A Diné prayer song captured in a hip-hop hit. A “tribal” design wrapped around a trendy duffel. Who owns these traditional and cultural expressions? How do they fit into our Western framework of intellectual property? How can we protect traditional knowledge without making it even more available for exploitation?
Those are the kinds of questions raised in the ongoing negotiations at the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The United States has been participating in these negotiations since 2000. Since 2009, the negotiations have centered on drafting text for three potential legal instruments concerning (1) Traditional Knowledge (TK), (2) Genetic Resources and Associated Traditional Knowledge (GRAATK), and (3) Traditional Cultural Expressions (TCE).
The U.S. Department of State delegated authority for these negotiations to the U.S. Patent and Trademark Office (PTO), but neither the PTO, the State Department, nor any other federal agency had ever consulted with American Indian and Alaska Native tribes on this matter. At its 2016 Annual Convention, the National Congress of American Indians (NCAI) passed a resolution calling for such consultation. NARF represents NCAI in negotiations to protect indigenous peoples’ intellectual property through these developing international instruments.
The PTO and other federal agencies conducted listening sessions with tribes in 2017, and in May 2017, NARF and the University of Colorado Law School (CU) hosted a major drafting session on the WIPO TCE instrument. With NCAI’s approval, NARF took a proposed draft of new TCE provisions to the 34th WIPO session in Geneva, Switzerland, in June 2017. The WIPO Indigenous Caucus approved the draft and some of the text from it was introduced into the WIPO draft TCE instrument. NARF and NCAI continue to refine and promote the TCE instrument language, and have also turned their attention to the WIPO TK and GRAATK instruments. Another drafting session was held at CU in May 2018 to prepare for the IGC 36th session to be held in June 2018.
NARF Staff Attorney Sue Noe attended that 36th session and, on June 25, 2018, served as a speaker on the Indigenous Panel on the topic of “Practical Measures Relating to Intellectual Property and Genetic Resources: Databases and Contracts – Indigenous Peoples’ and Local Communities’ Perspectives.”
In late August 2018, Noe joined NCAI representative Frank Ettawageshik at the 37th IGC session, where Mr. Ettawageshik served as co-chair of the Indigenous Caucus. It was the first of four sessions that will deal with Traditional Knowledge and Traditional Cultural Expressions. (The next session is in December.)