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

AGENDA ITEM 8: TRADITIONAL KNOWLEDGE

[Note from the Secretariat: In the discussion that took place under Agenda Item 8, several amendments were proposed to certain provisions contained in the Annex to document WIPO/GRTKF/IC/9/5. Delegations and observers also made several comments and posed certain questions. The proposed drafting amendments, comments and questions are reflected below in an extract from the relevant Annex in which the proposed amendments, comments and questions are reflected. The remainder of the report of the discussions that took place under this Agenda Item covers all other interventions made that did not directly propose an amendment or raise a specific question or comment related to the content of the Annex.]

The protection of traditional knowledge should aim to:

(vii) [UNITED STATES OF AMERICA: While recognizing the value of a vibrant public domain] contribute to the preservation and safeguarding of traditional knowledge and the appropriate balance of customary and other means for their development, preservation and transmission, and promote the conservation, maintenance, application and wider use of traditional knowledge, in accordance with relevant customary practices, norms, laws and understandings of traditional knowledge holders, for the primary and direct benefit of traditional knowledge holders in particular, and for the benefit of humanity in general;

(xiv) curtail the grant or exercise of improper intellectual property rights over traditional knowledge and associated genetic resources, by requiring [UNITED STATES OF AMERICA: the creation of digital libraries of publicly known traditional knowledge and associated genetic resources, in particular, as a condition for the granting of patent rights, that patent applicants for inventions involving traditional knowledge and associated genetic resources disclose the source and country of origin of those resources, as well as evidence of prior informed consent and benefit sharing conditions have been complied with in the country of origin; ] in particular, as a condition for the granting of patent rights, that patent applicants for inventions involving traditional knowledge and associated genetic resources disclose the source and country of origin of those resources, as well as evidence of prior informed consent and benefit sharing conditions have been complied with in the country of origin;

The Delegation of Australia noted this article specifically related to elements of a number of policy objectives and principles in the operative document, particularly Policy Objectives 5 and 8 and Principles (b) and (c). There were elements of these policy objectives and principles that were worthy of further discussion that would assist in a thorough analysis of the operation of any text of this nature. For example, what would the relationship or interface be with the existing IP system, to what extent did it accord with flexibility for national and local implementation, what impact would it have with respect to public domain knowledge, and what elements of such protection related to the IP system specifically, and which elements did not. Also the text was very dense and it might be useful to distill the operative elements and consider each separately.

The Delegation of Japan, New Zealand and Switzerland suggested that in-depth examination of policy objectives and principles was the prerequisite for the discussion on the substantive provisions.

The Delegation of South Africa noted that the objective of protection in this document was too limited. Protection against misappropriation should not be the only objective. The protection of traditional knowledge should expand to other areas, such as sustainable development, promotion of innovation and research, as well as the protection of moral rights.

The Delegation of Switzerland highlighted that the protection against misappropriation of TK should not be the only direction of protection of TK. Therefore, other additional policy objectives were important to the protection of TK and should be reflected in any provision of protection of TK.

The representative of International Chamber of Commerce (ICC) noted objectives needed to be discussed.

The representative of Tupaj Amaru noted indigenous peoples and local communities were the object of protection.

Glossary

The Delegation of Spain called for a glossary.

The Delegation of Nigeria highlighted there was the need for clear definitions in all the articles in order to maintain clear perspective on all the issues and subject matter, since it was observed that certain delegations were ascribing meanings to certain terms based on their perception, interpretation and interest.

The Representative of the Maya To’ Onik Association called for a glossary. This glossary should be prepared in line with the viewpoint or worldview of indigenous peoples, taking into account that concepts such as acquisition, misappropriation, ownership and other concepts had other connotations in the cultural worldview of indigenous peoples, particularly in Mayan culture.

The representative of ICC noted that clarity was important because business needed to know what they can do and what they cannot do.

Definition of misappropriation

The Delegation of Cameroon, Morocco, Nepal and Nigeria suggested that misappropriation should be defined.

The Delegation of Italy noted that the list of possible cases of misappropriation included in Article 1 paragraph 3 was not necessary.

The Delegation of Nigeria noted that Article 1 was restrictive as protection of TK should not be solely based on acts of misappropriation. The entire Article should be reviewed to include all rights that should be protected thoroughly under TK, including economic and moral rights.

The Delegation of Italy and Nepal noted that the definition of TK was absolutely necessary. The kind of definition included in Article 3 paragraph 2 was insufficient.

The Delegation of Japan, Kenya, Morocco and Nigeria noted that there was no clear understanding among members on the fundamental term “TK” and it was no clear what TK encompassed. The definition should be dealt with before entering substantive discussion on respective articles.

The Delegation of Norway highlighted a need for greater clarification of what actually was the subject matter for protection, namely how TK should be defined for this purpose.

The Delegation of United States of America commented on the specific drafting amendment of deleting “if traditional knowledge has been accessed”. The purpose of that phrase was to make clear that if someone created that same knowledge independently he would have the right to use his own independent creation. Furthermore, it questioned how to deal with the concept of evolving TK.

Definition of holders and recognized holders

The Delegation of Russian Federation suggested that the terms “holders” and “recognized holders” needed to be defined: (a) were these concepts synonymous?; (b) if not, what was the basis for including holders among “recognized holders”.

The Representative of the Brazilian Indigenous Institute of Intellectual Property (InBraPi) stated that throughout the document mention was made of TK holders but only in Article 4 was it clearly expressed that indigenous peoples and local communities were the holders of such TK. Pursuant to Article 4 (iii), it proposed adding, before the word “holders” the terms “indigenous peoples and local communities”.

Rights of the holders

The Delegation of Italy suggested that the first thing to do would be to define the rights which were to be recognized to the holders, since misappropriation meant a breach of rights.

The Delegation of Kenya believed that Article 1 did not say what right was offered to the TK holder in which the holders would be able to seek legal redress in case they were misused.

Enforcement

The Delegation of Cameroon questioned what body should be responsible for penalization. It also noted it was not clear, in Article 1 paragraph 3, who should make the legal means available and to whom.

The Delegation of Burundi commented on the specific drafting amendment that the concept of “compensation” should remain in Article 1 paragraph 3 (iv).

The Delegation of Kenya suggested that Article 1 should cover wider issues on exploitation of TK, not only on commercial exploitation of TK.

The Delegation of New Zealand raised the issue of potentially differentiating commercial and non-commercial misappropriation. It noted that Article 1 set a higher threshold for non-commercial misappropriation than for commercial misappropriation. However, the Policy Objective (viii) aimed to “repress the misappropriation of traditional knowledge and other unfair commercial and non-commercial activities”. It should be sufficient that the effect of the use was offensive.

The representative of Indigenous Peoples Council on Biocolonialism (IPCB) noted that it was important that the legal form of protection should extend to commercial and non-commercial use of TK because misuse often resulted from non-commercial use of traditional knowledge, and traditional knowledge acquired under non-commercial auspices could easily move into commercial use.

The Delegation of Morocco noted that the ordre public or morality was different from country to country and the definition of “the ordre public or morality” was not clear.

The Delegation of United States of America questioned, if an international regime was created, how to enforce laws of another country when morals are involved, since the perspectives on the concept of ordre public or morality could be quite different?

The Delegation of Mexico requested deletion of the respective text as it appeared that the sanction for voluntary offensive use of TK with special moral or spiritual value by third parties, outside the customary context could only be applied when the said offense was considered contrary to ordre public or morality. The Delegation believed that the offensive use referred to must be sanctioned owing to the violation which it represented to the moral and spiritual sphere of an indigenous people or community, and the effect this had on community life or identity.

The Delegation of Norway highlighted that it was especially important to find the right balance between protectable TK and knowledge which had become part of the public domain. There was not a coherent approach to what the notion of public domain actually meant.

The Delegation of Sweden, on behalf of European Union and its Member States, questioned (1) what was the relationship between the foreseen protection of TK and knowledge already in the public domain? Where was the relevant point of access to TK, which was not fixed locally in nature, to be determined? (2) How Member States foresaw protection of TK contained in databases?

The representative of InBraPi noted that the concept of public domain could not be applied to TK. Publicly available TK should be distinguished from TK in the public domain.

The representative of ICC opposed the specific drafting amendment on requiring the origin of biological materials to be disclosed in patents. However, a full discussion of this proposal between experts was welcomed.

The representative of IPCB suggested to add “or non-commercial” in line 5 of Article 1 paragraph 2 after the word “commercial”.

The representative of InBraPi suggested to add “of the indigenous peoples and local communities, holders of traditional knowledge” after “prior informed consent” in line 2 of Article 1 paragraph 3 (ii).

The representative of the Saami Council suggested, in relation to Article 1 paragraph 2, to delete “by unfair or illicit means” and to replace by “without the free, prior informed consent of the indigenous peoples or communities that have developed traditional knowledge”. He also suggested to replace “the acquisition, appropriation or utilization of traditional knowledge” with “the utilization of traditional knowledge that has entered the public domain without the consent of the indigenous peoples or communities that have developed the traditional knowledge”.

The representative of the Tulalip Tribes suggested, in Article 1 paragraph 3 (v), to add “of the indigenous peoples and local communities” after “ordre public or morality”.

The representative of Tupaj Amaru proposed that “shall” in Article 1 paragraph 1 should be replaced with “should”. In relation to Article 1 paragraph 2, he suggested to replace “may include” with “also includes”, to replace in its line 3 “from” by “through” and to replace “the person using that knowledge knows” in line 4 of this paragraph with “the person or persons using that knowledge know or should have known”. In relation to Article 1 paragraph 3, he suggested to add “and sanction” after the word “prevent”. In relation to Article 1 paragraph 3 (i), he also suggested to add “and illicit appropriation” after “acquisition” in line 1, as well as “including recourse to violence” after the word “theft”. In number (ii) he suggested to add “possession” after “acquisition” and also “the legislation currently in place” after “in violation of”. In number (iii) he suggested to change wording to “claims that have no legal foundation”. He noted that number (v) had to be redrafted as the Spanish text was not clear. He proposed “violation of customary rights of indigenous peoples” should replace the concept “morality”. He suggested to add in Article 1 paragraph 4 “indigenous peoples and local communities” and to add “customary laws of indigenous peoples and local communities” in paragraph 5.

The representative of African Regional Intellectual Property Organization (ARIPO) submitted the relevant provision of the ARIPO Protocol on Traditional Knowledge as follows:

“Rights conferred to holders of traditional knowledge

7.1 This Protocol shall confer on the owners of rights referred to in Section 6 the exclusive right to authorize the exploitation of their traditional knowledge.

7.2. In addition, owners shall have the right to prevent anyone from exploiting their protected traditional knowledge without their prior informed consent.

7.3. For the purposes of this Protocol, the term “exploitation” with reference to protected traditional knowledge shall refer to any of the following acts:

(a) Where the traditional knowledge is a product:

(i) manufacturing, importing, offering for sale, selling or using beyond the traditional context the product;

(ii) being in possession of the product for the purposes of offering it for sale, selling it or using it beyond the traditional context;

(b) Where the traditional knowledge is a process:

(i) making use of the process beyond the traditional context;

(ii) carrying out the acts referred to under paragraph (a) of this subsection with respect to a product that is a direct result of the use of the process.”

The Delegation of Ecuador and Venezuela (Bolivarian Republic of) suggested that, in relation to Article 2 paragraph 2 on the scope of the rights of holders of knowledge, the word “individual” should be reviewed due to the collective nature of traditional knowledge.

The Delegation of Russian Federation noted Article 2(1) states that “this paragraph is subject to Article 11(1)”. However, not all the legal measures listed in the aforementioned Article 2(1) may be applied in accordance with the provisions of Article 11(1), i.e. without formalities. For example, the intellectual property legislation referred to in Article 2(1), in relation to individual intellectual property subject matter, required particular formalities to be performed for the provision of legal protection of such subject matter, in particular its registration.

The representative of ARIPO noted that Article 2 provided a range of legal forms or measures that can be used to protect traditional knowledge. However, those measures indicated in Article 2.1, which related principally to forms of existing intellectual property legal tools and were also based on the notion what the instrument seeks to, were to prevent misappropriation, an objective which has been referred to as inadequate or limiting.

The representative of ARIPO noted that the commentary on Article 2 suggested that holders of traditional knowledge did not require the creation of exclusive rights over their traditional knowledge. This understanding was not what had been gathered in their experiences with the traditional knowledge holders in Africa. Most of holders had rather called for collective rights over their traditional knowledge and not private or individual rights as had been referred to Article 2.2. Without conferring rights, there could not be consequential action taken. Therefore, he suggested that the Article should be substantially amended to reflect the aspirations of the traditional knowledge holders who had called for a new form of sui generis system to protect their traditional knowledge and not a conglomerate of legal options.

The Delegation of El Salvador, Morocco and Venezuela (Bolivarian Republic of) suggested that Article 3 should be merged with Article 1 or moved before Article 1.

The Delegation of Italy noted the inconsistency between Article 4, in which “local communities” were not considered, and other provisions. Furthermore, it suggested that the language and definitions used should be the same throughout the document.

The Delegation of Switzerland suggested that the term "indigenous and local communities" in Article 3 paragraph 2 should be understood in the same broad and inclusive sense as the term “communities”, as described in footnote 23 of the Annex of the Draft Provisions on TCEs.

Definition of TK

The Delegation of Russian Federation expressed that the provision of Article 3(2) was an adequate definition of what was assumed by protection in accordance with this document.

The Delegation of South Africa suggested that Article 3 should be clearer and sharper.

The Delegation of Switzerland noted that the establishment of a working definition of traditional knowledge was considered to be one of the prerequisites of a substantial discussion. The definition of traditional knowledge as contained in Article 3 paragraph 2 constituted a good working definition. The IGC could and should revisit this definition during the course of its negotiations to amend or modify the definition if necessary. It was highlighted that the definition of traditional knowledge should encompass all traditional knowledge, that was, traditional knowledge from developing countries and developed countries.

The Delegation of Morocco suggested to clarify the definition of “cultural identity”.

The Delegation of Oman suggested adding traditional arts and artisanal works in Article 3.

The representative of ARIPO suggested to add the sentence “The specific choice of terms to denote the protected subject matter under Traditional Knowledge may be determined at the national level” after paragraph 2 of Article 3.

The representative of InBrapi suggested adding “developed” after “activity” in line 2 of Article 3 paragraph 2.
ARTICLE 4: ELIGIBILITY FOR PROTECTION
Protection [VENEZUELA, INDONESIA: should shall] should be extended [VENEZUELA: at least] at least to that traditional knowledge which is:

(i) generated, preserved [SUDAN: , constituted] and transmitted in a traditional and intergenerational context [INDIA: or];

(ii) [INDIA, SUDAN: distinctively] distinctively associated with [MOROCCO: distinctively associated with customarily recognized as belonging to] a traditional or indigenous community or people which preserves and transmits it between generations; and [INDIA: and or]

(iii) [INDIA: integral to the cultural identity of] integral to the cultural identity of an indigenous or traditional community or [URUGUAY: cultural identity of] people which is recognized as holding the knowledge through a form of custodianship, guardianship, collective ownership or cultural responsibility. This relationship may be expressed formally or informally by customary or traditional practices, protocols or [INDONESIA: applicable national] laws.

Comments made and questions posed at the fifteenth session (December 7 to 11, 2009)

Criteria

The Delegation of Cameroon noted that the criteria included in Article 4 should not be cumulative. Article 4(iii) was the only necessary criterion of protection.

The Delegation of El Salvador suggested the protection should be broader.

The Delegation of United States of America questioned whether traditional knowledge that was created by a single individual would be eligible for protection and what was the basis for such an inclusion. It also questioned why to provide for protection for some innovations under a system of protection of TK, and other innovations under the patent system?

The Delegation of Australia suggested that further consideration needed to be given to the definitions, and to the flexibilities required for local circumstances. In particular, for example, how did the wording in Article 4 relate to possible protection for traditional knowledge produced by a contemporary generation?

The Delegation of Brazil suggested that the wording of Article 4 (i) should be included in Article 3 paragraph 2.

The Delegation of Italy suggested that the words in the document should be the same. For example, the words “indigenous and local communities” as used in Article 3.2 should also be used in Article 4. It also highlighted that the scope of “local communities” was needed.

The Delegation of China noted that traditional knowledge sometimes was owned by ethnic groups in China. Thus, it suggested that a reference to different ethnic groups should be added in Article 4 (ii).

The Delegation of Uruguay suggested to clarify the words “indigenous or traditional community or people” and “cultural identity”.

The representative of Indigenous Peoples (Bethechilokono) of Saint Lucia Governing Council noted that the term “traditional or indigenous community or people” in Article 4(ii) was confusing. The explanation should be given after consulting outside of the IGC for a study on the terms.

Traditional medicine

The Delegation of India suggested that more legal text should be submitted in writing. It also noted that Traditional Medical Knowledge was not always linked to communities.

The Delegation of Nigeria suggested that Article 4(iii) should include a reference to the nature of ownership of traditional medicine and in particular within the dynamics of its intergenerational use, generation, preservation and transaction.

Drafting suggestions by observers

The representative of Arts Law Center of Australia suggested deleting “distinctively” in Article 4(ii). She also suggested to use “indigenous” with a capital “I”.

The Delegation of United States of America questioned, in relation with Paragraph 3, when TK was used beyond its original context, and then further used in other ways, if the first use acknowledged the source of the TK, whether it would be sufficient for the second and subsequent uses to reference the immediate prior source. It also questioned when identifying the source, what research the subsequent would be required to undergo to avoid misidentifying the actual source.

The Delegation of Norway noted, with regard to the question of limitations and exceptions, it was important that TK not hinders fair use, and in particular private use.

126. 
     The Delegation of South Africa asked for clarity on the status of the document that delegations were working on. The Delegation was worried that the particular process and methodology that were being used might be followed as a model and it had difficulties with this methodology.
     

126. 
     The Delegation of Sweden, on behalf of the European Union and its Member States, once again expressed its appreciation that substantive discussions were being conducted in the Committee. The European Union and its Member States would like to listen with great care to the statements and proposals made and to take them into account when preparing proposals themselves. The European Union and its Member States reserved the right to submit proposals for alternative texts concerning the protection of TK, TCEs and GRs.
     

126. 
     The representative of Saami Council expressed his disappointment with the statement made by the European Union and its Member States because they had stated in the CBD’s ABS Working Group that the issue of misappropriation and definition of misappropriation of TK would be dealt with by this Committee.
     

126. 
     The Delegation of Yemen expressed its appreciation to the Secretariat for preparing some of the documents in all the official languages of the Organization. The new mandate was that the Member States had to engage in negotiations. However, the Delegation was worried that there would be not be any result achieved at the end if this path was continued on.
     

126. 
     The Delegation of Bolivia (Plurinational State of) supported the suggestion made by Venezuela to incorporate the contributions of the observers in the text, with an indication of their names.
     

126. 
     The Delegation of Switzerland stated that the current discussions aimed at gathering ideas and allowed all participants to express their views without any decisions. Therefore, the text resulting from the discussions remained open for amendments and comments.
     

126. 
     The Chair maintained that trust should be placed in the ability of the Secretariat to reflect correctly each of the suggestions and amendments which had been made. He called for the Delegations’ written contributions to be sent to the Secretariat. He pointed out that the Secretariat would make a printed copy of all the concrete proposals and questions raised during the session, so that they were available to all the Delegations in electronic format the following day.
     

126. 
     The Delegation of the Russian Federation indicated that the status of the document WIPO/GRTKF/IC/9/5 was not entirely clear. Most of the key concepts used in this document were not clear either. The Delegation questioned how a number of the provisions in this document were actually going to be put into practice. It was necessary to cite provisions of the document under consideration in accordance with the requirement of unified terminology. For example, several terms relating to the subject matter of protection were used in the text, such as indigenous peoples, indigenous and local communities, traditional or indigenous community or people etc. In addition, the boundary between TK and knowledge which had become public property should be defined.
     

126. 
     The Delegation of Canada suggested changing the document name to “Working Document on TK” instead of document WIPO/GRTKF/IC/9/5REV.1.
     

126. 
     The Delegation of Venezuela (Bolvarian Republic of) believed it was important to collect comments made by observers, as that would facilitate forwarding such comments to capital cities for their consideration.
     

126. 
     The Delegation of Cameroon stressed that the language used in the texts as regards the protection of traditional knowledge was so transient that it was difficult to recognize what was binding in the text. It added that when referring to grammatical formulae or when the “offender” should have information which would enable him to know that he was not acting in an illicit manner, understanding the approach was not easy. Consequently, the Delegation suggested that in the first Article a definition of what was meant by misappropriation should be included. Once misappropriation had been defined, the Committee could decide on which body would be responsible for applying penalties for such misappropriation. The Delegation stated that the Committee appeared to want to make traditional knowledge the private property of a few. The Delegation said that, by and large, within communities, traditional knowledge belonged to the community and that it was the community which became a victim when someone misappropriated such knowledge. The Delegation therefore proposed that the text would effectively make clear what provided protection against illicit intrusions into cultural heritage, traditonal knowledge and related areas.
     

126. 
     The representative of Saami Council requested that proposals submitted by indigenous people and other organizations be reflected in the next document so that those proposals could be supported by the Member States.
     

126. 
     The Delegation of Brazil made one general comment on the translation of the text, which may apply to all texts. The words “owner” and “holder” had been translated to two different things in Spanish. For example, “holder” in English sometimes was translated into “titular” in Spanish and sometimes was translated into “detentor”.
     

126. 
     The Committee requested the Secretariat to prepare and distribute, before the end of January 2010, a revised version of working document WIPO/GRTKF/IC/9/5, reflecting the proposed amendments and comments made on and questions posed in relation to this document at this session of the Committee. Amendments, comments and questions of observers should be recorded for consideration by Member States. The Secretariat would invite Committee participants to provide written comments on that revised version before the end of February 2010. The Committee invited the Secretariat then to prepare and distribute a further revised version of the document, reflecting the written comments made, as a working document for the next session of the Committee.