News and Analysis • Volume 2 • Number 2 • May 2008
Progress or setback? An African regional instrument to protect traditional knowledge and folklore
During the 13th Session of its Administrative Council in 2006, the African Regional Intellectual Property Organisation (ARIPO) adopted a draft instrument for the protection of traditional knowledge (TK) and expressions of folklore. The draft instrument was adopted against a backdrop of various international initiatives aimed at finding ways and means for the protection of TK and the expression of folklore. At the same time, ARIPO Members also began exploring means and options for the protection of traditional knowledge at the national level, a process that continues today. In Kenya, for example, a taskforce appointed by the Attorney General of ARIPO in 2006 to develop a legal and policy framework of protection of traditional knowledge is still at work.
The importance of TK and folklore in Africa is widely recognised, and African countries have repeatedly called for further protection at the international, regional and national levels. Yet, the adoption of the draft instrument by the ARIPO Administrative Council poses a number of challenges in advancing the debate on the protection of TK in Africa. A fundamental question relates to the effect it will have on the position of the African group in other TK negotiation fora. Secondly, if this draft reflects the ARIPO members’ position on the issue, it is potentially divisive as it does not account for all African states.
The draft ARIPO Instrument
The preamble of the draft instrument lays out the general aspirations of the ARIPO members and the rationale for protection. Included in the preamble is a recognition of the intrinsic value of TK and expressions of folklore; acknowledgment of the need to respect TK systems and expressions of folklore; and a stated desire to encourage, reward and protect the authentic tradition-based creativity of traditional and cultural communities.
From the outset, traditional knowledge and expressions of folklore are treated separately in the draft, with the instrument providing different criteria for the protection of each. This is clear from article I, which stipulates that the purpose of the draft instrument is twofold: to protect TK holders against any infringement of their rights; and to protect expressions of folklore against misappropriation, misuse and exploitation beyond their traditional context. A distinction is made between infringement on one hand and misappropriation, misuse and exploitation on the other. In a way, this suggests that expressions of folklore are incapable of being infringed, and TK is incapable of being misappropriated, misused or exploited. Table 1 compares corresponding provisions for the protection of TK and those for protection of expressions of folklore in the draft instrument without examining the details of each of the provisions.
A review of the table reveals several issues that warrant comment. First, it appears that whereas the rights conferred to TK holders are expressly provided (article 6), this is not the case for expressions of folklore. The difficulty with this stems from the fact that the draft instrument does not attempt to define who the holders of expressions of folklore are to begin with. As such, the draft insinuates that rights (if any) relating to the expression of folklore are incapable of being exclusively held, voluntarily assigned and licensed (article 7), or compulsory licensed (article 11).
Secondly, as concerns remuneration it appears that whereas TK holders may be remunerated directly (and equitably) under article 8, when expressions of folklore are exploited, remuneration is provided through an appropriate authority (article 21(d)). This raises a host of other issues, chief of which is the management and administration of rights under the draft instrument. National authorities’ intervention with regards to TK holders is limited to provisions of assistance that ensure the legality of contracts entered, and the maintenance of registers and other records (article 14). However, administration of expressions of folklore requires the designation of an appropriate authority entrusted with a host of tasks such as awarenessraising, education, monitoring and dispute resolution (article 21(1)). To facilitate the management of TK, shouldn’t similar tasks be undertaken?
Thirdly, there are detailed provisions that enumerate measures to be taken to prevent unlawful acts against expressions of folklore (article 18). Corresponding measures that may be taken to prevent infringement of TK are not stipulated. Finally, the little of the Prior Informed Consent (PIC) process that is specified is very weak. This is not entirely surprising, however, considering that minimal reference of it is made in the preamble.
Preliminary issues arising related to other international instruments and processes
There are international processes underway that are examining ways and means of protecting TK and expressions of folklore. At the global level, these initiatives and fora include the work being undertaken at the World Intellectual Property Organisation (WIPO) Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) and the Ad hoc openended Working Groups on Access and Benefit Sharing and Article 8(j) (Traditional Knowledge, Innovation and Practices) under the auspices of the Convention on Biological Diversity (CBD). Box 1 lists the elements to be considered at the 9th Conference of the Parties to the CBD to be held in Bonn, Germany in May 2008. At the regional level, and particularly in Africa, the African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources (Africa Model Law) adopted in 2000 by the African Union was also an attempt to advance the idea of protection of TK in Africa.
International and regional instruments have an important bearing on how TK and expressions of folklore are protected. It is important to note, however, that the ARIPO Member States are also parties to international and regional instruments that are highly relevant for the protection of TK and expressions of folklore. All the ARIPO member states are parties to the Convention on Biological Diversity and thus the CBD. Articles 8(j) and 15 (Access to Genetic Resources) to the CBD are therefore particularly important to consider in the development of the draft instrument. While not binding the provisions of the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization should have formed part of the constituency to be considered as well.
Corresponding to these instruments are the negotiations and debates taking place in the ad hoc open-ended Working Groups on Access and Benefit Sharing and Article 8(j) under the auspices of the CBD. The outcomes of these negotiations will also invariably affect how TK and expressions of folklore will be protected in future. As Box 1 illustrates, there are a number of important points relating to the protection of TK that still remain up for negotiations under the CBD, which raises the question of whether this draft instrument takes these issues into account.
For a start, the draft does not deal with issues such as documentation of TK and the effects of documentation. Secondly, there are several concerns related to using the Africa Model Law as a basis, guide and model by and for African Union Member States crafting national legislation to protect the rights of local communities, farmers’ rights, breeders’ rights and regulation of access to biological resources. Not many of the few AU members that have national legislation in these areas have taken the African Model Law into account. Recognising that ARIPO member states are also AU members, there would not have been a better starting point in the consideration of the draft instrument than the African Model Law. Interestingly, the draft instrument departs from the provisions of the African Model Law in several respects. While details of these are beyond the scope of this article, a key difference between these two instruments lies in the approach itself. The African Model Law takes the view that community rights, TK, and biological resources are inextricably linked, whereas, article 14 of the draft instrument illustrates a different approach.
Thirdly, the role of WIPO both as an international organisation as well as the forum for the IGC raises questions. As an institution, WIPO has a mandate to promote the development of measures designed to facilitate the efficient protection of intellectual property throughout the world and to harmonise national legislations in the field. It is in this context its Economic Bureau for Africa in 2005-2006 assisted “in drafting a harmonised regional instrument for the protection of TK and traditional cultural expressions,” at the request of ARIPO. While it is within WIPO’s mandate to offer technical assistance when requested, it is important to bear in mind that in the recent past, WIPO’s technical and legal assistance has been criticized for a variety of reasons, leading to the perception that assistance received may not be ‘neutral’.
Finally, through the WIPO IGC, debates and dialogues including the examination of the possible development of an international instrument or instruments to protect TK, genetic resources, and traditional cultural expressions (TCEs)/ (folklore) have been taking place. Table 2 is a comparison of the provisions on the protection of TK from the draft ARIPO instrument and the WIPO Secretariat document WIPO/GRTKF/IC/9/4. Table 3 is an evaluation of the provisions for protection of expressions of folklore from the draft ARIPO instruments as compared to WIPO/GRTKF/9/5. The WIPO documents were issued during the 9th Session of the WIPO IGC in 2006. The intention of the comparison is to gauge whether these WIPO Secretariat documents influenced the outcome of the draft instrument, as it is recognised that the draft instrument is an independent document.
Table 2 demonstrates that the provisions on the protection of TK in the ARIPO draft instrument largely correspond to the WIPO secretariat document WIPO/GRTKF/IC/9/5. However, what also emerges is that, contrary to some provisions of the WIPO document, the draft ARIPO instrument does not put much emphasis on the PIC process. As mentioned earlier, this is a major departure from the often expressed position of the African groups including the ARIPO countries.
Table 3 paints a picture akin to that of Table 2: There is heavy reliance on the WIPO/GRTKF/IC/9/4 text. There are slight departures, but these restrict the flexibility of the draft ARIPO instrument. For example, formalities relating to protection only make provisions for notification, and the holders of rights play a very nominal role in the management of rights.
Conclusions
In principle, the draft ARIPO instrument is useful in advancing the debate on protection of TK and expressions of folklore. However, its potential impact on the protection of traditional knowledge in Africa and on ARIPO member states in their participation and positions in other negotiations processes should not be under-estimated.
First, it is apparent that the WIPO Secretariat documents in the WIPO IGC process have had a tremendous influence on the shape of this draft. This potentially raises questions regarding the nature of technical assistance received, and to what extent provisions in the draft article reflect the particular needs and circumstances of the ARIPO member states.
Secondly, the ARIPO draft reflects a partial aspiration and position of African countries in the negotiation processes. This is potentially divisive and dilutes Africa’s position on these issues, particularly given that some of its provisions depart from previously stated positions of African countries in negotiations. As African countries continue to engage the international community on issues concerning protection of TK and expressions of folklore, it is important that they ensure they do not take actions at the regional level that compromise their negotiating positions at the international one.
Peter Munyi is Chief Legal Officer at the Physiology and Ecology (ICIPE).