Protecting indigenous knowledge: a personal perspective on international negotiations at WIPO

Author:Wend Wendland
Position:Director, Traditional Knowledge Division, WIPO
SUMMARY

Ten years ago, WIPO’s member states formally launched negotiations toward developing international legal instruments addressing intellectual property (IP) and genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs). These negotiations take place in an Intergovernmental Committee known in short as the IGC. This article** traces the undulating contours of the ... (see full summary)

 
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Background

The IGC was established by the WIPO General Assembly in 2000; its mandate is usually determined by the Assembly every two years.

The objective of the IGC's new mandate for 2020-2021 is “finalizing an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to intellectual property (IP) which will ensure the balanced and effective protection of” GRs, TK and TCEs.

The ramifications of the IGC’s task are immense. Many argue that adopting one or more international legal instruments would enrich the IP system by expanding its range of beneficiaries to include vulnerable and often marginalized indigenous peoples and local communities. They also argue that it would strengthen the IP system’s contribution to sustainable development, thereby bolstering its legitimacy in all regions, and inspire fresh confidence in multilateralism.

Pragmatic win-win outcomes are tantalizingly within reach, at least on some aspects of the Committee’s mandate. Substantial progress has been made.

However, the negotiation is profoundly challenging.

Key challenges

Challenges relate to the nature of the issues, the ways in which the Committee functions and its situation within the broader multilateral landscape.

The relationships between IP and GRs, TK and TCEs are technically intricate, and the issues are distinct yet interlinked. This requires an unusually high degree of substantive competence as well as domestic coordination and policy coherence within participating countries. On top of this, at best there are only a few national and regional experiences that may be models for negotiators to draw on. While the frequency of IGC meetings is evidence of countries’ determination to make progress, the intensity of the process, coupled with its long duration so far, risks sapping its energy and momentum.

Another challenge lies in the relatively low interdependence between the issues under negotiation in the IGC and other issues on the international IP agenda. This leaves demandeurs (those countries seeking normative outcomes) with little leverage to extract concessions from non-demandeurs. Moreover, the fragmented treatment of these issues across various international forums can complicate efforts by demandeurs to establish dynamic cross-regional coalitions.

Progress is hobbled by varying degrees of political willingness among countries, leading to persistent divergences among them as to the IGC’s objectives and expected outcomes. These in turn hinder the Committee’s attempts to design an effective working methodology that could enable consensual compromise outcomes.

Finally, these issues do not yet seem to stir the hearts of ordinary citizens. There is little pressure from the public and civil society for a speedy conclusion to the negotiation.

Pragmatic win-win outcomes are tantalizingly within reach, at least on some aspects of the Committee’s mandate.

Milestones

The early years

At first, the IGC’s work combined fact-gathering, technical analyses, exchanges of practical experiences and policy debate. Troves of information about national and regional regimes were gathered through member state submissions, questionnaires, case studies and panel discussions.

The focus was on non-normative work, which led to a number of useful, practical outcomes. These included concrete first steps towards the defensive protection of TK (protection against TK being patented) through its enhanced recognition as prior art.

Work also commenced on technical standards for TK documentation and IP...

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