E wipo/grtkf/IC/15/7 Original: English date: May 14, 2010 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Fifteenth Session Geneva, December 7 to 11, 2009 report
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AGENDA ITEM 6: PARTICIPATION OF INDIGENOUS AND LOCAL COMMUNITIES: VOLUNTARY FUND74. The Chair introduced documents WIPO/GRTKF/15/3 and WIPO/GRTKF/IC/15/INF/4. 75. In accordance with the decision of the Committee at its seventh session (WIPO/GRTK/IC/7/15, paragraph 63), the fifteenth session was preceded by a half-day panel of presentations, chaired by Mr. Preston Hardison, Tulalip Tribes of Washington. These presentations were made according to the program (WIPO/GRTKF/IC/15/INF/5). The Chair of the Panel submitted a written report on the Panel to the WIPO Secretariat which is contained below: “The panel of indigenous representatives consisted of Ms. Lucia Fernanda Inacio Bellfort, Istituto Indígena Brasilera da Propriedade Intelectual (IMBRAPI), Brazil; Mr. Rodion Suly Andziga, Russian Association of Indigenous Peoples of the North (RAIPON), Russia; Dr. Debra Harry, Indigenous Peoples' Council Against Biocolonialism (IPCB), USA; Mr. Devi Prasad Mazumder, Organization for Social Action and Development (OSAD), Bangladesh; and, Mr. Musa Usman Ndamba, Mbororo Social Cultural Development Association (MBOSCUDA), Cameroon. Ms. Inacio Bellfort discussed IP issues among the Kaingang peoples that range across five regions in southern Brazil. She explained the great diversity of indigenous peoples in Brazil, the diversity of their languages, and the diversity of their organizations, which includes indigenous peoples living in voluntary isolation. Among the Kaingang, all TCEs, TK and associated GRs and biodiversity cannot be separated from their customary laws, value systems and identity. The Kaingang hold collective title and responsibility for the protection of TK. They make a distinction between the holders and owners of collective knowledge. Holders, such as shamen, use TK but do not control access to it. The knowledge and the right to grant and deny access is vested in the collective owners. She also emphasized the distinction between TK that is publicly available and the public domain. While TK and TCEs may be publicly available, they are still inextricably linked to indigenous contexts, remain under indigenous collective ownership, and thus are not viewed by the peoples she represents as being in the public domain. She discussed the widespread misappropriation of “Ipanema” sandals. “Ipanema” refers to the famous beach in Rio de Janeiro where the sandal style is popular. However, the design is of indigenous origin, and non-indigenous sandal makers also make unauthorized use of indigenous symbols. One line of these sandals, Ipanema Gisele Bündchen, developed by the supermodel, has made some compensation to indigenous peoples through biodiversity conservation projects, but the unauthorized and uncompensated sales of the sandals continues to be widespread. Finally, in addition to respecting the right to grant or deny access, and the right to compensation for authorized uses, she reaffirmed the fundamental importance of respecting customary law. Mr. Suly Andziga spent much of his presentation putting discussions on TK into their local political and livelihood context. It was the opinion of RAIPON that the issue of TK and TCEs are a human rights issue, and their resolution should represent a summit of human achievement. The IP issues are bound to joint principles of ownership and access to land. Russia has 40 recognized indigenous peoples, and they have worked to find unity in diversity. Many are traditionally involved in animal husbandry, reindeer herding and gathering, with their culture and identity built around the reindeer. Protection of their TK occurs within the context of larger economic and sociopolitical issues. The indigenous peoples of Russia have been adversely impacted by mining and oil and gas development, and industrial development. Interruptions of their traditional herding and gathering practices by these activities disrupts their ability to maintain and transmit TK. Because their cultures are primarily oral, much of their TK has not been formally documented. Mr. Suly Andziga stated RAIPON’s view that their still remains a gap between recognition and implementation of indigenous collective rights to TK and TCEs in Russia. One barrier to their participation at the international level remain the problem of translation, both into Russian and into locally understandable languages, of the contents of the debates at the international level. There is a lack of information flowing both from the international and national level to the communities, and from the communities out to these levels. He emphasized the critical need to build capacity in the communities, and carry on a more enriched dialogue based on mutual respect. Dr. Harry touched on similar human rights themes in her presentation. She started by observing that many indigenous names are derived from the names of local foods, animals, plants and places, such that their collected identity is rooted in the land. She mentioned several United Nations bodies and instruments of direct relevance to the recognition of this inherent linkage, as well as permanent indigenous sovereignty over their lands and resources, including the Declaration on the Rights of Indigenous Peoples (DECRIPS), the International Covenant on Civil and Political Rights (ICCPR), the Economic and Social Council Working Group on Indigenous Populations (WGIP), the Committee on the Elimination of Racial Discrimination (CERD) and the Universal Declaration on Human Rights. Taken together, these recognize the collective identity of the indigenous as distinct peoples, and the recognition of their right to self-determination under their on customary laws and traditions. She made a distinction between TK, that can be held by local communities, and indigenous knowledge, that refers to the distinct legal context of collective rights holders and owners of knowledge. Those having the right to self-determination as recognized in the United Nations instruments have rights beyond consultation, including the right of free, prior and informed consent (FPIC). Dr. Harry interpreted the protection of indigenous knowledge as referring to knowledge that is collectively held, inherent and inalienable. She held that the IP system compartmentalizes indigenous knowledge and recasts it into a form that leads to its alienation. Putting indigenous knowledge into IP terms changes its nature, and offers a context in which it can only be protected as commercial knowledge. This facilitates its commoditization and only provides short-term protections rather than protection in perpetuity under customary law. She then illustrated some of the ways in which tribes within the United States are protecting their indigenous knowledge and indigenous cultural expressions. Under US law, Indian tribes have control and police power over their own territories. Because of this, they have the sovereign authority to pass their own tribal laws and establish tribal codes to regulate their members and agreements with non-Indians. The Little Traverse Band of Odawa Indians has adopted an ordinance prohibiting the patenting of living organisms. Several tribes have developed research agreements that require community review, ownership over primary data, retained ownership over indigenous knowledge, and control over publication. n this way, they are increasingly defining and asserting their inherent property rights over their knowledge and expressions. To explain her interpretation of the relationship between indigenous and non-indigenous legal systems, she gave the example of the Guswhenta, or Two Row Wampum Treaty made between the Five Nations of the Iroquois and the Dutch government in 1613, which became the basis of all their treaties with the British and the United States. This belt has a pattern of two rows of purple beads on a background of white beads. The Haudenosaunee record the meaning of this belt as follows: You say that you are our Father and I am your son. We say, We will not be like Father and Son, but like Brothers. This wampum belt confirms our words. These two rows will symbolize two paths or two vessels, traveling down the same river together. One, a birch bark canoe, will be for the Indian People, their laws, their customs and their ways. The other, a ship, will be for the white people and their laws, their customs and their ways. We shall each travel the river together, side by side, but in our boat. Neither of us will make compulsory laws or interfere in the internal affairs of the other. Neither of us will try to steer the other's vessel. In this view, measures for the protection of indigenous knowledge should focus on the right of indigenous peoples to determine their own forms and scope of protections in their own canoe path, separate from that of the international IP system. Mr. Mazumder focused his talk on the right of collective integrity in his presentation. He discussed the Development Initiative for Inclusive People (DIIP), serving a vulnerable segment of populations in the Chittagong Hill Tracts of Bangladesh. The initiative uses people-to-people communications and telecasting to promote awareness and sensitivity for the protection of their TK and TCEs. One of their main concerns is the widespread misrepresentation of and misinformation about ethnicities. He presented numerous examples from textbooks, sports posters and materials, and other public forums in which the Chittagong Tract peoples have been presented as backwards. Several cases were found to be offensive because either a sensitive Buddhist ceremony was depicted, or because it was depicted in the wrong way or wrong context. He showed an example from an agricultural extension manual that misinterpreted traditional swidden practices. Mr. Mazumder also emphasized the need for literacy in the issues being discussed at WIPO among the indigenous peoples and local communities of Bangladesh. Mr. Ndamba discussed issues from the perspective of Mbororo-Fulani pastoralists in Cameroon. `He noted some of the great challenges facing these peoples whose lives have traditionally been dependent on cattle. There has be a loss of nomadism, and many have been transformed to become semi-nomadic or semi-transhumant. Nearly a third of animals diseases in Cameroon are treated by ethno veterinary medicine. The medicinal plants used in traditional animal husbandry are disappearing, ethno veterinary medicine is being marginalized by non-traditional veterinary medicine, elders are being lost without transmitting their knowledge, and youth are migrating to the cities. Although the Mbororo-Fulani have much traditional knowledge in sayings, stories, songs and oral teachings by which they transmit their values, codes of conduct and ethics, these are under intense pressure. He concluded with some thoughts about the direction the IGC should take in its discussions. He promoted an internationally binding regime. He urged governments to provide additional funding for the documentation of TK and TCEs. He asserted that IP rights must be in full compliance with human rights, and that their compliance should be assessed and reported to the United Nations. He stated that the process needs to expand beyond the declaration stage into substantive commitments. Finally, in the absence of a global regime, countries could make progress through binding bilateral agreements.” Decision on agenda item 6: 76. The Committee took note of documents WIPO/GRTKF/IC/15/3 and WIPO/GRTKF/IC/15/INF 4. 77. The Committee encouraged and called upon members of the Committee and all interested public or private entities to contribute to the WIPO Voluntary Fund for Accredited Indigenous and Local Communities. 78. The Chair proposed, and the Committee elected by acclaim, the following eight members of the Advisory Board to serve in an individual capacity: as members of delegations of WIPO Member States: Mr. Yasmi ADRIANSYAH, First Secretary, Permanent Mission of Indonesia, Geneva; Mr. Carlos GARBANZO, Minister Counsellor, Permanent Mission of Costa Rica, Geneva; Mr. Benny MÜLLER, Legal Advisor, Institut fédéral de la propriété intellectuelle of Switzerland, Berne; Mr. Alain Aimé NYAMITWE, First Counsellor, Permanent Mission of Burundi, Geneva; and Mr. Emin TEYMUROV, Attaché, Permanent Mission of Azerbaidjan, Geneva; and, as members of accredited observers representing indigenous and local communities or other customary holders or custodians of TK or TCEs: Mrs. Haman HAJARA, representative of the African Indigenous Women Organization, Yaoundé, Cameroon; Mrs. Lucia Fernanda INÁCIO BELFORT, representative of the Instituto Indígena Brasileiro para propriedade intelectual (INBRAPI), Brasília, Brazil, and Mr. Devi Prasad MAZUMDER, representative of the Organization for Social Action and Development, Dhaka, Bangladesh. The Chair of the Committee nominated Mr. Abdellah OUADRHIRI, Vice Chair of the Committee, to serve as Chair of the Advisory Board. |