WIPO's Work on Traditional Knowledge and Folklore Receives Broad Support
Geneva, June 17, 2005
Press Updates UPD/2005/251
Member states of the World Intellectual Property Organization (WIPO) have affirmed broad support for the work of the Organization on the protection of traditional knowledge (TK) and expressions of traditional cultures /folklore (TCEs) and have agreed to recommend to the WIPO General Assembly that the mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) be extended to the next biennium so that work on TK, TCEs and genetic resources could continue. These were among the decisions made at the most recent session of the IGC which took place in Geneva from June 6 to 10, 2005. The session was attended by delegates from 76 member states, 12 intergovernmental organizations and 39 non-governmental organizations. The WIPO General Assembly meets in September 2005.
Significant steps were also taken to further enhance the participation in the work of the IGC by NGOs, especially those representing indigenous peoples and traditional communities. The meeting opened with a panel, chaired by indigenous leader Stanley Jones of the Tulalip Tribes, during which indigenous and traditional community representatives from Indonesia, Papua New Guinea, Peru, Sweden, Ukraine, the United States of America and Zambia presented their communities' experiences and recommendations to the IGC. The IGC has agreed to ensure that each of its sessions should commence with such a meeting. A further 12 NGOs were accredited to the IGC, raising to over 110 the number of NGOs specially accredited to the IGC. Many of these represent the interests of indigenous peoples or traditional communities.
A proposal to establish a WIPO Voluntary Contribution Fund, to fund the participation of representatives of indigenous and local communities in meetings of the IGC, was also broadly supported. A commenting and revision process was established to accommodate suggested changes discussed during the session, after which the revised proposal will be submitted for approval to the WIPO General Assembly.
On TK and TCEs, delegates reviewed sets of draft provisions outlining objectives and principles for the protection of TK and TCEs. The draft provisions would frame the policy and legal space for protection against misappropriation and misuse, and help define the legal measures for this protection. The approach to protection that is being explored would apply potentially indefinitely for TK and TCEs which are the products of intellectual activity, whether communal or individual, and which are characteristic of a community's cultural and social identity and cultural heritage. The approach would in particular benefit those communities in whom the custody of the TK or TCEs has been entrusted under customary law and who still maintain, use or develop them. The draft provisions are neutral as to legal form and could be used as a basis for a national or regional law, a recommendation, model provisions, a treaty or other form of outcome. The development of binding international law in this area has been proposed as an outcome of WIPO's work for some time, and the IGC's current mandate refers to an international instrument as a possible outcome, but there is currently no agreed common position on the part of WIPO member states on the legal status of the outcome of the IGC.
These were the second drafts of the provisions, following an open commenting process established at the previous session of the IGC in November 2004 when the earlier drafts were accepted by all IGC participants as the basis for its substantive work. A diverse range of comments were received during the commentary process, which guided the revision of the drafts. The texts, and the comments received on them during the commenting process, are available as documents WIPO/GRTKF/IC/8/4 (TCEs) and WIPO/GRTKF/IC/8/5 (TK) at https://www.wipo.int/tk/en/consultations/draft_provisions/comments.html
In reviewing these draft provisions, delegates welcomed the progress made so far by the IGC and several reported on current regional and national processes aimed at developing national or regional laws, discussion papers or policy frameworks, many of which were prompted and guided by the discussions in the IGC. Delegates also recognized the complexity of the issues raised in the draft provisions and that they required careful consideration and reflection. Diverse views were expressed on the substance of the drafts, as well as on the pace, nature and expected outcomes of future work in these areas, there was broad support for continued work and it was agreed to recommend the extension of the IGC's mandate.
On genetic resources, the IGC reviewed several documents, including submissions from various WIPO member states. The European Community and its member states tabled a paper on the disclosure of origin or source of genetic resources and associated traditional knowledge, which proposed a binding disclosure requirement that should be applied to all patent applications.' Peru and Portugal tabled papers on their national measures concerning genetic resources and sui generis protection of traditional knowledge respectively. A submission by the United States of America dealt with the relationship between the TRIPS (Trade-Related Aspects of Intellectual Property) and the Convention on Biological Diversity (CBD) and the protection of traditional knowledge and folklore. Although diverse views were expressed, the IGC agreed to recommend that the WIPO General Assembly extend the IGC's mandate also on the question of genetic resources.
Further work on genetic resources issues was advanced by a separate Ad Hoc Intergovernmental Meeting on Genetic Resources and Disclosure requirements. The meeting was convened on June 3, 2005, to review a draft study on the relationship between genetic resources and disclosure requirements in the IP system; this was a draft of a technical study that is being prepared at the invitation of the Conference of Parties of the Convention on Biological Diversity (CBD), as part of a continuing dialogue between the two organizations on these issues. Participants reviewed the draft (document WIPO/IP/GR/05/3), many stressing the need for WIPO's work in this area to be supportive of the goals of the CBD, including its objectives of the conservation of biodiversity, sustainable use of its components, and equitable sharing of benefits.
WIPO's work on TK dates back to 1998, shortly after Dr. Kamil Idris took over leadership of the Organization; it builds on past work by WIPO on expression of folklore (or traditional cultural expressions) which reaches back several decades. The current work program seeks to respect the manner in which TK, TCEs and associated genetic resources are considered an indivisible whole within the traditional or customary context, while developing specific and tailored legal tools for the protection of each element of this traditional heritage against misuse and misappropriation. This program also entails close consultations with and respect for the mandates and activities of other United Nations agencies and international processes.
The first phase of WIPO's work involved visiting TK and TCE holders in many countries over the period 1998-99 to learn directly from them about their needs and expectations. Indigenous and local communities, non-governmental organizations (NGOs), governmental representatives, academics, researchers and private sector representatives were consulted on these missions. The fact-finding missions were conducted in 28 countries between May 1998 and November 1999. The results of these consultations are contained in a comprehensive report, which still forms the basis of much of WIPO's work. In this way, the perspectives of a wide cross section of TK and TCE holders have provided continuing guidance in the evolution of later activities. The report, published by WIPO, is entitled "Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-finding Missions (1998-1999)" (https://www.wipo.int/tk/en/tk/ffm/report/index.html).
An important subsequent step was the formation of the IGC as a policy forum for these issues. Discussions in the IGC focus on three primary themes: access to genetic resources and benefit sharing; the protection of TK, whether or not associated with those resources; and the protection of expressions of folklore.
The IGC met for the first time in May 2001 and has met eight times in all. The first phase of the IGC's work, up to 2003, included policy debate, reports on national experiences, empirical surveys, exchange of the experience of indigenous and local communities, analysis of legal and policy options for enhanced protection for TK and TCEs, crafting specific practical tools, development of recommendations for revision of the international patent system to take account of TK, and review of capacity-building and awareness initiatives.
The IGC concluded its initial mandate in 2003, and received a stronger, expanded mandate for the current biennium by the WIPO General Assembly in September 2003. This marked the maturing of this body as a key international forum for policy debate, analysis of practical experience, and development of new approaches and legal mechanisms to address the IP concerns and interests of the communities who hold and maintain TK, TCEs and genetic resources. Its work was also characterized by greater cooperation with other international and regional organizations, and with national authorities and traditional communities.
The second phase of the IGC's work aimed at developing more concrete and focussed outcomes at the international level in the form of two complementary sets of objectives and principles respectively concerning the protection of TCEs (or folklore) and the protection of TK. These have been supplemented by outlines of the policy options and legal mechanisms that are being used in practice to give effect to these objectives and principles.
WIPO is continuing to work with other elements of this program beyond the IGC, including providing technical support and policy input at the national and regional levels, hosting and otherwise taking part in many forums aimed at developing a shared understanding of how best to develop and apply the principles of the intellectual property system to serve the interests articulated by holders of TK and custodians of TCEs, and commissioning independent studies. WIPO is also developing an array of publications and information resources for communities and policymakers, government officials, civil society and other stakeholders.
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