WIPO Committee Continues Discussions on Legal Protection for TK

20 December 2002


Extensive discussions continued at the fourth meeting of the WIPO [World Intellectual Property Organization] Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore on 9-17 December on possible ways of providing legal protection for traditional knowledge (TK) and folklore, including through the use of databases, a multilateral sui generis system and disclosure requirements for country of origin, benefit sharing and prior informed consent in patent application.

As one observer noted, the discussions at the meeting seemed less "lively" than before, adding that the Committee "almost seemed to be running out of steam". The observer speculated that this could be a sign that countries might need more time to consider their positions on the kind of system for TK protection that would be appropriate for them. Others believe that it is time to change the group's mandate from study to negotiations mode, arguing that they are unwilling to spend more efforts on a process that had no mandate to advance toward adequate solutions on the relationship between intellectual property rights and genetic resources and the protection of TK and folklore.

Databases as a means of protecting TK

Following on from previous meetings, countries considered the use of databases as a means of protecting TK. Many developed countries believe that such databases provide the best means of protecting TK, and that the registration of TK should be promoted. The information contained in these databases should be made available to the public. Many developing countries, in particular those represented in the Group of Countries of Latin America and the Caribbean (GRULAC), were cautious regarding the use of databases for TK protection. While not necessarily rejecting the idea outright, they noted that it should not be a requirement that TK has been catalogued in order for it to be protected. Furthermore, the information kept in the databases should be confidential for use by patent officers only for the purpose of prior art examination, and as a means of preserving TK. Information should only be included with the prior informed consent of TK holders, even if it was already in the public domain as such knowledge might have been acquired with the use of deceptive practices.

Multilateral sui generis system of protection

Discussions continued on the need for developing a multilateral sui generis system for TK protection (see BRIDGES Trade BioRes, 27 June 2002). Venezuela, supported by many developing countries, called for a document to be prepared that contained some more concrete elements of such a system. The countries argued that these elements had already been discussed sufficiently and had been integrated in national legislation, and that it was now time to move to a more proactive stage in the discussion on what could actually be included. Most developed countries, however, believed that there was a need to study the issue further, e.g. by encouraging members to present their legislation to the IGC, and that sui generis systems should be restricted to the national level.

Coordination with other bodies

Many developing countries stressed the need for the work of the IGC to be taken into account by other WIPO bodies, in particular the Standing Committee on the Law of Patents where the Dominican Republic on behalf of a group of countries and Brazil have submitted proposals calling for flexibility to implement measures in pursuit of public policy objectives, including those related to TK protection and biodiversity (see BRIDGES Trade BioRes, 11 December 2002). The IGC's work would also need to be synchronised with other forums dealing with similar issues, including the WTO Council for Trade-related Aspects of Intellectual Property Rights (TRIPs) to ensure that discussions at WIPO did not prejudge the outcomes of possible negotiations on traditional knowledge and biodiversity-related issues in the WTO.

Financing of indigenous representatives

Among the more political issues at the meeting was the issue of increased funding to facilitate the participation of representatives from indigenous communities. While Brazil and other developing countries supported additional financing, the proposal was blocked by the US. The Secretariat suggested that a study could be conducted on the possibility of financing in 2004-2005. Funding, however, was urgently needed at this stage of the discussions, one source noted, as the IGC would hold its last meeting in June 2003 and would then decide on how to proceed.

"Call of the Earth" initiative officially launched

On the sidelines of the WIPO meeting, a group of indigenous peoples experts took the opportunity to officially launch the "Call of the Earth" initative (see BRIDGES Trade BioRes, 21 November 2002). The imitative aims at the protection intellectual property (IP) and TK of indigenous peoples by initiating discussions on IP topics that have been identified as important by indigenous peoples in various international forums in an effort to shape conceptual approaches, policies and practices for future interventions in IP public policy development.

ICTSD reporting.

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