Work In Progress: Traditional Knowledge Protection at the World Intellectual Property Organisation (WIPO)

There has been increasing concern about the exploitation and unlawful misappropriation of Indigenous Peoples’ Traditional Knowledge. The protection of Indigenous peoples’ Traditional Knowledge and genetic resources has been the focus of The World Intellectual Property Organization (WIPO). In particular the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge (TK) and Folklore (IGC) has spent some time exploring the interplay between intellectual property, (TK) and genetic resources with the purpose of either developing a new international instrument or accommodating control and protection in the present intellectual property system.


In 2008, ‘The Protection of Traditional Knowledge Gap Analyses’, WIPO/GRTKF/IC/13/5(B) Rev. prepared by the Secretariat for comment by the IGC examined gaps in the present system for the protection of TK and options for filling those gaps. Gaps in the protection of TK in the existing legal framework were:
(1) subject matter not covered under existing IP law;
(2) right holders not recognized as such, and other beneficiaries excluded from the benefits of protection;
(3) forms of use and other actions that cannot be prevented;
(4) absence of entitlement to obtain remuneration or other benefits.

The document also looked at ‘working definitions’ of TK and determined that there was no internationally recognised definition but included examples from Art 8(j), Convention on Biological Diversity Art 9.2(a), International Treaty on Plant Genetic Resources for Food and Agriculture, Art 31, United Nations Declaration on the Rights of Indigenous Peoples and para. 12, Interlaken Declaration on Animal Genetic Resources.

The options which have emerged as potential definitions in a new instrument and put to the WIPO General Assembly in September 2011 WO/GA/40/7 are included in WIPO/GRTKF/IC/21/4, ‘The Protection of Traditional Knowledge: Draft Articles. Article 1 Definition of TK:

• Option 1: For the purposes of this instrument, the term “traditional knowledge” refers to the know-how, skills, innovations, practices, teachings and learning, resulting from intellectual activity and developed within a traditional context.
• Option 2: Traditional knowledge is knowledge that is dynamic and evolving, resulting from intellectual activities which is passed on from generation to generation and includes but is not limited to know-how, skills, innovations, practices, processes and learning and teaching, that subsist in codified, oral or other forms of knowledge systems. Traditional knowledge also includes knowledge that is associated with biodiversity, traditional lifestyles and natural resources.

The next important dates in the debate concerning TK are April 16 -20 2012 where the following documents are on the agenda: WIPO/GRTKF/IC/21/4 (TK Draft Articles), WIPO/GRTKF/IC/21/5 (a response to WIPO/GRTKF/IC/21/4 by like-minded countries), WIPO/GRTKF/IC/20/INF/4 (document on key issues) and WIPO/GRTKF/IC/20/INF/8 (Glossary of key terms).

All documents for this meeting can be found at http://www.wipo.int/meetings/en/details.jsp?meeting_id=25008.

Written by Fiona Batt