Intellectual Property Protection of Bio-Cultural Property and Expression of Folklore in International Legal Regime Looks a Mismatch in Negotiating Sessions at WIPO 7-11 December 2009

The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) at the World Intellectual Property Organization began its first meeting under a newly-minted mandate yesterday 7th December 2009, though it seems matters of procedure may again take up much of the space for discussions. Developing countries participating, in the meeting are of the view that finding an agreement would be difficult this time.

It is pertinent to mention that the emergence of a “global information society” in recent years, characterized by the advent of modern information technologies, has also given rise to increasing awareness of traditional knowledge (TK). TK is thus receiving increased attention in numerous policy for and debates, ranging from food and agriculture, the environment, health, human rights, and cultural policy, to trade and economic development. The role of intellectual property (IP) in the protection of TK is currently being considered in several of these policy contexts, in addition to discussions taking place in intellectual property circles. As the specialized United Nations agency responsible for the promotion of intellectual property worldwide, WIPO was mandated in its 1998-99 Program to undertake exploratory groundwork in order to provide an informed and realistic analysis of the IP-aspects of TK. The new concept which is emphasized is that of Bio-Cultural property, which is defined as follows: “knowledge, innovation, practices and cultural expressions of Indigenous Peoples and local communities which are often shared and are intrinsically linked to traditional territories and natural resources, including the diversity of genes, varieties, species and ecosystems, cultural and spiritual values and customary laws originated within the socio-ecologic context of these communities”.[1]

Traditional knowledge is a part of the identity of most indigenous communities. The knowledge systems that comprise Traditional Knowledge (TK) are an essential ingredient in achieving sustainable development. It is a collectively owned property and is integral to the cultural or spiritual identity of the social group in which it operates and is preserved. It is now at the centre of the discussions on intellectual property rights and has assumed immense significance. Furthermore knowledge is not rendered traditional due to antiquity but due to the fact that it has been developed, sustained and passed on within a traditional community, and is passed between generations, sometimes through specific customary systems of knowledge transmission. Hence it is the relationship of the knowledge with the community that makes it traditional.

Now India has access-sharing with the European Patent Office (EPO) on the Traditional Knowledge Digital Library (TKDL) and United States Patent and Trademark Office (USPTO) , is also using the open databases made available by the Central Council for Research in Ayurveda and Siddha and Himalaya Healthcare herbs database. Furthermore it is important to preserve the social and physical environment of which the TK is an integral part. Attempts to exploit traditional knowledge for industrial or commercial benefits may lead to prejudicial misappropriation of the same from its rightful holders. Hence it becomes pertinent to develop ways and means of protecting and nurturing traditional knowledge thereby ensuring sustainable development compatible with the interests of the TK holders.

Historical Development of Traditional Knowledge : WIPO’s past work in this area dates from 1978 and was focused on “expressions of folklore". Three meetings of experts were convened jointly by WIPO and the United Nations Educational, Scientific and Cultural Organization (UNESCO), which led to the adoption in 1982 of the “Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions” (the Model Provisions).

An initial issue relates to appropriate terminology for the subject matter concerned. Section 2 of the Model Provisions defines the term “expressions of folklore” as “productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community or by individuals reflecting the traditional artistic expectations of such a community”. Since adoption of the Model Provisions in 1982, international legal instruments in other fields have increasingly used terms such as “traditional knowledge, innovations and practices” (Article 8(j), Convention on Biological Diversity, 1992), or “indigenous knowledge, cultures and traditional practices” (Draft UN Declaration on the Rights of Indigenous Peoples, Preamble). These terms include a broader range of subject matter (for example, traditional agricultural, ecological and medicinal knowledge and practices) than that which is covered by the term “expressions of folklore” in the Model Provisions. As the United Nations specialized agency responsible for the promotion of intellectual property, WIPO undertook a series of fact-finding missions (FFMs) “to identify and explore the intellectual property needs and expectations of new beneficiaries, including the holders of indigenous knowledge and innovations, in order to promote the contribution of the intellectual property system to their social, cultural and economic development. WIPO undertook nine FFMs, namely to the South Pacific, South Asia, Southern and Eastern Africa, North America, West Africa, the Arab countries, South America, Central America and the Caribbean. The range of interlocutors included a wide spectrum of stakeholders, including TK holders and their representatives, government officials, research institutes, non-governmental organizations (NGOs), museums, community organizations, village councils, etc. International Bureau.

From the FFMs, WIPO learned that TK is a rich and diverse source of creativity and innovation. The FFMs revealed that traditional knowledge systems are frameworks for continuing creativity and innovation in most fields of technology, ranging from traditional medicinal and agricultural practices to music, design, and the graphic and plastic arts. Stakeholders consulted during the FFMs considered TK to be a constantly renewed source of wealth, both as an economic asset and as cultural patrimony. This was the case in both developing and developed countries visited during the FFMs.

WIPO learned from the FFMs that the IP issues related to TK cut across the conventional branches of intellectual property law, such as copyright and industrial property. In many cases TK holders do not separate “artistic” from “useful” aspects of their intellectual creations and innovations; rather, both emanate from a single belief system which is expressed in daily life and ritual. The FFMs also revealed that numerous indigenous and local communities have protocols for protection of TK and TK-based innovations under customary law. In general, the FFMs showed the richness and diversity of TK on a global scale, both in terms of its inherent creativity and as potential subject matter for IP protection.

Discussions at the opening plenary session of WIPO on 7th Dec 2009

There were discussions over the draft agenda, when the African Group (later supported by members of the Asian Group) asked that discussions on “intersessional” meetings intended to speed the work of the IGC take place earlier in the week. Three intersessional meetings were loosely scheduled by the October WIPO General Assemblies for February/March 2010; October 2010; and February/March 2011. The next IGC will be in May or June 2010, so a decision as to substance and method of work for the intersessional group must be made this week. A secretariat-prepared document lays out some background questions for making this decision.

Overall, the IGC is working under a new mandate from the assemblies to “continue its work and undertake text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection of” genetic resources, traditional knowledge, and traditional cultural expressions.

There is disagreement on several parts of this mandate. Remaining questions include how and when the text-based negotiations will happen, with many developing countries calling for them to be undertaken immediately and some developed countries – primarily the United States, saying that there are still technical issues to be tackled before the group is ready. A group of like-minded countries that have been pulling for a strong IGC mandate and a binding legal instrument to protect against the misappropriation of genetic resources and traditional knowledge have advocated focussing on three texts: two gap analyses on traditional knowledge and traditional cultural expressions and a list of options on genetic resources.

The like-minded governments, mainly developing countries, have said that focussing on these three texts, which contain language that could potentially be used in the legal instrument, is a good way to focus negotiations and avoid wasting time.

Members of the like-minded group of countries include at least: Algeria, Angola, Bangladesh, Botswana, Brazil, Ecuador, Egypt, Guatemala, India, Indonesia, Iran, Malaysia, Mexico, Nepal, Oman, Peru, the Philippines, Senegal, South Africa, Sri Lanka, Thailand, Yemen, Zambia and Zimbabwe.

The like-minded group met in Bali, Indonesia from 23-27, 2009, November, and prior to that in Montreux, Switzerland on 29-30 October 2009, and have produced a text. The meetings said that the documents 9/4 and 9/5 are “sufficient material for commencing negotiations” and reaffirmed commitment to “vigorously pursue” an international legal instrument, according to a statement by Indonesia. The meeting was also attended by WIPO, WTO, the Food and Agriculture Organization and the South Centre.

Source: www.ip-watch.org, By Kaitlin Mara, and www.wipo.org, visited on 8th December, 2009, 7 PM IST.

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