5. World Intellectual Property Organisation (WIPO)
Background
The World Intellectual Property Organisation ("WIPO") is a specialised agency of the United Nations. The Convention Establishing the World Intellectual Property Organisation (1967) states its objective as the promotion of the protection of intellectual property throughout the world through co-operation among States and, where appropriate, in collaboration with any other international organisations.
WIPO administers more than twenty international treaties in the fields of copyright (and related rights), patents, industrial designs and trade marks. It also facilitates the conclusion of new international treaties in this area and assists States with the modernisation of national legislation.
Consideration of Traditional Knowledge
WIPO, in consultation with the United Nations Educational, Scientific and Cultural Organisation ("UNESCO") (see fact sheet 2), has undertaken work in the area of traditional cultural expressions (often referred to as "folklore" - a subset of traditional knowledge) since the 1970s. In 1982, the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions were developed, but not widely adopted. Following on from the 1997 World Forum on the Protection of Folklore, WIPO and UNESCO convened four regional consultations on the protection of traditional cultural expressions.
In 1998 and 1999, the Global Issues Division of WIPO undertook a series of nine Fact-Finding Missions ("FFMs") to collect information on the intellectual property needs and expectations of the holders of traditional knowledge. The results of the FFMs have informed the organisation's current work in this area and are available on the WIPO website at: World Intellectual Property Organizations (WIPO) Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) .
In 1998, as part of WIPO's work on biological diversity and biotechnology, a study on the role of intellectual property rights in the sharing of benefits arising from the use of biological resources and associated traditional knowledge was commissioned by WIPO and the United Nations Environment Programme ("UNEP"). Issues related to intellectual property and genetic resources also began to be discussed by the Standing Committee on the Law of Patents and a Working Group on Biotechnological Inventions. Following a special meeting on Intellectual Property and Genetic Resources, and the Diplomatic Conference for the Adoption of the Patent Law Treaty, held in 2000, it was recommended that a distinct body within WIPO be established to facilitate discussions on these issues. The Twenty-Sixth Session of the General Assembly of the Member States of WIPO established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore ("the IGC").
WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)
The IGC is mandated to discuss intellectual property issues that arise in three areas:
- Access to genetic resources and benefit-sharing;
- Protection of traditional knowledge, whether or not associated with genetic resources; and
- The protection of expressions of "folklore" (as a subset of traditional knowledge, also referred to as "traditional cultural expressions").
Genetic Resources
The IGC's work on intellectual property and genetic resources is in response to concerns about the patenting of inventions based on genetic resources and in some cases traditional knowledge associated with those resources. Its work to date has focused on the use of contractual agreements to govern access to genetic resources and determine how benefits, such as intellectual property rights, resulting from the use or development of genetic resources should be shared by stakeholders, including the holders of traditional knowledge.
The IGC has developed an on-line database of contractual practices and clauses relating to intellectual property, access to genetic resources and benefit-sharing (see Traditional Knowledge: Contracts Database ). The object of the database is to provide a practical resource to assist those involved in negotiations about the access to and the use of genetic resources, through the provision of a range of options for dealing with intellectual property issues in access and benefit-sharing contracts. The IGC also intends to develop guide contractual practices and model clauses.
At the invitation of the Conference of the Parties of the Convention on Biological Diversity ("CBD") (see fact sheet 7), WIPO conducted a study on disclosure requirements in patent applications related to genetic resources and traditional knowledge.
WIPO's work in this area contributes, in part, and through the contribution of technical information, to the current debate about the relationship between the CBD and the World Trade Organisation Agreement on the Trade Related Aspects of Intellectual Property Rights ("WTO - TRIPS") which is considered further in fact sheet 6.
Traditional Knowledge
The IGC has generally considered the interface between intellectual property rights and traditional knowledge from two perspectives:
- The availability of intellectual property protection for traditional knowledge holders (either for the protection of traditional knowledge or to enable traditional knowledge holders to exploit such knowledge, where appropriate); and
- The acquisition by parties other than traditional knowledge holders of intellectual property rights over traditional knowledge-based creations and innovations.
Much of the IGC's work in this area has focused on defensive measures designed to prevent the grant of patent rights to third parties in situations where that would not be appropriate. For example, the IGC is considering ways that public domain (not secret) traditional knowledge can be made available to patent examiners conducting searches for novelty or inventiveness. It is hoped that making such information available will reduce the likelihood that patents would be granted for inventions based on traditional knowledge, where such an invention was already known to indigenous people or local communities.
This work has involved the compilation of inventories of publicly available traditional knowledge-related periodicals and databases. While a number of countries have stressed the usefulness of documenting traditional knowledge in databases so that it is available as "prior art" (information relating to an invention that was publicly available at the time the invention was made), New Zealand (and others) has raised concerns about the risks of documentation initiatives. Risks include making traditional knowledge more accessible and traditional knowledge becoming prior art preventing indigenous people from registering a patent for an invention based on traditional knowledge. The IGC is, therefore, developing an Intellectual Property Documentation Toolkit to assist traditional knowledge holders to address the intellectual property implications of the recording of traditional knowledge and any subsequent disclosure and dissemination of that knowledge.
The IGC has also studied a range of positive legal measures for protecting traditional knowledge through existing intellectual property mechanisms and through systems specifically designed for that purpose. The Committee has shared national experiences in this area and held preliminary discussions about the possible characteristics of new mechanisms for the protection of traditional knowledge. It is currently developing an overview of policy objectives and core principles for traditional knowledge protection, and an outline of policy options and legal elements of the protection of traditional knowledge.
Traditional Cultural Expressions
The IGC is undertaking a study of the legal protection of traditional cultural expressions which analyses current intellectual property rights and new options. It is currently preparing an overview of policy objectives and core principles for protection of traditional cultural expressions and an outline of policy options and legal mechanisms for the protection of traditional cultural expression subject matter. This work, and that on traditional knowledge, includes consideration of the possible development of models for national laws and issue of international protection.
On a more practical level, WIPO is developing a Practical Guide on the Legal Protection of Traditional Cultural Expressions. A number of case studies on intellectual property and traditional cultural expressions are available on the WIPO website at Minding Culture: Case-Studies on Intellectual Property and Traditional Cultural Expressions . Technical assistance is also available to States wishing to establish national or regional systems.
WIPO has also worked with the International Trade Centre (a technical co-operation agency of the United Nations Conference on Trade and Development and the World Trade Organisation) to produce the practical guide Marketing Crafts and Visual Arts: The Role of Intellectual Property available from WIPO Electronic Bookshop .
Participation in the IGC
The IGC is open to Member States of WIPO. Other United Nations members, intergovernmental organisations and accredited non-governmental organisations ("NGOs") may participate as observers, and are regularly permitted to take the floor. Approximately 175 accredited NGOs take part in the IGC's discussions, a number of which represent the specific interests of indigenous communities and traditional knowledge holders. Currently Te Iwi Moriori Trust Board is the only New Zealand NGO to seek and obtain accreditation as an IGC observer.
The IGC has recently considered ways to enhance the participation of local and indigenous communities in its work. It was decided that a voluntary fund be established to assist indigenous participation at IGC meetings (subject to the continued existence of the IGC). While the practical aspects of such a fund are being worked through, it has been agreed by Member States that an informal consultative forum for indigenous and local representatives should be established, and that voluntary donors be encouraged to provide funding support to accredited observers.
States are also encouraged to include persons from indigenous and local communities as part of their delegations. New Zealand supports this practice.
WIPO Standing Committee on Patents and Working Group on Reform on the Patent Cooperation Treaty
Traditional knowledge issues are also being considered by the Standing Committee on Patents ("SCP") and the Working Group on Reform of the Patent Co-operation Treaty ("PCT").
In the SCP there is a Brazilian proposal to amend Article 2 of the draft Substantive Patent Law Treaty. Essentially the aim of the proposal is to ensure that nothing in the Substantive Patent Law Treaty will prevent a Contracting Party from making provision to meet what it considers to be its obligations under such international agreements as the Convention on Biological Diversity (see fact sheet 7). The intention is not to require all Contracting Parties to make such provisions, just to ensure that Contracting Parties are not prevented from making such provisions if they wish.
The PCT working group is considering a Swiss proposal to amend the PCT regulations so that national patent legislation may require the declaration of the source of genetic resources and associated traditional knowledge in patent applications.
New Zealand Position
Discussions in the IGC, and other WIPO bodies, about intellectual property and traditional knowledge have obvious relevance for New Zealand and Māori in particular.
New Zealand has been very supportive of the IGC's work and participates in this forum with the dual objectives of highlighting concerns expressed by Māori about intellectual property and mātauranga Māori, and obtaining information and experiences which can be discussed domestically.
As the work of WIPO in this area is at a preliminary or scoping stage New Zealand has not been called upon to take any position that would require it to alter domestic policy or legislation. It has expressed support for a bottom up approach involving the development of a menu of options for the protection of traditional knowledge which can be tested and adapted to national circumstances. New Zealand has also been supportive of discussions in the SCP and the PCT working group about patenting of biotechnological inventions and the identification of the origin of genetic resources and traditional knowledge.
Further information on WIPO and the treaties it administers can be found on its website WIPO - World Intellectual Property Organization . For more specific information on the IGC consult Traditional Knowledge which provides detailed information on WIPO's work on traditional knowledge including meeting agendas, papers, surveys, publications and other resources. The IGC has also established an Accredited Observers' Page .
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