01-Aug-2024
Written by: Aurore Deeb & Georges Saba
Traditional knowledge (“TK”), indigenous knowledge, local knowledge refers to knowledge systems embedded in the cultural tradition of regional, indigenous or local communities.
It includes types of knowledge about traditional technologies of areas such as without limitation, subsistence (tools, techniques for hunting …etc), midwifery, ethnobotany and ecological knowledge, traditional medicine.
As per genetic resources (“GR”), they are genetic material of actual or potential value, where genetic material means any material of plant, animal, microbial or other origin containing functional units of heredity.
For decade, indigenous people were fighting in order to protect their invaluable TK and GR which is essential for promoting biodiversity conservation, ensuring sustainable use, and safeguarding cultural heritage. Such protection not only prevents the exploitation and depletion of valuable genetic materials but also ensures that indigenous communities receive fair compensation for their contributions.
As a matter of fact, despite their crucial role in preserving biodiversity and enriching human understanding, indigenous communities often face exploitation and downgrading. Their TK and GR are frequently commercialized without acknowledgment or fair compensation, particularly in sectors like biotechnology, pharmaceuticals, and agriculture. This exploitation robs indigenous peoples of their ancestral heritage and economic opportunities, perpetuating cycles of injustice.
Lately, and after decades of negotiations, history was made on May 24, 2024, where member states of the World Intellectual Property Organization (“WIPO”) collectively approved a new treaty in the field of intellectual property (“IP”), GR and TK (the “Treaty”) providing a wide protection to GR and TK in comparison with previous treaties covering parts of GR or TK.
This historic Treaty is the first by WIPO to address the interface between intellectual property, GR, and TK, and it includes provisions specifically for indigenous peoples and local communities, as noted by Ambassador Guilherme de Aguiar Patriota.
GR have been the focus of various international treaties, however, such treaties did not offer a robust legal protection and suffered from many gaps which we will tackle herein;
- The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), for instance, establishes minimum standards for intellectual property rights across member countries but does not directly protect GR or TK. This gap can lead to the misappropriation of TK without proper recognition or benefit-sharing.
- Similarly, the International Treaty on Plant genetic resources for Food and Agriculture (ITPGRFA) concentrates on plant genetic resources for food and agriculture, promoting facilitated access and farmers' rights. Yet, it does not comprehensively protect TK and is limited to plant GR. Each of these treaties, while significant, leaves gaps in the protection of GR and TK, highlighting the need for a more inclusive and comprehensive legal framework.
- The Convention on Biological Diversity (CBD) emphasizes biodiversity conservation and equitable benefit-sharing, acknowledging the importance of TK held by Indigenous Peoples and local communities. However, it lacks specific mechanisms for protecting this knowledge under intellectual property laws.
- The Nagoya Protocol (NP), a supplementary agreement to the Convention on Biological Diversity (CBD), aims to provide a transparent legal framework for the fair and equitable sharing of benefits arising from the utilization of GR. It specifically addresses the issue of access and benefit-sharing, ensuring that benefits derived from the use of GR are shared with the countries and communities that provide them. However, like other treaties, the Nagoya Protocol has its limitations. It primarily focuses on access and benefit-sharing mechanisms but does not fully integrate intellectual property rights protections for TK associated with GR. This means that while it advances equitable sharing, it does not completely address the complexities of protecting TK through existing intellectual property laws.
Recognizing these gaps and the ongoing demands of Indigenous Peoples for recognition and protection of their rights, Colombia proposed a new treaty under WIPO in 1999 offering to:
(i) Safeguard Colombia's diverse species of fauna, flora, ecosystems, habitats, and ancestral knowledge.
(ii) To fill the gaps in the other treaties by establishing clear guidelines and legal protections at the intersection of intellectual property, GR, and TK.
From 1999 until May 2024, Colombia and Indigenous Peoples faced a long and challenging journey before WIPO member states approved the Treaty.
As we look ahead, the Treaty stands as a testament to the power of diplomacy and collective action in addressing pressing global challenges. With its implementation, we can expect to see positive changes in the way GR and TK are managed and protected, paving the way for a more just and inclusive future.
By acknowledging indigenous peoples' inherent rights to their knowledge and resources, the Treaty heralds a more inclusive approach to intellectual property governance. Through transparent disclosure requirements and mechanisms for equitable benefit-sharing, it aims to empower indigenous communities and ensure their active involvement in decisions impacting their lives and cultural heritage, as an attempt to fill the gaps of previous treaties setting the boundaries for protection and providing a more comprehensive procedure for protection.
According to the Treaty, GR and TK themselves cannot be directly protected as intellectual property, however, the innovations and inventions developed using them can be patented.
Broadly, where a claimed invention in a patent application is based on GR, each contracting party shall require applicants to disclose the country of origin or source of the GR.
Where the claimed invention in a patent application is based on TK associated with GR, each contracting party shall require applicants to disclose the Indigenous Peoples or local community, as applicable, who provided the TK.
However, if the required information is unknown, each state party shall request a statement from the applicant confirming their lack of knowledge and the truthfulness of the statement.
Additionally, the Treaty grants state parties the discretion to adopt legal, administrative, and/or political measures in case of non-compliance or fraudulent intent related to the disclosure requirement.
Nonetheless, there are several difficulties in putting the Treaty’s disclosure requirement into practice:
- It can be challenging to verify the accuracy of information that has been disclosed; it calls for significant resources and reliable procedures;
- Delays in the processing of patent applications and an increased administrative load on patent offices could result from this;
- Different legal systems and administrative capacities can make effective international cooperation difficult;
- Discretionary enforcement actions could lead to contradictions and possible legal problems;
- The additional requirements might be seen as obstacles to innovation, discouraging businesses and researchers;
- There are moral and legal obstacles when it comes to striking a balance between openness and the security of sensitive data, especially the rights of local communities and indigenous peoples; and
- Making sure that implementation is harmonized across diverse legal systems and practices poses a significant challenge.