The Indigenous World 2024: World Intellectual Property Organization (WIPO)

Written on 26 March 2024. Posted in 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 (UNDRIP).^[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 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 to develop 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 25 to 30 people per session.

This article is part of the 38^th 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 man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here

Overview

The IGC operates under two-year mandates, renewed biennially by the WIPO General Assembly. There are three texts presently under negotiation at the IGC – one on traditional knowledge, one on traditional cultural expressions and another on genetic resources and associated traditional knowledge. The 2022-2023 mandate directed the IGC to continue its work, with the aim of finalizing agreements on international legal instruments to ensure the protection of genetic resources, traditional knowledge and traditional cultural expressions.

In 2023, the IGC closed out the biennium with two negotiation sessions focused on the draft traditional knowledge and traditional cultural expressions texts. In preparation for the upcoming 2024 diplomatic conference, the IGC also held a special session to make final revisions to the draft genetic resources and associated traditional knowledge text prior to sending the text to the diplomatic conference and WIPO convened a Preparatory Committee meeting to address diplomatic conference modalities and other related issues. All sessions were held at the WIPO headquarters in Geneva, Switzerland, and were offered in a hybrid format.

In additional developments of note in 2023, the WIPO Secretariat convened a workshop of Indigenous experts, the WIPO General Assembly authorized funding for Indigenous participation, virtual meetings of experts were held on the topics of disclosure requirements and information systems and the WIPO Secretariat convened a dialogue on Indigenous Peoples and Fashion.

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.

Indigenous Expert Workshop

Kicking off the work in 2023, the WIPO Secretariat acted on a recommendation from the UN Permanent Forum on Indigenous Issues (UNPFII)^[6] and organized an Indigenous Expert Workshop on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions from 22-24 February 2023 at WIPO headquarters. The Indigenous experts – one each from the seven UNPFII socio-cultural regions – were selected by WIPO and the UNPFII Secretariat. Member States and accredited IGC observers participated in the workshop as observers. The Indigenous experts reviewed the three draft texts and developed a report with analysis of four key negotiation issues – beneficiaries of protection, digital technology, exceptions and limitations and transboundary cooperation – as well as commentary on key cross-cutting principles relevant to all three of the negotiation texts, such as the need to ensure that the rights set out in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) are reflected throughout the texts. The experts presented their work in the Indigenous Panel on the first day of IGC 46.

IGC 46 & IGC 47

IGC 46 took place from 27 February-3 March 2023 and focused on traditional knowledge and traditional cultural expressions.^[8] The session was immediately preceded by a one-day ad hoc expert group meeting on key negotiation issues, which included the participation of two representatives selected by the Indigenous Caucus.^[9] Negotiations on traditional knowledge and traditional cultural expressions continued at IGC 47 from 5-9 June 2023.^[10]

Both IGC 46 and 47 were immediately preceded by an Indigenous Consultative Forum, the usual Indigenous Caucus preparatory meeting facilitated by the WIPO Secretariat. The Caucus received outside funding for an added day-long meeting prior to IGC 47. During the sessions, the Caucus met multiple times daily and organized meetings with Member State delegations and the IGC Chair. The Caucus developed text proposals that were presented in plenary and circulated among Member State delegates. Funding from the WIPO Voluntary Fund supported the participation of one Indigenous representative in each session.

IGC 46 and 47 followed the methodology of issue-by-issue discussions in plenary, informal meetings and small open-ended contact groups, and the use of IGC Facilitators. Key developments included the addition of a definition of “Customary Laws” – with language suggested by the Indigenous Caucus to reflect the myriad forms of expressions of Indigenous Peoples’ laws – and refinements of eligibility criteria for protection/subject matter (i.e., what to protect), beneficiaries of protection, scope of protection and relationship with other international instruments. While in general opposing exceptions and limitations to protection, at the suggestion of the Indigenous Caucus language was added to ensure that as a minimum any such exceptions and limitations be developed with input from Indigenous Peoples.^[11]

As the final session of the 2022-2023 biennium, IGC 47 also included stocktaking and developing a recommendation to the General Assembly for the 2024-2025 IGC mandate and work programme. The IGC agreed by consensus to recommend renewal of the IGC mandate for 2024-2025 and to forward the traditional knowledge and traditional cultural expressions texts as modified at IGC 46 and 47 as the basis for further negotiations. Importantly, the agreed mandate expressly states that Indigenous Peoples’ representatives will be invited to participate in any ad hoc expert groups and requests that the WIPO Secretariat facilitate the effective participation of Indigenous Peoples in the IGC’s normative work. It also provides for continued discussion of genetic resources issues within the IGC following the 2024 diplomatic conference.^[12]

Genetic resources and associated traditional knowledge

WIPO General Assembly

The negotiations on genetic resources and associated traditional knowledge experienced a breakthrough in 2022, with the WIPO General Assembly deciding to elevate the negotiations to the diplomatic level by convening a diplomatic conference by 2024. A diplomatic conference is the traditional step for concluding a treaty or other legal instrument at WIPO. The General Assembly also decided that a special session addressing substantive text provisions be held prior to the diplomatic conference and that a Preparatory Committee meeting be convened to establish the conference’s Rules of Procedure, list of invitees, venue and date, and to address the administrative/non-substantive provisions of the text.^[13]

A particular concern for Indigenous Peoples in 2023 was the need to ensure their participation in the upcoming diplomatic conference and related meetings. Responding to advocacy by Indigenous Peoples, in its report of its 22^nd Session (2023), the UNPFII called on WIPO and its Member States to ensure Indigenous Peoples’ full and effective participation.^[14] Subsequently, in a significant positive development, the WIPO General Assembly took the decision at its 64^th Series of Meetings on 14 July 2023 to provide funding for participation in the diplomatic conference for two representatives of Indigenous Peoples and/or local communities from each of the seven UNPFII socio-cultural regions.^[15]

IGC Special Session

The special session to allow Member States a final opportunity to reach agreement on further refinements to substantive provisions of the genetic resources and associated traditional knowledge text before the diplomatic conference in 2024 took place from 4-8 September 2023. The WIPO Secretariat facilitated an Indigenous Consultative Forum the Saturday and Sunday prior to the session and the WIPO Voluntary Fund supported the attendance of four Indigenous representatives.

Under the methodology for the session, only revisions agreed by consensus were made to the text. Member States were able to reach agreement on only a few text revisions; however, important language was added to the article on information systems requiring that information systems be established, and related safeguards be developed, in consultation with Indigenous Peoples. The text provisions as revised were transmitted to the Preparatory Committee meeting to be included as the substantive articles of the text (the “Basic Proposal”) for the diplomatic conference.^[16]

Preparatory Committee Meeting

The diplomatic conference Preparatory Committee convened from 11-13 September 2023 and approved the necessary modalities for the diplomatic conference, including the draft Rules of Procedure and the administrative/non-substantive provisions for the Basic Proposal. In a decision supportive of Indigenous participation, the Committee agreed that all IGC-accredited observers would be invited to attend the diplomatic conference, not just those admitted as observers to the WIPO General Assembly.^[17] Additionally, the draft Rules of Procedure approved by the Committee for adoption by the diplomatic conference provide that the same “measures” applied to participation of observers in the work of the IGC shall be applied to the work of the various committees and working groups of the diplomatic conference, signaling that Indigenous participation in the diplomatic conference should at least be on par with that in the IGC.

The diplomatic conference venue and dates could not be agreed, however, as no Member State had come forward with an offer to host the diplomatic conference. The Preparatory Committee meeting was thus suspended. The Committee reconvened on 13 December 2023 and agreed that the diplomatic conference would take place at WIPO headquarters in Geneva from 13-24 May 2024.^[18]

Other 2023 activities of note

Virtual intersessional activities

Pursuant to a decision taken at a prior IGC session, in 2023 the WIPO Secretariat organized a series of ad hoc virtual expert meetings on possible disclosure requirements as well as a series of virtual technical meetings on information systems, registers and databases of genetic resources, traditional knowledge and traditional cultural expressions. The meetings included the participation of Indigenous representatives. Outcomes included recommendations regarding negotiation issues, including specific text proposals, and a recommendation that the IGC create a technical taskforce to further address issues related to information systems.^[19]

Indigenous Peoples and Fashion dialogue

The fashion industry is one arena in which incidences of misappropriation of Indigenous Peoples’ designs, symbols and patterns are well-known and extensive. On 2 November 2023, the WIPO Secretariat organized a High-Level Dialogue on Indigenous Peoples, Traditional Cultural Expressions and Fashion, bringing together Indigenous Peoples and fashion companies for an informal sharing of experiences and discussion of key issues and constructive pathways for respectful and mutually beneficial collaboration. In a move toward supporting a collaborative approach between Indigenous Peoples and the fashion industry, and the development of relevant best practices, WIPO introduced “Draft Steps when Considering the Use of Elements of Indigenous Peoples’ Cultural Expressions in Fashion”, which WIPO developed in consultation with representatives of Indigenous Peoples, fashion brands and other experts.^[20]

Looking forward

In addition to the diplomatic conference taking place from 13-24 May 2024, under the IGC’s provisional schedule for 2024, IGC 48 will take place on 29 November 2024, and will focus on taking stock of the progress made on genetic resources and associated traditional knowledge and discussing any issues arising from the diplomatic conference. IGC 49, from 2-6 December 2024, will continue negotiations on the draft traditional knowledge and traditional cultural expressions texts.^[21]

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 38^th 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 man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 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 Resources.” 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. Intellectual property issues are, however, 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] See Noe, Sue. “The Indigenous World 2019: World Intellectual Property Organization.” In The Indigenous World 2019, edited by Dwayne Mamo, at 651-658, Copenhagen: IWGIA, 2019; Noe, Sue. “The Indigenous World 2020: World Intellectual Property Organization.” In The Indigenous World 2020, edited by Dwayne Mamo, at 770-776, Copenhagen: IWGIA, April 2020; Noe, Sue. “The Indigenous World 2021: World Intellectual Property Organization.” In The Indigenous World 2021, edited by Dwayne Mamo, at 805-813, Copenhagen: IWGIA, April 2021; Noe, Sue. “The Indigenous World 2022: World Intellectual Property Organization.” In The Indigenous World 2022, edited by Dwayne Mamo, at 830-837, Copenhagen: IWGIA, April 2022; and Noe, Sue. “The Indigenous World 2023: World Intellectual Property Organization.” In The Indigenous World 2023, edited by Dwayne Mamo, at 703-711, Copenhagen: IWGIA, April 2023.

^[6] See E/2019/43-E/C.19/2019/10, para. 11.

^[7] The workshop report is available at WIPO/GRTKF/IC/46/INF/9.

^[8] IGC 46 documents are available at https://www.wipo.int/meetings/en/details.jsp?meeting_id=75328.

^[9] The report of the ad hoc expert group meeting is available at WIPO/IPTK-TCES/GE/23/REPORT.

^[10] IGC 47 documents are available at https://www.wipo.int/meetings/en/details.jsp?meeting_id=75419.

^[11] For additional background on issues in the traditional knowledge and traditional cultural expressions texts, see Noe, Sue. “The Indigenous World 2023: World Intellectual Property Organization.” In The Indigenous World 2023, edited by Dwayne Mamo, at 708, Copenhagen: IWGIA, 2023.

^[12] See https://www.wipo.int/export/sites/www/tk/en/igc/docs/igc-mandate-2024-2025.pdf.

^[13] See Noe, Sue. “The Indigenous World 2023: World Intellectual Property Organization.” In The Indigenous World 2023, edited by Dwayne Mamo, at 707, Copenhagen: IWGIA, 2023.

^[14] See E/2023/43-E/C.19/2023/7, para. 79.

^[15] See https://www.wipo.int/export/sites/www/about-wipo/en/assemblies/docs/a64-list-decisions.pdf, Item 12(v).

^[16] The special session documents are available at https://www.wipo.int/meetings/en/details.jsp?meeting_id=76648.

^[17] Most Indigenous organizations participating in the IGC are not accredited as observers to the WIPO General Assembly.

^[18] The Preparatory Committee documents are available at https://www.wipo.int/meetings/en/details.jsp?meeting_id=76689.

^[19] For the report on virtual activities, see WIPO/GRTKF/IC/SS/GE/23/INF/2. The WIPO Secretariat also issued an online survey on information systems, registers, and databases. For survey responses, see www.wipo.int/tk/en/igc/consultations.html.

^[20] See https://www.wipo.int/tk/en/news/tk/2023/news_0015.html. The program and recording of the event are available at https://www.wipo.int/meetings/en/details.jsp?meeting_id=80168.

^[21] See https://www.wipo.int/export/sites/www/tk/en/igc/docs/igc-provisional-schedule-2024.pdf.

Tags: Global governance, Cultural Integrity , International Processes