Protecting Traditional Knowledge: International IP Debates Over the Rights to Genetic Resources
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Protecting Traditional Knowledge: International IP Debates Over the Rights to Genetic Resources
The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (“IGC” or the “Committee”) of the World Intellectual Property Organization (“WIPO”) held its 36thand 37thsessions this summer in Geneva. The 36thsession was held from June 25-29 2018, and the 37thsession was held from August 27-31 2018. After creating the IGC in 2000 for the purpose of discussing possible protections for genetic resources, traditional knowledge (“TK”), and traditional cultural expressions, WIPO finally mandated the Committee to take formal steps towards developing actual international legal protection instrument(s) to achieve that purpose in 2009.
Biopiracy: why international protection for traditional knowledge matters
Protecting traditional knowledge — “know-how, skills, innovations, practices, teachings or learning” that are “developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity” — has become increasingly important to developing countries rich in genetic resources due to the rise of “biopiracy”. Biopiracy is the use of TK and genetic resources without permission by researchers who use the materials in patented products without disclosing the materials’ origin. For example, the people of French Guiana had long been steeping tea with the quassia amara plant for its health benefits before French researchers patented an alcohol-based extraction method of the plant for malaria medication. Similarly, only weeks before the 36th IGC session, Brazil’s environmental agency fined a Californian health food company for using genetic materials from açaí berries without seeking permission or offering compensation.
In academia, biopiracy is often regarded as an extension of colonialism, and is sometimes referred to as “scientific colonization”. For example, in a study published this March, University of Ottawa law professor Chidi Oguamanam framed the ongoing debate at the IGC as being between “demandeur countries” and “US-led non-demandeur colonial powers.” Oguamanam also remarked that IP rights are not an appropriate tool for protecting TK in the first place, since they are the product of a Eurocentric system and come with caveats such as time terms, which are not suitable for protecting centuries-old knowledge and tradition. Others share that view, and criticize WIPO for being the home of negotiations on TK protections, and point to the negotiation venue as being a way of maintaining the IP status quo and ensuring that TK never receives adequate protection.
Slow movement at the IGC: tensions between demandeur and non-demandeur countries
At its 36th session in June, the Committee came close to finally producing a draft document that all members agreed upon. However, developed countries with strong innovation programs predictably pushed back on international protections for TK. On the session’s final day, the United States blocked the document, citing concerns that the proposals would weaken the patent system and allow for challenges to American patents. The American representative at the session pointed to his contributions being “not included or not included in the context suggested,” and insisted that the draft document not be forwarded to the next session of the IGC. Developing nations criticized the US and other patent-filing countries for intentionally delaying the IGC’s progress.
The draft document in question — Consolidated Document Relating to Intellectual Property and Genetic Resources Rev. 2 — contained two versions of a proposed article regarding a designation of origin (“DOO”) requirement for genetic resources in patent filings. A DOO requirement would mandate that countries impose a genetic resource disclosure of origin requirement in patent applications”. It is therefore a matter of national or regional law. Demandeur countries advocated to avoid the requirement completely.
Prior to the 36th session, the US submitted a paper expressing, among other things, concern about a potential DOO requirement. The paper asserted that a DOO requirement would have “negative effects, including negative effects on licensing, research and development and investment and litigation”—concerns which were corroborated by an earlier report. The US claimed that new protection measures for TK would inject uncertainty into the patent system, which could deter or chill private sector innovation. The US also insisted that a DOO requirement would “cause significant delays in the patent examination process by reducing the patent’s valuation and making investments in research and development imprudent.”
A potential DOO requirement was not the only point of contention between demandeur and non-demandeur countries at the 36thand 37thsessions. The US, along with other countries such as Japan, Canada, and the Republic of Korea, insisted that TK protection should only exist for patents. They claimed that they did not find a relationship between genetic resources and GIs or trademarks, and that extending protection for TK to areas of IP other than patents would likely “mislead or confuse customers in bad faith.”
Another concern that the US advanced in the paper it submitted prior to the 36thsession was that protecting TK would erode the public domain. The wicked irony of America’s decades-long amassing of IP rights at the expense of the public domain juxtaposed against its current fight to retain the public domain’s integrity when it comes to TK has not gone unnoticed. Two Canadian studies have recently criticized this argument on several grounds. For instance, Ruth L. Okediji argues that an international public domain does not exist, which gives nations the space to define their own. Given this, “the protection of traditional knowledge poses no significant threat to the public domain nor to international IP norms.” Okediji also argues that, since there is a separate public domain associated with each category of IP, creating a new public domain for TK is possible. She asserts that arguments focusing on the erosion of the public domain rely on a mistaken analogy of American economic motivations for acquiring IP rights with indigenous peoples’ and local communities’ cultural and social motivations, and that “the public domain cannot be served up at will to deflect the legitimate interests of traditional knowledge holders.”
Coming out of the 36thand 37th sessions then, there is still no consensus as to what an international legal protection for TK should look like.
Current legal (and non-legal) tools available for protecting traditional knowledge
International law and IP are currently unable to offer adequate protection for TK. The only international legal tool that aims to protect TK and genetic resources is the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, namely in article 10, which begins as follows:
“Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources…”
Given the weak language in article 10 and the lack of other protections for TK at the international level, it remains “very difficult in the best of cases” to protect TK, especially due to how TK has been openly shared among peoples and communities in most cases.
Although there is no concrete international law for TK protection, some countries have created a national regulatory framework to protect it. For example, Kenya passed the Traditional Knowledge and Traditional Cultural Expression Act in 2016. Another way that developing countries can push back against the weak and uncertain international protections available for protecting TK is through private programs and agreements. Last month, the Uganda Registration Service Bureau signed a Memoranda of Understanding with a Ugandan NGO agreeing to provide traditional medicine practitioners knowledge and information on IP rights.
In addition to its mandate to develop an international system for the protection of TK, the IGC also has a capacity-building function to help indigenous peoples and local communities utilize tools that are already available to them. Last year, under the IGC’s mandate, WIPO published a practical guide called “Protect and Promote Your Culture: A Practical Guide to Intellectual Property for Indigenous Peoples and Local Communities” which aims to do just that.
The 38thmeeting of the IGC will take place this December.
 See WIPO IGC, “Thirty-Sixth Session,” online: <www.wipo.int/meetings/en/details.jsp?meeting_id=46440> [“IGC Thirty-Sixth Session”], and WIPO IGC, “Thirty-Seventh Session,” online: <www.wipo.int/meetings/en/details.jsp?meeting_id=46445> .
 Ricardo Meléndez-Ortiz, “Foreword” in Daniel F. Robinson, Ahmed Abdel-Latif & Pedro Roffe, eds, Protecting Traditional Knowledge: The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore(New York: Routledge, 2017) [Robinson et al, Protecting Traditional Knowledge] xv at xv; Daniel F. Robinson, Pedro Roffe & Ahmed Abdel-Latif, “Introduction: Mapping the Evolution, State-of-Play and Future of the WIPO IGC” in Robinson et al, Protecting Traditional Knowledge3 at 3 [Robinson et al, “Introduction”].
 WIPO IGC, The Protection of Traditional Knowledge: Draft Articles13 May 2016 WIPO/GRTKF/IC/31/4, Annex at 5, online: <www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_31/wipo_grtkf_ic_31_4.pdf>; see also Ruth L. Okediji, “Traditional Knowledge and the Public Domain,” (2018) Center for International Governance Innovation Papers No. 176 at 2, online: <www.cigionline.org/publications/traditional-knowledge-and-public-domain> [Okediji, “Traditional Knowledge and the Public Domain”].
 The act of profiting off the traditional knowledge of developing countries without official sanction has also been referred to in harsher terms as “scientific colonialism,” or in more favourable terms as “bioprospecting”. See William New, “US Raises Economic Concerns About Proposals at WIPO on Patents and Genetic Resources”, Intellectual Property Watch(27 June 2018), online: <www.ip-watch.org/2018/06/27/us-paper-wipo-pits-business-public-interest-patents-genetics/> [William New, “US Concerns”]; Janna Rose, “Biopiracy: when indigenous knowledge is patented for profit”, The Conversation(7 March 2016), online: <theconversation.com/biopiracy-when-indigenous-knowledge-is-patented-for-profit-55589> [Rose, “Biopiracy”]; and Okediji, “Traditional Knowledge and the Public Domain”,supra note 3 at 3–4.
 Rose, “Biopiracy”, supra note 4; and Elisabeth Pain, “French institute agrees to share patent benefits after biopiracy accusations”, Science (10 February 2016), online: <www.sciencemag.org/news/2016/02/french-institute-agrees-share-patent-benefits-after-biopiracy-accusations>.
 Anthony Broadle, “Brazil probes California firm for ‘biopiracy’ of tropical fruit açaí”, Reuteurs(12 June 2018), online: <www.reuters.com/article/us-brazil-biopiracy/brazil-probes-california-firm-for-biopiracy-of-tropical-fruit-aa-idUSKBN1J82SJ>.
 Chidi Oguamanam, “Wandering Footloose: Traditional Knowledge and the ‘Public Domain’ Revisited”, J World Intellect Prop. 2018 1 at 10 [Oguamanam, “Wandering Footloose”].
 Ibid at 11–12.
 Robinson et al, “Introduction” supra note 2 at 4; see also Manuel Ruiz Muller, “The Legal Protection of Widely Shared and Dispersed Traditional Knowledge” [Muller, “Legal Protection of Widely Shared Knowledge”] in Robinson et al, Protecting Traditional Knowledge122 at 123.
 WIPO IGC, The Consolidated Document Relating to Intellectual Property and Genetic Resources Rev. 223 March 2018 WIPO/GRTKF/IC/36/4, Annex, online: <www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_36/wipo_grtkf_ic_36_4.pdf> [WIPO IGC, Rev. 2]; IGC Thirty-Sixth Session, supra note 1; Catherine Saez, “WIPO IP and Genetic Resources Committee Makes Progress Despite Block at End” Intellectual Property Watch(2 July 2018), online <www.ip-watch.org/2018/07/02/wipo-ip-genetic-resources-committee-makes-progress-despite-block-end/> [Catherine Saez, “WIPO Progress”].
 WIPO IGC, Thirty-Sixth Session, Geneva, June 25 to 29: Draft Report10 September 2018 WIPO/GRTKF/IC/36/11, Prov. 2 58 at para 224.
 Ibid; William New, “US Concerns”, supra note 4.
 WIPO IGC, Rev. 2, supra note 10 at art 4; Margo A. Bagley, “Of Disclosure ‘Straws’ and IP System ‘Camels’: Patents, Innovation, and the Disclosure of Origin Requirement,” in Robinson et al, Protecting Traditional Knowledge, 85 at 85–86 [Bagley, “Disclosure of Origin Requirement”].
 Bagley, “Disclosure of Origin Requirement”, supra note 11 at 85.
 Ibid; Catherine Saez, “WIPO Progress”, supra note 10.
 Delegation of the United States of America, “The Economic Impact of Patent Delays and Uncertainty: U.S. Concerns About Proposals for New Patent Disclosure Requirements,” (2018) submitted at IGC 37thsession, WIPO/GRTKF/IC/37/15, online <www.wipo.int/meetings/en/doc_details.jsp?doc_id=412472> [USA, “Economic Impact”].
 Ibid; WIPO IGC, Thirty-Sixth Session, Geneva, June 25 to 29: Draft Report10 September 2018 WIPO/GRTKF/IC/36/11, Prov.2 24 at para 75 [WIPO IGC, 36thSession Draft Report].
 William New, “US Concerns”, supra note 4; USA, “Economic Impact”, supra note 14.
 Catherine Saez, “WIPO Progress”, supra note 10; William New, “US Concerns”, supra note 4.
 WIPO IGC, 36thSession Draft Report, supra note 17 at para 133.
 USA, “Economic Impact”, supra note 14.
 Oguamanam, “Wandering Footloose”, supra note 7 at 6; Okediji, “Traditional Knowledge and the Public Domain”, supranote 3.
 Oguamanam, “Wandering Footloose”, supra note 7; Okediji, “Traditional Knowledge and the Public Domain”, supranote 3 at 4.
 Okediji, “Traditional Knowledge and the Public Domain”, supranote 3 at 1.
 Oguamanam, “Wandering Footloose”, supra note 7; Okediji, “Traditional Knowledge and the Public Domain”, supranote 3 at 1, 4.
 Muller, “Legal Protection of Widely Shared Knowledge”, supranote 9 at 126.
 Emphasis added. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity(entered into force on 29 October 2010), online: <www.cbd.int/abs/text/default.shtml>, article 10; Muller, “Legal Protection of Widely Shared Knowledge”, supranote 9 at 126.
 Muller, “Legal Protection of Widely Shared Knowledge”, supranote 9 at 132.
 Protection of Traditional Knowledge and Cultural Expressions Act, Kenya, Act No. 33 of 2016 (date of assent 31 August 2016), online: <www.kenyalaw.org/lex//actview.xql?actid=No.%2033%20of%202016>; Paul Kaindo, “Traditional Knowledge Can Spur Wealth Creation” (19 September 2018) Business Daily, online: <www.businessdailyafrica.com/analysis/letters/Traditional-knowledge-can-spur-wealth-creation/4307714-4767842-1389eg6/index.html>.
 Carol Kasujja, “URSB, THETA to protect traditional health knowledge” New Vision(26 September 2018), online: <www.newvision.co.ug/new_vision/news/1486460/ursb-theta-protect-traditional-health-knowledge>.
 Catherine Saez, “WIPO Traiditoinal Knowledge Division Provides Capactiy Building, Publications” Intellectual Property Watch(1 February 2018), online: <www.ip-watch.org/2018/02/01/wipo-traditional-knowledge-division-provides-capacity-building-publications/>.
This content has been updated on November 1, 2018 at 15:27.