The Indigenous World 2022: World Intellectual Property Organization (WIPO)

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]

Due to the COVID-19 pandemic, substantive negotiations on the IGC texts have been stalled since 2019. However, the WIPO General Assembly renewed the IGC’s mandate for the 2022-2023 biennium and the first of the six anticipated negotiation sessions under the new mandate is scheduled to take place in a hybrid format from 28 February to 4 March 2022.


IGC’s 2020-2021 mandate and work program

The IGC operates under two-year mandates, requiring biennial renewal by the WIPO General Assembly. At its 2019 meeting, the WIPO General Assembly approved the IGC mandate and work program for 2020-2021.[6] The mandate directed the IGC to “continue to expedite its work, with the objective of finalizing an agreement on an international legal instrument(s) …which will ensure the balanced and effective protection of” genetic resources, traditional knowledge and traditional cultural expressions. The work program provided for six negotiating sessions, four to take place in 2020 and two in 2021. However, due to the pandemic, no substantive negotiations occurred during the 2020-2021 biennium.

IGC 41 – 30-31 August 2021

Originally scheduled for March 2020, the first of the six sessions anticipated under the 2020-2021 biennium, designated as IGC 41, was to address the genetic resources text. Following numerous unsuccessful attempts to reschedule IGC 41 in 2020 and 2021, and with the expiration of the 2020-2021 mandate looming, Member States agreed to hold IGC 41 in a hybrid format in August 2021 to address solely procedural matters. Foremost among these was the recommendation to the WIPO General Assembly to renew the IGC’s mandate for the 2022-2023 biennium. Member States recommended the General Assembly renew the mandate and adopt a work program on the same terms as the mandate and work program for 2020-2021. There were no normative discussions during IGC 41.[7]

Indigenous participation at IGC 41

Indigenous Peoples participate in the IGC as accredited observers and join together to participate collectively through an ad hoc Indigenous Caucus.[8] IGC Member States frequently comment on the vital role of Indigenous Peoples in the deliberations, and acknowledge the necessity of their involvement for the legitimacy of the IGC’s work.

Due to the ongoing COVID-19 pandemic and the WIPO Secretariat’s medical protocols to safeguard participants and staff, only Regional Coordinators were authorized to attend the IGC 41 session in person. All other participants, including Indigenous representatives, were limited to participating virtually, via WIPO’s online remote participation platform or by viewing the live webcast on the WIPO website.

At each IGC session, the WIPO Secretariat provides support for an Indigenous Consultative Forum, typically held the day before the session begins, to facilitate the preparation of the Indigenous Caucus for participation in the session. Due to the necessity of participating virtually, and in view of the differing time zones of the Indigenous representatives participating, the Indigenous Consultative Forum for IGC 41 took place in shorter sessions held over two days, 28 and 29 August 2021.

The Indigenous Caucus delivered opening and closing statements during the IGC 41 session.[9] The Caucus also made an intervention supporting renewal of the IGC mandate. In its statements, the Caucus noted the many negative impacts suffered by Indigenous Peoples during the pandemic and the challenges and obstacles to Indigenous participation in the hybrid format. Highlighting the UN Declaration on the Rights of Indigenous Peoples and other international, domestic and Indigenous laws, and noting the urgent need to conclude the IGC negotiations and produce legal instruments for the protection of Indigenous Peoples’ rights, the Caucus nonetheless urged that substantive negotiations be postponed until possible to ensure meaningful participation of Indigenous representatives, which was not possible in the present hybrid format. The Caucus also requested that Member States support future Indigenous participation in the negotiations by contributing to the WIPO Voluntary Fund and by acting on the 2019 recommendation from the UN Permanent Forum on Indigenous Issues to make permanent funding available for Indigenous participation utilizing WIPO core budget funds.

Each IGC session commences with a panel of Indigenous experts invited by WIPO to present on topics relevant to the negotiations. The Indigenous panel held during IGC 41 addressed “Intellectual Property and Genetic Resources/Traditional Knowledge/Traditional Cultural Expressions: Indigenous Peoples’ and Local Communities’ Perspectives”. The panelists were Ms Bibi Barba of Australia, Mr Steven Benally of the United States, and Ms Jennifer Tauli Corpuz of the Philippines.[10]

IGC’s 2022-2023 mandate and work program

At its 2021 meeting, the WIPO General Assembly approved the IGC mandate and work program for 2022-2023, as recommended by Member States at IGC 41.[11] The work plan calls for four negotiation sessions in 2022 and two in 2023.

The first session, IGC 42, is set to take place in a hybrid format from 28 February to 4 March 2022 and will address the genetic resources text. According to the invitation letter sent out by WIPO on 17 December 2021, in-person participation for IGC 42 will be limited to two delegates per Member State delegation and one delegate per observer delegation. As with IGC 41, other participants may follow the live transmission of the IGC proceedings online, either via the WIPO online remote participation platform or via the live webcast on the WIPO website. The Draft Agenda and other working documents for IGC 42, including the Update of the Technical Review of Key Intellectual Property-Related Issues of the WIPO Draft Instruments on Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions Within the Framework of Indigenous Human Rights commissioned by the WIPO Secretariat in response to a 2019 recommendation from the UN Permanent Forum on Indigenous Issues, are available on the WIPO website.[12]

The IGC’s provisional schedule for 2022 includes an additional session from 30 May 3 June 2022 (IGC 43) addressing the genetic resources text and sessions addressing the traditional knowledge and traditional cultural expressions texts from 12-16 September 2022 (IGC 44) and 5-9 December 2022 (IGC 45).[13]

Other related developments in 2021

2021 intersessional activities

Although no text-based negotiations took place in 2021, various intersessional activities were carried out to help keep the work of the IGC moving forward.

In January 2021, WIPO organized a virtual Seminar on Intellectual Property and Genetic Resources. The seminar, which took place over the course of three days, provided an opportunity for the sharing of regional, national and local experiences and case studies, and for discussion of substantive issues and exchange of views related to the issues involved in the genetic resources text negotiations.[14]

In June and July 2021, WIPO organized a series of informal information sessions for Member States and the Indigenous Caucus on the history and status of the IGC negotiations and key issues involved in the negotiations.

Finally, intersessional processes established in 2020 continued in 2021, with Member States and accredited observers invited to (a) submit comments on the Chair’s genetic resources text, (b) review and provide comments, corrections or updates to WIPO’s online compilation of national and regional sui generis regimes providing intellectual property protection for traditional knowledge and traditional cultural expressions,[15] and (c) review and provide updated information for the online resources available on the WIPO Traditional Knowledge Division website, particularly the “Disclosure Requirements Table”,[16] and the repository of “Regional, National, Local and Community Experiences”.[17]

WIPO initiatives, training activities and information resources

WIPO has undertaken a number of ongoing initiatives aimed at providing support for Indigenous Peoples and provides various practical training sessions and informational publications. Examples include WIPO’s Training, Mentoring and Matchmaking Program on Intellectual Property for Women Entrepreneurs from Indigenous Peoples and Local Communities;[18] the WIPO Photography Prize for Indigenous Peoples and Local Community Youth;[19] and a 2021 webinar series entitled How to Protect and Promote Your Culture inspired by WIPO’s publication Protect and Promote Your Culture – A Practical Guide to Intellectual Property for Indigenous Peoples and Local Communities.[20] WIPO also maintains an Indigenous Fellowship program.[21]

UN Permanent Forum on Indigenous Issues

At its 20th session, held from 19-30 April 2021, the UN Permanent Forum on Indigenous Issues highlighted the continued misappropriation and illicit use of Indigenous Peoples’ intellectual property and cultural heritage without their free, prior and informed consent. The Forum recommended that WIPO and Member States ensure protection against the misappropriation of Indigenous Peoples’ intellectual property. In addition, the Forum appointed Forum members Irma Pineda Santiago and Simón Freddy Condo Riveros to conduct a study on collective intellectual property and the appropriation of ideas and creations of Indigenous Peoples to be presented at the Forum’s 21st session in 2022.[22]

Sue Noe is a Senior Staff Attorney with the Native American Rights Fund (NARF), located in Boulder, CO USA. NARF is the oldest and largest non-profit law firm in the USA representing Native American tribes. Sue has attended IGC sessions since IGC 34 (June 2017) and served on the Indigenous Panel for IGC 36. She was also a presenter for the January 2021 WIPO Seminar on Intellectual Property and Genetic Resources. She can be reached by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

 

This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2022 in full here

 

Notes and references  

[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.

[6] WIPO. “Assemblies of the Member States of WIPO. Fifty-Ninth Series of Meetings. September 30 to October 9, 2019. Agenda Item 20. Report on the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). DECISION.” Accessed February 4, 2022. https://www.wipo.int/export/sites/www/tk/en/igc/pdf/igc_mandate_2020-2021.pdf

[7] WIPO. “Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Forty-First Session. August 30 to September 3, 2021 (Geneva, Switzerland). Hybrid. Accessed February 4, 2022. https://www.wipo.int/meetings/en/details.jsp?meeting_id=55246

[8] Like other observers, the Indigenous Caucus may make interventions on the floor of the IGC and propose modifications to the text under negotiation. Proposed modifications are incorporated into the draft text if they receive the support of at least one Member State. In addition, the IGC Chair, with Member State support, has systematically invited the Caucus to nominate representatives to participate in the various IGC working methodologies, such as ad hoc expert groups, informals and small contact groups.

[9] WIPO. “WIPO IGC 41 – INDIGENOUS CAUCUS OPENING STATEMENT. August 30, 2021.” Accessed February 4, 2022. https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=549483

[10] WIPO. “Indigenous Panel - presentation made by Ms. Bibi Barba.” August 30, 2021. Accessed February 4, 2022. https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=549478. “Indigenous Panel - presentation made by Mr. Steven Benally.” September 1, 2021. Accessed February 4, 2022. https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=549691. “Indigenous Panel - presentation made by Ms. Jennifer Corpuz.” September 1, 2021. Accessed February 4, 2022. https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=549747

[11] WIPO. “Assemblies of the Member States of WIPO. Sixty-Second Series of Meetings. October 4 to 8, 2021. Agenda Item 18. Report on the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). DECISION.” Accessed February 4, 2022. https://www.wipo.int/export/sites/www/tk/en/documents/pdf/igc-mandate-2022-2023.pdf

[12] WIPO. “Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Forty-Second Session. February 28 to March 4, 2022 (Geneva, Switzerland). Hybrid. Accessed February 4, 2022. https://www.wipo.int/meetings/en/details.jsp?meeting_id=68408

[13] WIPO. “Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional

Knowledge and Folklore (IGC). 2022 Provisional Schedule for the IGC, dated November 26, 2021. Accessed February 4, 2022. https://www.wipo.int/export/sites/www/tk/en/igc/pdf/provisional_schedule_igc_2022.pdf

[14] WIPO. “Seminar on Intellectual Property and Genetic Resources. January 20 to January 22, 2021. Virtual. Accessed February 4, 2022. https://www.wipo.int/meetings/en/details.jsp?meeting_id=60429

[15] WIPO. “Compilation of Information on National and Regional Sui Generis Regimes for the Intellectual Property Protection of Traditional Knowledge and Traditional Cultural Expressions. (Dated January 18, 2022). Accessed February 4, 2022. https://www.wipo.int/export/sites/www/tk/en/resources/pdf/compilation_sui_generis_regimes.pdf

[16] WIPO. “Annex: Disclosure Requirements Table.” Accessed February 4, 2022. https://www.wipo.int/export/sites/www/tk/en/documents/pdf/genetic_resources_disclosure.pdf

[17] WIPO. “Regional, National, Local and Community Experiences.” Accessed February 4, 2022. https://www.wipo.int/tk/en/resources/tk_experiences.html

[18] WIPO. “Indigenous and Local Community Women Entrepreneurship Program.” Accessed February 4, 2022. https://www.wipo.int/tk/en/women_entrepreneurs/

[19] WIPO. “WIPO Photography Prize for Indigenous Peoples and Local Community Youth 2021-2022.” Accessed February 4, 2022. https://www.wipo.int/tk/en/youth_prize.html

[20] WIPO. “Webinar Series: How to Protect and Promote Your Culture.” Accessed February 4, 2022. https://www.wipo.int/tk/en/protect_and_promote.html. OMPI. “Seminarios Web: Cómo proteger y promover su cultura.” Accessed February 4, 2022. https://www.wipo.int/tk/es/protect_and_promote.html

[21] WIPO. “WIPO Indigenous Fellowship Program.” Accessed February 4, 2022. https://www.wipo.int/tk/en/indigenous/fellowship/

[22] United Nations. “E/2021/43-E/C.19/2021/10. United Nations Permanent Forum on Indigenous Issues. Report on the twentieth session. (19–30 April 2021). Economic and Social Council. Official Records, 2021. Supplement No. 23.” Paras. 60, 61 and 104. Accessed February 4, 2022. https://undocs.org/E/2021/43

 

 

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