Indigenous World 2019: 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 UNDRIP, Article 31. However, because of their unique characteristics, indigenous peoples’ intellectual property rights do not comfortably fit, and for the most part are unprotected, under existing intellectual property laws. Consequently, indigenous peoples’ intangible cultural heritage is often treated as “public domain” and misappropriation of their intellectual property is widespread and ongoing.
The World Intellectual Property Organization (WIPO), a UN agency with 191 Member States, among other functions, provides a forum for negotiating new international intellectual property law treaties. 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 38th session in December 2018.
Overview of IGC negotiations
Three separate draft legal instruments are presently under negotiation at the IGC, dealing with the three subject matters: TK, TCEs and GRs.
While there are as yet no agreed definitions of these terms within the IGC, generally speaking TK can be considered as “knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.” Examples include medicinal, agricultural, and ecological knowledge, traditional housing construction methodologies and weaving practices. TCEs, also called expressions of folklore, are the “forms in which traditional culture is expressed,” such as music, dance, stories, art, ceremonies, handicrafts, clothing designs, and architectural forms. GRs refer to any material of plant, animal, microbial, or other origin, containing functional units of heredity, having actual or potential value. Examples include medicinal plants, agricultural crops and animal breeds. GRs found in nature are not creations of the mind and thus are not intellectual property. But intellectual property issues are associated with GRs, for example in the case of inventions created utilizing GRs or where TK is associated with the use of GRs.
Although establishment of the IGC reflects the recognition of all WIPO Member States of the need for a forum to address intellectual property issues associated with TK, TCEs and GRs, the IGC is plagued by a divergence of views, not only on substantive positions but also on the ultimate goal of the negotiations. At a fundamental level, there is disagreement amongst Member States as to the desired legal nature of the instruments being negotiated. “Demanduers” – the term commonly used for proponents of increased protections for TK, TCEs and GRs (mostly developing countries and megadiverse countries) – support the adoption of binding legal treaties, whereas other Member States, referred to as “non-demanduers”, prefer, at most, some type of non-binding, “soft law” instruments. In addition, the three texts are highly bracketed, with numerous alternative provisions, and different wording within provisions, reflecting Member States’ varying positions and the complexity of the issues.
Demanduers and indigenous peoples’ representatives have expressed frustration at the slow progress of the negotiations, with demanduers urging that the work of the IGC be brought to conclusion and a diplomatic conference be convened by the WIPO General Assembly to adopt one or more legally binding instruments. Non-demandeurs counter that a diplomatic conference is premature as there is no common understanding yet on core issues such as the objectives of the instruments, scope of protections to be provided or the intended beneficiaries. Because the IGC operates based on consensus, forward movement in the negotiations requires agreement of all participating Member States.
Indigenous peoples’ participation
Indigenous peoples’ participation is widely acknowledged as being critical for the legitimacy of the IGC negotiations and each IGC session commences with an indigenous panel of experts invited and funded by WIPO to present on topics relevant to the negotiations. However, indigenous peoples’ participation in the actual IGC negotiations is limited, both in the number of participants and in the scope of participation permitted.
Indigenous peoples participate in the IGC as observers and join together to participate collectively through an ad hoc Indigenous Caucus. The Caucus is formed anew each IGC session and consists of indigenous peoples’ representatives present at the IGC who choose to join. During the 2018 IGC sessions, active participation in the Indigenous Caucus averaged around ten persons per session.
Like other IGC observers, the Caucus may itself directly propose modifications to the text under negotiation. The IGC Chair will then ask whether any member state supports the proposal. Only those observer-proffered proposals that receive support from a member state are incorporated into the draft. But the Caucus also has a role that is distinctive from that of other IGC observers. The Caucus’ special role within the IGC is recognized and facilitated in various ways, including the Caucus’ ability to nominate representatives to participate in the various IGC working methodologies which bring together smaller groups to work on key issues, such as ad hoc expert groups, informals and small contact groups.
At each IGC session, the work of the Indigenous Caucus commences with an Indigenous Consultative Forum facilitated by the WIPO Secretariat, typically held the Sunday afternoon before the IGC session begins on Monday. The WIPO Secretariat provides a short briefing on the relevant documents and key issues to be addressed in the upcoming negotiations, and then leaves the Caucus to go about its other business, including election of the Caucus co-chairs, discussion of strategies for the upcoming IGC session, and preparation of the Caucus’ opening statement. The Indigenous Caucus meets daily during the IGC sessions, often multiple times per day, to review the revised text(s), strategize, and develop interventions to be presented in the IGC 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 develops and delivers a closing statement at the end of the IGC session. WIPO provides meeting space for the Caucus and funds interpretation and translation services provided by the Documentation Centre for Indigenous Peoples (Docip).
Although its participation is limited, the Indigenous Caucus plays an important role in voicing Indigenous Peoples’ perspectives within the IGC.
WIPO Voluntary Fund
One factor limiting indigenous peoples’ participation is the expense of attending the IGC sessions, which are held at the WIPO headquarters in Geneva, Switzerland. The WIPO General Assembly has established a Voluntary Fund to support participation of indigenous peoples and local communities. However, the Fund depends exclusively on voluntary contributions by governments, NGOs and other private or public entities, and as of December 2018, was almost entirely depleted, with insufficient resources to fund even a single participant for the next IGC session (in 2019). In response to a recommendation from Member States at IGC 37, the 2018 WIPO General Assembly encouraged Member States to contribute to the Fund and also to consider other alternative funding arrangements to support indigenous peoples’ and local communities’ participation.
UN Expert Mechanism on the Rights of Indigenous Peoples
Two experts from the United Nations Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), Mr. Aleksey Tsykarev (Russian Federation) and Ms. Kristen Carpenter (United States of America (U.S.)), joined the Indigenous Caucus during IGC 36 in June 2018. In July, 2018, in its Expert Mechanism advice No. 11 on Indigenous Peoples and free, prior and informed consent, EMRIP called upon WIPO and Member States in their negotiations of the TK, TCEs and GRs instruments to reference UNDRIP, and especially the norm of free, prior and informed consent (FPIC), with respect to the ownership, use and protection of indigenous peoples’ intellectual property and other resources. At IGC 37, in August, 2018, the Indigenous Caucus drafted a letter requesting an EMRIP study on the issue of indigenous peoples’ intellectual property.
IGC’s 2018-2019 mandate and work program
The IGC operates under two-year mandates, requiring biennial renewal by the WIPO General Assembly. The 2018-2019 IGC mandate directs the Committee to “continue to expedite its work, with the objective of reaching an agreement on an international legal instrument(s) …which will ensure the balanced and effective protection of genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs).” Toward this end, the mandate includes an aggressive work program of six negotiating sessions.
Pursuant to the work program, four IGC sessions were held in 2018, two addressing GRs and two addressing cross-cutting issues related to TK and TCEs.
2018 GRs text negotiations
The first two 2018 IGC sessions, IGC 35 (March 19-23, 2018) and IGC 36 (June 25-29, 2018), addressed the GRs text. IGC 36 was preceded by an ad hoc expert group, convened to focus on key GRs-related issues, which included participation of two Indigenous Caucus representatives.
The GRs text includes two broad approaches, reflecting the different concerns of Member States. One approach is a disclosure of origin requirement, demanding certain information to be disclosed in patent (and perhaps other) intellectual property applications, such as the country of origin or source of GRs and associated TK, and information about compliance with national access and benefit sharing requirements and FPIC. Such a requirement would increase transparency in the intellectual property system, help to protect the interests of indigenous peoples in their GRs and associated TK, and be supportive of the Convention on Biological Diversity’s 2010 Nagoya Protocol on Access and Benefit Sharing. However, some Member States oppose a disclosure requirement on the grounds of perceived increased regulatory burdens, increased costs and introduction of legal uncertainty into the patent system.
The other broad approach focuses on defensive measures to avoid the erroneous grant of patents, such as the use of databases to support prior art searches, and voluntary codes of conduct for users of GRs and associated TK. While Member States supporting a disclosure of origin requirement view such defensive measures as being complementary to the disclosure requirement, other Member States view these measures as an alternative to disclosure.
In interventions at IGC 35 and 36, the Indigenous Caucus supported a disclosure of origin requirement as well as complementary defensive measures. However, the Caucus interventions highlighted concerns about the development and use of TK databases, including concerns with their construction, population, access, and the status of the TK included therein, as well as the need for FPIC and consideration of indigenous peoples’ own laws.
As far as progress on the draft text, negotiations at IGC 35 yielded a revised GRs text which, in addition to clarifying Member States’ differing positions, included a new alternative preamble and other, relatively minor modifications aimed at narrowing gaps and removing duplications. The text was approved by consensus and transmitted to IGC 36 as the basis for further work.
Negotiations at IGC 36 were less fruitful. Although a revised text was developed that was considered by many Member States as reflecting considerable progress, consensus on forwarding the text as the basis for future negotiations was not reached due to opposition from the U.S. The U.S. complained that its textual contributions were not accurately reflected in the revised text and that the working methodologies and process used in the session were deficient, in particular the small contact groups which the country described as “non-inclusive.” Many Member States expressed frustration at this unexpected turn of events, questioning the motivations and intentions of the U.S. and pointing out that the working methodologies had been established at the beginning of the session and yet the U.S. had not objected until the negotiations’ concluding moments. Members of the Indigenous Caucus left the plenary in protest. Not wanting to lose the momentum of the work done during IGC 36, the IGC Chair committed to produce a Chair’s text on GRs that will be made available for consideration prior to the IGC’s stocktaking of its progress under the current mandate, set to occur at IGC 40 in June 2019. However, for now the official GRs text remains the text transmitted from IGC 35.
TK and TCEs text negotiations
The final two sessions for 2018, IGC 37 (August 27-31, 2018) and IGC 38 (December 10-14, 2018), addressed the TK and TCEs texts in combination, focusing on cross-cutting issues. IGC 38 was preceded by an ad hoc expert group, which included participation of two Indigenous Caucus representatives.
A particularly contentious issue discussed during IGC 37 and 38 is whether the definition of “traditional” should include a temporal requirement, such as requiring that TK and TCEs have been in use for a minimum of 50 years to be eligible for protection. Opponents, including the Indigenous Caucus, asserted that such a requirement was not meaningful or workable, highlighting the question of how a period of use would be proved, and the gap in protection that would exist for new TK and TCEs not yet in use for the required period. The Indigenous Caucus explained in an intervention that it is how TK and TCEs fit within indigenous peoples’ cultural and traditional contexts that makes them “traditional,” not how old they are.
IGC 37 and IGC 38 each yielded only minor improvements in streamlining the TK and TCEs texts and in clarifying Member States’ differing positions.
Work on the TK and TCEs texts will continue at IGC 39 (March 18-22, 2019) and IGC 40 (June 17-21, 2019). Member states at IGC 40 will engage in stocktaking and developing recommendations for the WIPO General Assembly, including consideration of a proposed mandate and work program for the continuation of the IGC for the next biennium.
Notes and References
 Current version of the TK, TCEs, and GRs texts are available at the following links:
The Protection of Traditional Knowledge: Draft Articles - http://bit.ly/2SRg2zy;
The Protection of Traditional Cultural Expressions: Draft Articles - http://bit.ly/2SLTW1r;
Consolidated Document Relating to Intellectual Property and Genetic Resources - http://bit.ly/2SITJfF
 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.
 Expert Mechanism advice No. 11 on Indigenous Peoples and FPIC, para. 1, Annex to “Free, prior and informed consent: a human rights-based approach,” Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62, Sept. 2018, available at http://bit.ly/2SGl3LB
 A detailed report of IGC 37 is available at http://bit.ly/2SRnkU0. The IGC 38 report is not yet available.