The Indigenous World 2023: World Intellectual Property Organization (WIPO)
Indigenous Peoples have rights over their traditional knowledge, traditional cultural expressions and genetic resources, including associated intellectual property rights, as recognized in Article 31 of the UN Declaration on the Rights of Indigenous Peoples.[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 like weaving and house construction.[2]
“Traditional cultural expressions” are the myriad forms in which traditional culture is expressed, including music, dance, stories, art, ceremonies, designs and symbols.[3] “Genetic resources” are defined as genetic material of actual or potential value found in plants, animals or micro-organisms. Examples include medicinal plants, agricultural crops and animal breeds.[4]
Conventional intellectual property laws are, however, woefully inadequate in protecting these rights. 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 pharmaceutical, fashion and film 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 traditional knowledge, traditional cultural expressions and genetic resources.
Indigenous Peoples participate in the IGC as observers and participate collectively through an ad hoc Indigenous Caucus averaging around 15 to 20 people per session.
In 2022, the IGC held four negotiation sessions and the WIPO General Assembly agreed to convene a diplomatic conference to conclude an international legal instrument relating to genetic resources and associated traditional knowledge by 2024.
This article is part of the 37th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous person in Tanzania. This photo was taken by Geneviève Rose, and is the cover of the Indigenous World 2023 where this article is featured. Find the Indigenous World 2023 in full here.
Overview
The IGC operates under two-year mandates, renewed biennially. The 2022-2023 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 genetic resources, traditional knowledge and traditional cultural expressions.”[5] The IGC held four negotiation sessions in 2022, centered around separate draft texts for each of the three subject matters.[6],[7],[8]
All negotiation sessions are held at the WIPO headquarters in Geneva, Switzerland, and the 2022 sessions were offered in a hybrid format allowing for virtual participation. Specific details about the background and workings of the IGC and Indigenous Peoples’ participation therein can be found in prior editions of The Indigenous World.[9], [10], [11], [12]
Genetic resources
IGC 42
Following a two-year hiatus in substantive negotiations during the COVID pandemic, the IGC took up genetic resources at its 42nd session, 28 February-4 March 2022. The IGC re-elected Mr. Ian Goss of Australia as its Chair for IGC 42, with Ms Lilyclaire Bellamy of Jamaica elected to take over the role of Chair thereafter. Prior to the pandemic, Mr. Goss had, on his own initiative, developed a “Chair’s Text” on genetic resources, hoping to advance the negotiations.[13], [14] However, for IGC 42, the Consolidated Document Relating to Intellectual Property and Genetic Resources remained the official negotiation text.[15]
The key issue of contention in the genetic resources negotiations is whether to require patent applicants to disclose the origin or source of genetic resources and associated traditional knowledge. Although mandatory disclosure is broadly supported by Member States and the Indigenous Caucus, a small number of Member States object. Proponents assert mandatory disclosure provides valuable information to determine whether genetic resources and associated traditional knowledge have been accessed appropriately, thus helping to prevent misappropriation, and can facilitate Member States’ efforts to comply with other existing obligations, specifically the Convention on Biodiversity’s Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. Opponents argue a disclosure requirement is overly burdensome for patent applicants and creates delays and uncertainty that would stifle innovation and have negative economic consequences. They prefer instead to focus on preventing the erroneous granting of patents for non-novel inventions, through use of information systems to support searches of prior art.
Although no agreement was reached on the disclosure requirement, some progress was made on other provisions and Member States agreed to forward the revised Consolidated Document as the basis for further negotiations at IGC 43. While the Consolidated Document was the focus of the negotiations at IGC 42, many Member States, as well as the Indigenous Caucus, expressed support for at least some aspects of the Chair’s Text, which includes the majority-supported mandatory disclosure requirement as well as initiatives relating to information systems for prior art searches.
IGC 43
The IGC continued its negotiations at IGC 43, 30 May0-3 June 2022, the final session of the biennium on genetic resources. An ad hoc expert group approved at IGC 42 met the day before the session to discuss disclosure requirements and information systems. The Indigenous Caucus selected two Indigenous representatives to participate in the expert group. The results of the expert group’s work were reported to the IGC plenary and served as the primary basis for the first round of textual revisions for the session.
Under the direction of the new Chair, Lilyclaire Bellamy, the session opened with discussion of the working methodologies for future IGC sessions. Some Member States commented that allowing Member States to unilaterally make modifications to the texts, as under the existing methodology, has resulted in circularity in the negotiations with progress made in one session subsequently being undone in the next. Recommendations to advance the negotiations included establishing intersessional technical working groups and the use of small groups and informal meetings during IGC sessions. It was noted that any such groups must be transparent and inclusive, including the participation of Indigenous Peoples. In the end, agreement was reached to organize virtual intersessional ad hoc expert group meetings on disclosure requirements and information systems and the Chair committed to further consultations with Member States and the Indigenous Caucus on methodologies to be used in future sessions.[16]
The session had a definite tone of procedural stocktaking and many Member States expressed frustration at the IGC’s lack of progress. A significant number expressed support for using the Chair’s Text, which was viewed as being more streamlined and balanced, as the basis of negotiations going forward, and called for the convening of a diplomatic conference on this text, which is the traditional step for concluding a treaty at WIPO. Other Member States preferred to continue the IGC’s work on the Consolidated Document.
Despite considering methodology for future sessions, work at IGC 43 followed the pre-existing methodology and a revised version of the Consolidated Document was developed. However, some Member States objected to the revised text as failing to narrow gaps in the different positions and continued to advocate for use of the Chair’s Text as the basis for negotiations. Because Member States could not agree on forwarding the revised Consolidated Document as the basis for further negotiations, the official genetic resources text reverted back to the Consolidated Document as revised at IGC 42.
WIPO General Assembly
Although in retrospect perhaps foreshadowed at IGC 43, a seemingly unexpected and undeniably significant breakthrough on the genetic resources front occurred at the WIPO General Assembly’s 14-22 July 2022 meeting. Acting on a proposal put forward by the Africa Group, the General Assembly decided to elevate the genetic resources negotiations to the diplomatic level by convening a diplomatic conference to conclude an international instrument on genetic resources and associated traditional knowledge by 2024.[17] The decision included that the Chair’s Text form the basis for the diplomatic conference, a special session of the IGC be held prior to the conference to allow Member States an opportunity to reach agreement on further refinements to the text, and a Preparatory Committee be convened to establish the conference’s Rules of Procedure.
Supporters of the proposal emphasized the length of time the negotiations had been underway without reaching conclusion, the level of maturity of the discussions, and the urgent need to finalize a legal instrument to protect genetic resources and associated traditional knowledge of Indigenous Peoples and local communities. Opponents expressed that it was premature and possibly counter-productive to go to diplomatic conference due to outstanding negotiation issues that should in their view be resolved by consensus among the technical experts in the IGC first. Although a diplomatic conference is the traditional step for concluding a treaty at WIPO, there is no guarantee that the diplomatic conference will result in a binding treaty or other legal instrument that will be signed up to by Member States.
Under the IGC’s provisional schedule for 2023, the special session to make revisions to the Chair’s Text before sending it to diplomatic conference will take place from 4-8 September 2023, followed by the Preparatory Committee meeting from 11-13 September 2023. An issue of deep concern for the Indigenous Caucus is the pathway for participation of Indigenous Peoples in the diplomatic conference process. Given that the subject matter of the negotiations directly impacts Indigenous Peoples’ intellectual property rights as recognized in Article 31 of the UN Declaration on the Rights of Indigenous Peoples, the Caucus’ position is that Member States must act to ensure Indigenous Peoples’ full and effective participation.
Traditional knowledge and traditional cultural expressions
IGC 44
Following the discussion of working methodologies at IGC 43 and the Chair’s subsequent consultations with Member States and Observers – and perhaps energized or at least shaken up by the movement on the genetic resources front – IGC 44, the first of the biennium’s four negotiation sessions on traditional knowledge and traditional cultural expressions, kicked off under a new working methodology. The new methodology focused less on unilateral textual modifications by Member States and more on issue-by-issue discussion in informal meetings and contact groups and development by the IGC Facilitators of “Facilitators’ Alternative” text provisions based on these discussions.
The work of IGC 44 centered on the text provisions regarding objectives (i.e., the intentions and purposes to be achieved by the instruments), definition of terms, subject matter (i.e., what is to be covered by the instruments, including specifying eligibility criteria to define the traditional knowledge and traditional cultural expressions to be protected), scope of protection, databases, exceptions and limitations, and sanctions and remedies. The intended beneficiaries of protection under the instruments was also a topic of discussion. While there is general agreement that Indigenous Peoples are primary beneficiaries, there are questions about if/how to define local communities beneficiaries and whether nation states or “other entities” might also be beneficiaries. The Facilitators condensed and crystallized the discussions into alternative provisions added to the texts and Member States agreed to forward the revised texts to IGC 45 as the basis for further negotiations. Member States also approved convening an ad hoc expert group prior to IGC 45 to address specific negotiation issues.
In a further effort to accelerate and advance the work, the Chair committed to developing a Chair’s Text on Traditional Knowledge and Traditional Cultural Expressions to be made available by IGC 45. An advisory committee was established to assist the Chair in this process, and the Indigenous Caucus selected two Indigenous representatives to participate in the committee.
IGC 45
Work continued at IGC 45, 5-9 December 2022, on the traditional knowledge and traditional cultural expressions texts. The ad hoc expert group met the day before to discuss issues of scope of protection, exceptions and limitations, and sanctions and remedies. The results of the ad hoc expert group were reported to the IGC plenary.
During the week, negotiations took place via formal interventions and informal, open-ended contact groups, as well as in a small contact group established to focus on the issue of beneficiaries. Discussions centered on the Facilitators’ Alternative provisions developed at IGC 44, as well as further work on other issues including those addressed by the ad hoc expert group.
Based on all the discussions taking place during the session, on the final day the Facilitators presented revised versions of the traditional knowledge and traditional cultural expressions texts, following the methodology established at IGC 44 of including “Facilitators’ Alternative” provisions. Member States took the decision to transmit the revised texts to IGC 46 for further consideration at that session, which will take place from 27 February-3 March 2023.
As promised at IGC 44, the Chair introduced a “Chair’s Text of a Draft International Legal Instrument relating to Intellectual Property and Traditional Knowledge/Traditional Cultural Expressions”.[18] In very preliminary form and described by the Chair as a “work in progress”, the draft did not form the basis for discussions at the session. A revised version of the Chair’s Text is expected to be introduced in advance of IGC 46.
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 and IGC 45. 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 37th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous person in Tanzania. This photo was taken by Geneviève Rose, and is the cover of the Indigenous World 2023 where this article is featured. Find the Indigenous World 2023 in full here.
Notes and references
[2] “Traditional Knowledge.” WIPO, https://www.wipo.int/tk/en/tk/ ; Because the term “traditional knowledge” can be somewhat misleading, as it implies antiquity, many Indigenous activists in their international advocacy in multilateral processes prefer to refer simply to the “knowledge of Indigenous Peoples” or “Indigenous knowledge”. In the WIPO negotiations, Indigenous representatives emphasize that traditional knowledge is not confined to ancient knowledge but includes new and evolving Indigenous knowledge.
[3] “Traditional Cultural Expressions.” WIPO, https://www.wipo.int/tk/en/folklore/
[4] “Genetic Ressources.” WIPO, https://www.wipo.int/tk/en/genetic/ ; 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.
[5] The 2022-2023 mandate and work program are available at: “Assemblies of the Member States of WIPO. Sixty-Second Series of Meetings. Agenda Item 18. Report on the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). DECISION.” 4-8 October 2021, igc-mandate-2022-2023.pdf (wipo.int)
[6] Current versions of the draft texts as of the end of 2022 are available at: “The Protection of Traditional Knowledge: Draft Articles Facilitators’ Rev.” WIPO, 9 December 2022, WIPO/GRTKF/IC/45/FACILITATOR REV. TK
[7] "The Protection of Traditional Cultural Expressions: Draft Articles Facilitators’ Rev.” WIPO, 9 December 2022, WIPO/GRTKF/IC/45/FACILITATOR REV. TCE
[8] “Consolidated Document Relating to Intellectual Property and Genetic Resources.” WIPO, 31 March 2022, WIPO/GRTKF/IC/43/4
[9] Noe, Sue. “The Indigenous World 2019: World Intellectual Property Organization.” In The Indigenous World 2019, edited by Dwayne Mamo, 651-658, Copenhagen: IWGIA, 2019, Indigenous World 2019: World Intellectual Property Organization (WIPO) - IWGIA - International Work Group for Indigenous Affairs
[10] Noe, Sue. “The Indigenous World 2020: World Intellectual Property Organization.” In The Indigenous World 2020, edited by Dwayne Mamo, 770-776, Copenhagen: IWGIA, 2020, Indigenous World 2020: World Intellectual Property Organization (WIPO) - IWGIA - International Work Group for Indigenous Affairs
[11] Noe, Sue. “The Indigenous World 2021: World Intellectual Property Organization.” In The Indigenous World 2021, edited by Dwayne Mamo, 805-813, Copenhagen: IWGIA, 2021, The Indigenous World 2021: World Intellectual Property Organization (WIPO) - IWGIA - International Work Group for Indigenous Affairs
[12] Noe, Sue. “The Indigenous World 2022: World Intellectual Property Organization.” In The Indigenous World 2022, edited by Dwayne Mamo, 830-837, Copenhagen: IWGIA, 2022, The Indigenous World 2022: World Intellectual Property Organization (WIPO) - IWGIA - International Work Group for Indigenous Affairs
[13] “Chair’s Text of a Draft International Legal Instrument Relating to intellectual Property, Genetix Resources and Traditional Knowledge Associated with Genetic Resources.” WIPO, 16 December 2021, WIPO/GRTKF/IC/42/5 ;
[14] An amended version of the Chair’s Text is available at: Goss, Ian. “NON-PAPER- Amended Draft International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated woth Genetic Resources.” WIPO, 18 May 2022, WIPO/GRTKF/IC/43/NON-PAPER
[15] “Consolidated Document Relating to Intellectual Property and Genetic Resources.” WIPO, 16 December 2021, WIPO/GRTKF/IC/42/4
[16] The Indigenous Caucus nominated two Indigenous representatives to participate in each of the expert groups.
[17] Information about the diplomatic conference and links to related documents are available at: “Diplomatic Conference on Intellectual Property and Genetic Resources.” WIPO, https://www.wipo.int/diplomatic-conferences/en/genetic-resources/index.html
[18] Bellamy, Lilyclaire. “Non-paper: Chair’s Text of a Draft International Legal Instrument relating to IP and TK/TCE (Zero Draft).” WIPO, 29 December 2022, WIPO/GRTKF/IC/45/CHAIRS TEXT
Tags: Global governance, Human rights, IWGIA
