inclusion, dialogue, diversity - forging new pathways

1. inclusion, dialogue, diversity- forging new pathways FACILITATING PARTICIPATION IN THE IP AND TK DEBATE IN WIPO'S IGC: Chateau de Bossey, February 22, 2008 Antony Taubman antony.taubman@wipo.int Director (a/g) GIPID Division, WIPO

2. origins • WIPO’s work on Traditional Cultural Expressions (TCEs), Traditional Knowledge (TK) and Genetic Resources  (GR) has already come a great distance • the way forward is coming into focus • even if there’s still a robust debate about how to take the next steps. • WIPO's program commenced in 1998, with a new program focussing on “IP for new beneficiaries.” • The first step was consulting with holders of TK, TCEs and GR, learning directly their IP needs and expectations. • WIPO Member States raised the political profile of the work in 2000, creating the Intergovernmental Committee • the dialogue with traditional custodians gave this intensified political-level approach to the work a sound consultative basis.    

3. the local and the global • The work has unfolded on two integrated levels: (i) practical capacity-building, geared to the needs and cultural context of traditional communities;   (ii) building new international norms for protection of TK and TCEs. • Emphasis on consistency and mutual support between these levels:   • community capacity-building needs to respond to the fast-moving international policy environment, • policy debate must remain rooted in the actual outlook and practical needs of the communities most concerned. • Consistency and mutual support is necessary, as this work concerns: • the most global of issues - suppressing misappropriation and misuse of TK and TCEs, developing new norms consistently with international public law in fields such as human rights, environmental protection and cultural policy • highly localized and culturally distinctive forms of creativity and innovation, systems of knowledge and cultural expression that are bound to the immediate cultural and physical environment of indigenous and local communities.

4. a platform for cooperation • Strong basis for the way forward: - strong portfolio of legal and policy analysis, - range of capacity-building tools, - two complementary sets of provisions for protecting TCEs and TK against misuse and misappropriation. • The draft international provisions: - have deep roots in consultation, debate and analysis, - could provide content for international instruments, if choose to take that step - form part of a holistic international approach.

5. The way forward: some themes • towards new norms and the better application of existing ones • e.g. draft international provisions for protection of traditionaal cultural expressions (TCEs) and traditional knowledge (TK) • strengthening community capacity • e.g. Creative Heritage project and TK toolkit – defending community interests when TK is documented • coherence and consistency with international policy environment • e.g. UNESCO, CBD, FAO, WTO, Human Rights…

6. From local to global: feedback in the work of the Committee

7. a focus on inclusion New and accumulated total of ad hoc accreditations to the Committee (omits general accreditations to WIPO)

9. …WIPO Voluntary Fund in action…. • Association congolaise des jeunes cuisiniers et gastrotechnie • Ethno‑ecological Information Center “Lach” • Foundation for Research and Support of Indigenous Peoples of Crimea • Health and Environment Program • Hokotehi Moriori Trust • Indian Confederation of Indigenous and Tribal Peoples North-East Zone (ICITP- NEZ) • Indigenous Peoples (Bethechilokono) of Saint Lucia Governing Council (BCG) • Indigenous Peoples’ Council on Biocolonialism (IPCB) • Indonesian Traditional Wisdom Network (ITWN) • International Indian Treaty Council (IITC) • Maasai Cultural Heritage Foundation (MCHF) • Mbororo Social Cultural Development Association (MBOSCUDA) • Ogiek Peoples Development Program (OPDP) • Russian Association of Indigenous Peoples of the North (RAIPON) • Sustainable Development Policy Institute (SDPI) • Tsentsak Survival Foundation (Cultura Shuar del Ecuador) • West Africa Coalition for Indigenous Peoples’ Rights (WACIPR)

10. …a continuing emphasis on inclusion, consultation and dialogue…

13. consultative basis of work on genetic resources: e.g. IGC work on patent disclosure issue Invitation from the CBD COP: WIPO study on disclosure Member State input from questionnaire and IGC guidance on initial outline draft reviewed by IGC further draft study prepared for IGC review and adoption WIPO General Assembly reviews and adopts, passes to CBD COP CBD COP welcomes, invites WIPO to develop further examination of issues … leading to a further consultative process with extensive Member State direction and substantive input from Member States and NGOs…

14. The call for protection of TCEs and TK • The international debate has focussed on how to prevent the misappropriation and misuse of • traditional knowledge (TK) • traditional cultural expressions (TCEs)/folklore • and how to promote equitable sharing of benefits from use of TK and genetic resources. • WIPO’s current work on protection contained in: • WIPO/GRTKF/IC/12/4 (TCEs) [not an agreed document] • WIPO/GRTKF/IC/12/5 (TK) [not an agreed document] • WIPO/GRTKF/IC/12/6 (background on international aspects) • But what is the nature of the problem?

15. Why protect Traditional Cultural Expressions and Traditional Knowledge ? • safeguard against third party claimsof IP rights over TK/TCEs (‘defensive protection’) • also protection of genetic resources against illegitimate patenting (‘biopiracy’) • protect TK/TCEs against unauthorized disclosure or use, • protect distinctive TK/TCE-related commercial products, • prevent culturally offensive or inappropriate use of TCEs/TK, • license and control the use of TCEs in derivative cultural expressions, and • license aspects of TK for use in third-party commercial products.

16. but major policy issues remain … • misappropriation - what is it to misappropriate TK/TCEs, what is the cause of action and the nature of the damage? • retroactivity - is the existing public domain legitimate & inviolable? • localisation - how to recognize and defer to a community’s customary law? • collectivity - what legal status or legal personality for traditional communities? • ownership - what is the nature of custodianship? Who benefits? • subject matter - what makes knowledge and cultural expressions ‘traditional’ ?

17. and process issues need attention • coordination - already an active area of national and regional legislation - what is the international layer? • interface with IP law - what is the sui generis element of protection of TK/TCEs? • interface with other law - access regimes for genetic resources, cultural policy, etc.; what is the role of IP mechanisms? • depolarization - how to identify shared interests and build consensus? • choice of forum /interagency comity/forum shopping – numerous international processes; • legal form and status – maturity/quality of substance vs. legal status

18. but… • What is the ‘IP’ dimension of TK ‘protection’ within an holistic context? • Does it apply to indigenous governance of their own knowledge systems? • Or does it apply to third parties, even in foreign countries, when they get access to TK? • Is the ‘IP’ dimension of protection the commodification of TK • or the right to object when others commodify TK

19. what lessons from the two-row wampum? • knowledge, cultural expressions, genetic resources readily pass between two cultures, two communities, two legal systems, two sets of values • what rights, responsibilities, entitlements pass with them? • a focus on the point of access • how can customary laws and protocols reach beyond the Haudenosaunee canoe and the European ship? image source: http://en.wikipedia.org/wiki/Image:Tworowwampum.jpg

20. UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES ARTICLE 31 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

21. preservation and protection: genetic resources and TK • Convention on Biological Diversity (CBD): • conservation of biological diversity • sustainable use of its components • equitable sharing of benefits arising from its use • recognition of the role of traditional knowledge relating to biodiversity • IP system • creates legal measures against illegitimate or unauthorized use of subject matter by third parties • at the level of principle, at least, it should offer the originators and holders of knowledge a say in how their knowledge is used • enables TK holders to assert authority over their knowledge: ‘commodification’ only to the extent they choose that path:but in essence, it is a capacity to object to wrongful commodification

22. what overall objectives? 1. Preservation of traditional knowledge (TK) and traditional cultural expressions (TCEs) • preserving them against loss • saving for future generations of the original community • ensuring fair and appropriate legal basis for making available more widely 2. Protection of TK and TCEs against misappropriation and misuse

23. The call for protection of TCEs and TK • From the IP angle, at least, within a wideranging policy debate in many fora, international debate has focussed on how to prevent the misappropriation and misuse of • traditional knowledge (TK) • traditional cultural expressions (TCEs)/folklore • and how to promote equitable sharing of benefits from use of TK and genetic resources. • WIPO’s current work on protection contained in: • WIPO/GRTKF/IC/12/4 (TCEs) • WIPO/GRTKF/IC/12/5 (TK) • WIPO/GRTKF/IC/12/6 (international aspects)?

24. Characteristics of TK protection • Holistic in that it knows its place: international comity • Does not intrude on the community domain • Focus on those acts of third parties – in foreign jurisdictions – that are of most concern • The readily appropriable aspects of indigenous culture and knowledge systems • Readily appropriable in foreign jurisdictions (cf. land, natural resources) • Collective personality and cultural/spiritual interest • Defines illegitimate third-party acts rather than property rights

25. illicit acquisition • commercial gain in knowledge of illicit appropriation • other forms of inequitable commercial benefit

26. illicit acquisition breach of prior informed consent wrong assertion of IP rights over TK gainful use of TK at odds with equity moral and spiritual rights over TK

27. policy objectives & core principles drawing on existing principles, regional and national positions, previous IGC statements, IGC working documentspossiblebasis for outcomes on TK and TCEs options for recognizing TK/TCE protection in foreign jurisdictionsscope for national treatment, mutual recognition, etc. (document. 6/6, 8/6) An emerging framework elements of TK protection Policy options and legal mechanisms How to achieve the objectives and implement the principles at national level elements of folklore/ TCE protection How to achieve the objectives and implement the principles at national level measures on IP & genetic resources equitable benefit sharingpatent disclosure mechanisms

28. Current issues on the table… 1. Definition of TCEs/TK that should be protected. 2. Who should benefit/hold the rights to protectable TCEs/TK? 3. What objective for protection (economic, moral rights)? 4. What forms of behavior considered unacceptable/illegal? 5. Any exceptions/limitations to rights attached to TCEs/TK? 6. For how long should protection be accorded? 7. What gaps in existing IP system exist and need to be filled? 8. What sanctions or penalties should apply? 9. Division between international and national regulation 10. Treatment of foreign rights holders/beneficiaries

29. mandate renewal (wo/ga/34/9) WIPO General Assembly has renewed the IGC mandate: • IGC to “continue its work for the next budgetary biennium on questions included in its previous mandate”; • “its new work will focus, in particular, on a consideration of the international dimension of those questions, without prejudice to the work pursued in other fora,” •  “no outcome of its work is excluded, including the possible development of an international instrument or instruments”; •  “accelerate its work and present a progress report to the session of the General Assembly” in September 2008. • “the International Bureau to continue to assist the IGC by providing Member States with necessary expertise and documentation.”

30. towards an outcome… (i) what should be the content of the outcome – • the question of substance, or what subject matter, focus and level of detail should the outcome have (including the substantial element of its international dimension); • what should be the nature, format or status of the outcome - the question of what the format or nature of an outcome should have, and what legal or political status and legal, political or ethical implication should the outcome have, including any international legal implications; • how should the Committee work towards the outcome • the question of what procedures or processes, and what forms of consultation, would help lead to understanding on the content and status of any proposed outcome; and what timelines or interim steps should apply • (see document WIPO/GRTKF/IC/11/6)

31. towards an outcome… (i) a binding international instrument or instruments; (ii) authoritative or persuasive interpretations or elaborations of existing legal instruments; (iii) a non-binding normative international instrument or instruments; (iv) a high level political resolution, declaration or decision, such as an international political declaration espousing core principles, stating a norm against misappropriation and misuse, and establishing the needs and expectations of TCE/TK holders as a political priority. (v) strengthened international coordination through guidelines or model laws (vi) coordination of national legislative developments. - WIPO/GRTKF/IC/11/6

32. Capacity building activities • a strong demand for capacity building concerning TK, TCEs, genetic resources… • … but a need to clarify • what needs, what expectations? • what objectives? • what practical materials, how to use them? • and what forms of partnership? • yet no prejudice to international processes

33. First, the context • capacity building… • a practical orientation : what tools are actually needed? • with a focus on the community : keep it relevant to TK holders • within a broad policy context : culture, environment, development • consistent with international developments : international law, e.g. human rights

34. From local to global: feedback in the work of the Committee

35. policy objectives & core principles:(i) draft provisions on TCEs & TK (ii) IGC review of core issues options for recognizing TK/TCE protection in foreign jurisdictions An emerging framework Policy options and legal mechanisms for TK protection: how to achieve the objectives and implement the principles at the national level Policy options and legal mechanisms for protection of TCEs/EoF:how to achieve the objectives and implement the principles at the national level measures on IP & genetic resources . IP options for equitable benefit sharing. patent disclosure mechanisms

36. Draft overarching objectives and principles how have these objectives and principlesbeen implemented in national law?

37. And what capacity building resources are available? geneticresources TCEs/folklore TK

38. Capacity-building materials • Materials for legal and policy processes • Draft provisions (‘objectives and principles’) for both TCEs and TK as a resource • “Policy options and legal mechanisms” • detail how countries have chosen in practice to give effect to such objectives and principles • Database of laws and legislative measures • Customary law study process • Concept note: considerations on how to establish a policy framework • Case studies, analysis, comparative tables of laws • Patent disclosure studies – TK/GR

39. Capacity-building materials II. Strengthening practical capacity of holders of TK/TCEs/GR • work in progress: • TK documentation toolkit • Genetic resources guidelines – and database • Practical guide on protection of TCEs • Creative heritage project • Distance learning course on TK/TCEs • customary law study process • Awareness raising materials, case studies,

40. Capacity-building materials • III. Building and guiding institutions • Creative Heritage: ‘best practice’ guidance on inventories/archiving TCEs • Guidelines for examination of TK-related patents • TK documentation toolkit • Standards for documenting TK • studies on patent disclosure mechanisms • bioethics studies and outlines

41. Capacity-building materials IV. Cooperation within UN system • database of provisions and draft guidelines on IP aspects of access and benefit-sharing under the CBD • FAO freedom to operate patent landscapes • CBD – patent disclosure mechanisms • cooperation on cultural heritage – e.g. UNESCO V. General awareness and capacity-building • Case studies • Fact-finding missions and consultations • educational and training activities • Surveys of national experiences, overviews of legal and policy options

42. Some forms of South-South and regional cooperation Reflecting shared or overlapping cultural heritage and traditional knowledge systems … • Development of regional laws, policies and norms for protection of TK and folklore/TCEs • Support for documentation of TK – while protecting interests of TK holders (documentation ≠ public domain status!) • Standards for TK documentation(WIPO standards already developed) • Guidelines for archiving/collecting folklore/traditional cultural expressions • Practical guide for protection of folklore/traditional cultural expressions • Guidelines on patent examination of TK-related inventions