Published on 25 March 2014
Representatives of indigenous peoples opened a key meeting at the World Intellectual Property Organization with a discussion of the definition of traditional knowledge (TK), the presence of TK in the public domain, and respect for indigenous peoples’ rights under the United Nations Declaration on the Rights of Indigenous Peoples.
The panel of speakers formed part of the 27th session Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), taking place from 24 March – 4 April.
The theme of this year’s panel is: “Intellectual property, Traditional knowledge and traditional cultural expressions: Indigenous Peoples’ ‘right to maintain, control, protect and develop their intellectual property’ under Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples” [pdf] (UNDRIP).
Pavel Sulyandziga, president of the Batani Fund and member of the UN working group on the issue of human rights and transnational corporations and other business enterprises, emphasised that it would be impossible to resolve issues with particular indigenous peoples if there is no protection of their basic rights.
The development of indigenous peoples is one of the most important issues for the committee and it is “a great pity” that it is not much discussed, Sulyandziga said. “The defense of traditional knowledge and traditional cultural expressions does not mean conservation or stagnation,” as some people still pursue a traditional economy and way of life, he added.
Sulyandziga said he regretted that the WIPO voluntary fund for indigenous people to attend the negotiations is has no funds, because participation and information of indigenous people is important to the process. He called for a focus on the development of indigenous peoples’ potential, underlining that some countries have started to develop educational programmes.
Edith Bastidas, legal advisor for the Entidad Promotora de Salud Indígena Mallamas in Colombia, said that there is a need to join the efforts made in various arenas in which TK and TCEs are discussed in order to avoid contradictions. She mentioned the human rights, environmental and cultural arenas.
“Participation, consultation, consent and self-determination” are key in developing “an instrument that recognises the rights of indigenous peoples’ cultural expressions and knowledge,” she said.
On the issue of the meaning of “tradition,” Bastidas argued that the term “ignores the fact that indigenous peoples’ knowledge is changing and dynamic.” Evolving and updating of knowledge cannot be excluded from protection.
“If we were to put it into a box we wouldn’t be opening it up to full protection,” she said.
With regards to nations being beneficiaries of protection, Bastidas believes that this could “distort protection” but that nations may have a role as “grantor for an instrument of protection.” She believes that indigenous communities should produce organisations to assume protection when the proprietors of knowledge might not be known.
Bastidas said the current definitions of ‘misuse’ and ‘appropriation’ in the context of patents do not apply to traditional knowledge. These terms require economic investment, whereas the ‘investment’ in TK may be “spiritual” for example. She also said that after sharing their knowledge, not only should indigenous people have a right to compensation but they should also retain “the right to administer that knowledge.”
Bastidas also said that information in the public domain should be given the same protection. It is “not appropriate to exclude knowledge in the public domain because we do not know how it got into public domain.”
Preston Hardison, policy analyst for the Tulalip Tribes of Washington state (US), warned the IGC that there would be a “large asymmetry in the consequences of policy failures,” as the burden would mainly be among indigenous people if IP systems are not well designed.
According to him, there are stewardship obligations related to the use of TK. In the view of indigenous peoples, if knowledge is shared there is an obligation to use it in a correct way. The sharing of knowledge should also lead to a long-term relationships, thus the benefit-sharing should not be reduced as a single transaction. He also underlined that the indigenous peoples’ main objective is not money, but to live well and correctly.
However, indigenous peoples are facing a lot of difficulties such as climate change, habitat fragmentation, and pollution, Hardison said. Free and prior informed consent (FPIC) and access and benefit sharing (ABS) in exchange for TK are “embedded in the wider economical and social context”. Thus a broad FPIC requires a “whole-of-ecosystem assessment of risks and benefits,” he added.
The concept of public domain creates problems as it “means exhaustion of our rights,” Hardison said. Terms like ‘public domain’ or ‘common heritage’ have to be crafted very carefully and with the contribution of indigenous people.
On the IGC draft text, he said he regretted to see that reference to customary law has disappeared from the draft articles and that spirituality is not part of the definition of TK. He criticised the distinction between sacred and non-sacred knowledge, as he considered that all TK “are sacred in a way.” About the definition of traditional, it could be characterised by “the way the knowledge is acquired and used,” he said.
The recognition of harms and benefits “should be compatible with customary law,” said Hardison, as indigenous peoples’ rights should be protected by existing or sui generis IP laws. The UNDRIP and the International Labour Organisation (ILO) Convention n°169 should be considered as the minimum standards, he concluded.
Questions from Member States
After the speeches, the panel took questions from delegates. The delegate from Trinidad and Tobago raised the issue of who the beneficiaries should be in small territories such as in the Caribbean region where there are no indigenous people per se, but the population as a whole has TK and TCEs. He stated the “need to establish a national entity under national law who deal with the administration of the TK or TCEs on behalf of the population who live in these countries.”
Paraguay asked participants to share experiences where words taken from local community dialects had been registered as trademarks, and what kind of compensation was made available. One example provided was where a name of a community was registered in Brazil as a trademark for a toilet paper company and the group had called for its cancellation. The need for prior informed consent was raised as a solution in these circumstances.
Indonesia asked for a clarification of the term “secret” knowledge as opposed to shared knowledge. Hardison explained that sharing of knowledge extends from wide sharing to use only in highly constrictive rituals by a restricted group for example.
It is “not just an issue of being secret or not,” he added, as some knowledge is shared publicly but the subsequent use of the available knowledge may continue to be restricted. For example, there might be a family song, sung in public, but only members of that family may sing it. He said that the issue depends on the expectations and aspirations of indigenous peoples when they are sharing knowledge.
Maëli ASTRUC is an intern at Intellectual Property Watch. She has a Master’s Degree in International Law from Aix-en-Provence University and a LL.M from Ottawa University. During her studies, she developed a high interest in intellectual property issues in particular related to agriculture and traditional knowledge.
Julia Fraser is an intern at Intellectual Property Watch. She is currently training to be a solicitor and will start work at an international law firm in London in 2015. She has a BSc Honours in Biology from Edinburgh University where she developed an interest in public health related intellectual property issues.