WIPO Committee: Countries Divided On Need For And Scope Of Legal System To Protect TK

Potentially the most far-reaching topic at the third meeting of the WIPO [World Intellectual Property Organization] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore on 13 - 21 June in Geneva, Switzerland, concerned possible elements of an international legal system for the protection of traditional knowledge (TK). Also of interest were discussions on disclosure requirements for the country of origin of genetic resources and/or associated TK in patent application; and the suitability of existing intellectual property rights (IPRs), in particular geographical indications, to protect TK and folklore.

A legal system for TK protection - whether and how?

Delegates continued discussions on possible legal norms for the protection of TK (see BRIDGES Trade BioRes, 20 December 2001). Differences arose regarding the need for, scope and nature of the legal protection. Some delegations, including the US, Norway and New Zealand, felt that a legally binding international sui generis system for the protection of TK was premature or even unnecessary. In contrast, many Latin American countries, the African Group and the Saami Council, supported an international treaty and considered this to be an urgent priority. Their position complements related proposals for a legally binding treaty on access and/or benefit-sharing related to genetic resources, most recently at the Sixth Conference of the Parties (COP-6) of the CBD in April (see BRIDGES Trade BioRes, 18 April 2002) and the Fourth Preparatory Meeting for the World Summit on Sustainable Development in June (see BRIDGES Trade BioRes, 13 June 2002).

With respect to the scope of protection, while some developing countries supported the idea of an agreement that would encompass both TK and folklore (e.g. Iran and the Organization of African Unity), others cautioned that it would be better to keep these separate, perhaps with TK being confined to knowledge that is associated with genetic resources. Nonetheless, developing countries supporting the unified approach tended to agree with those favouring the separation of TK and folklore that the scope of protection should reflect the holistic nature of these concepts. Canada and the International Chamber of Commerce dissented, arguing that this would lead to practical difficulties. Regarding the elements of the sui generis system, several suggestions were made, including incorporating such norms and principles as human rights, unfair competition and moral rights. Views, however, differed on the extent to which the system should resemble existing IPRs, such as patents, trademarks and geographical indications.

Disclosure of origin in patent applications

Delegates furthermore discussed whether and how to incorporate a requirement to disclose the origin of genetic resources and/or associated TK into patent applications. This controversial matter had previously been raised at COP-6 of the CBD where delegates had agreed to include disclosure requirements as a possible compliance measure in the Bonn Guidelines (see BRIDGES Trade BioRes, 18 April 2002), and has been deliberated on by the WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and WTO Committee on Trade and Environment (CTE). At the meeting, the US stated that such a requirement would be incompatible with the TRIPs Agreement since it added another substantive condition on patentability beyond those already provided. Countries like India and Brazil have repeatedly stated that such a measure was necessary to make patents supportive of the CBD. They claim that mandatory disclosure of origin would do this by preventing private monopoly rights from extending to illegally acquired genetic resources. The business community, however, tends to the view that compliance could be very difficult for companies in certain cases.

Geographical indications - a tool for TK protection?

Discussions also took place on the suitability of existing IPR protection for TK and folklore. The Asian Group suggested that WIPO explore practical means to protect expressions of folklore through such IPRs as copyrights, industrial designs, certification and collective marks and geographical indications (GIs). Brazil, however, expressed scepticism about text in one of the Secretariat's papers (WIPO/GRTKF/IC/3/7), which singled out GIs as a suitable IPR for protecting TK. Mexico cautiously agreed that GIs have such potential, but agreed with Brazil that GIs cannot stop biopiracy. The Organisation Africaine de la Propriété intellectuelle (African Organization of Intellectual Property) asserted that GIs might be useful for expressions of folklore or agricultural products, but shared Brazil's reservations on their appropriateness for TK.

Geographical indications, as defined in the WTO TRIPs Agreement, are identifications of the country or region where the quality, reputation or other characteristic of a product is essentially attributable to the geographical region. Some believe that by giving value to biological resources, GIs can provide an incentive to preserve native varieties, the environment in which the respective resources are grown, and the traditional knowledge associated with them. The suitability of GIs for TK protection has also features in discussions at the TRIPs Council, including the most recent session on 25-27 June. BRIDGES Trade BioRes will report on the outcome of this meeting in the forthcoming issue.

The WIPO Committee is scheduled to meet for the fourth time in December 2002, where deliberations on these subjects will continue.

Background

The protection of traditional knowledge is being discussed in the WTO TRIPs Council and was explicitly listed for examination by the Council in the Doha Ministerial Declaration (see BRIDGES Trade BioRes, 22 November 2001). Many developing countries, such as India, Brazil and the Africa Group, would like to see the TRIPs Agreement and in particular Article 27.3(b) (patentability of life forms) broadened to include issues such as disclosure requirements, benefit-sharing arrangements and prior informed consent. Most developed countries, however, oppose such a broadening of scope, arguing that these issues should not be discussed at the WTO, but in other relevant forums, such as WIPO.

ICTSD reporting.