Protecting Traditional Knowledge and Culture at WIPO
Categories: International Matters
The World Intellectual Property Organization (WIPO) held the 40th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC 40) at WIPO headquarters in Geneva, Switzerland, June 17-21, 2019. NARF Staff Attorney Sue Noe was there representing the National Congress of American Indians (NCAI).
IGC’s objective is to reach an agreement on one or more intellectual property-related legal instruments for the protection of traditional knowledge (TK), traditional cultural expressions (TCEs), and genetic resources and associated TK (GRAATK). Text-based negotiations have been underway at the IGC since 2010. Presently there are three draft texts under negotiation, one on each subject matter.
IGC 40 was the fourth in a series of sessions focused on the TK and TCEs draft texts. The three prior sessions on these texts were in August and December 2018, and March 2019. At the suggestion of the IGC Chair, IGC 40 looked at the scope of protection to be provided in the instruments and the potential exceptions and limitations to the protections that might be allowed. For example, negotiation issues included:
- when TK/TCEs should be protected, including a possible “tiered approach” which would provide differing levels of protection based on criteria such as whether the TK/TCEs are secret or sacred, or whether the information is widely or narrowly diffused geographically;
- whether indigenous peoples and local communities who are the holders of the TK/TCEs should have a mechanism for requesting higher levels of protection for TK/TCEs being used without their prior informed consent, regardless of how widely known or diffused the TK/TCEs have become; and
- under what circumstances protected TK/TCEs can be used – for example, for education and research purposes, or where necessary to protect the public interest – and the restrictions and requirements to be placed upon the development of any such exceptions and limitations to protection – for example, whether they should be developed in consultation with the holders of the TK/TCEs, and only be allowed if they will not unreasonably conflict with the TK/TCEs holders’ interests.
The meeting produced revised texts, which were approved by the committee’s member states as the basis for future negotiations. However, the texts continue to include various alternative provisions reflecting member states’ differing positions on these and other issues.
The IGC operates on two-year mandates and because this meeting was the last session of the 2018-2019 biennium, IGC participants also had to negotiate a mandate and work program for the next biennium. Noe was selected by the Indigenous Caucus to represent the Caucus in small group negotiations with member states’ regional coordinators on the 2020-2021 mandate and work program. In this role, she was able to bring to the table recommendations to WIPO from the UN Permanent Forum on Indigenous Issues (UNPFII). At the 18th Session of the UNPFII in April 2019, which addressed the theme of “traditional knowledge,” Noe coordinated with other WIPO IGC Indigenous Caucus participants to request UNPFII make various recommendations to WIPO related to the IGC negotiations.
Based on the UNPFII recommendations, IGC 40 recommended to the WIPO General Assembly that WIPO commission the updating by an indigenous expert of the Technical Review of Key Intellectual Property-related Issues of the WIPO Draft Instruments on Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions, which was prepared by former UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, in 2014. IGC 40 also recommended that WIPO organize an Indigenous Expert Workshop to take place during the 2020-2021 biennium. Additional work remains to be done on the UNPFII recommendation related to WIPO funding for Indigenous participation at the IGC negotiations.
Renewal of the IGC mandate for the 2020-2021 biennium and approval of the recommendations of IGC 40 will be taken up by the WIPO General Assembly at its annual meeting to be held September 30 to October 9, 2019. Under the program of work recommended by IGC 40, the next IGC session will occur in February or March, 2020, and will address the GRAATK text.