The WIPO Secretariat recently organized a series of roundtables in advance of the 32nd negotiations of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). This seminar was a prologue to the substantive negotiation for the last WIPO-IGC for 2016 that focuses on a draft instrument on the protection of traditional knowledge (TK). The objectives of the seminar included elaboration and clarification of areas and issues outstanding from the last negotiations on TK in September 2016 with a view to assisting delegates to narrow or close the gaps in the working instrument on TK.

Titled “WIPO Seminar on Intellectual Property and Traditional Knowledge,” the roundtable was held on November 24-25, 2016. It was resourced by a variety of WIPO-nominated global experts drawn from various regions of the world. The seminar was organized around four thematic roundtable panels based on the structure of the draft instrument on TK:

• Panel 1 dealt with “regional, national and community experiences relevant to identifying ‘protectable traditional knowledge,’ at the international level;
• Panel 2 focused on “perspectives on and experiences with a ‘tiered approach’ to the protection of traditional knowledge – scope of protection and exceptions and limitations;
• Panel 3 tackled “complementary measures and customary law for the protection of traditional knowledge: examples and lessons,” and;
• Panel 4’s mandate focused on “perspectives on and experiences with other issues: sanctions and remedies, management of rights, term of protection, formalities, transitional measures, relationship with other international agreements, national treatment and transboundary cooperation.”

The differentiated or tiered approach is an approach that recognizes that not all categories of traditional knowledge merit the same level of protection. In this regard the approach distinguishes four categories of traditional knowledge. They are:

• sacred;
• secret;
• narrowly diffused; and
• widely diffused

Conceptually, the level of protection expected for each category is weighted, as a factor of the level of control that its custodians exercise over the TK. Speaking on this panel Open AIR and ABS Canada’s Professor Chidi Oguamanam remarked that a differentiated approach is both pragmatic and innovative. Historically, it owes its development to the African Group at the IGC 27 negotiation, as the Group’s response to non-demandeurs countries’ insistence on the need for legal certainty over protectable TK and the appropriate level of protection. An underlying presumption of the differentiated approach is that sacred and/or secret TK would be entitled to a higher level of protection in relation to narrowly diffused and widely diffused TK (the latter would have lower protection threshold than narrowly diffused TK).

In his presentation at the panel, Oguamanam noted that these categories constitute creative frameworks of differentiation, which are helpful but may not neatly apply in all cases. He noted that in real live cases, there might be an overlap across all four categories of traditional knowledge, taking into consideration the holistic approach of Indigenous peoples and local communities to TK. He gave examples of Kente fabric design (Ghana) Adire fabric designs (Nigeria), Bark Paintings (Australia) and Cowichan sweaters (Canada and the US), which are recognized aspects of the traditional knowledge of Indigenous peoples and local communities in the five countries bracketed. Kente fabric design has over 4000 years of history and owes its origin to the pre-contact Ashanti Empire of West Africa. It is an integral aspect of Ashanti identity and Ghana’s nationalism. In part, the same is true of Adire dyed indigo fabric designs, which, though relatively new, are associated with Yoruba women in Nigeria’s South West as an aspect of their traditional knowledge.

Bark Paintings are associated with the Aboriginal clans and peoples of Arnhem region of Australia’s Northern Territory. Case law has recognized bark paintings as creative works that are associated with sacred dreaming images and the creation stories of exclusive cultural communities. They have since become a proud symbol of Australia’s national heritage. Dating back over 3000 years to pre-colonial times, Cowichan weaving art is a traditional creation of Coast Salish Indigenous peoples of the Pacific Northwest (British Columbia and Washington State). Rooted in hand-weaving culture, from blankets to sweaters, the art has since evolved as a complex knitting industry tied to the customary laws and practices of the heritage of Coast Salish peoples and as symbol of their participation in North America’s economy.

According to Professor Oguamanam, in these four examples, the forms of traditional knowledge in question could be said to be widely or perhaps narrowly diffused (depending on the evidentiary threshold). But the fact of diffusion does not necessarily mean that they are neither sacred nor secret.  It is possible for TK to be narrowly or widely diffused and remain sacred or secret.  This is conceivable because of the fusion of the intangible with the tangible. For example, every Kente design or Bark painting has meanings founded on the cultural expression or symbolism and, in the case of Bark Paintings, on the dreaming stories of the people and initiated artists who are members of a given clan. Such information may not be known to anyone who possesses any of the products as a piece of clothing, or art, or their derivatives work per se.

For example, in 1994 a federal court in Australia found against the marketers of carpets who commissioned the production, importation, adaptation of replicated Bark Painting designs into carpet forms from Vietnam into Australia. The court’s decision not only rested on the infringed copyright of Aboriginal creators, but on the sacred quality of the works produced in the context of a cultural environment. Turning those paintings into carpets amounted to a corruption or desacrelization of their traditional symbolism and meaning.

From these four examples, it is also clear that there are variegated levels of their economic and cultural engagements or applications as TK.  For example, whilst the complex spiritual and cultural beliefs around the Cowichan sweater have not been disavowed, it has since become an important symbol of the integration of Coast Salish peoples into the economic system, but not to a degree that may be said of the Bark Paintings.  The same may be true in regard to the spiritual and sacred essence of Kente designs in relation to the more economic focus of the traditional entrepreneurship around the Adire fabric.

Despite the tendencies for these categories to overlap, the differentiated approach is a creative response to the difficulties that conventional intellectual property regimes encounter with TK. For example, each of these categories deals with the use of genetic resources and engages complex genres and sites of creativity that also implicate almost all regimes of intellectual property, including design, patents, copyright, trade marks, and geographical indications.  In all of these categories, conventional IP fails to meet the expectations of TK holders. Hence, the differentiated approach is a credible attempt to fill that gap and move the jurisprudence forward in this very challenging area.

Professor Oguamanam concluded that given these complexities, a treaty document can only lay the framework or provide initial sign posts for these categories of TK. The details of their applications under the differentiated framework would be devolved to national governments, taking into respectful considerations specific Indigenous customary laws and protocols as they apply to specific or overlapping regimes of TK. In such contexts, the evidentiary threshold for determining whether a given example of TK is sacred, secret, narrowed or narrowly diffused becomes a matter to be determined at the national, or indigenous and local community levels.