A few years ago, German professor Tim Dornis, an expert in intellectual property protection, was contacted during a sabbatical in California by the Secretary General of GRUR, the German Association for Intellectual Property and Copyright: “We are currently attending to a very important development in Geneva,” he said, “that we need to look at more closely. This could be something groundbreaking.

Geneva is the headquarters of WIPO, the World Intellectual Property Organization, a United Nations agency for the global protection of intellectual property (IP: Intellectual Property). Intellectual property laws deal with the legal protection and property rights of those people who create new things using intellectual means: works of art, as well as inventions and written works.

Dornis, who had already represented GRUR at other WIPO conferences, traveled to Switzerland and took a closer look at what is currently happening at WIPO. “And then I saw that this could be something fundamental, innovative,” he told DW.

A diplomatic conference will be held in Geneva between May 13 and 24 to create a legal instrument with international validity that will improve “the effectiveness, transparency and quality of the patent system.” According to a WIPO press release, the goal is to prevent “patents from being erroneously granted for inventions that are neither new nor innovative in relation to genetic resources and traditional knowledge associated with genetic resources.”

Exploitation and appropriation

For more than 25 years, developing countries and indigenous peoples have been pushing for the introduction of intellectual property laws that better protect their local fauna and flora, traditional knowledge and culture from exploitation by foreigners. In recent years, calls have grown louder for greater accountability on the part of companies that use inherited knowledge or cultural heritage from foreign countries or indigenous cultures.

Fashion companies are being criticized for using traditional elements in their collections. Pharmaceutical companies are under scrutiny when they convert medicinally effective plants into medicines that they then sell. Critics of these practices speak of cultural appropriation in the first case and of biopiracy in the second, when it comes to the use of genetic resources, for example in plants.

“This doesn't really fall under the existing intellectual property system, like patent law or copyright law,” Wend Wendland, director of WIPO's Department of Traditional Knowledge, Genetic Resources and Cultural Traditions, told DW.

A long process

The debate on legal measures in this area began much earlier, specifically in 1995, immediately after the founding of the World Trade Organization (WTO). International standards for intellectual property rights were formulated, which all WTO members were required to implement.

In India, the implementation of these norms revealed something worrying: foreign countries, mainly industrialized countries like the United States, had applied for patents for products that have been part of traditional practices in India for centuries.

Viswajanani Sattigeri, president of the TKDL (Traditional Knowledge Digital Library), an initiative that digitally collects and archives traditional knowledge of Indian culture, gives DW examples of this: “For example, there is turmeric or turmeric, which is used to promote healing wounds or basmati rice for its fungicidal properties, etc.”

Sattigeri explains what the problem is: when a patent is granted to a foreigner based on the traditional knowledge of a community, the patent holder becomes the “owner” of this knowledge: “The nation loses its own heritage and its knowledge. traditional. “

Stop passing out

WIPO's 193 member states want to ratify in Geneva an agreement that will lead to more comprehensive protection of disputed values. To do this, it has divided these values ​​into three areas that are especially threatened: genetic resources, traditional knowledge and cultural heritage. Genetic resources include biological material, for example from plants or animals, that contains genetic information, while traditional knowledge or cultural assets are knowledge that has been passed down from generation to generation and is usually transmitted orally.

This applies to knowledge about food, agriculture and healthcare. biodiversity and others. Cultural heritage are artistic works that reflect the tradition and identity of a group, such as music, design or art in general. “This changes the classical understanding of 'intellectual property,'” Dornis says. “It could break the system where many things are simply unprotected.”

Under current intellectual property law, the protection of intellectual works ends a few years after the moment of their creation. Many cultural assets and practices have been developed and transmitted over hundreds of years, so they are not protected at all. And there is no single creator or originator who can be entitled to a patent. After all, this knowledge has arisen and developed collectively, and it is therefore difficult to attribute its creation to a specific community or region.

This makes it easier for a foreign party to intervene, collect and use the knowledge of a community and then patent it in their own country. This, says Dornis, allows more developed countries to use knowledge without paying its creators for it. “If you urgently need pharmaceutical development, then you have to pay for the medical product that is based on your genetic resources and arises from your traditional knowledge, because it is protected by patent.”

Disclosure and Indemnification

The May conference will focus on genetic resources. Its goal is to create legal requirements so that patent applicants within WIPO must disclose where the plant or traditional knowledge they wish to use comes from and whether they have permission to use it. If such an agreement is reached, the focus will be on how to more clearly define the other criteria.

The bill also aims to create data collections like Sattigeri's. India's TKDL, the first database of its kind in the world, has been collecting and translating information (much of it in Sanskrit) for decades, creating a collection of data that patent attorneys can work with. Sattigeri told DW: “We focus on Indian health systems, specifically Ayurveda and Unani, on the yoga schools here and on a wealth of knowledge on everything related to health, including animal and plant health, and on cosmetics”.

When applying for a patent, lawyers can use such databases and find out if something similar already exists. States can also benefit by investigating patent rights and wanting to know if they are based on resources or traditions that originate in their countries.

Money and respect

Countries with rich biodiversity have been demanding such disclosure requirements for decades. The WIPO agreement, if reached, will not formulate any compensation obligation. But existing environmental laws already stipulate that the financial benefits of inventions must be shared with the country in which they originate. Stricter compensation laws could lead to higher compensation payments for those countries.

According to WIPO's Wend Wendland, many developing countries see the proposed regulation as an important step forward: “That's why it's important to them. It's very technocratic, but it has a long history. And for many countries it has a lot of symbolism, especially in developing countries.”

Author: Kristie Pladson