A World Intellectual Property Organisation (WIPO) committee is poised to push a global treaty on traditional knowledge (TK).

This international law in-the-making is of relevance to local communities, local industry and large private entities engaged in bio-prospecting as well as R&D in products and services derived from genetic resources.

WIPO’s stated objective is to develop a balanced and effective international intellectual property (IP) system. But harmonising law and practice on certain IP issues is seen by some as part of the problem, since there are many local rules on TK.

Global committee

Countries with vast people’s know-how on genetic resources have been pointing out how IP laws on TK lead to misappropriation.

Yet WIPO has taken it upon itself to develop international IP law on the subject of TK!

This is being done through an Inter-governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) set up by WIPO in 2001. The IGC’s jubilee session, IGC 25, is currently under way (July 15-24) in Geneva, Switzerland at the WIPO headquarters.

Through IGC, WIPO has been facilitating a consensus on genetic resources (GR), traditional cultural expressions (TCE) and TK.

The negotiations have now reached a critical stage. Draft texts are ready. And the IGC needs to indicate to the WIPO General Assembly if and when to convene a diplomatic conference, where the drafts can be made into a legally binding treaty among countries.

Country Politics

WIPO, a UN body, is not devoid of the politics among the world’s nations that the UN system reflects. Powerful and big-budget governments can come to bear on issues. User/accessor countries (like the US) insist TK can be protected by an IP system. There are those from indigenous and local populations who consider IPR on TK an anathema.

Unfortunately, there is no common message resonating from the different developing countries. For instance, many African nations do not agree with India that the end beneficiaries should be identified as ‘the nation’.

They are more inclined that the beneficiaries of protection of TK should include “indigenous peoples”, or “traditional communities”.

Next step

Indigenous groups, such as the Tulalip tribes attending the session point to how the world is not yet ready for the diplomatic conference.

They make the critical point that such a treaty cannot be negotiated without considering the existing laws on the subject.

Like bio-diversity-dependent populations in India, they do not want to lose control over their GR, TK and folklore.

The Indian delegation is of the view that much work has been done in the past 15 years through WIPO processes both inside and outside the IGC, and with the fairly mature texts as of date, the time is right to take the next step.

India is, therefore, suggesting that a diplomatic conference be held in 2014. In response to the US suggestion to extend the IGC by another two years, merely for further fact-based studies on impacts of compulsory disclosure,

India feels that too much of analysis can lead to paralysis. But the interests of the government and local communities do not coincide here.

The Indian Patent Act has provided safeguards against the patenting of TK per se .

The grant of approvals for India’s knowledge and/or the trade in genetic resources has been institutionalised through the Biological Diversity Act, 2002.

Many popular movements are wary of the proposed international treaty empowering governments in the name of protection to tread into areas they had either chosen not to enter into or been forced to keep out of.

(The author is a lawyer and researcher.)

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