23 April 2019
Traditional Knowledge and Copyright: An Interview with Wend Wendland, Director of the WIPO Traditional Knowledge Division
We had a chat with Wend Wendland, Director of the Traditional Knowledge Division at the World Intellectual Property Organisation (WIPO), to find out more both about the division and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore’s work plan.
The term “traditional knowledge” (TK) in this interview is used as an umbrella term to cover both the content of scientific/technical knowledge (such as the knowledge of Indigenous Peoples and local communities about the conservation and sustainable use of biodiversity) and traditional cultural expressions/expressions of folklore (TCEs), which are the artistic, literary and musical forms in which knowledge and culture are expressed, such as Indigenous art, music, designs and performances.
Q: To start with a very basic question to inform our audience, could you explain what intellectual property has to do with traditional knowledge?
A: The relationship between TK and intellectual property (IP) runs along two main axes. The first is that TK is by and large not protected by the conventional IP system. Although TK embodies human innovation and creativity, it is relegated to the “public domain” because it is often communal, oral and inter-generational in character. At the same time, however, contemporary adaptations of TK and innovations derived therefrom may be protectable by the IP system without any prior involvement by, acknowledgement of or recompense to the communities from whom the TK was obtained. The result is that, as they see it, communities are excluded from the IP system in both directions: what they have cannot be protected and they cannot stop or benefit from third parties using their knowledge to get IP protection.
Q: What is the Traditional Knowledge Division currently working on?
A: There are two main pillars to our work. The first is to help Indigenous Peoples and local communities make more effective and strategic use of the current IP system. This entails them knowing more about how the IP system works in practice and how they can make smart use of it to protect their TK – either “positively” (through acquiring and exercising IP rights) or “defensively” (through the prevention of anyone acquiring IP rights over their TK). Our publication Promote and Protect your Culture is a hands-on guide to IP for Indigenous and local communities. We also run training programs for Indigenous and local communities. We recently launched a short animation that explains the issues as seen through the eyes of a fictional community: it is entitled “Navigating Traditional Knowledge and Intellectual Property—The Story of the Yakuanoi.”
The second main pillar is helping countries and communities to think through options for new legislative and practical measures for protecting TK and then to design and implement whatever options they decide upon. For example, a country might wish to enact a sui generis law for the protection of TK and/or establish a database of TK as part of a “defensive” protection strategy. Or, a community may wish to grant access and use rights in its TK to a third party, and needs help in drafting and negotiating IP clauses in a contract. This second pillar of the Division’s work includes facilitation of the international negotiation taking place in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).
Q: What are the current workplan and objectives of the IGC?
A: The workplan and objectives are set out in the IGC’s current mandate for the 2018-2019 biennium. Five sessions of the IGC have already taken place in 2018 and 2019, and there is still one more to go, IGC 40, which will take place from June 17 to 21, 2019. The IGC process is intense, as it meets roughly every three months. In this biennium, a new feature has been added, namely, meetings of ad hoc groups of experts.
In terms of objectives, the text of the mandate is relatively detailed and lengthy, but if I were to extract the core objective from the mandate it is that the IGC should “during the next budgetary biennium 2018/2019, continue to expedite its work, with the objective of reaching an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to intellectual property which will ensure the balanced and effective protection of genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs).”
Q: Libraries play an important role in the preservation and dissemination of knowledge for public interest purposes. How does this fit with questions around traditional knowledge and cultural expression?
A: Yes, libraries play many essential roles in society. There are a number of profound tensions lying at the interface between libraries and indigenous cultures including but going well beyond IP issues. I am aware that the International Federation of Library Associations (IFLA) is alive to and addressing these tensions, because it has an Indigenous Matters Section and, in 2014, issued an important Statement on Indigenous Traditional Knowledge.
How IP rights are acquired, exercised and managed is directly impactful on relationships between libraries and Indigenous communities. Libraries may hold invaluable, even unique, ethnographic records of ancient traditions, accounts of oral histories and disappearing languages, and audio and audio-visual recordings of traditional know-how and cultural ceremonies and practices that are integral to an Indigenous People’s or local community’s sense of identity. Very often, the IP rights in those materials, including sacred and/or secret materials, vest in the library or in the hands of the ethnographers, anthropologists, archivists and other researchers and fieldworkers because they are regarded by conventional IP systems as the “authors” of the materials. In such instances, Indigenous Peoples and local communities feel disempowered and excluded as they have no say over if and how the materials are accessed and used by others. Further, and unfortunately, it has happened that misappropriated cultural materials were initially sourced from a cultural institution. From an Indigenous and local community perspective, this makes cultural institutions appear, inadvertently, complicit in the misappropriation and misuse of their TK and TCEs. Cultural institutions may even be accused by some of contributing to the “colonization of knowledge”.
WIPO’s Creative Heritage Project (empowering communities to record their own cultural traditions and manage the resulting IP rights themselves) and our publication Intellectual Property and the Safeguarding of Traditional Cultures: Legal Issues and Practical Options for Museums, Libraries and Archives address these issues directly.
The Traditional Knowledge Division’s work on the specific issue of libraries and other cultural institutions is aimed at encouraging the acquisition, exercise and management of IP rights in ways that contribute sensitively and respectfully to fostering cross-cultural partnerships between cultural institutions and Indigenous communities. We would be happy to work further with IFLA on this.
Q: We have seen that the current text under discussion refers to the work that libraries do. Are there efforts to ensure that no matter what protection is adopted for traditional knowledge, libraries and other cultural heritage institutions are still able to fulfil their public interest missions?
A: The current drafts of the TK and TCE texts are still work-in-progress and heavily bracketed. The TK and TCEs texts are separate, although there are many similarities between them. Almost all the articles contain “Alternatives”.
In the articles in each of the two texts dealing with exceptions and limitations to the protection of TK and TCEs, there are “Alternatives” that contain explicit exceptions for the non-commercial activities of inter alia libraries. I am just paraphrasing, and I invite readers to consult the drafts which are online. As this negotiation is intergovernmental, it will be up to the Member States to ensure that the interests of libraries and other cultural heritage institutions are safeguarded. I would strongly encourage the library and information services community, so ably represented by IFLA, to follow the process closely, take the floor as needed and, in the margins of the negotiation, convey its concerns and wishes to Government delegates through bilateral meetings, written comments and side-events. Many observers are accredited to participate in the work of the IGC, including IFLA. The IGC’s negotiations may be slow but concrete outcomes are the IP priority of most countries.
Q: What would be the impact of an international instrument?
A: Agreement on an international instrument (or instruments) would have several impacts, political as well as legal. Adoption of an instrument/s on TK and TCEs would be of historic significance, representing perhaps a once-in-a-generation pivot in IP policy making. It could further legitimize the IP system in the developing world, and perhaps help to unblock other IP negotiations which are currently stalled. Legally, new instruments may provide, for the first time, an internationally enforceable right for Indigenous Peoples and local communities in subject matter that is currently treated as public domain. It could potentially impact upon the day-to-day work of libraries. Clearly, the negotiation raises many complex policy, legal and practical questions. The ultimate impact of a new instrument/s will hinge on what it ultimately contains in terms of substantive obligations and which countries ratify it.
Q: How close is the committee to agreeing on the text of an international instrument, and what are the main focuses of current discussions?
A: The Committee addresses three topics, genetic resources, TK and TCEs, and the level of maturity of the negotiation is not necessarily the same on all three. The current drafts of the international legal instruments on TK and TCEs are very much work-in-progress and they are heavily bracketed. Progress is slow, but the texts improve incrementally at each session, as the negotiators work towards outcomes that should be pragmatic and balanced yet adequately consequential. It’s not possible to make any predictions at this stage as to when agreement might be reached. The issues are challenging, and countries and observers have many views on them. Many argue that changes to the working methods of the IGC are needed, and that the texts need to streamlined and/or shortened. Methodological changes such as these – as well as shifts in countries’ priorities and in geopolitical dynamics – could propel the negotiation in unexpected directions at any time.
Q: There is discussion of a sui generis approach to protect traditional knowledge and cultural expression, a way of protecting it not based on copyright law. We have seen this approach advocated for in New Zealand for instance. Is there any support for such a perspective within the committee?
A: That is exactly what the Committee is working on – the texts of an international legal instruments/s that would provide sui generis protection for TK and TCEs. This would be a form of protection that is IP-similar but specially adapted to fill the gaps in the cover provided by the existing IP system. Crafting an IP-similar sui generis system involves drawing upon the principles, values and norms of IP protection and adapting them as needed. Not all gaps necessarily need filling, however, and a conundrum for policymakers is to decide which gaps should and should not be filled. Nor should, it could be argued, a sui generis system for the protection of TCEs entirely contradict the protection system for non-traditional literary, musical and artistic materials, i.e. the copyright system. For example, to balance the interests of creators and the public, the copyright system allows “borrowing from” but not “copying”. It could well be envisaged that the same should be allowed in relation to TCEs, at least non-sacred TCEs. Similarly, in keeping with the idea-expressions dichotomy, copyright does not protect a work’s “style”. Should the same not also apply to protected TCEs? Not all countries agree, however, that new, sui generis norms are needed, as they believe that the existing IP system is adequate in addressing the needs of Indigenous Peoples and local communities.
Any views expressed by Mr. Wendland do not necessarily represent the views of WIPO or any of its Member States.