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A new multilateral treaty takes root at WIPO to recognise traditional knowledge

12 May 2024
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A new multilateral treaty takes root at WIPO to recognise traditional knowledge

View of WIPO's main building from the Place des Nations. Over 1,000 delegates will attend talks on genetic resources and associated traditional knowledge from 13-24 May.(WIPO/Emmanuel Berrod)



A new multilateral treaty takes root at WIPO to recognise traditional knowledge

By Kasmira Jefford

In Geneva, a multilateral treaty is taking shape. If agreed upon, it would be the first time the intellectual property sector crafts a deal around the concerns of biodiverse-rich developing countries and Indigenous peoples.

In the tropical forests of the Amazon basin, a small unassuming tree with dark green leaves and green fruit has been used by generations of Indigenous Amazonian peoples for its special medicinal powers. Its bark and branches are broken up and mixed with Brazilian sugarcane liquor to create a “nerve tonic” that’s used to treat illnesses, from depression to anxiety to strokes or even sexual impotence.

Known by many names, including mirantã, this genetic resource has made its way into patented products on the market today, several with striking resemblances in their uses to traditional peoples’ medicine. There are even enough links to suggest this knowledge may have been drawn on to create some of these not-so-new inventions, a study by Brazilian academics, published by Geneva-based NGO South Centre, has shown.

“There is a kind of appropriation (in the intellectual property system), and it is subtle and difficult to detect, but it’s there,” Marcos Vinício Chein Feres, a law professor at the Federal University of Juiz de Fora in Brazil and author of the study, told Geneva Solutions.

Chein Feres has spent 10 years researching different plants used by Indigenous communities in his country and examining how they feature in inventions filed in the international patent system.

He found that companies or researchers can easily claim traditional knowledge associated with natural genetic resources, repeating an all too familiar pattern of colonial behaviour. “What’s worse is you can make it exclusively yours and impede others from using it.”

His concerns are not new to the intellectual property industry. For the last 25 years, members of the World Intellectual Property Organization (WIPO), led by developing countries, have been pushing for more transparency and recognition of traditional knowledge and cultural expressions that are linked to the use of genetic resources.

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Those discussions are finally edging closer to the finish line. Around 1,200 negotiators, lawyers, Indigenous representatives and civil society groups will gather at the UN body’s headquarters in Geneva from 13 to 24 May to finalise the so-called instrument on intellectual property, genetic resources and associated traditional knowledge.

Under the proposed agreement, likely to take the form of a treaty, disclosing information about the origin of the genetic resources and whether the invention relied on traditional knowledge would become a legal requirement for anyone filing a new patent application.

Though limited in scope, observers say it’s a milestone step for an industry that has been slow to adapt to the wave of environmental and social changes of the last two decades.

While the Convention on Biological Diversity, adopted in Rio in 1992, and the Nagoya Protocol in 2010 put in place a framework for the first time for countries to fairly share the benefits of the natural world and its genetic resources – also recognising that countries have sovereign rights over those natural resources –, observers felt that intellectual property system was slow to catch on.

Viviana Muñoz, coordinator of the health, intellectual property and biodiversity programme at the South Centre, told Geneva Solutions: “There was a sense of unfairness that it was easier to appropriate these resources, create new products and then have patents that would allow exclusive control as well as royalties gained from them without necessarily helping or sharing benefits with those that were involved.”

The tortoise and the hare

An intergovernmental committee was created in 2000 to hold discussions on the thorny issue, but it wasn’t until 2012 that WIPO member states launched formal negotiations to develop some form of agreement.

Even then, negotiations have struggled to gather momentum, which insiders blame on a lack of political will and the usual trappings of multilateral processes, with member states failing to reach a consensus on key issues.  Among these, some countries claim that new disclosure rules could hamper innovation and prove costly and burdensome for the research and development sector, with the United States and Japan among the main opponents to an agreement.

The tortoise-pace talks, further slowed down by Covid-19, were finally given a jump-start in 2022 when the African group of countries pulled off a diplomatic feat by tabling a proposal for a diplomatic conference to be held the following year to help fast-track discussions towards a treaty. The proposal was approved and while Japan and the US did not block consensus, they disassociated themselves from the decision.

A treaty in sight

Wend Wendland, director of traditional Knowledge, genetic resources, and traditional cultural expressions at WIPO, said a potential treaty, though slow to take shape, would be one of many firsts.

“Many consider that it would be the first intellectual property treaty or convention to explicitly address concerns of biodiverse-rich developing countries and Indigenous Peoples at the interface of the patent system and genetic resources and associated traditional knowledge,” he told Geneva Solutions.

In contrast to TRIPS, the most famous intellectual property multilateral agreement – this instrument has been penned by developing countries instead of being the recipients of Western-led rules.

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It would also be the first time Indigenous peoples have participated, even as observers, in the development of an intellectual property treaty or convention, he added.  A voluntary fund set up by WIPO in 2005 provides finance for Indigenous representatives to attend the conference.

Among the hurdles left to clear is setting the terms of the sanctions that patent applicants would face for failing to disclose information. Some member states want the penalty for deliberately breaking the rules, which would see their patent revoked, to be a maximum punishment that countries that adopt the treaty could give, while others have been pushing for it be a minimum, meaning that they could take further action in their national laws.

With a deal in sight, a treaty, if adopted, could open the door for a second agreement already in the works, with discussions planned for later this year, that would have a greater impact in directly protecting traditional knowledge, says Muñoz.

“This treaty is more about the symbolism, or the fact that there's a recognition of the value of associated traditional knowledge. And, in a way, recognising that countries do have the authority to regulate over their genetic resources.”




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