Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore: Recent Developments in WIPO
Until recently, traditional knowledge (TK) and traditional cultural expressions (TCEs) were considered as belonging to the common heritage of humanity. As such, TK and TCEs were considered as part of the “public domain”. Today, there is a growing awareness of various realities such as: the risk of erosion of local knowledge systems; the economic potential – for communities and industries; their value as cultural “assets” – part of social and cultural identity; and vulnerability to misuse and misappropriation.
TK and TCEs are innovations and creative expressions of indigenous and local communities. They are products of creative intellectual activity; so they are “intellectual property (IP)” but since they are “traditional”, they cannot be fully protected by existing IP systems due to inherent inadequacies of the system eg. Originality, Use in commerce, Novelty etc. Of course, TK and TCEs should be preserved, conserved and safeguarded. But should they get IP protection, and if so, how? Protection with conventional/existing IP systems? Adaptation of existing IP systems? Sui generis protection? Non-IP measures and laws?
The option of sui generis IP protection of TK and TCEs means that TK and TCEs would be recognized as a form of “intellectual property” – i.e., as comprising creations and innovations of the human mind. The protection of TK and TCEs would be provided by a special system or mechanisms based on the kinds of measures, principles and values that underlie the system established for the protection of intangibles (the intellectual property system).
With regard to genetic resources, there are two IP related issues namely: Preventing the grant of erroneous patents; and Using the patent/IP system to ensure and track compliance with access and benefit-sharing (ABS) systems in national laws. Some of the proposed solutions/mechanisms include: databases/information systems, patent examination guidelines, and/or mandatory disclosure requirements, and/or managing patent/IP rights through contract (IP clauses in mutually-agreed terms).
WIPO’s work on GRs, TK and TCEs has focussed on finding the appropriate role of IP in the protection, preservation and promotion of TK, TCEs and GRs through normative development and capacity building. WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was created in 2000 and had its first session in 2001. It is a forum where negotiations take place for an international legal instrument on TK, TCEs and GRs. IGC participants include Member States, indigenous and local communities, business, civil society and other NGOs.
With regard to normative development, the IGC is developing a sui generis system of protection using IP principles, values and systems with a focus on: the prevention of misappropriation and misuse as opposed to preservation and safeguarding.
The IGC 2016-2017 mandate is to continue to expedite its work, with a focus on narrowing existing gaps, with open and full engagement, including text-based negotiations with the objective of reaching an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to IP which will ensure the balanced and effective protection of GRs, TK and TCEs. The focus is on reaching a common understanding on core issues a clearly defined work program based on sound working methods. There will be six sessions of the IGC in 2016/2017, including thematic, cross-cutting and stocktaking sessions. The IGC may decide to establish an expert panel(s) and hold Ambassadorial/Senior Capital-Based Officials meetings. The IGC will use all WIPO working documents, as well as any other contributions by members, using an evidence-based approach.
Sources: Daphne Zografos Johnsson, Presentation at WIPO-WTO Colloquium for Teachers of Intellectual Property, June 13-24, 2016