On 12 July, during the 4th Session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), the World Intellectual Property Organization (WIPO) hosted a lunch-time event entitled “Indigenous Peoples’ Traditional Knowledge and Intellectual Property”. Wend Wendland (WIPO Traditional Knowledge Division) provided an overview of the conventional intellectual property rights system in relation to traditional knowledge, traditional cultural expressions, and genetic resources. While acknowledging that WIPO Member States are currently negotiating towards an international legal instrument in attempt to ensure the effective protection of these three things, he noted that intellectual property does not provide a holistic response to the need for protecting traditional knowledge and cultural expressions.
Les Malezer (National Congress of Australia’s First Peoples) noted that the WIPO negotiations are only the second international process (after the Convention on Biological Diversity negotiations towards the Nagoya Protocol on Access and Benefit Sharing) to address Indigenous peoples’ rights since the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). He argued that Indigenous peoples’ rights are still not well-understood at the international and domestic levels and that international processes continue to ignore historical injustices and fundamental rights such as self-determination. He said that the rooting of international processes in the principle of state sovereignty fails to acknowledge customary rights and sovereignty over natural resources, as enshrined in UNDRIP.
Mattias Ahren (Saami Council) noted that Indigenous peoples don’t view traditional knowledge, traditional cultural expressions, and genetic resources as particularly different from other subject matters that elicit formal rights. He used the CBD negotiations towards the Nagoya Protocol as an example of the inherent conflicts that arise when discussions around traditional knowledge and genetic resources are not rooted in fundamental human rights; he also reiterated Malezer’s concern about the over-emphasis on state sovereignty and lack of recognition of Indigenous peoples’ rights over genetic and natural resources. In addition, he noted that the oft-cited high participation rates of Indigenous peoples within the CBD generally applies only to the negotiations around Article 8(j) and that participation in the ABS negotiations was a significant issue. He indicated that the next aim is to secure direct rights over traditional knowledge, traditional cultural expressions, and genetic resources in the implementation of the Nagoya Protocol.
The question and answer session highlighted: the need to address issues of equity, historical injustices, benefit-sharing, and self-determined development; the fundamentally discriminatory nature of constitutions that presume state rights over resources (such as in Australia); and the concern that customary legal systems “will not be up to the task” of dealing with pressures of the market-based system.