Traditional knowledge and traditional cultural expressions

[Traditional Knowledge]

Statement at the 11th Session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore http://www.wipo.int/tk/en/

9 July 2007
Victoria Tauli-Corpuz
Chair, UN Permanent Forum on Indigenous Issues

Mr. Chairman, since this is the first time that I took the floor in my capacity as the Chair of the UN Permanent Forum on Indigenous Issues, I would like to congratulate you in your election and for being so effective in steering this session. I was not present the whole time last week but my colleagues from the indigenous caucus and the NGOs updated me on what has happened so far.

Traditional knowledge and traditional cultural expressions are issues closely being monitored by the UN Permanent Forum on Indigenous Issues, firstly because it is a vital concern of indigenous peoples and it has been consistently raised by indigenous representatives during the sessions of the Forum.

Secondly, it is an issue that cuts across the mandates, policies and programs of the many UN bodies and as of the last count we have seen that there are 11 UN bodies, agencies and funds dealing with this issue.

Thirdly, misappropriation and misuse continues not only at the national level but transnationally and governments and indigenous peoples and local communities are still largely incapable of stopping this. Fourthly, the erosion of traditional knowledge and TCEs mainly because violations of indigenous peoples’ basic rights and fundamental freedoms are still unabated.

The Permanent Forum expresses it appreciation to this Intergovernmental Committee and the Secretariat for the work it has been doing in on this issue. The fact-finding missions held, the researches done and the extensive documents produced, undoubtedly, are important contributions which provide more clarifications on the debates on these complex issues.

The Revised Outline of Policy Options and Legal Mechanisms and the Draft Objectives and Principles the for the protection of TK, TCEs and Folklore which emerged from this body and which are the subjects of discussion in the past sessions including this one has shown how far you have gone. I also would like to acknowledge the efforts WIPO has taken to ensure the active participation of indigenous representatives in this body which has been helped with the establishment of the Voluntary Fund.

Another important contribution of WIPO is the active engagement of some members of the WIPO secretariat with the Forum and the Inter-agency Support Group on Indigenous Issues (IASG).

The UN Permanent Forum on Indigenous Issues is a subsidiary body of the ECOSOC established through Resolution E/Res/2000/22 which is mandated to “provide expert advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations, through the Council”. I would like to briefly report what the Forum has done to address traditional knowledge. But before I go into this, I would like to apologize for our weaknesses in providing comments on the materials you have come up with. The Secretariat has provided some but I still think the experts of the Forum should be able to send in their own. We will try to rectify in the future. For this session, aside from reporting on what the Forum has done so far, I would also like to present some ideas on the ways forward.

As early as its first session, in 2002, the Forum already made a recommendation that the various UN agencies, including WIPO, conduct workshops to establish the linkages between cultural diversity and biological diversity, ecosystem approaches and collaboration between scientific and traditional knowledge; to evaluate the intellectual property regime; to consider elaborating a sui generis system for the protection of indigenous bio-cultural heritage, genetic resources and traditional knowledge; and to identify a support system for indigenous peoples to develop and consolidate their own policies and principles for the protection of biological resources, traditional knowledge, innovations and creativity, including modes of access and benefit-sharing, with the free and prior informed consent of indigenous peoples and local communities. (para 29, E/2002/43/Rev.1 and E/CN.19/2002/3/Rev.1)

At its second session, the Forum recommended that WIPO undertake a study, in collaboration with Forum members, on the use of indigenous knowledge relating to medicinal plants and resources, the commercialization of such knowledge and how indigenous communities are benefiting from such commercialization (Para. 59, E/2003/43 and E/C.19/2003/22). It also recommended that the WIPO continues to cooperate, where relevant, with other organizations and agencies within the United Nations system, such as the secretariat of the Convention on Biological Diversity, the United Nations Environment Programme, the Office of the United Nations High Commissioner for Human Rights, the Food and Agriculture Organization of the United Nations and the United Nations Educational, Scientific and Cultural Organization (para. 96).

The Forum recommended at its 3rd Session that, under the auspices of the Forum and in partnership with the Convention on Biological Diversity and the Office of the United Nations High Commissioner for Human Rights, indigenous peoples, states and other stakeholders, WIPO develops guidelines, ethical codes of conduct, best practices and practical guides relating to intellectual property issues and the access to and use of traditional cultural expressions and knowledge by, among others, commercial users, ethnologists, folklorists and anthropologists, and museums and archives (para 37.c: E/2004/43 and E/C.19/2004/23).

In its 4th Session it recommended that an “International Technical Workshop on Indigenous Traditional Knowledge” will be held and this was done in Panama City from 21-23 September 2005. The objectives of this workshop were to: identify indigenous perspectives and experiences with indigenous traditional knowledge issues at the local, national and international levels; gain a better understanding of the various methodologies, programmes and activities of the United Nations system and other intergovernmental organizations and agencies relating to indigenous traditional knowledge; and formulate recommendations for the Permanent Forum aimed at promoting collaborative, complementary and wholistic approaches to indigenous traditional knowledge in order to enhance better understanding of indigenous peoples’ concerns and possible solutions. The representative of the WIPO Secretariat, Wend Wendland, was the rapporteur of this workshop. The report of this workshop is available in Document E/C.19/2006/2.

It was mentioned earlier that 11 UN bodies, agencies and funds are dealing with various aspects of traditional knowledge and traditional cultural expressions and these range from norm-setting to capacity-building activities. Indigenous experts expressed their difficulties with the fact that all these different entities work with this issue within their own specific mandates which therefore inevitably leads to compartmentalization and reductionist approaches in handling traditional knowledge and TCEs which are integral parts of indigenous cultures and livelihoods.

The Workshop stressed that it is crucial that indigenous peoples’ engagement should be facilitated in these various bodies as some processes can lead to the development of standards and undertake technical assistance or capacity-building activities which can undermine the gains achieved in other processes in the national, regional and international levels. The Permanent Forum was urged to play a key role in coordinating indigenous issues within the United Nations system and contribute by transmitting indigenous perspectives and concerns, doing its own research, and providing expert advice and substantive comments to the rest of the UN system and other intergovernmental bodies. At its Fifth Session it recommended that an expert report be prepared by Mr. Michael Dodson on customary laws pertaining to indigenous traditional knowledge be done. This was in response to a recommendation of the International Workshop in Panama.

During it 6th Session which was held from 14-25 May 2007, Mr. Michael Dodson presented his report which looked into what extent customary laws should be reflected in international and national standards addressing traditional knowledge. He also did an analysis of indigenous customary law as potential sui generis system for protection of this knowledge. The report can be found in Document E/C.19/2007/10. Let me highlight some points raised in his report which can inform the debate going on in this IGC session.

The Rapporteur identified the international instruments already existing which recognize the rights of indigenous peoples to protect and enjoy their traditional knowledge and these include, among others, Article 27 of the Universal Declaration of Human Rights, Article 15, para 1(c) of the International Covenant on Economic, Social and Cultural Rights, Article 27 of the International Covenant on Civil and Political Rights. It also cited existing regional (e.g. Bangui Agreement of the African Intellectual Property Organization, Tunis Model Law on Copyright for Developing Countries,etc.) and national laws (e.g. South Africa Traditional Health Practitioners Act, 2004; Philippine Traditional and Alternative Medicinal Act of l997, Indian Medicine Central Council Act, etc.)

According to him, the most explicit provision for the protection of indigenous traditional knowledge is Article 31 of the UN Declaration on the Rights of Indigenous Peoples (as adopted by the UN Human Rights Council in 29 June 2007). This states;

1.Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge, traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions”

2. States shall take effective measures to recognize and protect the exercise of these rights.

He also cited Article 11 of the same Declaration which states;

Indigenous Peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present, and future manifestations of their cultures, such as archeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature.

States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

The report acknowledged the leading role played by this Intergovernmental Committee in WIPO in pushing for recognition of traditional knowledge and TCEs and its protection from misuse and misappropriation. However, it also stated that that “the pre-eminent role of WIPO has also meant that the international debate has occurred primarily within the parameters of intellectual property law”. While this can suffice in some cases, “for the most part intellectual property law fails to protect indigenous rights and interests because western constructs of intellectual property focus on individual knowledge and creativity rather than communal transgenerational knowledge.” Even the call for sui generis protection within IP has limitations because “it fails to account properly for the unique experiences of indigenous peoples, the unique nature of indigenous traditional knowledge and the role of customary law”.

For the purposes of the report indigenous traditional knowledge was used in general terms to mean “ traditional practices and culture and the knowledge of plants, animals and of their methods of propagation; it includes expressions of cultural values, beliefs, rituals and community laws; and it includes knowledge regarding land and ecosystem management. It is more often unwritten and handed down orally from generation to generation, and it is transmitted and preserved in that way. Some of the knowledge is of a highly sacred and secret nature and therefore extremely sensitive and culturally significant and not readily publicly available event to members of a particular group”. (E/C.19/2007/10).

The main recommendation of this report is that the “Permanent Forum should commission a study, under its mandate, to prepare and disseminate information, to determine whether there ought to be a shift in the focus on the protection of indigenous traditional knowledge away from intellectual property law to protection via customary law, and if so, how this should occur. The study should consider how indigenous traditional knowledge could be protected at an international level by utilizing customary law, including the extent to which customary law should be reflected, thereby providing guidance to both States and subsequently protection at the national and regional levels.”

It identified a number of issues which such a study should address. The first issue is the challenge of definition. It mentioned the various terms used for indigenous traditional knowledge and said that it is difficult to provide a comprehensive definition of TK. The report says that “If traditional knowledge is to be recognized and protected by providing a framework within which customary laws, as they relate to traditional knowledge, can operate it maybe in the best interests of indigenous peoples to leave the term undefined”. By leaving it undefined the content of the term is not fixed which allows it to adjust and adapt to dynamic customary legal systems and the novel aspects of traditional knowledge. To address the possible uncertainty which can result because of the absence of a definition the Rapporteur pointed out that Article 31 of the UN Declaration on the Rights of Indigenous Peoples can provide considerable guidance.

Another issue is the need for a clear understanding of what exactly is being asked for when there is a call for a sui generis system of protection and what is the nature of a sui generis system that will work for indigenous peoples. It was noted that proposals for developing such a system of protection is 1) an indication of the inadequacies of the dominant intellectual property rights regime to provide protection of traditional knowledge and TCEs as well as genetic resources. This is a challenge for the IP system to “adapt itself in unique ways in order to properly address the misappropriation and misuse of indigenous traditional knowledge”; 2) a result of the unique nature of indigenous peoples, their culture, knowledge and law. There is a need for a unique system of protection that is not bound by current systems and structures of international law; and 3) indicates that indigenous legal systems are of their own kind and, as customary systems, bear little resemblance to western legal systems of common law, civil law and international law. Because of this, a unique way of protecting indigenous traditional knowledge is needed that is grounded in indigenous legal systems.

The third issue is the intended benefits of the study and the intended beneficiaries. Much of the focus of the work has been in protecting indigenous peoples from misappropriation and misuse of TK without their free, prior and informed consent. The continuing misappropriation and misuse is an indication of the commercial value of traditional knowledge. The need to protect TK is inextricably linked to the right to own and control it which provides indigenous peoples opportunities to utilize such a valuable resource. The ability to protect secret and sacred aspects of TK is an important element to consider. If indigenous peoples choose to use their traditional knowledge to engage with local, national, international economies in a commercially viable manner, then they should be provided the tools and instruments to do this to their own benefit.

The report has an extensive discussion of customary law. First, it reiterated that with the very nature of customary law and traditional knowledge, the indigenous community is the central component in these issues. Generally, it is the indigenous community collectively, as distinct from the individual, that owns traditional knowledge. The report also looked into the relationships between the national, regional and international fora as far as the rights of indigenous peoples are recognized and protected. While national law is key in the protection of traditional knowledge the role of international standards to guide domestic implementation is still needed. The regional dimensions are also important because indigenous communities are not necessarily located within national borders. Indigenous customary systems may cross borders.

There is a tension between uniformity and the recognition of the diversity of customary laws and indigenous traditional knowledge. If uniformity is given premium over the protection of diversity, this maybe to the detriment of recognition of customary law and the dynamic development of customary law. The report says that any attempt to codify indigenous customary law at the international level is artificial. This can lead to a trap where customary law gets straitjacketed making it inflexible. On the other hand, if diversity is prioritized over uniformity, a complex legal web will be created which may result in varying levels of protection. The role of international law in providing guidance to both national and regional processes is still important because otherwise protection may end up being ad-hoc.

The report has identified some areas where work is needed and these include the necessity to identify existing systems, activities and resources and all works in progress across the UN system, other intergovernmental bodies and independent entities. This will help avoid unnecessary duplication and improve coordination. Assessments of these different processes and activities should be done to establish assumptions underpinning these and to see whether the question and potential solutions are located only within the framework of IP law, have represented customary law and are ensuring indigenous peoples’ effective participation.

The relationship between the PF study and subsequent actions which will be taken should be mindful of other processes, such as the WIPO-IGC, and identify areas of complementation and potential conflicts. Another issue which the future study can deal with is what mechanisms should be established to handle disputes over interpretation of indigenous traditional knowledge. If the WIPO for instance comes up with legally binding instruments for the protection of TK and TCE’s the question of who interprets the law is important. If the power to interpret a legal regime and the power to interpret customary laws falls into the hands of those who do not understand indigenous worldviews and systems, this can be disastrous.

I read the Issues Paper of WIPO on “Customary Law and the Intellectual Property System in the Protection of Traditional Expressions and Traditional Knowledge.” Several of the questions posed in the PF report have been addressed in your issues paper. I will send a copy of this to the Rapporteur so he may use it to inform the work he will do for the next study.

After studying what is happening in the various processes and bodies of the UN, I can only conclude that maybe the most realistic path to take is to allow the various processes to proceed with their own work according to their own mandates. There is no central body which can take on the responsibility to develop an all-encompassing instrument which covers TKs, TCEs and GRs not only within the IP-framework but even beyond. For the WIPO-IGC whose mandate is to promote IP Law and to protect TK, TCES and Genetic Resources within the IP framework, it should continue what it is doing with the participation of indigenous representatives. However, the coordination with other UN bodies, especially UNESCO, CBD, FAO, etc. should be enhanced so that sharing of experiences and complementation will be improved. This point has been reiterated in the various documents of the IGC. The UN Declaration on the Rights of Indigenous Peoples should already serve as the guiding document for the development and implementation of various instruments protecting TK and TCEs.

At this 11th session of the IGC and judging by the documentation alone, as I stated earlier, you certainly have come a long way. Looking at how the debate is going, however, it seems that no consensus can be reached yet in relation to the establishment of legally binding international instruments to regulate and stop the misappropriation and misuse of TK and TCEs. The African Group, and most states in the GRULAC and the Asia group support the establishment of these instruments. Most indigenous representatives participating in this process also support this proposal. I think the documentation in your hands regarding experiences at the national and regional levels is very extensive already. These can enable you to work with more confidence towards the goal of coming up with international instruments and mechanisms which can control misappropriation and misuse and complement the efforts from other bodies to safeguard and promote TK and TCEs. From the comments compiled we can see that there is great support for most of what has been put in the Draft Policy Objectives and Guidelines. We support some of the suggestions in terms of improvements, such as being more firm on the importance of respecting the rights of TK holders.

We are aware of the work that UNESCO is doing in relation to its Convention for the Safeguarding of the Intangible Cultural Heritage. The Permanent Forum is closely monitoring the activities of the Convention on Biological Diversity, particularly, the Working Group on Article 8j and the Working Group on Access and Benefit Sharing. The quality and extent of indigenous peoples participation in the various fora is very uneven.

I would like to raise some additional points which you have to consider in your future work. One is the issue of ownership. It has to be strongly affirmed that the rights-holders of TK and TCEs rests with the creators and practitioners of these which are mainly indigenous peoples and local communities. They are the rights-holders.

We strongly support the position of the Saami Council in section f of the General Guiding principles of the Protection of TK , that state sovereignty over genetic and other natural resources does not preclude the sovereign rights of indigenous peoples to their natural resources. The failure to recognize this will lead to non-support of indigenous peoples of any legally binding international instrument. We also support the Saami Council’s view that para (h) suggesting that indigenous peoples’ customary laws should be recognized only subject to national legislation be removed. This is the subject of the study being done by the Forum and if within WIPO indigenous customary law over traditional knowledge, TCEs and genetic resources cannot be represented, then there should be another body which should deal with this issue.

We appreciate the results of the workshop in Bandung but we regret that there is no mention at all of indigenous peoples and local communities. We think that any discussion, guideline, principles or instruments which talk of TCEs and TKs without any reference to the rights of indigenous peoples and local communities will not gain any support from indigenous peoples.

There has to be more discussions on the issue of indigenous customary law and the protection of rights to TK, TCEs and genetic resources as far as these affect indigenous peoples. It maybe a good idea for the WIPO to consider hosting an international workshop on this. The Expert Paper from the Forum and the relevant documents of the IGC can provide the initial ideas to be discussed. This can be the implementation of the recommendation of the Forum’s sessions, in particular, the one from the First Session which I mentioned in para. 5 of this statement. The Permanent Forum will work in close collaboration with the WIPO if it decides to undertake such a workshop.

Finally, I would like to inform this body that the adoption of the UN Declaration on the Rights of Indigenous Peoples is before the General Assembly 61st session which will be concluding in less than three months. Indigenous peoples and the 67 co-sponsor member-states are working hard to ensure that when it comes to a votes, the votes in favor of adoption will prevail. I would like to take this opportunity to once again appeal to the states here, who are also members of the General Assembly of the UN to vote for the adoption of this Declaration. Such an instrument will facilitate the various processes of developing other instruments pertaining to indigenous peoples’ rights on various issues, such as TK and TCEs.

I thank you again for this opportunity to speak before this body and I thank the indigenous representatives who have been engaged with this process and have represented the views of their own communities and organizations. We look forward to receiving the results of this session.