WIPO Member States Get to Grips with Protection of Traditional Knowledge and Folklore
Geneva, November 9, 2004
Press Updates UPD/2004/234
Member states of the World Intellectual Property Organization (WIPO) intensified their work on concrete outcomes for the protection of traditional knowledge (TK) and traditional cultural expressions (TCEs)/folklore last week at a meeting of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The meeting, which took place in Geneva from November 1 to 5, 2004, reviewed, for the first time, a set of draft provisions outlining policy objectives and core principles for the protection of TK and TCEs against misappropriation and misuse. The meeting was attended by delegates for 104 member states, 20 intergovernmental organizations and 45 non-governmental organizations.
Mr. Francis Gurry, WIPO Deputy Director General responsible for these questions, said, "The working proposals were distilled from views expressed by WIPO Member States and a wide range of indigenous and local communities, and also drew on a range of national and regional laws. They served as a springboard for a concentrated, focussed debate on the appropriate content of international protection of traditional knowledge and traditional cultural expressions. While significant issues remain to be resolved by member states, the progress made last week was very promising," he added.
Delegates explored a range of policy and legal issues raised by these initial drafts. A key question was the relation of any specific TK or TCE protection to the existing intellectual property (IP) system, and the possible reforms of the IP system such as strengthened patent disclosure requirements for TK and genetic resources. Among the other substantive issues raised were how to determine the beneficiaries of protection, the need to take account of the underlying rights of indigenous peoples, the appropriate legal form of protection, how to set the appropriate boundary between international and national legal measures, and the relationship of protection with other legal systems and policy areas. Another key point concerned how a system that protects TK against misuse should reach retrospectively to cover past use. Strong emphasis was placed on the need for an holistic approach, including close coordination with other international systems and processes.
The Committee agreed on a process to move forward with its substantive work by inviting written comments on the existing draft proposals to supplement the already extensive commentary and proposed amendments made during the Committee's meeting. The deadline for submission of these comments is 25 February 2005. The updated proposals will then be circulated for further consultation in advance of the next session of the IGC in June 2005. (Texts of the initial proposals are available as Annex I of documents WIPO/GRTKF/IC/7/3 and WIPO/GRTKF/IC/7/5, available at https://www.wipo.int/tk/en/.
The Committee also extensively reviewed arrangements for enhancing the role of indigenous and local communities in its work. While the Committee is intergovernmental in its formal character, the special focus of its work has led to strong agreement that representatives of TK holders and bearers of traditional cultures should have an enhanced role in its work. The number of NGOs specially accredited to the IGC rose to more than 100 at this session. Most of these observers represent indigenous traditional and local communities.
Building on past steps to improve the participation, prominence and impact of the indigenous and local community perspective in its work, the Committee agreed on a range of procedural steps to enhance this involvement, and give representatives a greater voice in the Committee's work. In response to the need identified for funding to support this enhanced participation, the Committee also agreed to develop plans for a voluntary fund to facilitate the involvement of these communities in the work of the IGC and in related WIPO work. A full proposal on this question will be considered at the next meeting of the IGC. As an interim step, the Committee urged voluntary donors to provide funding to support participation of these communities.
The IGC was updated on the process adopted by the WIPO General Assembly to respond to the invitation by the Convention on Biological Diversity (CBD) to examine and address certain specific questions relating to disclosure requirements in intellectual property systems for genetic resources and associated TK (see PR/2004/397). The European Union announced it would be submitting a proposal in this area, and Switzerland updated the Committee on its related proposal within the Patent Cooperation Treaty (PCT), but no decision was reached for future work by the IGC itself on this topic.
The next session of the IGC will take place in June 2005.
WIPO's work on TK dates back to 1998, shortly after Dr. Idris took over leadership of the Organization; it builds on past work by WIPO on expression of folklore (or traditional cultural expressions) which reaches back several decades. The current work program seeks to respect the manner in which TK, TCEs and associated genetic resources are considered an indivisible whole within the traditional or customary context, while developing specific legal tools that reflect the broader legal environment and policy context for each element of this traditional heritage, and protect this important community heritage from misuse and misappropriation. This program also entails close consultations with and respect for the mandate and activities of other United Nations agencies and international processes.
The first phase of WIPO's work involved visiting TK holders in many countries over the period 1998-99 to learn directly from them about their needs and expectations. Indigenous and local communities, non-governmental organizations (NGOs), governmental representatives, academics, researchers and private sector representatives were consulted on these missions. The fact-finding missions were conducted in 28 countries between May 1998 and November 1999. The results of these consultations are contained in a comprehensive report, which still forms the basis of much of WIPO's work. In this way, the perspectives of a wide cross section of TK holders have provided continuing guidance in the evolution of later activities. The report, published by WIPO, is entitled "Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-finding Missions (1998-1999)" (https://www.wipo.int/tk/en/tk/ffm/report/index.html).
An important subsequent step was the formation of the IGC as a policy forum for these issues. Discussions in the IGC focus on three primary themes: access to genetic resources and benefit sharing; the protection of TK, whether or not associated with those resources; and the protection of expressions of folklore.
The IGC met for the first time in May 2001 and has met seven times in all. The first phase of the IGC's work, up to 2003, included policy debate, reports on national experiences, empirical surveys, exchange of the experience of indigenous and local communities, analysis of legal and policy options for enhanced protection for TK and TCEs, crafting specific practical tools, development of recommendations for revision of the international patent system to take account of TK, and review of capacity-building and awareness initiatives.
The IGC concluded its initial mandate in 2003, and received a stronger, expanded mandate for the current biennium by the WIPO General Assembly in September 2003. This marked the maturing of this body as a key international forum for policy debate, analysis of practical experience, and development of new approaches and legal mechanisms to address the IP concerns and interests of the communities who hold and maintain TK, TCEs and genetic resources. Its work was also characterized by greater cooperation with other international and regional organizations, and with national authorities and traditional communities.
The second phase of the IGC's work aimed at developing more concrete and focussed outcomes at the international level in the form of two complementary sets of shared objectives and core principles respectively concerning the protection of TCEs (or folklore) and the protection of TK. These have been supplemented by outlines of the policy options and legal mechanisms that are being used in practice to give effect to these objectives and principles. These outcomes may form a common platform for continuing international work on these pressing issues. This should facilitate a consensus on the context and substance of protection for the benefit of holders of TK and TCEs, while also promoting convergence on the appropriate vehicle or vehicles for articulating and giving effect to these principles.
WIPO is continuing to work with other elements of this program beyond the IGC, including providing technical support and policy input at the national and regional levels, hosting and otherwise taking part in many forums aimed at developing a shared understanding of how best to develop and apply the principles of the intellectual property system to serve the interests articulated by holders of TK and custodians of TCEs, and commissioning independent studies. WIPO is also developing an array of publications and information resources for communities and policymakers, government officials, civil society and other stakeholders.
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