Next Steps for International Protection of Traditional Knowledge in View

July 25, 2003

Geneva, 24 Jul 2003

21 July 2003 - The General Assembly of the World Intellectual Property Organization (WIPO), meeting from September 22 to October 1, 2003, will consider future directions for the organization's work in the area of traditional knowledge, folklore, and genetic resources. Over the last two years, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has laid down a solid basis for WIPO's work in this area, and its most recent meeting in July 2003 explored ideas for future work and considered the prospects for accelerated moves towards concrete outcomes.

The IGC has debated a range of pressing current issues in the field of intellectual property (IP), and has overseen the development of practical tools and mechanisms to support traditional knowledge (TK) holders, custodians of traditional culture, and indigenous and local communities in identifying and promoting their interests in relation to the IP system. There has been overall agreement that immediate steps need to be taken to safeguard the interests of those communities who have developed and preserved TK and traditional cultures.

The IGC's work has led to a much greater understanding of the issues involved, and the possible approaches to deal with concerns about inadequate recognition and protection of traditional knowledge and cultural expressions. There has been particular acknowledgement of the concerns of communities whose cultural identity and spiritual integrity can depend on how their TK and cultural expressions are used and disseminated. The IGC considered steps to enhance the participation of local and indigenous communities in the work of the IGC (document WIPO/GRTKF/IC/5/11 available in Adobe PDF and MS-Word formats).

The IGC was mandated by the General Assembly as a forum for discussion of these issues. Since the WIPO General Assembly would need to consider and renew this mandate in September, the IGC's fifth session, held in Geneva from July 7 to 15, 2003, saw extensive debate about future directions for its work, including moving beyond the initial mandate of serving as a forum for discussion, and a range of proposals on how to build on the substantial foundations it has laid.

There was strong support for the idea that the IGC should move towards concrete outcomes within the next two years, and should focus on the international aspects of protection of TK and expressions of folklore or 'traditional cultural expressions' (TCEs). But views differed over the appropriate form and legal status of these outcomes. On the one hand, some delegations felt that the urgent need to respond warranted the conclusion of a legally binding international instrument by 2005; others called for recommendations and principles that would draw together international understanding in the short term and leaving open the possibility of legally binding outcomes in future. A number of NGO participants stressed the need to strengthen and extend international recognition of customary law relating to traditional knowledge (such as the customary laws and protocols that apply within indigenous communities), including a WIPO program of study on this subject commissioned by the IGC, and to improve the involvement of representative of indigenous and local communities in any international process.

Improved coordination of WIPO's IP-related work in this area with other international processes, including treaty development and implementation on the part of the Convention on Biological Diversity (CBD), the Food and Agriculture Organization (FAO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) was also stressed.

Traditional knowledge protection

The IGC continued to foster exchange of practical understanding of possible approaches for legal protection of traditional knowledge and cultural expressions. A composite study on TK protection (document WIPO/GRTKF/IC/5/8 available in Adobe PDF and MS-Word formats) was prepared for the IGC that covered definitions of TK, policy issues in protecting TK as intellectual property, and options for specific, or sui generis, protection of TK. An expert panel at the IGC reviewed a range of sui generis mechanisms for TK protection, drawing together experts from Costa Rica, Nigeria, Peru, the Philippines, Portugal, the United States and Zambia, which illustrated a range of practical and legal responses that have been developed at national and regional levels. An extensive series of surveys, case studies and analysis of legislation was also prepared for the IGC, to ensure that the IGC's work on TK protection is based on a rich understanding of existing approaches and the costs and benefits of different policy options.

Genetic resources and TK – defenses against ill-founded patents

The IGC also considered defensive approaches to ensuring that TK and genetic resource material are not the subject of illegitimate patent claims (this has led to moves to modify core elements of the patent system, such as the International Patent Classification (IPC) and the basis of international search and examination under the Patent Cooperation Treaty). The International Plant Genetic Resources Institute briefed the IGC on the 'SINGER' database (System-wide Information Network for Genetic Resources), which provides data of genetic resources held in trust internationally. This database was recently linked to a WIPO on-line portal that is designed to help patent examiners take greater account of existing TK and genetic resources when assessing the validity of patent claims. The IGC also transmitted to the WIPO General Assembly an extensive technical study, requested by the Conference of Parties of the CBD, on the question of disclosure within patent applications of the origin and legal status of genetic resources and TK that are used in inventions (document WIPO/GRTKF/IC/5/10 available in Adobe PDF and MS-Word formats).

Protection of expressions of traditional culture and creativity

The IGC considered a composite study on the legal protection of expressions of traditional culture and creativity (or folklore) (document WIPO/GRTKF/IC/5/3 available in Adobe PDF and MS-Word formats). The ensuing IGC debate highlighted the important policy challenges for new approaches to protection of TCEs – for instance, the contested nature of the notion of the 'public domain,' and the concern of many indigenous communities about the way the public domain is conceived in the established IP system, such as when traditional cultural materials are considered under IP law to be in the public domain when in fact customary law or spiritual restrictions on its use may well still apply from the indigenous perspective. Talks have moved to a detailed, practical phase, reflecting the request of the IGC at its last session.

The IGC also considered WIPO's ongoing practical work in this area, including its assistance with the establishment of effective national and regional systems for folklore protection, and development of a "WIPO Practical Guide on the Legal Protection of Traditional Cultural Expressions."

Documentation of TK

Communities in many countries are undertaking a range of programs involving documentation of their TK and associated biological resources. These are established for a host of reasons, including to preserve TK for future generations. But this can fuel concerns that the very process of documentation can undercut the interests of TK holders. Unless the right steps are taken in advance, documented TK can more readily be accessed, disseminated and used without authorization, for instance contrary to customary laws and practices. Reflecting these concerns, the IGC noted the further development of a toolkit for managing the IP implications of documentation of TK and biological resources (document WIPO/GRTKF/IC/5/8 available in Adobe PDF and MS-Word formats). This should heighten awareness of the need to ensure that documentation does not lead to an unintentional loss of rights or of control over TK.

The toolkit will clarify practical options for documentation that do not necessarily place the documented material in the public domain, when communities wish to retain control over it and limit access, for cultural, spiritual, legal or commercial reasons. Delegates stressed the need to include indigenous and local communities extensively in the development of this toolkit, and underlined that many indigenous communities viewed documentation of TK with skepticism. The toolkit will not encourage or promote documentation in itself, but rather ensure that if a community chooses to document their TK, for whatever reason, the necessary safeguards are in place to avoid undermining the community's own interests (such as by inadvertently putting TK into the public domain).

Background

The IGC's mandate is to discuss intellectual property (IP) issues relating to access to genetic resources and benefit-sharing, traditional knowledge (TK) and innovations; and traditional creativity and cultural expressions (folklore). A detailed overview of the work of the IGC is provided in document WIPO/GRTKF/IC/5/12 ( available in Adobe PDF and MS-Word formats). In the IGC's work, the terms 'traditional cultural expressions' (TCEs) and 'expressions of folklore' are used synonymously.

The IGC, established by the WIPO General Assembly in October 2000, is open to all member states of WIPO. Other United Nations member states, intergovernmental organizations and accredited non-governmental organizations (NGOs) may participate as observers. Some 175 accredited NGOs can take part in the IGC, including 83 NGOs especially accredited by the IGC, many of which represent the specific interests of indigenous communities and TK holders. The IGC requested the secretariat to develop specific ways of enhancing the participation of local and indigenous communities in its work.

For further information, please contact the Media Relations and Public Affairs Section at WIPO:

Tel: (+41 22) 338 81 61 or (+41 22) 338 95 47;
E-mail: publicinf@wipo.int
Fax: (+41 22) 338 88 10.

World Intellectual Property Organisation
http://www.wipo.int

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