Andrés Izquierdo

The last WIPO-IGC discussions focused on the beneficiaries and the role of nation-states and other entities regarding TK/TCEs. The main results included broadening the definition of beneficiaries, including a proposed Chair’s TK/TCE text to advance progress on the negotiations – the Zero Draft, and the newly created small contact groups. The Session also included additional facilitators’ text proposals, and an ad hoc expert group report.

At its Forty-Fifth Session, which took place from December 5th to 9th, 2022, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) met to continue discussions on the draft articles on Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE). Statements and discussions touched on many of the main agenda items for the meeting, including discussions on the beneficiaries, and the role of nation-states and other entities regarding TK/TCEs. The Session also included a proposed Chair’s TK/TCE text to advance progress on TK/TCE negotiations – the Zero Draft, and an ad hoc expert group report on TK and TCE elaborated by Mr. Anthony Kakooza (Associate Professor of Law, Uganda Christian University, Uganda) and Ms. Edwina Lewis (Director of Policy and International Affairs, IP Australia, Australia). 

This post will report mainly on the discussions, and the work of the small groups on the beneficiaries during the IGC/45. At the end of the post, the reader will find the related articles with the main changes proposed by the facilitator, as well as some closing remarks by the WIPO Group Coordinators.  

  1. Continued discussions on Beneficiaries and related roles 

Many delegations pointed out the need for a broader definition of beneficiaries, while few requested a more restrictive approach. China is of the view “that other beneficiaries who developed, held, used and maintained relevant TK and she should be protected as well”. Brazil also prefers a “Broader definition of beneficiaries … the idea is to be as inclusive as possible, in order to include as many communities that produce those cultural goods…”

Indonesia expressed their will to have a more open and flexible document as “indigenous people and local communities are the main beneficiaries of these two in draft instruments, but we shall not forget that the objective is to protect Traditional Knowledge and Traditional Cultural expression, so we want to be very cautious here. If we are too obsessive in just limiting ourselves to the indigenous people and local communities, there would be other traditional knowledge and traditional cultural expressions that are not held by indigenous people in local communities who will fall out of the scope of protection under these two draft instruments … if we limit that the eligibility criteria, the protectable subject matter will be only those that are held by indigenous people in local communities, then Indonesia will lose a lot of TK and TCEs”

Iran supported the position of Indonesia as “the main beneficiaries of this instrument are indigenous and local communities … we are of the view that it is pertinent to address the role of other beneficiaries inclusively in accordance with the subject matter.” Lebanon expressed they “prefer to use protocols” with respect to the protection criteria and eligibility criteria. Nigeria also supported a more broad definition of beneficiaries as “local communities is something we should really take into consideration, even though not defined, the origin of this goes to international conservation regimes like CBD, particularly, and then Nagoya Protocol”. 

Cuba’s comment was to have “greater flexibility to be given to states in determining the way in which they are going to afford protection. What we mean by protection criteria or protection beneficiaries, we need to have a clear definition of what we are talking about.”

The United Kingdom expressed the need to have more precise terms and definitions, as “A legal instrument or instruments the Committee is tasked with drafting are intended to protect Traditional Knowledge and Traditional Cultural Expressions, we should avoid any suggestion, terms or phrases that could expand the scope to cover other subjects matters”.

The United States questioned the use of the term local communities. “[W]e suggest bracketing this term, this term we believe is broad and undefined in the text, and we would welcome an explanation of its relevance to our negotiations at this point in time. We are concerned that this term that the term other entities as may be determined under national law might include beneficiaries of knowledge and they are not specifically attributable to a particular community.”

Australia was of the view of a more open view of beneficiaries. “[W]e would be open to consider other beneficiaries where it is clear that the subject matter or the eligibility criteria relates specifically to traditional knowledge, or traditional cultural expressions as set out in the relevant Article in this case… also reflecting on the comments made from our colleague from Indonesia yesterday.”

China was also open to a more inclusive approach as “our view is that the holding of TK is very varied, the definition of beneficiaries should take into consideration different situations in different countries. Therefore, ethnicity should be considered. We also support the flexibility given on defining beneficiaries in accordance with the thematic. Meanwhile, we believe that the facilitators’ alternative can be the basis for coming discussion.”

Japan is of another perspective, as “this delegation is of the view that extending beneficiaries beyond Indigenous Peoples and Local Communities would be the unlimited expansion of the scope of TK, TCEs to be protected. In this regard, while we appreciate the explanation from some Member States regarding the necessity of including other entities of beneficiaries, it would be better to have a certain objective criteria or guiding principles as to who can be the beneficiaries in what circumstances. “

Speaking on behalf of CEBS, Slovakia is looking to clarify more the scope and definitions, as they “have problems to support this 3.2 paragraph as it extends the protection to other beneficiaries and we would like to clarify in 3.2 the term relevant “subject matter””.

  1. Small Contact Group Format of discussions on Beneficiaries 

Several Delegations participated in two small group discussions on days 2 and 3 of the IGC. The meetings allowed the delegates to elaborate on their positions, taking into account their national circumstances and critical areas of concern while allowing direct exchanges on advancing technical issues. 

During the initial discussions, the meeting arrived at four issues for further discussion. First, whether the current text is sufficient or sufficiently covers peoples and their rights over TK, TCE, to achieve legal consistency; second, whether the concept of beneficiaries should be reflected in other parts of the documents, such as the objectives and scope of protection; third, whether the current common understanding of rights holders/other beneficiaries can include peoples who hold rights but who primarily are not after recognition of economic rights under the proposed text on TK, TCE; and fourth, whether other United Nations texts have a textual reference, definitions as to IPLC or other beneficiaries, over these terms and those people or beneficiaries who do not strictly fall under the common understanding of IPLC. 

For example, there was an emerging question that needs to be addressed “as to who are actual beneficiaries covered under this Article based on a common or legal understanding or even based on relevant UN documents if there are any applicable ones. Also, some Delegations conveyed that the term beneficiaries may have to be elaborated or enriched using other terms, while protection of TK, TCEs being considered, there is also the concern that rights, other than those state economic rights, should also have recognition or even primacy reflected in the objectives and scope of protection articles”, as reported by the IGC Vice Chair. 

Also, there is a clear need to clarify who is benefiting or securing protection for TK, TCE, and to include protection and recognition for rights which may be infringed upon or violated, not necessarily pursuant to economic or commercial purposes. As stated by the IGC Vice Chair “[s]ome Delegates also feel citing their national experience that certain groups or peoples do not fall under the current understanding of IPLC’s for which they feel their rights would not be protected or even recognized.”

During the third day meeting, some Delegations flagged the introduction of new concepts, such as States when the Article mainly covers IPLCs. “Should these States be treated as a beneficiary, what would happen to the IPs who are the primary subject of the protection and the benefits? Some delegates acknowledge, however, the role of the government as holders of TK and TCE to secure a commercial agreement, for example, with a foreign company that benefited the LDC. Others see the need to strike a balance and to rightfully cover certain IP’s that are not recognized at the moment, which goes into the discussion of the definition of “and distinction between IPs and LCs”. 

Indonesia was active during the discussions and expressed its support for the ongoing conversations. “[W]e have started to discuss at least two points that Indonesia has been trying to put forward within this Session of the IGC. First of all, this discussion on beneficiaries is closely related to some other articles, especially now that we have the facilitators’ text on objective and scope of protection that touch upon Indigenous Peoples in local communities and other Articles.” Their second point is the recognition stipulated within the preamble of both TK and TCE texts, “that the situation of Indigenous Peoples and Local Communities varies from region to region and from country to country. And that the significance of national and regional particularities and further historical and cultural background should be taken into consideration.”

In additional subjects, some delegates believed that the parties need to agree on the scope of LDCs; some noted that the document as a whole would benefit from a recasting or reformulation to align Articles for consistency; and there is an ongoing discussion of the role of nation-states on TK’s and TCE’s negotiations. 

  1. Amended articles proposed by the facilitator

In this section, the reader will find three amended WIPO IGC TCE Draft articles proposed by the facilitator on Protection/Eligibility Criteria, Beneficiaries, and Scope of Protection/Safeguarding (New text on YELLOW – text eliminated Eg: text eliminated – other articles not included in this post): 

[ARTICLE 3

PROTECTION CRITERIA/ELIGIBILITY CRITERIA

3.1 Protection shall be extended under this instrument to traditional cultural expressions, which are:

(a) created, generated, received by, or revealed to, indigenous [peoples], local communities and developed, held, used, and maintained collectively by them [in accordance with their customary laws and protocols];

(b) linked with, and is an integral part of, the cultural and social identity and traditional heritage of indigenous peoples, local communities; and

(c)[may be] transmitted within a generation or between or from generation to generation, whether consecutively or not.   

[3.2  A Member State/Contracting Party may, under its national law, specify additional criteria for protection for traditional cultural expressions that are linked with, and is an integral part of, the cultural and social identity and heritage of a nation or group within their jurisdiction.] , recognize protection for other beneficiaries who have created relevant subject matter.

[ARTICLE 4 BENEFICIARIES

[Alt 1

The beneficiaries of this instrument are indigenous peoples, local communities, and other beneficiaries,7 as may be determined under national law.]

[Alt 2

Beneficiaries of protection under this instrument are indigenous [peoples] and local communities who hold, express, create, maintain, use, and develop traditional cultural expressions.]

[Alt 3

The beneficiaries of this instrument are indigenous [peoples], local communities, and other beneficiaries, [such as states [and/or nations]], as may be determined under national law.]

Facilitators’ Alternative

4.1 The beneficiaries under this instrument are:

(a) indigenous peoples and local communities, and

(b) where applicable and as determined under national law, other entities right holders of traditional cultural expressions meeting the criteria set out in Article 3 ,as determined under national law.]

4.2 Member States/Contracting Parties may provide for national authorities to have a role in the administration of benefits relating to the implementation of this instrument in accordance with national law.

Given the extensive discussions on the previous topics, other articles in the draft texts such as exceptions and limitations, term of protection/safeguarding, formalities, relationship with [other] international agreements, national treatment, and transboundary cooperation did not have extensive discussions by the member states or obververs. 

[ARTICLE 5

SCOPE OF [PROTECTION]/[SAFEGUARDING]

[Facilitators’ Alternative

Member States/Contracting Parties shall take legislative, administrative and/or policy measures, as appropriate and in accordance with national law in a reasonable and balanced manner, to provide that:

(a) Where, with reference to the customary laws or practices of indigenous peoples, local communities, or beneficiaries, access to traditional cultural expressions is restricted or the traditional cultural expressions are closely held, including where the traditional cultural expressions are secret or sacred, beneficiaries have exclusive collective rights:

i. to maintain, control, use, develop, authorize or prevent access to and use/utilization of their traditional cultural expressions; and receive a fair and equitable share of benefits arising from their use; and

ii. of attribution and the right to the use of their traditional cultural expressions in a manner that respects the integrity of such traditional cultural expressions.

(b) Where, with reference to the customary laws and practices of indigenous [peoples], local communities or beneficiaries, the traditional cultural expressions are not restricted accessed or closely held, beneficiaries are to:

  1. receive a fair and equitable share of benefits arising from its use; and
  2. have the right of attribution and the right to the use of their traditional

cultural expressions in a manner that respects the integrity of such traditional cultural expressions.

(c) In other cases where it appears that a traditional cultural expression will be used, but it is unclear if it is associated with a particular indigenous peoples, local community or beneficiary

  • (i)  before the traditional cultural expression is used, an attempt should be made to determine whether there are indigenous peoples, local communities or beneficiaries who are able to speak for that traditional cultural expression, and
  • (ii)  if identified, consultation should occur with those indigenous peoples, local communities or beneficiaries.]

[Alt 1

5.1 [Member States]/[Contracting Parties] [should]/[shall] safeguard the economic and moral interests of the beneficiaries concerning their traditional cultural expressions, as defined in this [instrument], as appropriate and in accordance with national law, [taking into consideration exceptions and limitations, as defined in Article 7,] in a reasonable and balanced manner.

5.2 Protection under this instrument does not extend to traditional cultural expressions that are widely known or used outside the community of the beneficiaries as defined in this [instrument], [for a reasonable period of time], in the public domain, or protected by an intellectual property right.]

[Alt 2

5.1 Member States [should/shall] take legislative, administrative and/or policy measures, as appropriate, in accordance with national law, in a reasonable and balanced manner, and in a manner consistent with Article 14, with the aim of ensuring that:

(a) Where with reference to the customary laws and practices of indigenous [peoples] and local communities/beneficiaries, access to traditional cultural expressions is restricted, including where the traditional cultural expressions are secret or sacred:

i.iii. Beneficiaries have the exclusive and collective right to maintain, control, use, develop, authorize or prevent access to and use/utilization of their traditional cultural expressions; and receive a fair and equitable share of benefits arising from their use.

ii.iv. Beneficiaries have the moral right of attribution and the moral right to the use of their traditional cultural expressions in a manner that respects the integrity of such traditional cultural expressions.

(b) Where with reference to the customary laws and practices of indigenous [peoples] and local communities/beneficiaries, the traditional cultural expressions are no longer under the exclusive control of beneficiaries, but are still distinctively associated with the beneficiaries’ cultural identity:

i.iii. Beneficiaries receive a fair and equitable share of benefits arising from their use; and

ii.iv. Beneficiaries have the moral right of attribution and the right to the use of their traditional cultural expressions in a manner that respects the integrity of such traditional cultural expressions.

5.2 [For traditional cultural expressions that are being utilized without the prior informed consent and/or not in accord with customary laws and practices of indigenous [peoples] and local communities, indigenous [peoples] and local communities or other beneficiaries, as applicable, shall have the possibility to request from the relevant national authorities protection provided for in paragraph 5.1(a), taking into account all relevant circumstances, such as: historical facts, indigenous and customary laws, national and international laws, and evidence of cultural harms that could result from such unauthorized utilization.]]

[Alt 3

Facilitators’ Rev. – TCE page 13

5.1 Where the traditional cultural expression is [sacred], [secret] or [otherwise known only] [closely held] within indigenous [peoples] or local communities, Member States should/shall:

(a) provide legal, policy and/or administrative measures, as appropriate and in accordance with national law that allow beneficiaries to:

i. [create,] maintain, control and develop said traditional cultural expressions;

ii. [discourage] prevent the unauthorized disclosure and fixation and prevent the unlawful use of secret traditional cultural expressions;

iii. [authorize or deny the access to and use/[utilization] of said traditional cultural expressions based on free, prior and informed consent or approval and involvement and mutually agreed terms;]

iv. protect against any [false or misleading] uses of traditional cultural expressions, in relation to goods and services, that suggest endorsement by or linkage with the beneficiaries; and

v. [prevent] prohibit use or modification which distorts or mutilates a traditional cultural expression or that otherwise diminishes its cultural significance to the beneficiary.

(b) encourage users [to]:

  1. attribute said traditional cultural expressions to the beneficiaries;
  2. use best efforts to enter into an agreement with the beneficiaries to establish terms of use of the traditional cultural expressions]; and
  3. iii. use/utilize the knowledge in a manner that respects the cultural norms and practices of the beneficiaries as well as the [inalienable, indivisible and imprescriptible] nature of the moral rights associated with the traditional cultural expressions.

5.2 [Where the traditional cultural  expression is [still] [held], [maintained], used [and]/[or] developed by indigenous [peoples] or local communities, and is/are publicly available [but neither widely known, [sacred], nor [secret]], Member States should/shall encourage that users]/[provide legal, policy and/or administrative measures, as appropriate and in accordance with national law to encourage users [to]]:

(a) attribute and acknowledge the beneficiaries as the source of the traditional cultural expressions, unless the beneficiaries decide otherwise, or the traditional cultural expressions is not attributable to a specific indigenous people or local community[; and][.]

(b) use best efforts to enter into an agreement with the beneficiaries to establish terms of use of the traditional cultural expressions;

(c) [use/utilize the knowledge in a manner that respects the cultural norms and practices of the beneficiaries as well as the [inalienable, indivisible and imprescriptible] nature of the moral rights associated with the traditional cultural expressions[; and][.]]

(d) [refrain from any [false or misleading uses] of traditional cultural expressions, in relation to goods and services, that suggest endorsement by or linkage with the beneficiaries.]

5.3 [Where the traditional cultural expressions is/are [publicly available, widely known [and in the public domain]] [not covered under Paragraphs 1 or 2], [and]/or protected under national law, Member States should/shall encourage users of said traditional cultural expressions [to], in accordance with national law:

(a) attribute said traditional cultural expressions to the beneficiaries;

(b) use/utilize the knowledge in a manner that respects the cultural norms and practices of the beneficiary [as well as the [inalienable, indivisible and imprescriptible] nature of the moral rights associated with the traditional cultural expressions;

(c) [protect against any [false or misleading] uses of traditional cultural expressions, in relation to goods and services, that suggest endorsement by or linkage with the beneficiaries[;]] [and]

(d) where applicable, deposit any user fee into the fund constituted by such Member State.]]]

  1. What is next? 

The new IGC Chair, Ms. Lillyclair Bellamy (Jamaica), proposed a Chair’s TK/TCE text to advance progress on TK/TCE negotiations – the Zero Draft. As stated by the Chair, “until now, the IGC has focused its discussion on objectives, subject matter, beneficiaries, the scope of protection, limitations, and exceptions, and sanctions and remedies.” The proposed draft text only addresses the mentioned issues. In view of the Chair, an international legal instrument on TK/TCEs should not be overly detailed and prescriptive. Future drafts of this text would aim to be less rather than more detailed. As suggested by Dr. Chidi Oguamanam, “This decision, which did not come as a surprise to delegates, has potential to replicate Goss’ experience of the Chair’s GR text based on which the 2024 Diplomatic Conference is being convened… Chair’s text is a pragmatic strategy to break deadlocks and advance the Committee’s work.” No decision was taken on the Zero draft text. Most surely, the second version of the Zero Draft will feed from the suggestions and mediations advanced by the IGC facilitators. 

Although the Zero text was not discussed during the IGC45, the end of the Session had mixed feelings about the outcomes achieved, with some delegations expressing hope for the Zero text proposed by the Chair.  

The African Group, while recognizing the richness of the discussions and the willingness of some Delegations to seek compromise solutions to move forward in the negotiations toward the outcome, they remained unsure about the advancement of the negotiations on TK and TCEs. “However, the African Group remains frustrated with the current negotiation process in IGC, which has now lasted for two decades. We believe that the Committee should explore new ideas to breadth new life into the negotiations and avoid the current Vice-Circon of increasing alternatives and bracketed paragraphs in contrast with the mandate agreed by Member States. In this regard, we express our appreciation to you for your efforts to overcome the stalemate and the negotiations by developing a text of the draft international legal instrument relating to IP, TK and TCEs. We look forward to the revised version of the Chair’s text based on the discussions”.

On behalf of GLULAC, Uruguay noted their trust in the Zero Draft proposed by the Chair: “I think this Session on TK and TCE has been productive, not very productive, but a sufficient degree of productivity. As our colleague from Algeria, whose work we recognize and whom we will miss as coordinator of the African Group, as he has said, that a lot remains to be done, there is a certain amount of frustration, however, we must recognize the flexibility of some Delegations which have allowed us to achieve these two documents before us as introduced by the facilitators subsequent to the meetings of the contact group, we also trust that Draft One, that is the natural follower to draft zero provided by the Chair, as may serve to bridge the gaps between the two documents we have been reviewing as prepared by the facilitators”.

Switzerland, acting on behalf of Group B, did not criticize the process nor mention the Zero draft but welcomed the small group format used to advance the negotiations on the topics addressed in this post. ¨Group B welcomes the small group format of the ad hoc committee. This format proved productive in allowing direct exchanges among Delegations on advancing technical issues. In this context, we would like to thank other regional groups and their Delegations for the good spirit of cooperation and Group B encourages continued recourse to this small group format to make progress on the draft Articles regarding the protection of TK and TCEs.¨

Meanwhile, Slovakia, on behalf of CEBS, expressed: “In our view, some positions during this week have been narrowed, but still serious discussions have to be undertaken about the key issues at the further IGC meetings. We would like to once again reconfirm the CEBS group commitment to constructive dialogue within the IGC process”.

The last WIPO-IGC discussions focused on the beneficiaries and the role of nation-states and other entities regarding TK/TCEs, with the result of broadening the definition of beneficiaries. The IGC/45 session also included a proposed Chair’s TK/TCE Zero Draft text that could replicate Goss’ experience of the Chair’s GR text based on which the 2024 Diplomatic Conference is being convened. Given that the IGC negotiations have lasted over two decades, a mix of the work developed by the facilitators, the negotiations advanced within the small contact groups, plus the Chair’s Zero Draft, might be the way to move forward into more concrete results during the upcoming IGC/46 meeting.