Protecting Traditional Knowledge

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

Daniel F. Robinson,Ahmed Abdel-Latif,Pedro Roffe

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317354857
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

This is the first comprehensive review of the Intergovernmental Committee (IGC) of the World Intellectual Property Organization (WIPO) established in 2000. It provides an in-depth consideration of the key thematic areas within WIPO discussions – genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs) through the perspectives of a broad range of experts and stakeholders, including indigenous peoples and local communities. It also looks at how these areas have been treated in a number of forums and settings (including national systems and experiences, and also in trade agreements) and the interface with WIPO discussions.

Furthermore, the book analyses the process and the negotiation dynamics since the IGC received a mandate from WIPO members, in 2009, to undertake formal text-based negotiations towards legal instruments for the protection of GR, TK and TCEs. While there has been some progress in these negotiations, important disagreements persist. If these are to be resolved, the adoption of these legal instruments would be a significant development towards resolving key gaps in the modern intellectual property system. In this regard, the book considers the future of the IGC and suggests options which could contribute towards achieving a consensual outcome.

Part 1
Introduction

1 Introduction

Mapping the evolution, state-of-play and future of the WIPO IGC

Daniel F. Robinson, Pedro Roffe and Ahmed Abdel-Latif

This book is the first comprehensive review of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) process. The IGC was established in 2000 and its deliberations are still ongoing.

During its first years, the IGC was focused mostly on analysis and the exchange of national experiences with the aim of achieving a better understanding of the interface between intellectual property and genetic resources (GRs), traditional knowledge and traditional cultural expressions (TCEs). In 2009, the IGC received a new mandate from WIPO members to undertake formal text-based negotiations towards legal instruments for the protection of GRs, TK and TCEs. Since then delegates have made progress towards consolidated texts which include draft provisions addressing a range of issues such as scope of protection, term of protection, beneficiaries, rights granted and exceptions and limitations. However, important disagreements still persist in some of these key areas under discussion. If such disagreements were to be resolved, the adoption of these legal instruments would be a significant development towards resolving key gaps in the modern international intellectual property (IP) system. Having binding international agreements on GRs, TK and TCEs would be a landmark in international law and in IP law, and could potentially contribute to the prevention of their misappropriation.¹ Having an international IP agreement in relation to GRs could complement the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD). The IGC might also ultimately produce new international norms on TCEs, which would complement the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage.

On the other hand, if the IGC continues to inch along at its current pace or fails to deliver, it may confirm the opinion of some critics of the process, that the negotiations were forum shifted into WIPO to maintain a status quo in the intellectual property system – managing developing country and Indigenous representative expectations against an ever higher ratchet of IP minimum standards through other forums or processes like regional trade agreements (RTAs) and bilateral free trade agreements (FTAs) (see Drahos, 2004; Helfer, 2009). Indeed, in previous years there has been some debate over whether the TRIPS Council of the WTO would be the most appropriate forum to deal with GRs and TK, given that the TRIPS Agreement requires a review of Article 27.3(b) which deals with patentability or non-patentability of plant and animal inventions, and the protection of plant varieties. Furthermore, Paragraph 19 of the 2001 WTO Doha Declaration has broadened the discussion in TRIPS to also look at the relationship between the TRIPS Agreement and the CBD, the protection of traditional knowledge and folklore. Many developing countries also see negotiations in TRIPS as preferable for dealing with issues like erroneous patents and misappropriations because the WTO carries the force of a dispute settlement mechanism and sanctions in cases of non-compliance. As Okediji has noted: ‘WIPO is neither formally charged nor structurally designed to accomplish the kind of linkage bargains now associated with the WTO’ (Okediji, 2008, p73).

At the WTO, substantial proposals have been made on a disclosure of origin patent requirement over the years and most recently in the aftermath of the adoption of the Nagoya Protocol. However, there has been little progress in WTO discussions in the context of a broader stalemate in the Doha round of trade negotiations. In the meantime the WIPO IGC received a mandate to work towards international legal instruments and the WIPO Secretariat has produced a wealth of documentation to support the negotiations. The work of the IGC has had a broader mandate, including TCEs. Indigenous peoples have also been able to take part in the IGC deliberations as observers. Over the years, the IGC saw some gradual narrowing of the texts on GRs, TK and TCEs, but still with no clear consensus on what the international instruments should look like, how negotiations could be taken forward, and persistent disagreements between different stakeholders.

Against this background, the first aim of the book is to analyse and understand the inception, evolution and ongoing role of the WIPO IGC process within the context of a number of other related international forums. The second aim is to provide an in-depth consideration of the key thematic areas within WIPO discussions – GRs, TK and TCEs – and how they have been considered in other forums and contexts (in national systems and experiences, and also in free trade agreements), as well as the challenges that arise in seeking to reach agreement on mechanisms and measures to protect them. These challenges include conceptual, legal and political divergences between various stakeholders over the need for and substance of protections over GRs, TK and TCEs, which has meant the IGC is still deliberating after 33 sessions at the time of writing. The final aim of the book is to consider the IGC’s future and to suggest options which could contribute towards consensus building to overcome some of the significant hurdles facing the negotiators in reaching agreement.

Two important considerations have guided the preparation of the book. First, the inclusion of a diversity of views on the issues considered by the IGC, including national perspectives as well as perspectives from different stakeholders whether from industry or from indigenous peoples. Second, the involvement of authors who, in many cases, have been actively involved in the negotiations as delegates or observers or as experts on GRs/TK/TCEs, and to ground the analysis on their experiences, their interpretation of the ongoing development of IGC texts, and also based on interviews and meetings with delegates and different stakeholders. These considerations also make the originality and value added of this book as a contribution to the existing literature on these issues; this is in addition to being the first comprehensive overview of the IGC.

The book is structured in four parts reflecting the context in which the WIPO IGC was established and operates and the relationship between the work of the WIPO IGC and other forums (Part 1), the thematic areas under negotiation (Part 2), stakeholder perspectives (Part 3) and the future of the IGC (Part 4). The scope of analysis focuses on the legal, political and technical aspects of the negotiations and working texts, and their potential to protect GRs, TK and TCEs.

Part 1 provides an introduction to the WIPO IGC and includes the three following chapters starting with a discussion of the origins and establishment of the IGC by Ahmed Abdel-Latif (Chapter 2). The chapter shows that many of the issues the IGC has been grappling with throughout its existence have been present since the very beginning. Chapter 3 by Wend Wendland, examines the evolution of the IGC process until its renewed mandate and current status. Through an ‘insider’s perspective’ the chapter provides a comprehensive overview of how the IGC’s mandate and the format of its discussions have evolved over time. Chapter 4 by Charles Lawson considers the relationship between the WIPO IGC and other related forums. It helps to provide an explanation of the international legal scope and coverage that exists, from which the perceived gap on IP and GRs, TK and TCEs has emerged and that the IGC has sought to address.

Part 2 analyses the substantive thematic areas of the IGC starting with Chapter 5 by Margo A. Bagley on a disclosure of origin (DOO) patent requirement. The author examines the evidence regarding the potential impacts of a DOO requirement relating to GRs and TK, including national systems that have implemented a DOO, and existing legal provisions that perform a similar function to a DOO requirement in countries like the US. Chapter 6 by Daniel F. Robinson and Claudio Chiarolla analyses ‘complementary measures’ and/or alternatives to a DOO requirement such as databases, contracts and codes of conduct relating to GRs and TK. This chapter examines the current arguments posed in the IGC against evidence from national experiences, contractual mechanisms like Mutually Agreed Terms (MAT) under access and benef...