Indigenous Peoples have rights over their traditional knowledge,^[1] traditional cultural expressions^[2] and genetic resources,^[3] including associated intellectual property rights, as recognized in Article 31 of the UN Declaration on the Rights of Indigenous Peoples.^[4] However, conventional intellectual property laws, in large measure, are woefully inadequate in protecting these rights. In the absence of effective legal recognition and protection, Indigenous Peoples’ intangible cultural heritage, ranging in forms from textile designs to traditional songs, medicinal plant knowledge and environmental conservation, is often treated as being in the “public domain”, and misappropriation by those within the fashion, film and pharmaceutical industries, among others, is widespread and ongoing.

The World Intellectual Property Organization (WIPO), a UN agency with 193 Member States, provides a forum for negotiating new international intellectual property laws. In 2000, WIPO Member States established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). Since 2010, the IGC has conducted formal, text-based negotiations aimed at developing legal instruments for the protection of Indigenous Peoples’ and local communities’ traditional knowledge, traditional cultural expressions and genetic resources. Negotiations center around separate draft texts for each of the three subject matters.^[5]

^[1] The term “traditional knowledge” generally refers to technical know-how, skills and practices developed, utilized and passed down within a community’s traditional context. Examples include medicinal, agricultural and ecological knowledge, as well as methods for doing things such as weaving and constructing housing. WIPO. “Traditional Knowledge.” Accessed February 3, 2022. https://www.wipo.int/tk/en/tk/. Because the term “traditional knowledge” can be somewhat misleading, as it implies antiquity, many Indigenous activists in their international advocacy in multilateral processes prefer to refer simply to the “knowledge of Indigenous Peoples” or “Indigenous knowledge”. In the WIPO negotiations, Indigenous representatives emphasize that traditional knowledge is not confined to ancient knowledge but includes new and evolving Indigenous knowledge. 

^[2] “Traditional cultural expressions” are the myriad forms in which traditional culture is expressed. Examples include music, dance, stories, art, ceremonies, designs and symbols. WIPO. “Traditional Cultural Expressions.” Accessed February 3, 2022. https://www.wipo.int/tk/en/folklore/

^[3] “Genetic resources” are defined as genetic material having actual or potential value found in plants, animals or micro-organisms. Examples include medicinal plants, agricultural crops and animal breeds. Genetic resources found in nature are not creations of the mind and thus are not intellectual property. Intellectual property issues are, however, associated with genetic resources, for example in the case of inventions utilizing genetic resources or where traditional knowledge is associated with the use of genetic resources. WIPO. “Genetic Resources.” Accessed February 3, 2022. https://www.wipo.int/tk/en/genetic/

^[5] Current versions of the draft texts are attached as annexes to the IGC’s 2019 report to the WIPO General Assembly: WIPO. “Report on the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). July 30, 2019. Accessed February 3, 2022. https://www.wipo.int/about-wipo/en/assemblies/2019/a_59/doc_details.jsp?doc_id=443934. A fourth draft text, the Draft International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources, developed in 2019 by the IGC Chair, Mr Ian Goss, as an alternative genetic resources text, is available: WIPO. “Chair’s text on GRs and ATK.” June 7, 2019. Accessed February 4, 2022. https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=438199.The Chair’s text has been approved by Member States as a working document to be included in future IGC sessions.

Tags: Global governance