WIPO interview: Protecting traditional knowledge

What was the seminar about?

The seminar concerned WIPO’s work to protect indigenous knowledge and genetic resources. The issue is that sometimes a plant, medicinal knowledge or traditional music may be used commercially without the community of its origin agreeing and sharing the benefits.

If countries can agree on an outcome in this complex area, it could enable, for the first time, indigenous peoples to control and benefit from their knowledge systems and resources internationally.

Why has this been difficult to achieve?

Indigenous knowledge is often regarded as being in the ‘public domain’ under the conventional intellectual property system, which originated in Western Europe in the late 19th century. But indigenous peoples often reject the notion of a ‘public domain’.

In essence, this process is a rethink of the fundamental foundation stones of the IP system and it’s significant that this is the first international IP normative exercise of this scale that is mainly led by developing countries.

What progress has been made so far?

From a governance point of view, it’s a fascinating process as countries are re-evaluating and perhaps re-imagining some of the foundational principles of the IP system, such as ‘authorship’, ‘novelty’ and the ‘public domain’.

The negotiation, which forms part of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, has been underway for some years.

Obviously, it’s a complex and ambitious process and, at the moment, that negotiation has paused. Negotiations have not taken place since 2014 but countries are working to restart and reset the process.

How did the two-day seminar help?

The seminar took advantage of the pause in the formal negotiation process and created a space for informal discussion on key issues but with many of the same people as in the formal process. The idea was to provide an opportunity for delegates to come together and talk about substantive issues in a less formal and political context.

It also gave us a chance to talk about some of the more difficult issues such as how you can protect traditional knowledge across national borders. Many medicinal remedies and folkloric expressions are similar in neighbouring countries. We asked what law would one apply in ‘country A’ to protect traditional knowledge from ‘country B’? For example, if kente cloth from Ghana were to be misappropriated in another country, which law would apply?

What issues were discussed?

We welcomed speakers from all around the world to talk about their situations. The invited speakers were among the world’s experts. Among the many ideas floated was that databases and inventories could be a way of identifying what belongs to whom. But, others argue that documenting traditional knowledge only facilitates its misappropriation.

One of the biggest questions facing the negotiators is what rights should indigenous peoples have recognised and which exceptions, if any, should the rights be subject to. Besides this, another outstanding question is what rights do the general public have to access, enjoy and use indigenous knowledge? This negotiation, therefore, touches upon sensitive legal, cultural, social and political questions.

The discussion has up to now centred on where you draw the line between enabling creativity and artistic expression that would allow a designer in a developed or developing country to be inspired by and borrow from traditional designs from elsewhere while, on the other hand, preventing misappropriation and misuse of designs that are integral to the cultural and social identity of communities.

Did you come to any conclusions that could be implemented?

There seems to be a general sense that the outcome should not be to stop people from using traditional knowledge under any circumstances, because that would freeze development and creativity. A balance needs to be found that is both legally precise and inclusive. ‘Sacred’ and ‘secret’ knowledge should not be used, although perhaps these terms would need to be defined.

Beyond that, artists and inventors from all countries should be able to draw from the intangible cultural heritage around them, and indigenous peoples should be attributed and have a right to share benefits.