WIPO seminar, 24-25 November 2016

Seminar report for SIMBDEA

by Harriet Deacon, November 2016

This two-day WIPO seminar, 24-25 November 2016, was one of a series of meetings designed to feed into the negotiations in the Intergovernmental Committee (IGC) towards an international instrument for the protection of genetic resources (GR), traditional knowledge (TK) and traditional cultural expressions (TCEs), for which draft articles are under discussion (these are available at http://www.wipo.int/tk/en/igc/).

The seminar discussed various national and community experiences to highlight issues of relevance to the negotiations at the IGC. The challenge for the IGC in the period 2015-17 has been to find common ground between member states on three interrelated sets of draft articles, on genetic resources, traditional knowledge and traditional cultural expressions. Speakers in the seminar did not represent specific member states, but they presented views consistent with the various positions taken within the IGC.
This report highlights some of the issues raised in the meeting, without covering every presentation. The documents from the seminar are available at http://www.wipo.int/meetings/en/details.jsp?meeting_id=41785
Opposing approaches
Two opposing approaches have been taken in the IGC negotiations (and in the seminar) towards protection of IP rights in TK. These could be characterised as follows:
Rights-based protection: according to this view, the rights of ILCs in their TK should be affirmed. The main problems to address are misappropriation and misuse of TK, enabled by an imbalance of power between owners and users of TK, and the failure of the conventional IP system to protect communally-held knowledge in ways that foster it and benefit ILCs, or the nation as a whole. TK thus requires sui generis IP protection (among other kinds of protections), that is based on the rights of ILCs in their TK, using various measures (such as databases, see below) to achieve this end. Within this approach, some give wish to give ILCs complete control over the management and protection of their TK, others give the state some rights and duties in this regard, on behalf of ILCs.
Measures-based protection: according to this view, there is no need to establish new IP rights over TK. The main problems to address are misuse of TK due to erroneous patenting and insufficient attention paid to free, prior and informed consent and benefit sharing. TK does not require sui generis protection; it could be adequately protected through better provision (mainly against erroneous patenting) under existing conventional IP laws and measures to ensure that access, use and benefit sharing is to the benefit of the ILCs concerned. These may include guidelines and education on the need for free, prior and informed consent, databases, contracts or dispute resolution mechanisms.
The WIPO draft articles for the protection of IP rights in GR do not explicitly recognize the rights of indigenous peoples and local communities (ILCs) in their GR and associated TK, although the trend in international law (see the UN Declaration on the Rights of Indigenous Peoples) has been in that direction. They rely on disclosure by patent applicants of the source of GRs and associated TK as the key mechanism of protection. The nature of the rights and protections given to the ILCs that hold this associated TK is left to national legislation. While the draft articles for the protection of TK and TCEs do include ILCs among the holders of rights or interests, ‘nations’ are also potentially recognized as holders (see the Technical Review by J. Anaya WIPO/GRTKF/IC/32/INF/8). Registration or disclosure of TK by ILCs is sometimes treated as a pre-requisite for both defensive and positive protection for TK and TCEs, but not for GRs and associated TK, where the onus of disclosure is placed on users. It has also been suggested that the breadth of diffusion in the general public could affect the kind of protection that TK enjoys, known as ‘tiered’ protection.
The relationship between rights and disclosure of TK by ILCs is thus a matter of some importance within discussions about the draft articles on TK. A number of member states of WIPO have already been putting legislative provisions in place for the rights-based protection of TK, drawing to some extent on experiences in other countries, regional frameworks and the discussions in the IGC. Many states have also put measures for TK protection in place, such as databases of TK. The seminar referred to these experiences in discussing issues such as tiered protection and the use of databases.
Tiered protection
One effort to bridge the gap between rights- and measures-based approaches is based on the idea of ‘tiered’ protection for TK (cf. article 3 of the Draft Articles for TK). The category of secret TK receives the highest degree of protection in this model. Beneficiaries (usually ILCs) would retain exclusive economic and moral rights in the TK, to control access and to benefit equitably from its use. Beneficiaries in the case of narrowly diffused TK would have the right to receive equitable benefits from its use, and retain moral rights over it, while beneficiaries in the case of widely diffused TK would either receive similar benefits from users thereof, or only attribution.
Considering how to distinguish between TK that is widely and narrowly diffused raised difficult ethical and practical questions in the seminar discussions, however:
the original act of sharing may have been unethical, either because the knowledge was taken without free, prior and informed consent for the purpose of the use, or because the member of the ILC was not authorised under customary protocols to share the knowledge;
it is important to establish how TK will be categorized in this way, and whose opinions on this issue would count;
it is difficult to say what has been diffused: permission to share TK (a patterned object, for example) freely and widely, may not (from the perspective of ILCs) include the right to use the patterns in other ways than on such an object; and
it is difficult to distinguish between wide and narrow diffusion: for example, there may be a difference between geographical diffusion (where TK may be widely shared within a diaspora), and diffusion outside the ILC that ‘owns’ the TK.
The tiered approach was thus controversial for some of the same reasons that defining the public domain, in which knowledge could be said to be freely available for use by others, remained a point of debate:
Some argue that under conventional IP law, most TK that has been previously disclosed is freely available for use by others because it is in the public domain. It is not feasible or necessary (in this view) to confer new economic rights on TK in the public domain, but for ethical reasons, users can be required to engage in benefit sharing and some moral rights can be applied;

Others argue that TK has always been subject to customary rules of access and use within ILCs – even before the development of IP law as it currently stands - and has therefore never entered the public domain. For this reason, the low level of protection proposed for widely-diffused TK is unacceptable to many rights-based advocates. If it is possible to protect the use of ‘well known marks’ even beyond the countries of their formal registration, they suggest that it should be possible to protect pre-existing rights associated with widely diffused TK. This would collapse the categories of narrowly and widely diffused TK into one, if ‘tiered’ protection is adopted at all.
Databases and other measures
Another way in which the gap between the opposing positions could be narrowed is to focus the development of an international instrument on minimum standards for measures to protect TK, such as TK databases, conflict resolution, ethical guidance and benefit sharing.
States like India and China have been able to move fairly rapidly in populating TK databases because much of their TK was written down in ancient texts; these have been used for defensive protection and are available to examiners in a number of patent offices worldwide. In India, registers of TK, called People’s Biodiversity Registers, are also being established at village level. In the context of efforts to address climate change, ILCs have heightened awareness about the value of external recognition of and protection for their TK. However, a number of member states have found that ILCs do not always trust the state to protect their TK, and have been reluctant to give up information for the databases. As a first step, trust and understanding about the benefits of IP protection has been fostered in ILCs in Ecuador and Kenya, for example, through the use of collective marks or geographical indications. 
The discussion on databases referenced the different ‘tiers’ of TK. There seemed to be general agreement that secret TK, which communities wish to keep secret, could remain undocumented, be included in community databases or closed-access databases available only to patent examiners and officials. Not all ILCs will trust state agencies to protect community secrets in closed-access databases, however. Inclusion of narrowly diffused TK in a database could diffuse it more widely (thus reducing protection for it under article 3), raise awareness of its commercial value, and provide information to third parties on how to draft patent applications around it.
Making defensive protection of TK conditional on placing information in a centralized, state-run database without any associated rights protection might protect ILCs in the short term, but place it at greater long term risk of diffusion, misappropriation and misuse than keeping it secret or on an ILC-managed information system. Once state-run databases have been populated, there may be pressure on states to increase public and/or commercial access to the information. States may also be obliged to make such databases public after a certain period, under copyright and freedom of information law. ILC control over their TK could thus be eroded; this is of particular concern if the international instrument does not provide protection for TK in perpetuity as part of the minimum standard of protection.
There are thus some challenges in making TK databases work for the benefit of ILCs. Some of these challenges could be addressed through education, building trust and security of information. In the absence of rights protection, however, many rights-based advocates consider TK databases an unsatisfactory, partial solution. Conceding on the rights issue now would make it difficult to pursue discussions on rights later. Some question the need for disclosure of any TK in databases as a pre-requisite for protection, since there are other examples in international law (such as copyright protection) where formalities are not required. Fixation of TK for the purposes of establishing rights in it could be established through ILC-managed databases, but in doing so there may be problems of capacity, and questions of the relationship between traditional and new mechanisms of documentation and control within communities.
The seminar discussion confirms that there are no easy solutions to bridge the gaps between the views of member states in the negotiations around developing an international instrument for protecting TK. Commercial interests (and those member states that are generally ‘users’ rather than ‘providers’ of TK) generally favour the measures-based approach. Member states in regions that are ‘providers’ rather than ‘users’ of TK (and indigenous representatives) generally favour the rights-based approach. Representing the debate in terms of this duality obscures the fact that rights-based advocates often have significant differences over the role of the state as a custodian for community IP rights.
Many speakers at the seminar seemed confident that a solution could be found in the future, as has been achieved in other forums including the Convention on Biological Diversity and the climate change negotiations. In the case of the Nagoya Protocol, differences were bridged by focusing on measures (guidelines, contracts, a clearing house). In the case of TK, developing minimum standards on mutually acceptable measures such as databases present challenges of design and implementation that are rooted in deeper disagreements about the nature of rights over TK and the pre-requisites for its protection. Database design and protection needs to be discussed in conjunction with these other issues. Discussions about ‘tiered’ protection should perhaps engage more deeply with how to develop guidelines for making distinctions between secret and non-secret TK, who would make such decisions and on what basis. Rights-based advocates may wish to collapse the categories of narrowly and widely diffused TK, but this may not be attractive to those who are happy with the status quo in countries where non-secret TK is classified as being in the public domain. Here again, comparing more specific proposals on how to make these distinctions may be a way forward.
In finding solutions, more attention could be paid not just to examples of TK and TK rights management in different countries, but to examples of conventional IP systems tackling similar problems. There are many examples of changes in conventional IP law where new rights are established over broadly defined subject matter that would have been considered freely available under previous law, for example in the case of plant breeders’ rights (for which the first international agreement was adopted in 1961). Rights-based advocates may be reluctant to cite conventional IP examples because they seek a sui generis solution for TK, and measures-based advocates may be reluctant to find solutions to problems in existing IP law, where they wish to highlight the specific problems posed by inclusion of TK in the international IP regime. Nevertheless, participants in the seminar cited several cases where barriers to protection of TK can be resolved using existing models. This approach may be used more systematically in the future.

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