As the Curtain Draws on TK: WIPO-IGC Session 31 Kicks the Can Further Down the Road
Between September 19 and 23, 2016, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) commenced the first of a two-part negotiation over a potential instrument for the effective protection of traditional knowledge (TK), pursuant to its mandate for the 2016-2017 biennium. In the summer, the IGC concluded negotiations on Genetic Resources (GRs) with an advanced draft text on the subject in accordance with the committee’s strategic decision to split its negotiations into three streams: TK, GRs and Traditional Cultural Expression (TCEs) with a view to generating three draft treaty instruments. The tripartite nature of the IGC negotiating documents are without prejudice to their likely future consolidation into a single treaty instrument should the WIPO General Assembly ultimately so decide.
The last negotiation on TK was conducted in 2014 before the committee’s hiatus in 2015. The 2014 negotiations resulted in a highly bracketed rough draft of a working instrument, reflecting how far apart parties remained on key issues and the heavy lifting required to move negotiations on TK forward. As despondent as this may seem, the September meeting nevertheless rose to the challenge and was able to review sections of the 2014 TK instrument in an effort to close some of these gaps. The meeting ended with a fairly improved draft on a number of fronts, but left a robust indicative list of issues to be tackled at IGC 32, scheduled for November 28 –December 2, 2016.
Negotiations at IGC 31 focused mainly on the subject matter, policy objectives, beneficiaries, and the scope of protection based on the tiered approach to the protection of TK. On subject matter, while a majority of delegates to IGC 31 seemed to favour a concise framing to the effect that the instrument’s subject matter is simply TK, the United States and many non-demandeur countries favour a more restrictive approach that identifies TK as the subject matter of protection only when such TK conforms to what they call the “eligible criteria for protection.” This is a strategy to limit the scope of TK eligible for protection pursuant to their introduction of the phrase “protected TK”, and their insistence that not all TKs are eligible for protection.
With regard to policy objectives, the debates here echoed many of the sentiments that arose in relation to the GRs text. For example, in addition to several other objectives, such as control of uses of TK, enhancing of innovation, and equitable access and benefit sharing, complex arguments centre on the semantics of whether the objectives of a TK instrument would be to prevent misappropriation, misuse, and unauthorized use, etc. of TK. This semantic red herring shifts intellectual energy to an endless and, frankly, unhelpful debate on the definition of each of those and many other terms.
A more contentious debate that defies the usual North-South geo-political fracture arises with regard to who should be the beneficiaries of TK. The sentiment amongst the indigenous caucus is that states do not produce TK and therefore cannot be its beneficiaries. However, for the Africa group and others where there is little or reluctant recognition of indigeneity, there is a sentiment for including the state as a beneficiary of TK. Delegates from North Africa, China, India and elsewhere favour the inclusion of “nations” as TK beneficiaries. There are two takeaways here. One is the realization that the spirit of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIPs) can illuminate but should not constrain the negotiations. The second is that the role of states as beneficiaries and stakeholders is susceptible to being conflated. Delegates appears to be mindful of the role of states, on a pragmatic basis, to provide a variety of complementary measures, including administrative and interventionist roles toward effective protection of TK. They also recognize that such roles should not be overly intrusive and must be negotiated in collaboration with Indigenous Peoples and Local Communities. Practically speaking, it is therefore incumbent upon states to both embrace and support Indigenous Peoples, allowing them to leverage the unmatched reach and capacity of state institutions to guard access to their TK, to regulate its use, and to facilitate the equitable sharing of any resulting benefits. Of course, any role by the state in this regard ought to accommodate, recognize, and be respectful of the customary laws and practices of all Indigenous and Local Communities as it relates to their TK, given the well-founded issue of mistrust between ILCs and colonial states wrought by generations of mistreatment and dealings in bad faith.
In their deliberations, delegates have linked the scope or condition for protection of TK to the tiered nature of TK, which negotiators have since recognized as necessary to appropriately balance the rights of users and beneficiaries. Negotiators have since identified and agreed on multiple tiers of TK reflecting various levels of diffusion:
- Sacred TK;
- Secret TK, whether sacred or not;
- Narrowly diffused TK, whether sacred or not, and; and
- Widely diffused TK
These varied levels of diffusion require a balancing of the rights of beneficiaries on the one hand, and users of TK on the other, in a manner linked to the level of diffusion. The tiered approach has ramification for our understanding of the public domain in the context of TK. In a way, it responds to a few misunderstandings about the relationship between Indigenous and Local Communities and their TK. First, is most TK are essentially already in the public domain, making them “widely diffused.” Second, “public domain” means publicly and freely available. However, a tiered model of protection recognizes the sui generis nature of TK and the possibility of its protection in a manner that balances the interests of users and beneficiaries without term limit prescriptions akin to those under conventional intellectual property regimes. Negotiations on limitations and exceptions to the protection of TK, which have since been deferred to IGC 32, would help amplify the intersection of the tiered approach and the public domain.
In addition to exceptions and limitations, IGC 31 agreed to pass on several items under an indicative list of issues to IGC 32, which will wrap up negotiations on TK. Other issues include sanctions and remedies, administration of rights, transboundary measures, etc. Similarly, even though IGC 31 deliberated on the following items: use/meaning of specific terms, criteria for eligibility in regard to beneficiaries, subject matter of protection and scope of protection in regard to rights-based or measures-based protection, it kicked the can down the road on aspects of these issues to IGC 32. With such a plateful, IGC 32 promises to be a very busy and decisive meeting. Barring any further but highly unlikely reset on the IGC’s mandate and schedule, IGC 32 will mark the last deliberation on TK for the 2016-2017 biennium.