11th July 2007
WIPO COMMITTEE ON GENETIC RESOURCES, TRADITIONAL KNOWLEDGE INCONCLUSIVE THUS FAR
Discuss this itemShare your views with other visitors, and read what they have to say
After over six years of discussions, members of the World Intellectual Property Organization (WIPO) remain divided on whether to create a new binding international treaty to protect genetic resources, traditional knowledge, and folklore against misappropriation, with an ongoing committee meeting on the issue inconclusive thus far.
WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) kicked off on 3 July, with talks scheduled to continue through 12 July. This was in theory supposed to be the committee’s last session and was expected to produce recommendations to WIPO’s annual General Assembly on how to address the issue. However, the committee’s mandate has been extended before, and may simply be prolonged again to allow for further talks.
The debate has broadly broken down along classical North-South lines. Several biodiversity-rich developing countries want an international legally binding instrument, whereas industrialised countries such as the US, Japan, and Canada want a non-binding recommendation.
During the current meeting, delegations have focused primarily on definitional issues, such as the objectives and beneficiaries of the protection of genetic resources and traditional knowledge and cultural expressions, and the form, extent, and duration of such protection. The chair, Ambassador Gusti Agung Wesaka Puja (Indonesia), explained that the purpose of the discussion was to find a common denominator for further deliberation in case the committee’s mandate is renewed. Despite the divisions, there is a growing consensus that the main goal of any protection regime should be the prevention of misappropriation, such as the granting of patents incorporating genetic resources or traditional knowledge without benefit-sharing and the prior consent of the communities to which they belong.
Developing countries are becoming impatient with the process; they say that it is high time to start more targeted negotiations on a protection regime for genetic resources, traditional knowledge, and traditional cultural expressions. A handful of developed country governments, notably Canada, Japan, Australia, and the US say that more time is needed to grasp the issues and determine how to proceed. Mexico described this as a pretext for obstruction; Brazil added that the industrialised countries were simply twisting around the clearly articulated views of developing nations, saying “they do not want to understand us.”
What should a regime look like?
The developing countries argue that although national laws and regional measures help protect genetic resources, traditional knowledge, and folklore, they must be supported by effective binding international rules. India reiterated its call for an international, legally binding instrument, citing recent patents granted to yoga accessories in many countries as an example of growing misappropriation. Pakistan also advocated the negotiation of a legally binding international instrument, including a ’sui generis’ regime - beyond simple patents, trademarks, and copyrights - for traditional knowledge and traditional cultural expressions. It argues that patents, with their standards tests of ‘novelty’ and ‘inventiveness’, cannot reflect longstanding communal practices. The African Group, too, supports a new legally binding treaty on genetic resources and traditional knowledge.
Currently some 25 nations have adopted sui generis systems to protect traditional knowledge, traditional cultural expressions, and genetic resources, although many struggle with the implementation of these laws, in part due to financial constraints. Pointing to such difficulties, Peruvian delegate Begona Venero Aguirre explained that her country, despite being one of the first to establish a sui generis system over two decades ago, would benefit greatly from an international solution.
On behalf of the EU, Portugal said that the IGC needed to discuss the definition of traditional knowledge and cultural expressions and the objectives to be achieved by their protection. Although it said that it would be willing to consider sui generis protection models, they would have to be non-binding.
In contrast, the US argued that traditional intellectual property tools may be used or adapted to address the economic as well moral concerns related to traditional knowledge, a view shared by Japan.
Several indigenous people’s organisations addressed the meeting, generally to express frustration with the lack of progress towards an agreement on traditional knowledge and cultural expressions. Indigenous communities are home to substantial amounts of both genetic resources and traditional knowledge, and are particularly vulnerable to misappropriation. For instance, South African scientists patented an appetite-suppressing drug based on Hoodia, a cactus used by the San people of the Kalahari desert to stave off hunger and thirst, without acknowledging its origin or giving any benefits to the community. They only reached a royalties-sharing agreement with the San after receiving heavy pressure from civil society groups and academics.
The International Indian Treaty Council, a coalition of indigenous people from the western hemisphere and the Pacific emphasised that the self-determination provisions of the UN Declaration on the Rights of Indigenous Peoples empowered them to determine how traditional knowledge would be defined and protected, a point that had earlier been made by the group of Latin American countries.
A Maori group, the Hokotehi Moriori Trust said that the IGC was suffering from a lack of political will and a lack of commitment by national governments to protect the rights of indigenous communities. It stressed that the distinction between traditional knowledge and traditional cultural expressions had not been created by indigenous peoples, but was rather a device to accommodate them within the intellectual property system. It said that traditional cultural expressions, such as music or names, are inextricably linked to traditional knowledge, and are integral to the maintenance of indigenous cultures.
“Indigenous people search for an appropriate mechanism to recognize and respect their knowledge,” the trust said. A requirement for “prior informed consent would warrant against suppression of traditional knowledge and stop the culturally offensive use of certain material.”
How to define traditional knowledge?
Nigeria argued that, just like classical intellectual property, there is no need for a consensus definition of traditional knowledge; indeed, a single definition may be inadequate. All that is necessary is enough convergence on what constitutes it.
The Saami Council, which brings together indigenous community groups from Norway, Sweden, Finland, and Russia, also questioned the demands for a definition of traditional knowledge. It pointed out that conventional knowledge has never been defined, and that patents are granted on basically everything.
Who qualifies? For how long?
Who would qualify for protection, and for how long, are other bones of contention. Italy said it has many local communities that have their own cultural expressions, even though they are not indigenous. It argued that these deserved protection too. Japan said that the very definition of what constitutes a ‘community’ remained unclear, as did the issue of how to treat immigrants and communities not based on kinship.
The EU wants the protection period to be limited, as opposed to the absence of constraints sought China and Nigeria. Japan has noted that putting a fixed duration on protection would mean that only certain generations could benefit. The US, Canada, Russia, and Australia argued that discussing time limits was premature, since the scope of rights had not yet been clarified.
Most international trade and intellectual property agreements include exceptions from standard obligations under certain circumstances. With regard to the proposed legal instrument for protecting genetic resources, traditional knowledge, and folklore, most countries seem to broadly agree that there should be exceptions and limitations for education, public health, utilisation in science, and criticism, although Japan, Canada, and the US claim that it is too early to address the issue.
An additional layer of complexity to the debate on traditional knowledge stems from the fact that it is being dealt with by no less than 11 UN bodies, which are currently looking at issues from rule-making to capacity building. The UN Permanent Forum on Indigenous Issues says that the predictable confusion could be substantially reduced with improved cooperation and information sharing, particularly with the UN Educational, Scientific, and Cultural Organisation (UNESCO), the Convention on Biodiversity (CBD), and the Food and Agriculture Organization (FAO).
The issue is also being discussed at the WTO, where a group of developing countries including Brazil, Ecuador, and India have proposed amending the TRIPS Agreement to make patent applications require disclosure of the origin of genetic resources and associated traditional knowledge used in an invention, as well as evidence of prior informed consent and benefit sharing (see ,BRIDGES Weekly 13 June 2007). As at WIPO, the discussions have pitted them against many industrialised countries, with the notable exception of Norway.
As for the ongoing WIPO IGC session, the African group and a number of non-governmental organisations have asked the Secretariat to prepare a matrix setting out the range of views discussed, in order to help delegates reach conclusions on how to move forward. Deliberations will conclude on 12 July. Any recommendations the committee makes will be discussed at WIPO’s September General Assembly. That meeting of WIPO’s top decision-making body will also decide whether to extend the IGC’s mandate.
ICTSD reporting.
One response to “WIPO COMMITTEE ON GENETIC RESOURCES, TRADITIONAL KNOWLEDGE INCONCLUSIVE THUS FAR”
Add a comment
Enter your details and a comment below, then click Submit Comment. We’ll review and publish the best comments.
[...] though some expressed frustration at their lack of access to the negotiations between states BRIDGES 11 July [...]