In its mission to protect traditional knowledge and genetic resources as classes of intellectual property, the Intergovernmental Committee has produced two distinct solutions: a one-click clearing house database, and a mandatory patent source disclosure requirement. Each strategy has a different group of countries supporting it. And each strategy has perceived weaknesses that its opponents readily and repeatedly point out.
One of the major issues that the Intergovernmental Committee has dealt with since its inception has been how to protect traditional knowledge, traditional cultural expressions, and genetic resources as classes of intellectual property from both a legislative and a practical point of view. In legislative terms, the I.G.C. seems to be running under the assumption that these are all different classes of property, and so there is a treaty in the works for each of them. In practical terms, however, it has been expressed many times at meetings that these categories are all very much interconnected, especially traditional knowledge and genetic resources (since they include overlapping sub-categories such as animal breeding patterns and crop pollination or rotation techniques). Fortunately, the I.G.C. seems to have discovered how it could possibly practically cover the protection of these two categories at once. However, this consists of two different strategies, which are unfortunately usually discussed as being dichotomous rather than complementary.
One strategy is a one-click clearing house database, originally tabled by Australia at the June 2002 meeting and expanded on by Japan at the April 2006 meeting. It is supported mainly by countries from the “North” group (see my earlier post on north-south partisanship at the I.G.C.). The general premise would be to have indigenous communities around the world use documentation toolkits to register information regarding their traditional knowledge and genetic resources in a secure, easily-searchable central database. The database would be linked to patent offices around the world, which could quickly and easily cross-reference any incoming patents with the information in the database to make sure that no misappropriation of protected indigenous intellectual property had taken place.
The other strategy is a mandatory source disclosure requirement for patents, the model for which was submitted by Peru at the June 2005 meeting. It is supported mainly by countries from the “South” group (again, see my earlier post on north-south partisanship at the I.G.C.). The general premise would be to require a new stipulation in patent applications worldwide that would require any applicants to describe any idea behind (or material used in) an invention that originated from an indigenous community, as well as to identify the community’s country of origin (and/or perhaps the community itself, in the case of cross-border groups). This would allow intellectual property offices to more easily reject patents that were not sufficiently novel or different from existing indigenous intellectual property, as well as ensure that indigenous communities that had their intellectual property legally appropriated would be identified and adequately compensated.
The “North” group has two major objections to the mandatory source disclosure requirement proposal. The first objection is that, in its current state, the proposal would make the work of patent offices needlessly more complicated. For one thing, patent applications around the world would have to be reformatted to just to accommodate this one new section. Also, unlike the database plan, the proposal does not seem to take into consideration how to acquire the information on traditional knowledge and genetic resources necessary to cross-check against the information procured with the disclosure requirement. In essence, patent offices would have only limited information with which to make at best an educated guess as to whether or not a patent applicant was infringing on indigenous intellectual property rights.
The second objection is the flip side of this scenario: potential patent applicants may be more reluctant to submit their application for processing, knowing that it could be a potential toss-up whether their application is accepted or not. They may also be hesitant to submit an application because if they do not disclose any information related to the use of indigenous intellectual property, and then it is later revealed that their invention is too similar to traditional knowledge or genetic resources being used somewhere in the world, their patent could be rejected or revoked. In either case, “North” group countries are concerned that legal uncertainty with the mandatory source disclosure requirement proposal will stifle creativity and innovation, rather than protect it.
Similarly, the “South” group has two major objections to the one-click clearing house database proposal. The first objection relates to concerns from indigenous peoples that registering information on their traditional knowledge and genetic resources in the database will subject it to protection loopholes in existing intellectual property systems. Specifically, they are worried about the rule that intellectual property is eventually released into the public domain if it is not actively used, or its owners have been deceased, for a certain amount of time. “South” group countries insist that information in the database must not be subject to this rule, especially not at the expense of any stipulations in either of the I.G.C. treaties on traditional knowledge or genetic resources (for example, that items of traditional knowledge or genetic resources will continue to receive intellectual property protections as such indefinitely, as long as they fulfill their requirements as such).
The second objection relates to information centralization and access. With so much information on traditional knowledge and genetic resources all in one place and requiring legal protection, “South” group countries caution that the database administrator(s) must be very careful with regards to who is allowed to access it and what they are allowed to access. They fear that, without proper security measures in place, unscrupulous patent office insiders could use the information in the database to easily commit misappropriation or biopiracy themselves, or else facilitate others in doing so. This would defeat the entire purpose for the I.G.C. creating the database in the first place.
For a brief time at the meeting in May 2010, before the first of the Intersessional Work Groups, the countries of the I.G.C. were able to stop seeing these two strategies as mutually exclusive solutions. Though some of the recurring objections, as listed above, were raised, this was more in the context of general problems that needed to be overcome as opposed to why one strategy was superior or inferior to the other. Both strategies were seen as complementary parts of a more comprehensive solution to an international-scale problem. Sadly, after the legal experts at the Intersessional Work Groups hammered out the draft terms of each of the I.G.C.’s three treaties, countries for some reason seemed to diverge back into their traditional positional camps and begin once again treating this situation as “one or the other”. Time will tell whether pressures — such as the urgings of indigenous observers or strict procedural schedules — will lead the I.G.C. back to compromise on this issue, or else only one solution will make it into the I.G.C.’s treaties on traditional knowledge and genetic resources once they are finalized.