• International Processes and Initiatives

The Indigenous World 2021: World Intellectual Property Organization (WIPO)

Indigenous Peoples have rights over their traditional knowledge,[1] traditional cultural expressions[2] and genetic resources,[3] including associated intellectual property rights, as recognized in Article 31 of the UN Declaration on the Rights of Indigenous Peoples.[4] However, conventional intellectual property laws, in large measure, are woefully inadequate in protecting Indigenous Peoples’ intellectual property rights. In the absence of effective legal recognition and protection, Indigenous Peoples’ intangible cultural heritage, ranging in forms from textile designs to traditional songs, medicinal plant knowledge and environmental conservation is often treated as being in the “public domain”, and misappropriation by those within the fashion, film and pharmaceutical industries, among others, is widespread and ongoing.

The World Intellectual Property Organization (WIPO), a UN agency with 193 Member States, provides a forum for negotiating new international intellectual property laws. In 2000, 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’ traditional knowledge, traditional cultural expressions and genetic resources. Negotiations are centred around three draft texts, one for each of the three subject matters.[5] A fourth draft text was developed in 2019 by the IGC Chair as an alternative genetic resources text.[6] The IGC concluded its 40th session in June 2019. Four negotiation sessions were scheduled for 2020 but all were postponed due to the pandemic. IGC 41, which will address the genetic resources text, was scheduled to take place in a hybrid format from 8-12 February 2021 but, in late January 2021, was once again postponed. At this time, no new dates have been announced.

Impacts to progress on the IGC’s 2020-2021 mandate and work program due to the pandemic

The IGC operates under two-year mandates, requiring biennial renewal by the WIPO General Assembly. At its 2019 meeting, the WIPO General Assembly approved the IGC mandate and work program for 2020-2021.[7] The mandate directed 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” genetic resources, traditional knowledge and traditional cultural expressions. The work program provided for six negotiating sessions, four to take place in 2020 and two in 2021.

Rather than being able to “expedite its work”, the IGC formal negotiation process came to a complete halt during 2020, with none of the four planned IGC sessions taking place. The first, IGC 41, scheduled for 16-20 March 2020, was abruptly postponed as COVID-19 infections spread and travel restrictions were implemented. Initially rescheduled to August 2020, then to October 2020, and then to 8-12 February 2021, the session has been postponed further, and at present no new dates have been announced.[8]

2020 accomplishments despite the pandemic

Although none of the formal negotiation sessions planned for 2020 took place, the work of the IGC did not entirely cease. The following is a brief summary of tasks accomplished by the IGC in 2020 despite the pandemic.

Update of Technical Review of Key Intellectual Property-Related Issues of the WIPO Draft Instruments within the Framework of Human Rights

In 2019, Indigenous representatives at the 18th Session of the UN Permanent Forum on Indigenous Issues, which had as its theme “traditional knowledge”, advocated for and received several recommendations from the Forum related to the IGC negotiations.[9] One of the Forum’s recommendations was that WIPO commission an update of the 2016 Technical Review of Key

Intellectual Property-related Issues of the WIPO Draft Instruments on Genetic Resources,

Traditional Knowledge and Traditional Cultural Expressions (Technical Review) prepared by former UN Special Rapporteur on the rights of indigenous peoples, Professor James Anaya.[10] The Forum recommended that the update of the Technical Review reflect current issues in the draft texts, and be made with an emphasis on how concepts such as “balancing” and “public domain” might conflict with Indigenous Peoples’ human rights and customary laws and the obligation to incorporate and respect human rights in the work of WIPO.[11]

At its next session, which took place in June 2019, the WIPO IGC immediately embraced and acted upon the Forum’s recommendation, requesting the WIPO Secretariat to commission an Indigenous expert to perform the update. The Secretariat engaged Ms Neva Collings, Board Director, NSW Aboriginal Housing Office, Department of Family and Community Services, Australia, and Mr. Elifuraha Laltaika, Senior Lecturer and Director, Research Tumaini University Makumira, United Republic of Tanzania, to perform the work, and their Update of the Technical Review of Key Intellectual Property-Related Issues of the WIPO Draft Instruments on Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions Within the Framework of Indigenous Human Rights (Updated Technical Review) was made available in October 2020.[12]

With respect to “balancing”, the Updated Technical Review explains that although states’ intellectual property systems may balance the interests of different stakeholders, the rights of Indigenous Peoples must be respected; the intellectual property rights of other stakeholders cannot override Indigenous rights enshrined in existing international agreements and the UN Declaration on the Rights of Indigenous Peoples.[13] Concerning the concept of “public domain”, the Review articulates that, from the Indigenous perspective, a time-limited period of intellectual property protection followed by creative works becoming freely available for use by the public conflicts with their human rights, and is misaligned with their own customary laws and values associated with their traditional knowledge and traditional cultural expressions, which are timeless in nature, integral to their culture, and transmitted intergenerationally.[14] The Review highlights in particular the right to self-determination, the principle of free, prior and informed consent (FPIC), and Indigenous Peoples’ rights to lands, territories and resources, all of which are not subject to time limits and do not expire.[15]

The Updated Technical Review also addresses a number of other key issues related to the texts: (1) the right to redress for unauthorized use of traditional knowledge, traditional cultural expressions and genetic resources and associated traditional knowledge, including restitution and repatriation;[16] (2) the need for FPIC to be obtained for any exceptions and limitations to protections of traditional knowledge and traditional cultural expressions;[17] (3) the “tiered approach”, which would divide traditional knowledge and traditional cultural expressions into categories and provide varying levels of protection commensurate to the level of sensitivity Indigenous Peoples place on each category;[18] (4) databases and knowledge registers;[19] (5) Indigenous Peoples’ rights to genetic resources and issues related to digital sequencing and traceability;[20] (6) the mandatory disclosure requirement for patent applicants’ disclosure of information regarding the source of genetic resources and associated traditional knowledge;[21] and (7) dispute resolution mechanisms.[22]

The Review concludes that the legal instruments under negotiation at the IGC should be mutually supportive of other international instruments, especially those related to human rights.[23] It suggests the creation of a sui generis regime for protection of traditional knowledge and traditional cultural expressions, taking into account Indigenous Peoples’ human rights and their customary laws, and respecting their rights to control and protect their traditional knowledge and traditional cultural expressions, as an alternative to trying to fit protection of traditional knowledge and traditional cultural expressions within the conventional intellectual property system.[24]

The Updated Technical Review will be provided to Member States and observers as an information document for future negotiation sessions.[25] It is anticipated that it will be cited by the Indigenous Caucus in future negotiations to amplify the human rights considerations supporting the Caucus’s various negotiation positions.

Inter-sessional activities of Member States and accredited observers

In view to continuing the efforts of the IGC and furthering its work despite the pause in formal negotiating sessions, in 2020 the WIPO Secretariat proposed several inter-sessional activities, which were approved by Member States. Under these activities, Member States and accredited observers were invited to:

  • Submit comments on the Chair’s genetic resources text to the IGC Chair, Mr. Ian Goss;[26]
  • Review WIPO’s initial online compilation of national and regional sui generis regimes providing intellectual property protection for traditional knowledge and/or traditional cultural expressions and provide comments, corrections or updates;[27] and
  • Review and provide updated information for the online resources available on the WIPO Traditional Knowledge Division website, particularly the “Disclosure Requirements Table”,[28] and the repository of “Regional, National, Local and Community Experiences”.[29]

All the activities were voluntary. Any submissions made were without prejudice to Member States’ and observers’ positions and have no official status in the negotiations.

Virtual meetings of Indigenous Caucus participants

In the IGC negotiations, Indigenous Peoples participate as any other accredited observers do, but they can also participate collectively as part of an ad hoc Indigenous Caucus.[30] IGC Member States frequently comment on the vital role of Indigenous Peoples in the deliberations and acknowledge the need for their involvement for the legitimacy of the IGC’s work.

In the interest of continuing the momentum of the work of the Indigenous participants on the highly complex and technical negotiation issues associated with the genetic resources texts, and at the request of the former Co-Chair of the Indigenous Caucus at IGC 40, Ms Jennifer Tauli Corpuz, the WIPO Secretariat provided support for a series of five virtual meetings in 2020 of Indigenous Caucus participants from past IGC sessions. The meetings took place on 14 May, 1, 15 and 29 September and 17 October 2020, and focused on developing edits and comments on the Chair’s genetic resources text. On 1 December 2020, the Indigenous Caucus representatives participated in an informal virtual meeting with the IGC Chair, and they are continuing to finalize comments on the Chair’s genetic resources text to be submitted to the Chair in advance of IGC 41.

Looking forward

As noted above, when it ultimately occurs IGC 41 will address genetic resources.

In preparation for IGC 41, WIPO organized a Seminar on Intellectual Property and Genetic Resources to take place virtually from 20-22 January 2021. The seminar provided an opportunity for the sharing of regional, national and local experiences and case studies, and for discussion of substantive issues and exchange of views related to the issues involved in the genetic resources text negotiations.[31]

In consideration of the standstill in progress on the IGC’s formal negotiations under the 2020-2021 mandate and work program, in its session from 21-25 September 2020, the WIPO General Assembly determined to include the report of the IGC among other agenda items for postponement to extraordinary sessions to be scheduled sometime in the first half of 2021.[32] The General Assembly will presumably address adjustments to the 2020-2021 mandate and work program to accommodate the delays caused by the pandemic, one possibility being extension of the current mandate and work program to 2023.

 

 

 

Sue Noe is a Senior Staff Attorney with the Native American Rights Fund (NARF), located in Boulder, CO USA. NARF is the oldest and largest non-profit law firm in the USA representing Native American tribes. Sue has attended IGC sessions since IGC 34 (June 2017) and served on the Indigenous Panel for IGC 36. She was also a presenter for the January 2021 WIPO Seminar on Intellectual Property and Genetic Resources. She can be reached by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

This article is part of the 35th edition of 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 2021 in full here

 

Notes and references 

[1] The term “traditional knowledge” generally refers to technical know-how, skills and practices 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 constructing housing. See https://www.wipo.int/tk/en/tk/. In their international advocacy, Indigenous activists engaged in multilateral processes recognize that the term “traditional knowledge” can be somewhat misleading, as it implies antiquity. In these contexts, many Indigenous advocates therefore prefer to refer simply to the “knowledge of Indigenous Peoples” or “Indigenous knowledge”. Indigenous representatives involved in the WIPO negotiations emphasize that traditional knowledge is not confined to ancient knowledge but includes new and evolving Indigenous knowledge. 

[2] Traditional cultural expressions are the forms in which traditional culture is expressed. Examples include music, dance, stories, art, ceremonies, designs and symbols. See https://www.wipo.int/tk/en/folklore/.

[3] Genetic resources are defined as genetic material having actual or potential value found in plants, animals or micro-organisms. Examples include medicinal plants, agricultural crops and animal breeds. Genetic resources found in nature are not creations of the mind and thus are not intellectual property. But intellectual property issues are associated with genetic resources, for example in the case of inventions utilizing genetic resources or where traditional knowledge is associated with the use of genetic resources. See https://www.wipo.int/tk/en/genetic/.

[5] Current versions of the traditional knowledge, traditional cultural expressions and genetic resources draft texts as of the conclusion of the 2018-2019 biennium are attached as annexes to the IGC’s 2019 report to the WIPO General Assembly: WO/GA/51/12.

[6] The Chair’s text on the Draft International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources (Chair’s genetic resources text), developed by the IGC Chair Mr. Ian Goss, is available at WIPO/GRTKF/IC/40/CHAIR TEXT. The Chair’s genetic resources text has been approved by Member States as a working document to be included in future IGC sessions. See WIPO. “Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.” 21 June 2019. (Decision on Agenda Item 7).

https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_40/wipo_grtkf_ic_40_decisions.pdf

[7] The 2020-2021 mandate and work program is available at https://www.wipo.int/export/sites/www/tk/en/igc/pdf/igc_mandate_2020-2021.pdf

[8] See WIPO. “Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.” 8-12 February 2021. https://www.wipo.int/meetings/en/details.jsp?meeting_id=55246. In consideration of the ongoing pandemic and medical protocols instituted by the WIPO Secretariat to protect participants and staff, when IGC 41 was planned to take place in February, it was to be in a hybrid format. Only one delegate per Member State was to be permitted to attend in person. All other participants, including Indigenous Caucus members, were to participate virtually, via WIPO’s new online remote participation platform.

[9] E/2019/43-E/C.19/2019/10, paras. 9-11, available at https://undocs.org/en/E/2019/43.

[10] Ibid., para. 10. The Technical Review is available at WIPO/GRTKF/IC/29/INF/10.

[11] E/2019/43-E/C.19/2019/10, para. 10, available at https://undocs.org/en/E/2019/43.

[12] In October 2020, the Updated Technical Review was posted on the WIPO website as an informational document (WIPO/GRTKF/IC/41/INF/10) for IGC 41, which was scheduled at that time to take place from October 19-23 2020. However, due to the subsequent postponement of the session, the document is not presently posted.

[13] Updated Technical Review, paras. 52-53.

[14] Ibid., paras. 18-22.

[15] Ibid., para. 22.

[16] Ibid., paras. 14-17.

[17] Ibid., paras. 25-28.

[18] Ibid., paras. 30-33.

[19] Ibid., paras. 34-38.

[20] Ibid., paras. 39-43, 50.

[21] Ibid., paras. 44-47.

[22] Ibid., paras. 48-49.

[23] Ibid., para. 51.

[24] Ibid., para. 11.

[25] The Updated Technical review is expected to be re-posted as an information document and made available with other IGC 41 meeting documents at WIPO/GRTKF/IC/41.

[26] See WIPO. “Chair’s text on GRs and ATK.” WIPO/GRTKF/IC/40/CHAIR TEXT, https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=438199

[27] See WIPO. “Compilation of Information on National and Regional Sui Generis Regimes for the Intellectual Property Protection of Traditional Knowledge and Traditional Cultural Expressions.” 18 January 2021. https://www.wipo.int/export/sites/www/tk/en/resources/pdf/compilation_sui_generis_regimes.pdf

[28] See WIPO. “Annex: Disclosure Requirements Table.” November 2020. https://www.wipo.int/export/sites/www/tk/en/documents/pdf/genetic_resources_disclosure.pdf

[29] See WIPO. “Regional, National, Local and Community Experiences.” 2021. https://www.wipo.int/tk/en/resources/tk_experiences.html

[30] Like other observers, the Indigenous Caucus may make interventions on 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.

[31] The seminar presentation materials have been published at https://www.wipo.int/meetings/en/details.jsp?meeting_id=60429, and the webcast recording of the seminar is available at https://c.connectedviews.com/05/wipo.

[32] See WIPO. “Convening of 2021 Extraordinary Sessions.” A/61/8, 4 September 2020. https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=513493

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