After two weeks of drafting articles of potential international instruments aimed at protecting traditional knowledge and folklore from misappropriation, World Intellectual Property Organization delegates agreed to forward the revised texts for the consideration of the General Assembly in September.
The 27th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) took place from 24 March to 4 April. The session closed early on the final day, after delegates agreed on the decisions of the session [pdf].
Separate sets of draft articles were developed for traditional knowledge and traditional cultural expressions (TCEs, or folklore).
A second revision [pdf] (Rev2) of the traditional cultural expressions (TCEs) draft articles was issued on 4 April. A number of changes were identified after the text was issued by the “friend of the chair,” Ian Goss of Australia, working closely with four facilitators tasked with the drafting. A final version of Rev2 was published on 7 April.
According to the decisions document, “The Committee decided that this text, as at the close of this agenda item on April 4 2014, be transmitted to the WIPO General Assembly taking place in September 2014, subject to any agreed adjustments or modifications arising on cross-cutting issues at the Twenty-Eighth session of the Committee, taking place in July 2014.”
On the main outcome of the TK and TCE sessions, IGC Vice-Chair Alexandra Grazioli of Switzerland said that significant advances have been made on both texts, but the main result is the introduction of a gradual approach in the scope of protection of the instruments. Negotiators came to the conclusion that different types of TK or TCEs cannot be covered in the same way, so they created three categories. For instance, secret or sacred knowledge should have one type of protection, widely diffused knowledge another.
“This is a new concept that needs to be considered by delegations but which holds promises for the future,” she told Intellectual Property Watch.
Key Changes in Text
The following is detailed section-by-section analysis of changes made from the first revision to the second revision of the TCE text.
In the principles/preamble section of the latest revision, two new paragraphs have been added. The first one includes the notion that the protection of TCEs should contribute toward the promotion of innovation. The second one recognises the value of the public domain and the need to protect it for the sake of creativity and innovation.
The “use of terms” section, which only contained the definition of TCEs in the first revision [pdf] of the draft articles, published earlier this week (IPW, WIPO, 2 April 2014) now includes a definition of the public domain, and a definition of “use” or “utilization”. The latest version includes three different uses of TCE, one in in which a TCE is included in a product, another one when a TCE is included in a process, and a last one for TCE used in research.
In Article 1 (now titled: Eligible/eligibility criteria for subject matter of protection/safeguarding), paragraphs have been moved around. Goss, when presenting the text in plenary session, said that there was no consensus on paragraphs d and e. Paragraph d deals with the term during which TCEs have been used, and paragraph e defines TCEs as the result of creative intellectual activity/creative activity of the intellect.
The heading of Article 2 (Beneficiaries of protection/safeguarding) now includes the mention of safeguarding. The article attempts to solve one of the issues regarding nations being beneficiaries of the protection of the discussed instrument, versus only indigenous peoples and local communities. The article also considers TCEs that are not claimed by specific indigenous peoples or local communities.
A new alternative to Article 3 (Scope of protection/safeguarding) has been added to Article 3 (Scope of protection). Paragraph 3.2 of the alternative Article 3 mentions that the protection does not extend to TCEs that are widely known or used outside of the community of the beneficiaries, in the public domain, or protected by intellectual property rights.
Article 3 feeds on the structure of Article 3 (Criteria for and scope of protection) of the TK revised text published last week. Both Articles present a tiered approach of protection, which would allow different kinds of protection for different kinds of TK or TCEs. This is considered by many delegations as a major advance in both texts.
In Article 5.1 (Exceptions and limitations), a new alternative introduces additional text on exceptions and limitations under national law. It states that exceptions should be limited to certain special cases, do not conflict with the normal utilization of the TCE by the beneficiaries, and to not prejudice the legitimate interests of the beneficiaries. Article 5.1 provides that exceptions and limitations should be adopted under national law provided that the use of TCEs acknowledges the beneficiaries “where possible,” is “compatible with fair use/dealing/practice,” and “does not unreasonably prejudice the legitimate interests of the beneficiaries taking into account the legitimate interests of third parties.”
Article 5 also includes mention of prior informed consent in several of its proposed paragraphs.
Article 8 (Sanctions, remedies and exercise of rights/interests) includes two new sub-paragraphs (8.4 and 8.5). Paragraph 8.4 deals with revocation of misleadingly or unfairly acquired IP rights, and 8.5 states that member states should not apply sanctions in cases of incidental use of a protected TCE in another work.
Article 13 (Capacity building and awareness raising), an article that was requested by indigenous peoples, has a new structure with an additional paragraph 13.3 which focuses on awareness raising. A list of measures that could be taken in such purpose has been removed.
The text of Rev2 is heavily bracketed and includes divergent options. According to Vice-Chair Grazioli, “As several key issues remain open and no consensus has been found yet, delegations are trying to secure their interests and positions by including safeguard provisions.”
Delegations were invited to point out omissions or errors in Rev2 in plenary on 4 April This led to additional brackets in the text.
New Proposal for Voluntary Fund for Indigenous Participation
A new proposal [pdf] for subsidiary contributions to the Voluntary Fund for the participation of indigenous and local communities was presented on 4 April The proposal, which would allow funds to come from the regular WIPO budget, is co-sponsored by Australia, Finland, New Zealand and Switzerland.
For a number of sessions, the IGC chair and the WIPO secretariat have underlined that the Voluntary Fund was empty and called for member states to come forward with contributions. The legal structure of the fund as designated by member states does not allow that it is financed by WIPO’s regular budget. Set up in 2005, the Voluntary Fund received a number of contributions, including from France, Switzerland, South Africa, and Norway, according to the proposal.
On 27 February, the amount available in the account of the Fund was CHF 823.10. The proposal asks that the IGC recommend to the WIPO General Assembly in September 2014 to amend the rules of the Fund so it is possible that contributions be drawn from the regular budget for WIPO to replenish the Fund, as a subsidiary way to provide the necessary financial means to the Fund. The proposed modifications to the rules are contained in the proposal.
The proposal was positively received by delegations, and is expected to be further discussed.
Public Domain, Fair Use, Copyright Notions
A number of issues remain open in the TCE discussions, such as beneficiaries, exceptions and limitations, subject matter of protection. Underlying those issues are different perspectives on the extent of what should be protected, who should benefit from the protection and how.
On 2 April, as the plenary was asked to provide preliminary comments on Rev1 of the TCE text, some developing country delegations mentioned issues on process and mandate.
South Africa said the mandate clearly indicates that a legal international instrument should be negotiated in the IGC. The delegate said he was surprised when issues that are not demanded of the mandate are being raised, such as “safeguarding” TCEs. Such issues are addressed effectively by other bodies, such as the UN Educational, Scientific and Cultural Organization (UNESCO).
Some developed countries, such as those in the European Union, have asked that the word “safeguard” be added to the word protection in a number of titles and paragraphs in the text. Safeguarding TK is different from protecting it, contend proponents of an international legal instrument.
Under a UNESCO convention, “safeguarding” means “measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage.”
The South African delegate also raised an issue “around the tactics of introducing words from other protocols,” such as fair use. Some developed countries are seeking to make sure that the instrument being negotiated will not suffocate creativity and innovation, and will not overlap with existing rights, such as copyright.
The EU and several of its member states took the floor on 1 and 2 April to strongly oppose what they thought might be an effort at merging the TK and TCE texts during the cross-cutting issues discussions. They said TK and TCEs were completely different and the texts should be distinct and kept apart. This issue was settled by the IGC chair, Amb. Wayne McCook of Jamaica, who declared that the committee was in no way working towards a merging of the texts.
A Nigerian delegate said on 2 April that importing some parts of the TK text into the TCE text was meant to identify places with similarities to ensure consistency. The delegate said she was concerned about efforts to “push things in copyright law.”
“The fact that this instrument can benefit from already existing instruments such as the copyright system, the trademark system and the design law system does not replace the fundamental purpose and objectives for which we are here,” she said. “This is not about copyright, but TCEs,” she added.
The concept of public domain has not been defined by a “single international instrument,” she remarked. “Those who have preceded us in the IP domain have seen the wisdom in letting states decide what constitutes the public domain within their national borders,” she said.
The Indigenous Forum representative also said that substituting protection by safeguarding is a concern. He asked that states explain the legal effects of their proposals and the limitation to the protection that is being offered. The Indigenous Forum is concerned about the notion of fair use, public domain, freedom of expression, third party rights (innocent infringement), and common heritage of mankind, all of which could be used as “a legal ratchet to dispossess us from our TCEs,” the representative said.
Industrial Design in TCE Text
According to a source, Sweden and the EU this week requested that industrial designs be introduced in paragraph 5.5.
This is a concern, the source said, as an industrial design law treaty is currently being negotiated in WIPO to facilitate the registration of industrial designs by international applicants. The fate of the treaty is to be decided next month during the extraordinary General Assembly which will be asked to decide whether to convene a diplomatic conference in 2014.
The concern lies with the fact that the draft design law treaty, as it stands, does not include an exception on designs based on TK and TCEs. In its current form, the adoption of such a treaty would undermine the IGC process. It has to be considered whether the design law treaty should be delayed until the same level of readiness is achieved in the instruments discussed in the IGC, or whether the design law treaty should be amended to provide for an exception on TK and TCEs.
[Update:] EU sources said they have made it clear that linkage between the two draft instruments is not on their agenda and has never been. The EU’s constant principled approach has been for any draft normative text to be judged on its level of maturity when deciding on whether or not to convene a diplomatic conference, they said. [end]
The “elephant in the room” of these negotiations is the nature of the future instrument or instruments. The reluctance of some developed countries, such as EU members, to commit to a legally binding instrument (or instruments) has prompted questions by McCook as to whether those countries could ever agree to such an instrument. Those questions have remained unanswered so far.
[…] The three-day session in July may facilitate the further drafting of texts toward becoming international instruments of protection. The 26th session of the IGC in February produced a draft text on genetic resources (IPW, WIPO, 10 February 2014). The 27th session of the IGC in April produced two draft documents, one on traditional knowledge and the other one on traditional cultural expressions (IPW, WIPO, 7 April 2014). […]
[…] discussed this week. In 2014, a notion of “tiered approach” was introduced with some success (IPW, WIPO, 7 April 2014). According to the chair’s document, a tiered approach to scope of protection would allow […]