Ahead of WIPO Diplomatic Conference, Native Americans revisit the importance of collaboration, co-operation and ‘FPIC’
In the buildup to the WIPO Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge, the National Congress of American Indians (NCAI) continues to intensify contacts and outreach with stakeholders and relevant authorities, including the United States Patent and Trademark Office (USPTO) to ensure a successful outcome. The aim is for an outcome that meets the expectations of not only its constituents, but all Indigenous Peoples. Historically, the NCAI has been an active member of the Indigenous Caucus at the WIPO Intergovernmental Committee (IGC). Its presence in the forum is mainly through the Native American Rights Fund. The NARF contributes to building goodwill, promoting expertise, solidarity and strategic understanding amongst members of the Indigenous Caucus, nation states and like-minded stakeholders, including the African Group at the IGC.
Access and Benefits Sharing (ABS) Canada is delighted to share NCAI’s perspectives and its proposal for potential last minute textual interventions at the final stages of negotiations during the 2024 Diplomatic Conference. It is the overarching position of the NCAI that Parties to the anticipated treaty must, in the discharge of their roles, duties, discretions, and obligations, discharge those responsibilities in conjunction and consultation with Indigenous Peoples. Parties must exercise this capacity in ways that provide necessary safeguards against harm to Indigenous Peoples’ rights and interests. NCAI posits that the instrument and its processes must give intentional support to further entrenchment and operationalization of free, prior and informed consent. The NCAI believes strongly that the anticipated instrument should build on the rights of Indigenous Peoples as outlined in the United Nations Declaration on the Rights of Indigenous Peoples. NCAI is strongly inclined that the anticipated treaty must be without any equivocation or ambiguity regarding compulsory disclosure of origins of genetic resources and associated traditional knowledge within the final instrument and the agreed language for triggering disclosure.
As well, the NCAI believes in the optional and complementary nature of information systems regarding genetic resources and associated traditional knowledge. Such systems should not be a substitute for mandatory disclosure and there is no basis for subjecting disclosure requirements to any exemptions. NCAI believes that any such information system must be hedged against all risks of potential counterproductive effects. This is in order to not undermine the essence of the treaty in securing the integrity and transparency of the intellectual property system and to stop the continuing exploitation and erosion of traditional knowledge.
Below is an outline of the NCAI’s textual proposals and position statement ahead of the WIPO Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge, issued two months ahead of the Geneva meetings scheduled for May 13 - 24, 2024. Although it is an NCAI initiative, the proposals resonate with all Indigenous stakeholders and groups with like-minded interests.
As stated:
National Congress of American Indians
Text Proposals for the Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge
March 11, 2024
The Native American Rights Fund (“NARF”) participates in the WIPO IGC on behalf of the National Congress of American Indians (“NCAI”). NARF is the oldest and largest nonprofit law firm in the United States dedicated to defending the rights of Native American tribes, Alaska Natives and Native Hawaiians. NCAI is the oldest, largest and most representative American Indian and Alaska Native organization serving the broad interests of tribal governments and communities.
In preparation for the upcoming Diplomatic Conference to Conclude an International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources – and taking into consideration the near-final nature of the negotiations on the instrument – NCAI and NARF have developed and include below a “track changes” version of the Basic Proposal for the Diplomatic Conference (which we refer to as “the instrument” or “the GRATK instrument”) with only the most critical modifications included. We provide a brief explanation for each text proposal.
These text proposals are provided solely on behalf of NARF and NCAI. We do not purport to speak for the entire WIPO Indigenous Caucus. Additional or different text proposals may be submitted at a later date. We would welcome the opportunity to discuss our text proposals with Regional Groups and individual Member States.
Preamble
The UN Declaration on the Rights of Indigenous Peoples should be the guidepost for Member States in these negotiations. As such, rather than merely acknowledging the existence of the Declaration, the preamble should recognize and reaffirm the obligations set forth in the Declaration and Member States’ commitment to achieving the ends of the Declaration.
Article 1 Objectives
Consistent with the mandate of the WIPO IGC, language should be added in the chapeau of the Article 1 to clarify that the instrument is intended to “contribute to the protection of genetic resources and associated traditional knowledge.”
Article 2 List of Terms
NCAI proposes the inclusion of a definition of the term “confidential information” to ensure that secret, sacred or culturally-sensitive TK is included under Article 3.6 as confidential information to be protected from disclosure.
The draft instrument does not include a definition of “traditional knowledge”. Although the WIPO IGC is very near consensus for the definition of traditional knowledge in the context of negotiations on the TK draft instrument, it is not necessary or advisable to include a definition of the term in the GRATK instrument. Other international instruments such as the Convention on Biological Diversity and the UN Declaration on the Rights of Indigenous Peoples refer to traditional knowledge without defining the term, leaving its interpretation to the national level”.
Attempting to negotiate a definition at this stage could possibly prejudice a positive outcome to the Diplomatic Conference and could unnecessarily constrain the ongoing negotiations on the TK instrument. However, if a definition of traditional knowledge were to be included in the GRATK instrument, it should be in line with the current definition included in the draft TK instrument, as modified here:
“Traditional Knowledge refers to knowledge originating from Indigenous Peoples or local communities that is dynamic and evolving and is the result of intellectual activity, experiences, spiritual means, or insights in or from a traditional context, which may be connected to land and environment, including know-how, skills, innovations, practices, teaching, or learning”.
Article 3 Disclosure Requirement
Article 3.3 provides that if a patent applicant knows neither the origin nor source of the GRs and/or ATK that the claimed invention is materially/directly based on, they shall make a declaration to that effect. NCAI opposes this provision as it creates a significant opportunity for applicants to avoid the disclosure requirement. It would be highly unusual for an applicant to not, at a minimum, know the source of the GR and/or ATK. If the provision is maintained, at a minimum there should be a requirement of an affirmation that the declaration of lack of knowledge is being made only after the exercise of due diligence to ascertain the information.
Article 4 Exceptions and Limitations
This provision allows for state parties to adopt exceptions and limitations in special cases to protect the public interest. Given that the instrument is merely an administrative transparency mechanism, it is hard to envision a circumstance that would warrant allowing exceptions or limitations to the disclosure requirement, and NCAI would prefer that Article 4 be deleted. If it is retained, language should be added to ensure that any such exceptions and limitations are developed in conjunction with Indigenous Peoples.
Article 6 Sanctions and Remedies
Article 6 requires parties to put in place at the national level appropriate and effective legal, administrative and/or policy measures to address a patent applicant’s non- compliance with the disclosure requirement. NCAI’s position is that such sanctions and remedies should be developed in conjunction with Indigenous Peoples.
Article 7 Information Systems
NCAI’s position is that information systems (or databases) of GRs and ATK can play a supplemental role, but do not replace the need for a mandatory disclosure requirement.
Furthermore, the development and ongoing use of such information systems must recognize the right of Indigenous Peoples to consultation, participation, and free, prior and informed consent, and be in accord with Indigenous Peoples’ own laws, customs and protocols.
Therefore, it is necessary that any such systems be developed in conjunction with Indigenous Peoples and with incorporation of sufficient safeguards. NCAI welcomes the modifications to Article 7 during the Special Session to include the requirement that information systems be established, and appropriate safeguards be developed, in consultation with Indigenous Peoples. In addition, Indigenous Peoples must be included in any working groups established within WIPO on the issue of information systems, including those referenced in Article 7.3. Modification of Article 11 as we describe below will ensure meaningful participation of Indigenous Peoples in all such working groups.
Because information systems lacking proper safeguards may increase the risk of and facilitate misappropriation by making TK more readily accessible, we have a number of suggestions for specific safeguards that we will share at the appropriate time in the context of the working groups. These safeguards are designed around three guiding principles:
Free, Prior and Informed Consent (FPIC) – Information system creation, content, access, uses and safeguards must be developed and carried out in conjunction with Indigenous Peoples and taking into account their own laws, customs and protocols.
Do No Harm – Information systems must not infringe the rights of Indigenous Peoples, including by facilitating misappropriation or misuse of GRs or ATK. Related to this, inclusion of Indigenous Peoples’ TK within information systems must not be considered as evidencing that such information is in the public domain.
Right to Access/Remove/Correct – Indigenous Peoples must have the right to remove or correct (i) information inappropriately sourced or incorporated; and (ii) confidential, culturally-sensitive, sacred or secret information.
Article 8 Relationship with Other International Agreements
Because of its centrality to these negotiations and any resulting legal instrument, NCAI recommends including an express reference to the UN Declaration on the Rights of Indigenous Peoples in Article 8.
Article 11 Assembly
This provision states that parties to the instrument will establish an Assembly to perform various functions, including the review referred to in Article 9. It is critical that Indigenous Peoples have a role in the Assembly and Article 11 should be revised to ensure Indigenous Peoples’ meaningful participation.
Although clearly not speaking for the Indigenous Caucus, the NCAI (through the NARF) provides a constructive setting for a principled and positive Indigenous outlook over the remaining work on the genetic resources text. This initiative and tone will, no doubt, support positive Indigenous Peoples and like-minded stakeholders’ interventions as expert delegates and top diplomats convene Geneva in a final push to forge a symbolic and historic international consensus to advance progress over the subject of protection of traditional knowledge after more than two decades of efforts.
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