WIPO’s move to open access laudable among international organizations

My latest post on WIPOMonitor.org notes that the World Intellectual Property Organization (WIPO) is at the forefront of international organizations in adopting an Open Access policy for its publications.  I suggest that WIPO, and other international organizations, should go further to ensure that all its documents and historical records are also openly accessible under the Creative Commons licence designed for international organizations.  Read the post here.

Does IP have a role in sustainable development? Of course it does!

Does intellectual property have a role in sustainable development?  Of course it does!  But the World Intellectual Property Organization, a UN agency, seems uncertain as to whether it has a role to play in implementing the UN's Sustainable Development Goals (SDGs).

As I note in a draft book chapter, WIPO's preliminary analysis of the ways in which its work supported SDGs viewed most of WIPO’s work as contributing to SDG 9, the building of infrastructure and industrialization, as well as goal 8, that of economic growth.

Surprisingly few of WIPO’s activities were viewed by WIPO as contributing to the SDGs of education, hunger, protecting biodiversity, combating climate change, or ensuring human health.

"Developed" countries argue "that only a few goals apply to the work of WIPO, and others argue that there should be no ‘cherrypicking’ as all the goals in one way or another do apply to WIPO’s work as a UN agency."  The view of the "developed" countries, here, is completely ridiculous; it is clear that intellectual property plays an important role in relation to many SDGs, including those related to food and agriculture, health, innovation, climate change, biodiversity, and technology transfer.

The world intellectual property system, at present, also sometimes works contrary to achievement of the SDGs, by locking up agricultural innovation, inflating drug prices, stalling innovation, rewarding the invention and sale of dirty technologies, locking up biodiversity, and preventing technology transfer. There is no shortage of proposals for reform that would help to address these problems.  (See the work of Peter Drahos, Matthew Rimmer, and Ahmed Abdel-Latif, among  many others.)  Industry players note the important role of intellectual property  in potentially stalling climate-friendly innovation; this is why Tesla has adopted open patent policies to encourage the take-up and spread of electric vehicle technology.

WIPO and its member states should acknowledge the links between intellectual property and both sustainable and unsustainable development.  The UN sustainable development agenda requires WIPO, as a UN agency, and its member states to build and retool world intellectual property institutions for sustainable development. 

WIPO indigenous peoples' representation still lacking

Nelson Kantule, from the Kuna Peoples in Panama (Kunas unidos por la madre tierra), and Preston Hardison, policy analyst for the Tulalip Tribes in the United States, were interviewed recently by IP-Watch about the current ongoing negotiations about intellectual property and traditional knowledge at the World Intellectual Property Organization (WIPO).

WIPO traditional knowledge negotiations have long failed to include sufficient representation by indigenous peoples, and have been ongoing for many years with few, if any, results.  Chapter 9, "The role and inclusion of indigenous peoples in international copyright", of my book International Copyright and Access to Knowledge,  recounts this history of failure and places it in the context of indigenous peoples' representation in the United Nations more broadly.  

I note that in 2007,  the Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly.  Article 18 of that declaration provides that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

WIPO’s efforts to implement Article 18 have been deemed inadequate by some indigenous peoples, and WIPO has been called on by the United Nations Permanent Forum on Indigenous Issues to improve its implementation of the declaration.

Indigenous peoples' representation at WIPO has been so bad that in February 2012 most indigenous observer delegates to the IGC stood and walked out of IGC negotiations in protest of “the continuing reduction in the quantity and level of their participation.”

In May 2012, the United Nations Permanent Forum on Indigenous Issues chastised WIPO, issuing a number of recommendations to WIPO aimed at addressing some of the problems that had been identified.  It called on states “to organize regional and national consultations to enable indigenous peoples to prepare for and participate effectively in sessions of the Intergovernmental Committee” (p. 9-10).

As of my last check, the Forum's recommendations had not yet been addressed by WIPO, and Kantule and Hardison's account seems to confirm that WIPO's response has been inadequate.

WIPO meets on Genetic Resources; Participation of Indigenous Peoples at issue

The Intergovernmental Committee on Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources (IGC) meets this week at WIPO.  The Committee is working on negotiating a new treaty or soft law instrument on Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources.  This week's work will focus on genetic resources, with future meetings this year on traditional knowledge, and traditional cultural expressions.

The meeting begins today with a half day panel of indigenous and local communities - the IGC's traditional way of beginning each meeting - in an effort to include indigenous and local communities in their work.  At the meeting today James Anaya, United Nations Special Rapporteur on the Rights of Indigenous Peoples, gives the keynote.

The IGC's efforts to include indigenous peoples in their work has been subject to both criticism and commendation by the United Nations Permanent Forum on Indigenous Issues.  In February 2012 indigenous delegates walked out of WIPO in frustration at their inability to adequately participate in the negotiations.  Indigenous delegates at WIPO meetings have no power to submit text proposals on  the texts under discussion, and must do so through state delegations.  Concerns have been raised that, under the draft texts, states - rather than indigenous peoples - could grant themselves control over the traditional knowledge, cultural expressions, and genetic resources of indigenous peoples. Many delegates to the Permanent Forum argued that the processes underway at WIPO "only barely masked States’ desires to appropriate indigenous resources." Such views stem, in part, from the fact that the current draft texts use the term "beneficiaries", without specifying that "beneficiaries" must be indigenous peoples, thus leaving the door open to states defining the state itself as the beneficiary of protection. 

The Permanent Forum on Indigenous Issues has, as a result of these controversies, issued a set of recommendations to WIPO, following a consultation:

46. The Permanent Forum recommends that WIPO seek the participation of experts on international human rights law specifically concerning indigenous peoples so that they provide input into the substantive consultation process, in particular with reference to the language in the draft text where indigenous peoples are “beneficiaries” and other language that refers to indigenous peoples as “communities”, as well as the general alignment of the draft text of the Intergovernmental Committee with international human rights norms and principles.

47. The Permanent Forum demands that WIPO recognize and respect the applicability and relevance of the Declaration as a significant international human rights instrument that must inform the Intergovernmental Committee process and the overall work of WIPO. The minimum standards reflected in the Declaration must either be exceeded or directly incorporated into any and all WIPO instruments that directly or indirectly impact the human rights of indigenous peoples.

48. The Permanent Forum appoints Mr. Paul Kanyinke Sena, a member of the Forum, to undertake a study to examine challenges in the African region to protecting traditional knowledge, genetic resources and folklore, and to report thereon to the Forum in 2014.

49. The Permanent Forum welcomes the decision of the Intergovernmental Committee to organize, in cooperation with the Forum, expert preparatory meetings on the Intergovernmental Committee process for indigenous peoples representing the seven geopolitical regions recognized by the Forum.

50. The Permanent Forum requests that WIPO commission a technical review, to be conducted by an indigenous expert, focusing on the draft texts concerning traditional knowledge, genetic resources and traditional cultural expressions, and to provide comments thereon to the Intergovernmental Committee through the Forum. The review should be undertaken within the framework of indigenous human rights.

51. The Permanent Forum calls upon States to organize regional and national consultations to enable indigenous peoples to prepare for and participate effectively in sessions of the Intergovernmental Committee.

52. Consistent with article 18 of the Declaration, the Permanent Forum requests Member States to explore and establish modalities to ensure the equal, full and direct participation of indigenous peoples in all negotiations of the Intergovernmental Committee.

53. As highlighted in article 31 of the Declaration, the Permanent Forum requests that both WIPO and States take effective measures and establish mechanisms to recognize the right of indigenous peoples to protect their intellectual property, including their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games, and visual and performing arts.

54. The Permanent Forum calls upon WIPO to strengthen its efforts to reach out to indigenous peoples and to continue to provide practical assistance and capacity strengthening for and in cooperation with indigenous peoples.

55. The Permanent Forum calls upon the Intergovernmental Committee to appoint representatives of indigenous peoples as members of any Friends of the Chair groups and as co-chairs of any working groups and drafting groups that may be established by the Committee. It also calls upon the Committee to appoint an indigenous person as a co-chair of the Committee as a whole.

 The IGC held a consultation on the participation of observers and has issued this related document, outlining various options for further indigenous participation.  This discussion will continue this week.

Canada Objects to IP Clauses of UN Declaration on the Rights of Indigenous Peoples

Canada has expressed its intent to vote against the UN Declaration on the Rights of Indigenous Peoples, in part because of objections to clauses it includes on intellectual property. In a press release, Canada said, "We have stated publicly that we have significant concerns with the wording of provisions of the Declaration such as those on: [...] intellectual property[...]."

The intellectual property-related clauses in the treaty include:

Article 11
2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 31
1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural
heritage, traditional knowledge, and traditional cultural expressions.