Will WIPO treaty curb biopiracy?

A World Intellectual Property Organisation (WIPO) committee is poised to push a global treaty on traditional knowledge. The international pact would impact not only individual practitioners or local communities that are privy to traditional knowledge, but also local industry and large private entities engaged in bioprospecting as well as R&D in products and services derived from genetic resources and associated know-how.

The WIPO's stated objective is to develop a balanced and effective international intellectual property (IP) system. Yet, internationalising the system and, in that process, harmonising law and practice on certain IP issues is seen by some as part of the problem, particularly in the context of customary rules on TK. Countries with vast people's know-how on genetic resources have been pointing for years to how IP laws, such as those that grant wrongful patents on TK, lead to misappropriation. Although such flawed laws need to be addressed by the emerging international law, WIPO has in response taken it upon itself to develop international IP law on the subject of TK!

The IGC
This is being done through an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) set up by WIPO in 2001. Over the years, the processes and documents of the IGC have generated much debate and awareness on issues of all three inter-connected areas. The WIPO IGC's jubilee session – IGC 25 was held from July 15 to July 24, 2013 in Geneva, Switzerland, at the WIPO headquarters.

The recent IGC session had two main purposes: advancing work on a draft instrument protecting specifically traditional cultural expressions and stock-taking of TCEs, GR and TK. Its decisions will have implications for the future of traditional knowledge-systems in countries like India.

Through IGC, WIPO has been facilitating the conduct of international negotiations towards reaching consensus on the text of an international legal instrument or instruments, one each on genetic resources (GR), traditional cultural expressions (TCE) and TK. The negotiations have now reached a critical stage. Draft texts, bracketed though they may be – as concrete proposals to WIPO's General Assembly in September 2013 are ready. And the IGC needs to indicate to the WIPO General Assembly if and when to convene a diplomatic conference whereby the drafts can be made into a legally binding treaty amongst countries. Most delegations taking the floor in a July 22 WIPO committee meeting appeared inclined to support the continuation of the work of the committee for another two years.

However, developing countries insisted on the binding character of the instruments being discussed in the committee and sought a clear date for the diplomatic conference during the next biennium. Efforts to clean the draft text of brackets were laborious. An initial revised version of the draft text was issued on July 17. A second revision of the text was released on July 19, with the plenary agreeing to transmit it to the WIPO General Assembly in September.

WIPO is a UN body. Yet, it is not devoid of politics amongst the world's nations that the UN system itself reflects. Powerful and big-budget governments can come to bear on issues. Moreover, the issue at hand itself has divergent interests on the table, ranging from user/accessor countries (like USA) that insist TK can be protected by an IP system.

It also does not want any burden on its ‘inventors' to have to disclose the origin of the GR or TK as a pre-requisite built into patent application procedures; for this puts them under a legal obligation to share benefits and comply with any other terms and conditions that a national access law of the provider country may impose. On the contrary there are those, whether from indigenous and local populations or others, who consider IPR on TK an anathema.

Unfortunately, there is also still no common message resonating from the different developing countries. For instance, most of the African nations do not agree with India that the end- beneficiaries should be identified as ‘the nation'. Instead, they are more inclined that the beneficiaries of protection of TK should include “indigenous peoples” or “traditional communities”.

Indigenous groups, such as the Tulalip Tribes that attended the session, point to how the world is not yet ready for the Diplomatic Conference. They also made the critical point that such a treaty could not be negotiated in isolation of existing law on the subject contained, amongst others, in customary practices, human rights law and public international law. Yet, they also voice a caveat that the treaty ought not to have a 'chilling effect', for they are for creativity and innovation, but not at the cost of losing control over their GR, TK & folklore. This is also the concern of several local biodiversity-dependent populations in India.

The Indian delegation put across its view that much work has been done in the past over 15 years through WIPO processes, both inside and outside the IGC, and with the fairly mature texts as of date the time is right to take the next step.

India is, therefore, suggesting that the ongoing IGC session must recommend that the WIPO General Assembly decide on a Diplomatic Conference in 2014. In response to the US suggestion to extend the IGC by another two years, merely for the purpose of further fact-based studies on impacts of compulsory disclosure, India alerts that too much of analysis can lead to paralysis.

The Indian Patent Act has provided safeguards against the patenting of TK per se. But safeguarding TK practices and their original holders has to be the overall approach in all other workings of the State. Meanwhile, the grant of approvals for India's knowledge and/or trade in genetic resources has been institutionalised through the Biological Diversity Act, 2002. While that Act also talks of protection of people's knowledge; the sui generis framework for that is yet to be developed.

The risk is that it comes in the way of the sovereignty on these matters that local and indigenous communities are struggling to be able to exercise. However, revival of (lost) local wisdom is not about to happen by the proposed TK treaty alone. And the big question is if it will actually check ‘biopiracy'. Many popular movements are wary of the proposed treaty empowering governments in the name of protection to tread into areas, which they had either chosen not to enter or been forced to keep out of.

Shalini Bhutani

(The author is a member of the Forum Against Free Trade Agreement and has worked with several NGOs)