E wipo/grtkf/IC/19/12 original: English date: February 23, 2012 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Nineteenth Session July 18 to 22, 2011, Geneva report

AGENDA ITEM 5: PARTICIPATION OF INDIGENOUS AND LOCAL COMMUNITIES: VOLUNTARY FUND

16. 
    The Chair introduced documents WIPO/GRTKF/IC/19/3 and WIPO/GRTKF/IC/19/INF/4.
    
17. 
    In accordance with the decision of the IGC at its seventh session (WIPO/GRTKF/IC/7/15, paragraph 63) IGC 19 was preceded by a half-day panel of presentations, chaired by
    Mr. Tomás Alarcón, President of Juridical Commission for Self-Development of Andean Indigenous First Peoples (CAPAJ), Tacna, Peru. The presentations were made according to the program (WIPO/GRTKF/IC/19/INF/5). The Chair of the Panel submitted a written report on the Panel to the WIPO Secretariat which is contained below in the form received:
    

“The theme for the panel discussion was “Making Sui Generis Protection Work: Best Practices in Community-Led Strategies for the Protection of Traditional Knowledge and Traditional Cultural Expressions”. The panel comprised: Angela R. Riley, Professor of Law, Director of the American Indian Studies Center, University of California, Los Angeles, United States of America; Ms. Valmaine Toki, Member of the United Nations Permanent Forum on Indigenous Issues (UNPII), 2011-2013, and Lecturer, Faculty of Law, University of Auckland, New Zealand; Mr. Willem Collin Louw, Chair, Working Group of Indigenous Minorities in Southern Africa, Secretary, South African San Council, and Member of the Provincial House of Traditional Leaders, Upington, South Africa; and Ms. Lucia Fernanda Inácio Belfort, Executive Director, Instituto Indígena Brasileiro para Propriedade Intelectual (INBRAPI), Chapecó, Brazil.
Professor Riley, the keynote speaker, stated that sui generis systems grew out of societal structure and intergenerational obligations. They had to be flexible and dynamic as well as communal and collective. Furthermore, she distinguished between non-codified sui generis customary law, codified customary law, statutory law as well as positive law, with the possibility of these being interrelated. Professor Riley referred to a global revolution, linking tangible and intangible property rights to human rights. She referred to property law as a means of protecting both tangible and intangible cultural resources. In this respect, she specifically highlighted Article 31of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). She also emphasized the importance of land, which was intertwined with TK, as well as the access to information and legal fora. Three central points were identified. First, situating Indigenous Peoples' TK in a framework with a connection to place as well as intellectual property law. She mentioned the connection to sacred tangible knowledge which facilitated the creation of sacred intangible knowledge. According to her, Indigenous Peoples’ rights did not fit neatly into the established international property law. Second, she touched upon discussions of TK protection in community-led examples. This process included appreciating the diversity of the world's indigenous groups, employing new models of consultation and collaboration, and tailoring rights and remedies. Regarding new models of consultation and collaboration, she presented examples, such as the Hopi Cultural Preservation Office’s Protocol for Research, Publication and Recordings. Concerning tailoring rights and remedies, she referred to sui generis trademark protection. She also stressed the existence of regional laws, such as the Pacific Model Law. Third, she referred to future ongoing issues of concern and research emphasizing the following crucial areas for future research: ensuring rights to land and resources, reconciling Indigenous peoplehood in a world of nation-states, and contemplating the proper relationship with existing intellectual property regimes. In conclusion, Professor Riley highlighted that intangible resources were the heart and soul of Indigenous peoples; they would continue to be exploited if left unprotected.
Ms. Toki affirmed that the relationship Maori as an indigenous people had with their TK was an indigenous right. Despite the guarantees articulated in the Treaty of Waitangi that Maori had “full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other taonga” in accordance with Article 31 of the UNDRIP, the Wai 262 report found that Maori did not have exclusive possession or ownership. Some key findings from the Report included the use and implementation of the concept of kaitiaki or caretaker throughout the existing legal system. The Tribunal Report recommended the establishment of a Commission with adjudicative, administrative and facilitative functions. However, the current legislative framework, such as Section 17 of the Trademarks Act, contained similar provisions. She concluded that indigenous rights to TK should be recognized by a sui generis right that was equivalent to that of exclusive possession or ownership. She referred to recommendation 28 of the tenth session of UNPII welcoming WIPO, in accordance with the UNDRIP, to engage with Indigenous peoples on matters concerning intellectual property, GRs, TK and folklore, and called for equal participation of Indigenous peoples within the WIPO process.
Mr. Collin Louw gave the background and current status of the San people. Regarding TK, he stressed the negative impact of the recording of the San plant and medicinal knowledge by bioprospectors which led to the transfer of such knowledge to the public domain. As a response and in order to promote unity, the San formed a regional organization representing the San Councils from each country. Furthermore, the San established a team which engaged in negotiations with the Council for Scientific and Industrial Research (CSIR). The San negotiation team entered an agreement with the CSIR, and as a result they gave the San 6% of the royalty income from the Hoodia plant patent. According to him, the current challenges comprised government compliance, recording of TK, and finally, shared TK. He concluded that it was not possible to separate TK from the broader heritage rights that were owned by Indigenous peoples.
Ms. Inácio Belfort addressed the issue of creating an international sui generis regime that would protect TCEs, TK and GRs of Indigenous peoples and local communities which respected the established principles of international law as it relates to Indigenous peoples (such as the ILO Convention 169 of 1989, Article 2, 4, 6, 7, 13 and 15). The social, cultural, and environmental contexts of each country had to be taken into account. Full and effective participation of Indigenous peoples and local communities required initiatives that were socially and culturally adequate for capacity-building. She referred to the “Fag Tar Project” as a good example of a capacity-building activity promoting respect for diversity with emphasis on gender issues which was being developed in preparation for Rio+20 and CBD COP11. The customary law, customs and practices of Indigenous peoples should be considered as a source of solutions and should be respected during proceedings on free, prior informed consent. Brazil’s environmental diversity related to its cultural diversity, with areas of high importance located within Indigenous lands and within reserves managed by local communities. She noted that among the lessons learnt from years of working in capacity-building with Indigenous peoples and local communities in the fifty regions of Brazil and Latin America, it was important to recognize the existence of guidelines, such as gender equality and respect of cultural diversity, applicable to Indigenous peoples and local communities for the creation of a future regime for the protection of TK, TCEs and GRs”.

18. 
    The Advisory Board of the WIPO Voluntary Fund met on July 19 and July 20, 2011 to select and nominate a number of participants representing indigenous communities to receive funding for their participation at the next session of the IGC, subject to the renewal of the IGC’s mandate by the 2011 WIPO General Assembly and provided that additional funds in the Voluntary Fund became available.
    
19. 
    Following the Advisory Board’s deliberations, it proposed to the Director General of WIPO for consideration and approval that, with a view to facilitating examination of the applications to the Voluntary Fund by the Advisory Board, revision of the format and content of the application forms be undertaken, and that application forms completed in any of the official UN languages other than English be translated into English. The Board’s deliberations were reported in document WIPO/GRTKF/IC/19/INF/6.