Bridges Trade BioRes • Volume 4 • Number 21 • 19th November 2004

WIPO COMMITTEE CONSIDERS TRADITIONAL KNOWLEDGE, FOLKLORE PROVISIONS

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WIPO COMMITTEE CONSIDERS TRADITIONAL KNOWLEDGE, FOLKLORE PROVISIONS

The World Intellectual Property Organisation’s (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) convened from 1-5 November in Geneva to consider a set of draft provisions outlining policy objectives and core principles for the protection of traditional knowledge (TK) and folklore against misappropriation and misuse. Delegates considered key questions such as the relation between TK and the patent system, the appropriate balance between national and international measures for the protection of TK and folklore, and the appropriate legal form of protection for TK and folklore.

Policy objectives, principles and options

The IGC examined the first draft of a document setting out the policy objectives and core principles for the protection of TK (WIPO/GRTKF/IC/7/5)) and the first draft of the equivalent document (WIPO/GRTKF/IC/7/3) on folklore, pursuant to a decision made in the Committee’s March meeting to launch work on concrete policy-making on TK and folklore, with outcomes expected before the end of 2005 (see BRIDGES Trade BioRes, 2 April 2004). In order to further the substantive work, the Committee agreed to invite written comments on the existing draft proposals before 25 February 2005. WIPO Deputy Director General Francis Gurry, responsible for these questions, said that that the working proposals "served as a springboard for a concentrated, focused debate on the appropriate content of international protection of traditional knowledge and traditional cultural expressions," and that progress had been made, although "significant issues remain to be resolved by member states".

Delegates raised questions about the relationship of any specific TK or folklore protection to the existing intellectual property (IP) system. They also raised issues related to possible reforms of the IP system, such as strengthened patent disclosure requirements for TK and genetic resources. In particular, participants highlighted the need for a better understanding of the systems required to ensure that illegitimate patent rights are not granted. As well, the Committee discussed how to determine the beneficiaries of protection, the need to take account of the underlying rights of indigenous peoples, the appropriate legal form of protection, how a system that protects TK against misuse could cover past use retrospectively, and the relationship of protection with other legal systems and policy areas. Some delegations suggested the documents had a "pro-intellectual property rights bias" because, for example, they state that any measures to protect TK and folklore have to be consistent with current IP instruments. One delegation suggested this could have adverse implications for sustainable development given that such instruments "can be supportive of biopiracy".

The question of international versus national approaches was central to the meeting, especially given the WIPO General Assembly’s instructions to the IGC in 2003 to "accelerate its work" and "focus on the international dimension" of genetic resources, TK and folklore. Delegates raised questions on how to set an appropriate boundary between international and national legal measures. Paragraph 9 in document 7/5 affirms that the draft is only a collection of suggestions, and that countries must decide which elements are best considered at the international level and which at the national level. Some member countries fear that the desire to create a harmonised, predictable international system could risk the creation of an inappropriate "one size fits all" approach to TK and folklore approaches that would ignore the diversity of meanings around the world of "traditional knowledge" and "protection".

No consensus was reached on the need to draft guidelines on contractual agreements on genetic resources, and some delegates suggested that a binding international instrument was needed. However, delegates will continue to consider two documents, on patent disclosure (WIPO/GRTKF/IC/7/10) and genetic resources guidelines for access and equitable benefit-sharing (WIPO/GRTKF/IC/7/9), for the next meeting.

Efforts to increase civil society participation continue…

The number of NGOs specially accredited to the IGC rose to more than 100 at this session, most of them representing indigenous traditional and local communities. The Committee spent a considerable amount of time discussing the involvement of indigenous communities. The IGC agreed on several procedural steps to enhance the involvement of these groups and to give representatives greater influence in the Committee’s work. To address the need for funding to facilitate this enhanced participation, the IGC agreed to develop plans for a voluntary fund. The next meeting of the IGC will consider a full proposal on this question, and in the interim voluntary donors were urged to provide funding in support of community participation.

Little action on genetic resources

The IGC heard updates on the process adopted by the WIPO General Assembly to respond to the invitation by the Convention on Biological Diversity (CBD) to examine and address certain specific questions relating to disclosure requirements in intellectual property systems for genetic resources and associated TK (see PR/2004/397). The invitation was forwarded to the General Assembly following dialogue during the March IGC meeting, in which some members had suggested that the IGC was not the appropriate forum to consider the request. The EU announced that it would be submitting a proposal in this area, and Switzerland updated the Committee on its related proposal within the Patent Cooperation Treaty (see BRIDGES Trade BioRes, 28 November 2003), but no decision was reached by the IGC itself on the topic.

ICTSD reporting; "WIPO Member States Get To Grips With Protection Of Traditional Knowledge And Folklore," WIPO, 9 November 2004; "IGC Seventh Session Analysis of Selected Documents," CIEL, 25 October 2004.