Traditional Knowledge on the agenda for 2024

From a long-awaited WIPO Diplomatic Conference, to the debates about the Traditional Knowledge Bill in India, and the release of new guidelines on the use of traditional knowledge in Australia, this year may prove the busiest yet for the relationship between intellectual property and traditional knowledge.

This Big Kat is thinking about
the big issues for IP in the coming year.
Image from Jose Almeida via Pexels

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC) defines traditional knowledge as including the "knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity."

WIPO Diplomatic Conference

In a few months, the Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge will take place in Geneva to conclude the final stage of negotiations before the adoption of an international legal instrument.

It has been a long road to a Diplomatic Conference. The WIPO IGC was established in 2000. The early years focused on investigating and analysing national experiences to understand the relationship between IP and genetic resources, traditional knowledge and traditional cultural expressions. It was not until 2009 that the IGC received a mandate for text-based negotiations. 

The Diplomatic Conference in 2024 will focus on a narrow "Basic Proposal" (see the full text and the executive summary). This was largely prepared by a former chair of the IGC under his own responsibility in 2019. A key aspect of the Basic Proposal is an international disclosure requirement for patent applications (Article 3):

• For inventions based on genetic resources, applicants would be required to disclose the country of origin, or if that is unknown, the source of the genetic resources.
• Likewise, for inventions based on traditional knowledge associated with genetic resources, the applicant must disclose the Indigenous peoples or local community that provided the knowledge, or if the origin is unknown, the source of the knowledge.

The provision would not be retroactive (Article 5). Although parties will be required to impose sanctions or remedies for failure to comply with the provision, the consequences cannot include revoking or rendering the patent unenforceable solely on the basis of a failure to disclose (Article 6).

The text was not always so narrowly focused on patents. Earlier texts also covered plant variety rights, and indeed, India has suggested amendments to replace the word "patent" with "intellectual property" to broaden the scope of the disclosure requirement.

Traditional Knowledge Protection Bill in India

While WIPO focuses on patents, many countries have been looking beyond the IP system entirely to address the concerns about traditional knowledge. There is continued discussion in India of the Protection of Traditional Knowledge Bill 2022. This private bill was introduced by Shashi Tharoor MP and was drafted by RS Praveen Raj, who is the Principal Scientist-IP Management and Technology Transfer at CSIR-NIIST. 

The Bill would vest ownership of traditional knowledge with the appropriate government of the territory where it is practiced (a suggestion that has received some criticism), and then allows for "knowledge societies" to apply to the government to be recognised as custodians of the knowledge. The knowledge societies would have the right to authorise, deny or revoke, the access to and utilisation of traditional knowledge by non-members. If they give their informed consent for a non-member to use the knowledge, the knowledge societies have the right to a fair and equitable share of benefit, whether in monetary or nonmonetary terms, arising from the utilisation of traditional knowledge. It also states that:

No patents or any other form of intellectual property protection shall be granted or applied for by any person, within India or abroad, on any traditional knowledge or aggregation thereof, on any traditional knowledge obtained or derived from India, whether in the custody of the knowledge society or in public domain.

New Guidelines in Queensland, Australia

A Kat is still bound by the traditional knowledge
obligation, even if she learned it from a book.
Image from Pixabay.

Meanwhile, last month saw the release of new Guidelines (published here) for using publicly accessible traditional knowledge in the state of Queensland, Australia. 

For twenty years, Queensland has had an "access and benefit sharing" framework under the Biodiscovery Act 2004, which regulates the collection and analysis of native biological material for commercial purposes, such as the development of pharmaceuticals and insecticides. However, it was not until some major reforms in 2020 that the law extended to Indigenous lands and traditional knowledge (this Kat previously wrote about these reforms here). Since then, the state government has released a code of practice and guidelines to provide best practice advice on complying with the so-called "traditional knowledge obligation." 

The latest guidelines address the situation where researchers wish to use traditional knowledge for biodiscovery, but the custodians of the traditional knowledge cannot be identified (for example, if traditional knowledge about plants was published in a 19th century book without indicating which Indigenous community provided it, and due diligence did not reveal who the custodians are). Since they cannot identify who should be party to a benefit-sharing agreement, the guidelines state that biodiscovery projects which generate monetary benefits above a minimum threshold must instead provide funds to build the capacity of Indigenous peoples (whether a specific community or Indigenous peoples generally), and encourages them to fund capacity-building initiatives that would enable Indigenous peoples to lead or participate in biodiscovery projects.

Comments

The idea of disclosure requirements in patent applications has been around for a long time and has already been adopted in many countries. Although the WIPO Basic Proposal is not a very radical text (especially compared to the discussions in India and Australia), this Kat wonders if it’s a bad omen that no country stepped forward to host the Diplomatic Conference and so, by default, the Conference will be hosted at the WIPO Headquarters in Geneva. 

However, after so many years of slow progress and ample criticism of the IGC, it is promising to see some movement towards a substantive instrument. It will be interesting to see how the outcome in May 2024 shapes the conversation about intellectual property and traditional knowledge going forward.