inclusion, dialogue, diversityinclusion, dialogue, diversity

- forging new pathways- forging new pathways

FACILITATING PARTICIPATION IN THE IP AND TK DEBATE IN WIPO'S IGC:FACILITATING PARTICIPATION IN THE IP AND TK DEBATE IN WIPO'S IGC:

Chateau de Bossey, February 22, 2008Chateau de Bossey, February 22, 2008

Antony TaubmanAntony Taubmanantony.taubman@wipo.intantony.taubman@wipo.int

Director (a/g) Director (a/g) GIPID Division, WIPO GIPID Division, WIPO

originsorigins WIPO’s work on Traditional Cultural Expressions (TCEs), WIPO’s work on Traditional Cultural Expressions (TCEs),

Traditional Knowledge (TK) and Genetic Resources  (GR) Traditional Knowledge (TK) and Genetic Resources  (GR) has already come a great distancehas already come a great distance– the way forward is coming into focusthe way forward is coming into focus– even if there’s still a robust debate about how to take the next even if there’s still a robust debate about how to take the next

steps.steps.    

WIPO's program commenced in 1998, with a new WIPO's program commenced in 1998, with a new program focussing on “IP for new beneficiaries.” program focussing on “IP for new beneficiaries.”

   The first step was consulting with holders of TK, TCEs The first step was consulting with holders of TK, TCEs

and GR, learning directly their IP needs and and GR, learning directly their IP needs and expectations. expectations.

WIPO Member States raised the political profile of the WIPO Member States raised the political profile of the work in 2000, creating the Intergovernmental Committeework in 2000, creating the Intergovernmental Committee– the dialogue with traditional custodians gave this intensified the dialogue with traditional custodians gave this intensified

political-level approach to the work a sound consultative basis.    political-level approach to the work a sound consultative basis.    

the local and the globalthe local and the global The work has unfolded on two integrated levels: The work has unfolded on two integrated levels:

(i)(i) practical capacity-building, geared to the needs and cultural practical capacity-building, geared to the needs and cultural context of traditional communities;  context of traditional communities;  (ii)(ii) building new international norms for protection of TK and building new international norms for protection of TK and TCEs.TCEs.

    Emphasis on consistency and mutual support between these levels:  Emphasis on consistency and mutual support between these levels:  

– community capacity-building needs to respond to the fast-moving community capacity-building needs to respond to the fast-moving international policy environment, international policy environment,

– policy debate must remain rooted in the actual outlook and practical policy debate must remain rooted in the actual outlook and practical needs of the communities most concerned. needs of the communities most concerned.

   Consistency and mutual support is necessary, as this work concerns:Consistency and mutual support is necessary, as this work concerns:

– the most global of issues - suppressing misappropriation and misuse of the most global of issues - suppressing misappropriation and misuse of TK and TCEs, developing new norms consistently with international TK and TCEs, developing new norms consistently with international public law in fields such as human rights, environmental protection and public law in fields such as human rights, environmental protection and cultural policy cultural policy

– highly localized and culturally distinctive forms of creativity and highly localized and culturally distinctive forms of creativity and innovation, systems of knowledge and cultural expression that are innovation, systems of knowledge and cultural expression that are bound to the immediate cultural and physical environment of indigenous bound to the immediate cultural and physical environment of indigenous and local communities.and local communities.

a platform for cooperationa platform for cooperation Strong basis for the way forward: Strong basis for the way forward:

-- strong portfolio of legal and policy analysis, strong portfolio of legal and policy analysis, -- range of capacity-building tools, range of capacity-building tools, -- two complementary sets of provisions for two complementary sets of provisions for protecting TCEs and TK against misuse and protecting TCEs and TK against misuse and misappropriation. misappropriation.

The draft international provisions: The draft international provisions: -- have deep roots in consultation, debate and have deep roots in consultation, debate and analysis, analysis, -- could provide content for international could provide content for international instruments, if choose to take that stepinstruments, if choose to take that step-- form part of a holistic international approach. form part of a holistic international approach.

The way forward: some themesThe way forward: some themes

towards new norms and the better towards new norms and the better application of existing onesapplication of existing ones

e.g. draft international provisions for protection of e.g. draft international provisions for protection of traditionaal cultural expressions (TCEs) and traditionaal cultural expressions (TCEs) and traditional knowledge (TK)traditional knowledge (TK)

strengthening community capacitystrengthening community capacity e.g. Creative Heritage project and TK toolkit – e.g. Creative Heritage project and TK toolkit –

defending community interests when TK is defending community interests when TK is documenteddocumented

coherence and consistency with coherence and consistency with international policy environmentinternational policy environment

e.g. UNESCO, CBD, FAO, WTO, Human Rights… e.g. UNESCO, CBD, FAO, WTO, Human Rights…

shared body of understanding ofthe range of choices and

mechanisms as actually usedbroader awareness of communities’

needs and expectations

Emerging international frameworkbased on shared experiencesDraft objectives and principles

Policy options Capacity building toolsStudies and analyses

Surveys and questionnaires

initiatives to protect TK and TCEsand GR access/benefit sharing

at national and community levels:legal, practical, capacity-building

community consultations on needs and expectations

Indigenous and local communities’input to IGC

From local to global: feedback in the work of the Committee

a focus on inclusiona focus on inclusion

IGC 1 IGC 2 IGC 3 IGC 4 IGC 5 IGC 6 IGC 7 IGC 8 IGC 9 IGC 10 IGC 11

0

20

40

60

80

100

120

140

160

180

New and accumulated total of ad hoc accreditations to the

Committee (omits general accreditations to

WIPO)

……WIPO Voluntary Fund in WIPO Voluntary Fund in action….action….

Association congolaise des jeunes cuisiniers et gastrotechnieAssociation congolaise des jeunes cuisiniers et gastrotechnie Ethno‑ecological Information Center “Lach”Ethno‑ecological Information Center “Lach” Foundation for Research and Support of Indigenous Peoples of CrimeaFoundation for Research and Support of Indigenous Peoples of Crimea Health and Environment ProgramHealth and Environment Program Hokotehi Moriori TrustHokotehi Moriori Trust Indian Confederation of Indigenous and Tribal Peoples North-East Zone Indian Confederation of Indigenous and Tribal Peoples North-East Zone

(ICITP- NEZ)(ICITP- NEZ) Indigenous Peoples (Bethechilokono) of Saint Lucia Governing Council Indigenous Peoples (Bethechilokono) of Saint Lucia Governing Council

(BCG) (BCG) Indigenous Peoples’ Council on Biocolonialism (IPCB) Indigenous Peoples’ Council on Biocolonialism (IPCB) Indonesian Traditional Wisdom Network (ITWN) Indonesian Traditional Wisdom Network (ITWN) International Indian Treaty Council (IITC)International Indian Treaty Council (IITC) Maasai Cultural Heritage Foundation (MCHF) Maasai Cultural Heritage Foundation (MCHF) Mbororo Social Cultural Development Association (MBOSCUDA)Mbororo Social Cultural Development Association (MBOSCUDA) Ogiek Peoples Development Program (OPDP)Ogiek Peoples Development Program (OPDP) Russian Association of Indigenous Peoples of the North (RAIPON)Russian Association of Indigenous Peoples of the North (RAIPON) Sustainable Development Policy Institute (SDPI)Sustainable Development Policy Institute (SDPI) Tsentsak Survival Foundation (Tsentsak Survival Foundation (Cultura Shuar del EcuadorCultura Shuar del Ecuador)) West Africa Coalition for Indigenous Peoples’ Rights (WACIPR)West Africa Coalition for Indigenous Peoples’ Rights (WACIPR)

……a continuing emphasis a continuing emphasis on inclusion, on inclusion,

consultation and consultation and dialogue…dialogue…

Elements of national laws Elements of national laws (surveys at IGC 3, 4, 5, 6)(surveys at IGC 3, 4, 5, 6)

African Group proposal African Group proposal (IGC 6)(IGC 6)

GRULAC proposal GRULAC proposal (IGC 1)(IGC 1)

Norwegian proposalNorwegian proposal(IGC 4)(IGC 4)

Elements of sui generis Elements of sui generis regime regime

Commissioned by IGC 5Commissioned by IGC 5

Panel review of 10 national Panel review of 10 nat ional laws (IGC 5)laws (IGC 5)

Composite study of TK Composite study of TK protec tion IGC 5protection IGC 5

Guidance from factGuidance from fact--finding finding consultations with TK consultations with TK

holdersholders

Internat ional legal International legal frameworkframework

(CBD, FAO, IP treaties )(CBD, FAO, IP treaties)

from background from background work to IGC phasework to IGC phase

from review and from review and synthesis to draft synthesis to draft

provisionsprovisions

First draft, rev iewed by IGC 7First draft , reviewed by IGC 7

Firs t open commentary processFirst open commentary process

Second open commentary processSecond open commentary process

Review at IGC 9Review at IGC 9

Review at IGC 8Review at IGC 8

Second draft, guided by commentsSecond draf t, guided by comments

Review at IGC 10Review at IGC 10 Review of core policy issues

IGC: Objectives and pr inciples;Core policy issues.

Invitation from the CBD COP: WIPO study on disclosure

Member State input from questionnaire and

IGC guidance on initial outline

further draft study prepared for IGC review and adoption

draft reviewed by IGC

consultative basis of work on genetic resources: consultative basis of work on genetic resources: e.g. IGC work on patent disclosure issuee.g. IGC work on patent disclosure issue

CBD COP welcomes, invites WIPO to develop further examination of issues

… leading to a further consultative process with extensive Member State direction and substantive input from Member States and NGOs…

WIPO General Assembly reviews and adopts, passes to CBD COP

but…but… What is the ‘IP’ dimension of TK What is the ‘IP’ dimension of TK

‘protection’ within an holistic context?‘protection’ within an holistic context? Does it apply to indigenous governance Does it apply to indigenous governance

of their own knowledge systems?of their own knowledge systems? Or does it apply to third parties, even in Or does it apply to third parties, even in

foreign countries, when they get access foreign countries, when they get access to TK? to TK?

Is the ‘IP’ dimension of protection the Is the ‘IP’ dimension of protection the commodification of TKcommodification of TK– or the right to object when or the right to object when others others

commodify TK commodify TK

what lessons from the two-row what lessons from the two-row wampum?wampum?– knowledge, cultural expressions, genetic knowledge, cultural expressions, genetic

resources readily pass between two cultures, resources readily pass between two cultures, two communities, two legal systems, two sets two communities, two legal systems, two sets of valuesof values what rights, responsibilities, entitlements pass with what rights, responsibilities, entitlements pass with

them? them?

– a focus on the point of access a focus on the point of access – how can customary laws and protocols reach how can customary laws and protocols reach

beyond the Haudenosaunee canoe and the beyond the Haudenosaunee canoe and the European ship? European ship?

image source: http://en.wikipedia.org/wiki/Image:Tworowwampum.jpg

UNITED NATIONS DECLARATION UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLESON THE RIGHTS OF INDIGENOUS PEOPLES

ARTICLE 31ARTICLE 311. Indigenous peoples have the right to maintain, control, 1. Indigenous peoples have the right to maintain, control,

protect and develop their cultural heritage, traditional protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies as the manifestations of their sciences, technologies and cultures, including human and genetic resources, and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. and traditional games and visual and performing arts. They also have the right to maintain, control, protect They also have the right to maintain, control, protect and develop their intellectual property over such and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural heritage, traditional knowledge, and traditional cultural expressions.cultural expressions.

2. In conjunction with indigenous peoples, States shall 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the take effective measures to recognize and protect the exercise of these rights.exercise of these rights.

preservation and protection:preservation and protection: genetic resources and TK genetic resources and TK

Convention on Biological Diversity (CBD):Convention on Biological Diversity (CBD):– conservation of biological diversityconservation of biological diversity– sustainable use of its componentssustainable use of its components– equitable sharing of benefits arising from its useequitable sharing of benefits arising from its use– recognition of the role of traditional knowledge relating to recognition of the role of traditional knowledge relating to

biodiversitybiodiversity IP systemIP system

– creates legal measures against illegitimate or unauthorized creates legal measures against illegitimate or unauthorized use of subject matter by third partiesuse of subject matter by third parties

– at the level of principle, at least, it should offer the originators at the level of principle, at least, it should offer the originators and holders of knowledge a and holders of knowledge a saysay in how their knowledge is used in how their knowledge is used

– enables TK holders to assert authority over their knowledge: enables TK holders to assert authority over their knowledge: ‘commodification’ only to the extent they choose that path:‘commodification’ only to the extent they choose that path:but in essence, it is a capacity to object to wrongful but in essence, it is a capacity to object to wrongful commodificationcommodification

what overall objectives?what overall objectives?

1. 1. Preservation Preservation of traditional knowledge (TK) of traditional knowledge (TK) and traditional cultural expressions (TCEs)and traditional cultural expressions (TCEs)– preserving them against loss preserving them against loss – saving for future generations of the original saving for future generations of the original

communitycommunity– ensuring fair and appropriate legal basis for ensuring fair and appropriate legal basis for

making available more widelymaking available more widely

2. 2. Protection Protection of TK and TCEs against of TK and TCEs against misappropriation and misusemisappropriation and misuse

The call for protection The call for protection of TCEs and TKof TCEs and TK

From the IP angle, at least, within a From the IP angle, at least, within a wideranging policy debate in many fora, wideranging policy debate in many fora, international debate has focussed on how to international debate has focussed on how to prevent the prevent the misappropriation misappropriation and and misuse misuse of of – traditional knowledge (TK)traditional knowledge (TK)– traditional cultural expressions (TCEs)/folkloretraditional cultural expressions (TCEs)/folklore– and how to promote and how to promote equitable sharing of benefits equitable sharing of benefits

from use of TK and genetic resources.from use of TK and genetic resources. WIPO’s current work on protection contained WIPO’s current work on protection contained

in:in:– WIPO/GRTKF/IC/12/4 (TCEs)WIPO/GRTKF/IC/12/4 (TCEs)– WIPO/GRTKF/IC/12/5 (TK) WIPO/GRTKF/IC/12/5 (TK) – WIPO/GRTKF/IC/12/6 (international aspects)WIPO/GRTKF/IC/12/6 (international aspects)??

Characteristics of TK Characteristics of TK protectionprotection

Holistic in that it knows its place: Holistic in that it knows its place: international comityinternational comity

Does not intrude on the community domainDoes not intrude on the community domain Focus on those acts of third parties – in foreign Focus on those acts of third parties – in foreign

jurisdictions – that are of most concernjurisdictions – that are of most concern– The readily appropriable aspects of indigenous culture and The readily appropriable aspects of indigenous culture and

knowledge systemsknowledge systems– Readily appropriable in foreign jurisdictions Readily appropriable in foreign jurisdictions

(cf. land, natural resources)(cf. land, natural resources) Collective personality and cultural/spiritual interestCollective personality and cultural/spiritual interest Defines illegitimate third-party acts rather than Defines illegitimate third-party acts rather than

property rightsproperty rights

illicit acquisitionillicit acquisition commercial gain in knowledge of illicit commercial gain in knowledge of illicit

appropriationappropriation other forms of inequitable commercial benefitother forms of inequitable commercial benefit

illicit acquisition

breach of prior informed consent

wrong assertion of IP rights over TK

gainful use of TK at odds with equity

moral and spiritual rights over TK

policy objectives & core principlesdrawing on existing principles, regional and

national positions, previous IGC statements, IGC working documents

possible basis for outcomes on TK and TCEs

options for recognizing TK/TCE protection in foreign jurisdictionsscope for national treatment, mutual recognition, etc. (document. 6/6, 8/6)

elements of TK protection Policy options and legal

mechanisms

How to achieve the objectives and implement the principles at national

level

elements of folklore/ TCE protection

How to achieve the objectives and

implement the principles at national level

measures on IP & genetic resources equitable benefit sharingpatent disclosure mechanisms

An emerging

framework

Current issues on the table…Current issues on the table…1.1. Definition of TCEs/TK that should be protected.Definition of TCEs/TK that should be protected.

2.2. Who should benefit/hold the rights to protectable TCEs/TK?Who should benefit/hold the rights to protectable TCEs/TK?

3.3. What objective for protection (economic, moral rights)?What objective for protection (economic, moral rights)?

4.4. What forms of behavior considered unacceptable/illegal?What forms of behavior considered unacceptable/illegal?

5.5. Any exceptions/limitations to rights attached to TCEs/TK?Any exceptions/limitations to rights attached to TCEs/TK?

6.6. For how long should protection be accorded?For how long should protection be accorded?

7.7. What gaps in existing IP system exist and need to be filled?What gaps in existing IP system exist and need to be filled?

8.8. What sanctions or penalties should apply?What sanctions or penalties should apply?

9.9. Division between international and national regulationDivision between international and national regulation10. Treatment of foreign rights holders/beneficiaries10. Treatment of foreign rights holders/beneficiaries