted statement about what was the subject matter of the instrument.” Their intervention sparked discussion over the definition of key words such as traditional and protection. Further in the meeting, Canada expressed again their request for clarification, asking for instance what the terms “dynamic and evolving” added to the definition in Article 1 of the draft: “The subject matter of [protection]/[this instrument] is traditional knowledge: (e) which may be dynamic and evolving.”

They suggested two options:

(1) a well-drafted definition of TK could be referred to in the article on “Subject Matter”, or

(2) a stand-alone article with the definition of TK that would be covered by the instrument

In response to this debate, the Chair reminded the committee that “the material presented was simply work-in-progress, and it had no status and was not a revision. It was just some ideas and thoughts that the facilitators thought were worthy of presenting and getting initial comments on before working on the first revision.”

The Chair later discussed the introduction of a tiered approach to the scope of protection, “whereby different kinds or levels of rights or measures would be available to rights holders depending on the nature and characteristics of the subject matter, the level of control by the beneficiaries and its degree of diffusion. The tiered approach proposed differentiated protection along a spectrum from TK that was available to the general public to TK that was secret/not known outside of the community and controlled by the beneficiaries. That approach suggested that exclusive economic rights could be appropriate for some forms of TK (for instance, secret TK, and TK uniquely attributable to the specific IPLC), whereas a moral rights-based model could, for example, be appropriate for TK which was disclosed, already publicly available but still attributable to a specific IPLC.”

Canada conveyed their interest in such approach, with some reservation in regards to the practical measures as applied and interpreted by administrative or judiciary bodies of the Member States. They suggested once again the need for clarification, concrete information and agreement from all parties before moving the discussion forward.

As reminded by the facilitators, the discussion and debates recorded during this meeting were not meant to be an official revision of the text. “It was meant to elicit further comments from Member States on the core issues prior to production of a Rev 1. […] The objective was to aid in the development of a cleaner, simpler, more streamlined text that captured and reflected common positions on core issues.”

Indigenous Peoples’ Participation at the Intergovernmental Committee

sccr1 — Representatives of indigenous groups at WIPO IGC. (Photo: IP Watch)

The Intergovernmental Committee at W.I.P.O. is charged with developing international legislation to protect traditional knowledge, traditional cultural expressions, and genetic resources as classes of intellectual property. As various indigenous communities throughout the world are the originators and keepers of these categories of knowledge, one would expect their rights and concerns to be at the heart of treaty negotiations. However, despite several initiatives throughout the I.G.C.’s existence, explicit frustrations from indigenous groups at the committee have been multiplying for at least the last three years, stemming from the view that their interests are being subjugated in favour of those of national governments or global corporations.

Continue reading “Indigenous Peoples’ Participation at the Intergovernmental Committee”

Pole-based Partisanship? Observations on National Positions at the Intergovernmental Committee

Barring a few exceptions, there is a pattern as to where a country likely stands on protecting traditional knowledge, traditional cultural expressions, and genetic resources at the Intergovernmental Committee. Simply look at a map, and determine if that country is closer to the North Pole or the South Pole.

Continue reading “Pole-based Partisanship? Observations on National Positions at the Intergovernmental Committee”