Indigenous World 2020: World Intellectual Property Organization (WIPO)
Indigenous Peoples have rights over their traditional knowledge (TK), traditional cultural expressions (TCEs) and genetic resources (GRs), including associated intellectual property rights, as recognized in the UN Declaration on the Rights of Indigenous Peoples, Article 31. However, Indigenous Peoples’ intellectual property rights do not comfortably fit within, and often lack protection under, conventional intellectual property laws. In the absence of effective legal recognition and protection, Indigenous Peoples’ intangible cultural heritage is often treated as being in the “public domain” and misappropriation of their intellectual property is widespread and ongoing.
The World Intellectual Property Organization (WIPO), a UN agency with 192 Member States, provides a forum for negotiating new international intellectual property laws. In 2000, amid growing concerns about biopiracy, and with other international fora already engaging with Indigenous Peoples’ intellectual property-related issues, WIPO Member States established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). Since 2010, the IGC has conducted formal, text-based negotiations aimed at developing legal instruments for the protection of Indigenous Peoples’ and local communities’ TK, TCEs and GRs. The IGC concluded its 40th session in June 2019.
Overview of IGC negotiations
Three separate legal instruments are under negotiation at the IGC, one dealing with each subject matter: TK, TCEs and GRs. Generally speaking, TK refers to the technical know-how, skills and practices that are developed, utilized and passed down within a community’s traditional context. Examples include medicinal, agricultural and ecological knowledge, as well as methods for doing things such as weaving and house construction. TCEs, also known as expressions of folklore, are the various forms in which traditional culture is expressed, such as music, dance, stories, art, ceremonies, designs and symbols. GRs are genetic material having actual or potential value found in plants, animals or micro-organisms. Examples include medicinal plants, agricultural crops and animal breeds. GRs found in nature are not creations of the mind and are thus not intellectual property. Intellectual property issues are associated with GRs, however, for example in the case of inventions utilizing GRs or where TK is associated with the use of GRs.
Although the three subject matters are related and are viewed by Indigenous Peoples in a more holistic, integrated fashion, in the intellectual property context TK, TCEs and GRs raise distinct concerns and may require different mechanisms for their protection. Nevertheless, there are substantial cross-cutting issues. At the suggestion of the IGC Chair, recent sessions (IGC 37-40) have productively considered TK and TCEs and their corresponding draft texts in tandem.
The IGC held two sessions in 2019 at the WIPO headquarters in Geneva, Switzerland, both focusing on discussion and negotiation of key outstanding issues in the TK and TCEs texts. IGC 39 took place from 18 to 22 March and IGC 40 from 17-21 June.
Indigenous Peoples’ participation
Indigenous Peoples participate in the IGC as other observers do but they also participate collectively through an ad hoc Indigenous Caucus, which serves a special function within the negotiations. IGC Member States frequently comment on the vital role of Indigenous Peoples in the deliberations, and acknowledge the necessity of their involvement for the legitimacy of the IGC’s work. Nonetheless, Indigenous participation remains limited. During the 2019 IGC sessions, active participation in the Indigenous Caucus averaged around 15 to 20 persons per session.
Like other observers, the Indigenous Caucus may make interventions from the floor of the IGC and may propose modifications to the text under negotiation. Proposed modifications are incorporated into the draft text if they receive the support of at least one Member State. In addition the Caucus has a role beyond that of other observers, including the ability to nominate representatives to participate in the various IGC working methodologies, such as ad hoc expert groups, informals and small contact groups.
Before each IGC session, the WIPO Secretariat facilitates an Indigenous Consultative Forum to brief the Indigenous Caucus on the relevant documents and key issues to be addressed in the upcoming negotiations. The Caucus meets daily during the IGC sessions, often multiple times per day, to review the revised text, discuss negotiation strategy and develop interventions for presentation in plenary. The Caucus also meets with the IGC Chair, engages with Member State delegates to exchange information and seek support for Caucus text proposals, and delivers opening and closing statements.
In further acknowledgement of the critical value of the contribution of Indigenous Peoples’ experiences and viewpoints, each IGC session commences with a panel of Indigenous experts invited and funded by WIPO to present on topics relevant to the negotiations.
The WIPO Voluntary Fund
In 2005, WIPO Member States created a Voluntary Fund to support the participation of Indigenous Peoples and local communities in the IGC sessions. The Fund depends exclusively on voluntary contributions from governments, NGOs and other private or public entities and is frequently insufficient. For the March 2019 (IGC 39) session, the Fund lacked resources to support the participation of even a single Indigenous representative. The situation improved with a contribution from Canada of 25,000 Canadian dollars, which allowed the Fund to support four Indigenous representatives to attend the June 2019 session (IGC 40). In September 2019, the governments of Finland and Germany pledged contributions to the Fund of 15,000 euros each. To address the ongoing need for effective Indigenous participation, the United Nations Permanent Forum on Indigenous Issues has called upon WIPO to draw funds from its core budget for this purpose.
TK and TCEs text negotiations
The 2019 IGC sessions were the final two of four sessions devoted to TK and TCEs under the IGC’s 2018-2019 work programme. The 2019 negotiations focused on four cross-cutting issues: (1) objectives, (2) subject matter, (3) scope of protection and (4) exceptions and limitations. The draft texts are heavily bracketed, with numerous alternative formulations of the various provisions, reflecting the diverging positions of Member States. The IGC Chair encouraged Member States to narrow the gaps between their positions, and to work toward a consensus so as to reduce the number of alternatives and bracketed language in the texts.
“Objectives” refers to the intentions and purposes to be achieved by the instruments. While many Member States articulate support for objectives aimed at protecting TK and TCEs and preventing their misappropriation, some Member States, such as Japan and the United States, prefer objectives that support the use of TK and TCEs within the intellectual property system, and emphasizing the protection of innovation and a vibrant public domain. The Indigenous Caucus took the position that it is TK and TCEs that require protection not the public domain, and that all references to the public domain should be eliminated. Agreement could not be reached, and the reference to the public domain remains in an alternative “objectives” provision in the texts.
“Subject matter” relates to what is to be covered by the instruments, including defining TK and TCEs and specifying eligibility criteria to determine which TK and TCEs are to be protected. One continuing issue of contention is whether a temporal component – requiring TK/TCEs to have been in existence for some period of time, e.g., 50 years or five generations before being subject to protection – should be included in the eligibility criteria. Many Member States, as well as the Indigenous Caucus, object to such a requirement because “traditional” does not mean “old”; rather, it is the development of the TK and TCEs within the traditional community and the linkage between the TK and TCEs and the community that is important. Some Member States acknowledged a linkage between the temporal requirement and the objective of protecting the public domain. Proponents of the temporal component, including Italy, Japan and the United States, maintained their position that such a requirement is necessary and it remains in the draft texts as an alternative provision.
Concerning “scope of protection”, one key issue is whether there should be a “tiered approach” offering differentiated levels of protection based on the nature and attributes of the TK/TCEs (e.g., whether they are “secret” or “sacred”), the level of control retained by the TK/TCEs holders and/or the degree of diffusion of the TK/TCEs. Given that diffusion and use of TK/TCEs may be without the free, prior and informed consent of Indigenous Peoples and/or contrary to their customary laws, the Indigenous Caucus’ position is that any tiered approach must include a mechanism for Indigenous Peoples to protect their TK and TCEs regardless of the level of control or degree of diffusion. The current TK and TCEs texts each contain three alternative “scope of protection” provisions, one of which includes a formulation of such a mechanism.
“Exceptions and limitations” refers to the circumstances under which the protections afforded under the instruments could be suspended by Member States, e.g., when necessary to protect the public interest. A key outstanding issue, reflected in alternative text provisions, is whether to set out a framework of exceptions and limitations in the instruments or whether to leave flexibility for determination at the national level. The Indigenous Caucus’ position is that any exceptions and limitations must be extremely narrow and must conform to Indigenous customary laws.
The TK and TCEs texts as revised at IGC 39 and 40 will serve as the basis for further negotiations in 2020-2021.
IGC’s 2020-2021 mandate and work programme
The IGC operates under two-year mandates, requiring biennial renewal by the WIPO General Assembly. A key component of the negotiations at IGC 40 consisted of stocktaking and developing recommendations for the General Assembly with regard to the IGC’s renewal and future work. It was a significant positive achievement when Member States unanimously agreed on a proposed mandate and work programme. This consensus was particularly noteworthy in light of what occurred in the final session of the 2016-2017 biennium, when Member States were unable to reach agreement on a proposed mandate and work programme and had to leave the matter for resolution by the General Assembly.
At its 2019 meeting, the WIPO General Assembly approved the 2020-2021 mandate and work programme recommended by the IGC. The mandate directs the IGC to “continue to expedite its work, with the objective of finalizing an agreement on an international legal instrument(s) …which will ensure the balanced and effective protection of” GRs, TK and TCEs. The work programme provides for six negotiating sessions, four in 2020 and two in 2021.
Other decisions of IGC 40
In addition to the consensus on the 2020-2021 mandate and work programme, Member States at IGC 40 agreed on several other matters of consequence.
Particularly important for Indigenous Peoples, the IGC acted on two recommendations made by the UN Permanent Forum on Indigenous Issues. Indigenous representatives at the Forum’s 18th session, which had as its theme “traditional knowledge”, advocated for and received recommendations from the Forum related to the IGC negotiations. Two of the Forum’s recommendations were immediately embraced and acted upon by Member States at IGC 40: the IGC requested that the WIPO Secretariat (1) organize an Indigenous Expert Workshop during the 2020-2021 biennium; and (2) commission an Indigenous expert to update the technical review of key issues in the three draft texts prepared in 2016 by former UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, in order to reflect current issues in the texts.
In another significant development, Member States agreed that the draft GRs text prepared by the IGC Chair following the unsuccessful negotiations at IGC 36 – where consensus on forwarding that session’s GRs text revisions as the basis for future work could not be reached and the official text reverted back to the IGC 35 version – should be included as an IGC working document in future GRs negotiation sessions.
Negotiations will continue at IGC 41 in March 2020 and will focus on the GRs text.
Notes and references
 Local communities’ TK, TCEs and GRs are within the IGC’s scope; however, this article focuses on Indigenous Peoples’ participation. Local communities do not at this time have a separate observer group for participation in the IGC.
 In each of these modalities, smaller working groups focus on identified negotiation issues and the results of their work are reported back in plenary. In recent instances, ad hoc expert groups included two Indigenous Caucus representatives, contact groups included one Caucus representative and informals included wider participation, with the Caucus able to nominate two speaking representatives and two non-speaking representatives.
 See WIPO/GRTKF/IC/39/18, paras. 56 and 60, available at https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_40/wipo_grtkf_ic_40_39_18.pdf.
 Ibid., para. 21.
 Ibid., paras. 141 and 142.
 Ibid., paras. 142, 143 and 150.
 See WIPO/GRTKF/IC/40/20 Prov. 2, para. 24, available at https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_40/wipo_grtkf_ic_40_20_prov_2.pdf.
 The provisional schedule for the 2020 negotiations is available at https://www.wipo.int/export/sites/www/tk/en/igc/pdf/provisional_schedule_igc_2020.pdf.
This article is part of the 34th edition of the The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2020 in full here