WIPO Consults On Protecting Traditional Knowledge, Genetic Resources

By Catherine Saez

How best to protect traditional knowledge, traditional cultural expressions and genetic resources against misappropriation and misuse was the main theme of a recent community consultation in the form of a roundtable organised by the World Intellectual Property Organization (WIPO).

The WIPO event on 10-12 December came in response to “the strong level of interest expressed by many national authorities and community representatives in sharing experience and developing dialogue and cooperation on practical initiatives to build capacity for appropriate protection.” The event was announced two weeks before it took place. WIPO said it aims to strengthen the practical capacity of holders of traditional knowledge (TK), traditional cultural expressions (TCEs, or folklore) and genetic resources (GR). It is preparing, among other things, a TK documentation toolkit, guidelines and a database for GR, and a creative heritage project.

The informal roundtable was organised around four workshops (creative heritage, TK and GR in the patent system, TK toolkit, and “customary law”) where participants were invited to share views and experiences. Work was then reported to all participants for discussion. Jacob Simet, rapporteur of the creative heritage session, said that “a great part of the problem could be addressed at the institutional and community level.” He said the misappropriation of TK and TCEs is worsened by tourism, thereby creating a dilemma for communities as it provides benefits while at the same time acting as an agent of misappropriation when, for example, tourists take photographs or film indigenous communities.

[TOURISTS AND INDUSTRY CANNOT MISAPPROPRIATE THAT WHICH NO ONE OWNS. UNLESS 'TRADITIONAL KNOWLEDGE' CAN BE REDUCED TO PATENTABILITY CRITERIA OR RECOGNIZED AS A 'TRADE SECRET', TWO FORMS OF PRIVATE INTELLECTUAL PROPERTY, THEN IT REMAINS IN 'THE COMMONS' AND IS OWNED BY NO ONE ]**

On the database project, participants on the closing day generally agreed that each country has a different level of examination and thus the database structure should be put together in a standardised and prescribed language taking into consideration local needs and focusing on the goals reflected in the recently adopted WIPO Development Agenda.

In the current system, patent examiners use an array of databases, according V K Gupta, a panel co-convener. “A system should be set up to ease the work of patent examiners,” he said, and suggested a systematic use of metadata, which provide greater detail. Many participants were concerned about protection of the database, which they said should not enter the public domain, but instead should be reserved for the sole use of patent examiners at the risk of betraying the trust of contributors. Xuan Li of the intergovernmental South Centre asked how the database was going to protect the rights of TK holders in cases such as Chinese traditional medicine that uses very complex plant preparations with over 20 ingredients. It would be very difficult to determine novelty in a patent application involving such products, she said.

Participants appeared to concur and said that patent examiners should be skilled and trained in different specialties. Li said that in the case of Chinese medicine it would be additionally difficult to examine a patent application given that China has 55 ethnic communities, each with their own preparations. The toolkit workshop synthesised the benefit and danger of documentation, according to participants.

The issue of confidentiality in particular was put forward as the group shared their questions about whose interest lies behind documentation, who is funding it and what kind of problem would arise if the databases were linked to funders. Brendan Tobin, rapporteur on the TK toolkit workshop, said that “if you can’t enforce the obligation of confidentiality, you need to take this into consideration.” He also said it was important to ensure that the TK databases are, in the main, established and maintained by communities, and that ownership of management structure should, where possible, be with local communities.

The potential danger of “catastrophic” disclosure, with the database “going wild on the Internet” also was a serious concern for the roundtable participants, with the effort to protect traditional knowledge possibly having, in this scenario, the reverse effect. According to WIPO’s Antony Taubman, the organisation has no initiative to establish a database but “would only ever work with existing initiatives, and would rather be a portal for access for patent examiners.” It should be a practical tool enhancing both protection and patent quality, he said.

WIPO has been working on different initiatives to address the issue of misappropriation of TK, TCEs and GR for the last five years, Taubman said. “WIPO wants to take it to the operational level,” he said, emphasising the organisation’s wish to produce non-binding guidelines meant to reflect best practices. The first phase of the guidelines, which currently are being written, is to reach out and solicit experiences and opinions. The first draft is expected to be released early next year. Roundtable participants recognised a need for capacity building and introducing safeguard mechanisms to protect the database. Manuel Ruiz from the Third World Network mentioned that the Honey Bee Database, which involves grassroots innovations, is an initiative that has won the trust of the communities. Catherine Saez may be reached at csaez@ip-watch.ch.