Missed opportunities: WIPO Treaty falls short of protecting Traditional Knowledge
By Kriti Sharma
Published on 15 July 2024
On May 24, 2024, twenty five years of negotiations culminated in the World Intellectual Property Organization’s (WIPO) Diplomatic Conference adopting its first treaty on Intellectual Property, Genetic Resources and associated Traditional Knowledge (“the treaty”). Developed as a conciliatory effort of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC), this instrument was drafted by former Chair Ian Goss in 2019. The treaty is historic for being the first legally binding instrument that aims to address the rights of indigenous people and local communities (IPLCs). There are two major ways in which the treaty advances the contentious relationship between intellectual property (IP) and traditional knowledge, (A) requiring mandatory disclosure, and (B) creating information systems to make Traditional Knowledge (TK) accessible to patent officers globally.
A. Mandatory disclosure requirement
The WIPO treaty is unprecedented for modifying the international patent system to uphold the recognition of IPLCs’ traditional knowledge as prior art, thereby, defeating claims of originality or novelty in patent applications. It does so by including 2 key provisions: (1) a mandatory disclosure requirement in patent applications that are based on TK or associated genetic resources (GRs) and (2) requirements for applicants to disclose the IPLCs that provided the knowledge [Article 3.2(a)]. In cases where the identity of indigenous peoples or local communities is not known, there is an obligation to disclose the source of TK.
The objective of these provisions is to improve the transparency, efficacy and quality of the patent system (see Preamble). Ian Goss—former Chair of WIPO IGC who composed the draft proposal which is nearly identical to the treaty—believed that improving the patent system would facilitate benefit-sharing and prevent misappropriation of TK through erroneously granted patents. Moreover, the adoption of this treaty elevates to an international obligation what 35 regional organizations and countries had already done to protect TK from misappropriation. A hard fought negotiation history informs the victory of mandatory disclosure requirements as the new minimum standard to acknowledge the contribution of TK holders, to innovation.
B. Defensive protection
The treaty also encourages members to establish “information systems” or national databases of traditional knowledge in consultation with their IPLCs on a voluntary basis (Article 6). By doing so, countries would develop a repository of TK that is accessible by patent officers internationally to prevent erroneous grant of patents and therefore, TK’s misappropriation. India’s Traditional Knowledge Digital Library, developed as a consequence of the wrongfully granted patents for medicinal properties of neem and turmeric is an example of such an “information system or national database” of TK. This database is an example of defensive protection in the law of intellectual property. Defensive protection systems are primarily designed to prevent third parties from acquiring the right of ownership over TK, and were created to prevent misuse of TK by granting patents for “inventions” based on TK that disregard the long-known use, originality and creativity of TK holders.
C. Affirmative rights of TK holders
Despite highly contentious and long enduring debates between high income and lower and middle-income countries/global north and global south countries spanning over two decades, TK lacks recognition in its own right as inventive and is missing positive protection at an international level. While Article 6 encourages patent officers to verify whether patents are novel and non-obvious before granting them, the treaty neither recognizes TK as intellectual property nor does it offer TK holders or beneficiaries the right to benefit from its economic and moral interests. This WIPO treaty was a missed opportunity to protect the economic and moral rights of TK’s beneficiaries. Of course, recognizing TK as intellectual property raises a fundamental question of reconciling the collective ownership of TK holders, with the individualized system of rights as is construed under the intellectual property system. An opportunity to achieve this reconciliation exists in a second draft instrument of the WIPO IGC on Protection of Traditional Knowledge. The draft proposes to guarantee TK beneficiaries their collective rights to benefit from the fair and equitable utilization of TK and to control, develop and share their TK. However, the future of this second instrument concerning the overall protection of TK remains uncertain.
D. Missed opportunity to reconcile CBD standards for fair and equitable benefit-sharing
TK is integral to preserving planetary health, with growing recognition of IPLCs’ role in stewarding biodiversity conservation and climate change mitigation strategies. In addition to IP, any meaningful discussion about the WIPO treaty must also deal with the realms of biodiversity protection and access and benefit-sharing. This is essential because the complexity of TK protection under international law dates back to the 1990s when the Convention on Biological Diversity (CBD) was being negotiated, illuminated by the importance of sustainable use of biodiversity and natural resources. Developing countries believed that their interests lacked representation; and the modern IP protection system was biased towards the commercial interests of developed countries. The IP system was indeed shaped by the perceived needs of developed countries. This criticism was boosted by the adoption of the Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS) at the World Trade Organization, led by developed countries’ urgent demand to standardize the minimum standard of IP protections globally. Patents were granted over “innovations” derived from TK of biodiversity-rich developing countries—such as the infamous Eli Lilly patent over the rosy periwinkle to treat leukaemia— without acknowledgement or sharing economic remuneration from these profitable products.
To an extent, the CBD attempted to reconcile the growing chasm between intellectual property rights and sovereign rights over genetic resources used in patents, and found on territories of developing countries. The CBD designed a three-pillar structure to govern the use of TK: (1) by seeking the prior informed consent of TK holders; (2) upon mutually agreed terms; and (3) sharing benefits of such use fairly and equitably, with them. These pillars informed the development of TK-use in international law that followed, advanced by the Nagoya Protocol 2010 and most recently, the Kunming-Montreal Global Biodiversity Framework adopted in December 2022.
Under the CBD framework, compensation practices for use of TK require compliance with these three pillars of prior informed consent, mutually agreed terms and fair and equitable benefit-sharing. Under the WIPO Treaty, Article 5 of the treaty pertains to sanctions and remedies for non-compliance with disclosure obligation. Even though IP rights are protected by international law, the remedies for failure to disclose TK are delegated to domestic law. Further, non-disclosure of TK origin cannot be the sole ground to revoke a patent (Article 5.3) with an opportunity to rectify the failure of disclosure (Article 5.2). The only exception to the opportunity to rectify exists in the narrow discretionary window where non-disclosure is fraudulent [Article 5.2(bis)].
Goss’s explanatory notes to the text reveal that the rationale for not revoking a patent solely on the ground of non-disclosure was to ensure legal certainty for patents. Additionally, the provision aspired to facilitate benefit-sharing—without guaranteeing it—by not revoking the very basis for benefit-sharing, i.e., the commercial patent. What has been called a balance between pragmatism and theory, the sanctions and remedies provision does not reconcile the fair and equitable benefit-sharing pillar of CBD in the text of the treaty itself. Relegating the duty to remedy to merely domestic discretion and by not formalizing a mutually supportive language of the CBD and IP law, represents another missed opportunity in this modest, basic adopted text. Without an international duty to compensate TK-holders, the victory of the WIPO treaty is symbolic and a lost opportunity to develop a mutually supportive relationship between IP and biodiversity conservation.
Conclusion
The IPR legal system is based on individual rights, exclusive commercial exploitation and the premise that exclusive rights incentivize innovation and scientific progress. This worldview is diametrically opposite to the collective nature of TK ownership and use. Further, TK is not merely intellectual property owned by its beneficiaries but also an integral component of their cultural heritage, identity and way of life. Historically, for these reasons, fitting TK protection in the way that it is understood by its holders into the more established regime of IP rights, has been a challenge.
A step towards preventing the misappropriation of TK has been taken by the WIPO Assembly’s adoption of its treaty on IP, GR and associated TK, after two decades of negotiations. For the first time, a WIPO instrument modifies the patent system by adding a mandatory disclosure requirement—crediting the origin/source of TK—for all patent applications that are materially based on TK or derived from GRs with associated TK. The treaty creates a voluntary encouragement for States to document their TK and create databases that may prevent the wrongful grants of patents by officers.
However, the treaty stops short of declaring TK as protected intellectual property and does not guarantee affirmative rights upon its holders to protect their moral interest in TK and benefit from their TK’s commercial exploitation. Moreover, by not reconciling the CBD’s principle of fair and equitable benefit sharing in its provision on sanctions and remedies, the treaty leaves reparation and compensation for misappropriation of TK entirely up to the discretion of States. The WIPO treaty now straddles the complex legalscape of TK’s fragmented protection under international law.
An opportunity to guarantee affirmative rights to TK holders, arising from the recognition of TK as intellectual property exists in a second draft instrument of WIPO to protect TK. The fate of this second draft instrument is presently uncertain. For now, WIPO’s efforts are a small win on a long road to truly protect traditional knowledge and compensate its holders for any misappropriation.