Unveiling the Critique of the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, 2024

Abstract

‘Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge, 2024’, signed by the World Intellectual Property Organisation on 24^th May, 2024, is one of the landmark moments in the field of intellectual property rights, especially for the Global South, with the abundance of rich biodiversity and traditional knowledge among traditional communities as well as common households. Indigenous communities throughout the world such as Adivasis in India, Aboriginal Australians in Australia, Māori in New Zealand, Ainu in Japan, etc. have suffered a lot in preserving the intellectual property rights of their traditional knowledge which have been inherited by them from generation to generation. This article particularly deals with their traditional knowledge related to genetic resources (GR) which according to the 1992 Convention on Biological Diversity (CBD) are genetic material of plant, animal, microbial, or other origin that have actual or potential value. This treaty aims to preserve biodiversity, increase the transparency of the patent system, and promote innovation. However, despite these notable achievements, the treaty still has several drawbacks. The implementation of sanctions, the non-retroactivity clause, and the verification of disclosure information are few of the issues covered in this article's critique and analysis of the WIPO treaty's shortcomings. Additionally, it specifically addresses the concept of traditional knowledge.

Introduction

A significant advancement in the history of intellectual property (IP) is the WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge, which went into force on May 24, 2024. According to WIPO Director General Daren Tang, this treaty represented the culmination of a 25-year negotiation process and demonstrated WIPO's ongoing commitment to multilateralism. Its significance is recognised globally, but particularly in areas such as the biologically and culturally heterogeneous Global South, where traditional knowledge and genetic resources have long been sources of concern due to exploitation.

The complex interactions between IP, GR, and TK are addressed for the first time in this treaty, highlighting WIPO's growing involvement in the preservation of indigenous rights and cultural heritage. However, it becomes crucial to analyse whether this treaty actually has the potential to protect the IP rights of indigenous people or is none other than a toothless monster or a sheep in wolf’s clothing.

Traditional Knowledge

It is believed that traditional knowledge (TK), is the common property that the entire society owns. It is regarded as res communis (owned by the entire society).  As per World Intellectual Property Organisation[1]-

“Traditional knowledge (TK) is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”

Despite the numerous attempts to define TK, is a concept that is innately complicated and multifaceted, making it challenging to explain in a clear and succinct manner. It comprises of infinite components such as traditional knowledge of different biotic as well as abiotic resources including plants, animals, algae, fungi, soil, rocks, minerals, etc. and their medicinal, properties, economic utilities, cultural significance, etc. TK has a rich tapestry of intangible cultural heritage in addition to these natural resources. This comprises ancient intellectual properties that have been passed down through the centuries, as well as customary tales, folklore, dance styles, and musical ragas. Every one of these elements is essential to the social and cultural fabric of communities, maintaining their distinct identities and ways of life. Moreover, TK is not a static, but dynamic concept, it changes over time in response to evolving circumstances while maintaining its core principles. TK is also not limited to a certain geographic area or indigenous group. It is also possible that same TK is used in different parts of the globe by different indigenous communities adding their unique variations. This presents a significant challenges for the conservation of intellectual property rights.

Significance of Conservation of Traditional Knowledge

India is a richly diverse country with abundance of traditional resources and knowledge which has been used for multiple generations by its indigenous people such as curing wounds by applying turmeric, consuming turmeric milk in order to cure cold, applying Neem paste on face to prevent acne, etc.  However since the advent of foreign powers in India, especially European powers, one thing that has suffered a lot is India’s vast repository of ancient traditional knowledge in medicine, beauty, food, sanitation, etc. Many of these indigenous practices have been appropriated and anglicized, becoming part of foreign cultures such as Chicken Tikka Masala which is unofficially regarded as England’s National Dish despite its Indian origins. Even now, India is not untouched by violation of intellectual property rights of its TK and GR. Turmeric Case[2], Neem Case [3]& Basmati case [4]are few of its examples.

Turmeric Case is one landmark decisions that highlights the vulnerability and exploitation of TK and GR of developing nations in the name of modern inventions and development. Soman K. Das and Harihar Kohli of the University of Mississippi Medical Centre were awarded a US patent in 1995 for the use of turmeric powder to treat wounds and ulcers. However, the Indian Council of Scientific and Industrial Research (CSIR) contested the patent in 1996, arguing that the innovation lacked novelty and was neither imaginative nor creative. The patent was revoked, acknowledging that turmeric has been used medicinally in India for generations.

W.R. Grace and the US Department of Agriculture created an anti-plant fungus composition in the Neem Patent case, utilising extracts from the Neem plant, including its oil. Citing evidence of neem's ancient, centuries-old use in Indian Ayurvedic texts, India, through the Research Foundation for Science, Technology and Ecology (RFSTE), filed a patent challenge. The European claim Office eventually withdrew the claim due to a lack of inventive step and creativity when it was determined that using neem oil to treat fungal infections was not a novel finding.

As per WIPO[5] website, companies from many nations in the past submitted patent applications for the use of India ancient natural remedies to cure illnesses. M/s Phytrix JV, LLC from the USA applied for Phyllanthus (Bhumi aamla), M/s Purimed Co. LTD. from South Korea applied for using Indian lotus, M/s Amcod Limited from Kenya applied for neem, gheekawaar, and daal chini, and Seoul National University Industry Foundation from Korea applied for licorice (Mulaithi). However as per the evidence from an Indian research centre, traditional Indian medicine was already aware of these treatments. As a result, all four companies retracted their patent applications.

However India has not always been victorious in the journey of saving its TK in the legal battles. Since the 1980s[6], various patents related to neem processes and products have been granted in various nations. The majority of neem patents are held in the USA, followed by Japan, Australia, and India. These significant rise in the number of patents has raised the issues like biopiracy and conservation of TK and GR.

World Intellectual Property Organization

The World Intellectual Property Organisation (WIPO) [7]is a UN specialised agency, with its parent organisation being the United Nations Economic and Social Council. WIPO was established with the aim of advancing and safeguarding intellectual property (IP) worldwide. WIPO works with governments and international organisations to promote and protect intellectual property (IP) globally. WIPO deals with various tasks such as organizing forums to deliberate and formulate IP regulations and policies at global level, offering worldwide services for IP registration and protection in multiple jurisdictions; settling cross-border IP disputes, facilitating the integration of IP systems through standard global norms.

WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, 2024

The negotiations of a treaty pertaining to intellectual property, genetic resources, and traditional knowledge related with genetic resources came to an end on May 24, 2024, during a diplomatic meeting. This historic treaty marked the end of protracted negotiations that started in 2001 at WIPO. As per WIPO Director General Daren Tang, this negotiation was not only the conclusion of a 25-year journey, but also a strong signal that multilateralism is alive at WIPO[8]. This treaty sparked a ray of hope in the eyes of the biologically and culturally rich global south, whose intellectual property rights relating to its TK and GR have been exploited since the past. This is the first WIPO Treaty to address the interface between IP, GR and TK and to include provisions specifically for Indigenous Peoples as well as local communities.

Article 3 of the treaty deals with disclosure requirements. This treaty requires the party nations to mandate the disclosure by patent applicants about the country of origin in case the claimed invention is based on genetic resources[9] and, the indigenous people, in case their claimed invention is based on traditional knowledge associated with genetic resources[10].

Limitations of the Treaty

Despite a 25-year-long battle to provide intellectual property rights to indigenous people having TK regarding GR, the provisions of the treaty are not exempt from the limitations and various loopholes that can be exploited by big, giant companies, once again leaving indigenous communities vulnerable.

The journey towards recognizing and conserving the IP rights of indigenous communities with traditional knowledge regarding genetic resources has indeed been lengthy, spanning over a quarter-century. The recent treaty has made great progress in resolving the issues, but it still has gaps and restrictions leaving indigenous communities vulnerable to exploitation, particularly by large corporations. These "loopholes" are ambiguities in the treaty's wording or enforcement procedures that might be used to gain unfair advantages. The following are a few of the main gaps:

Inadequate Sanctions for Non-Compliance

One of the loophole is the inadequate sanctions for non-compliance of the treaty. As per Article 5, Clause 1[11] of the treaty, if a patent applicant does not follow the mandatory disclosure requirements, they will face "appropriate, effective, and proportionate" penalties based on national laws of the party nations to the treaty. However, it does not specifies about the penalties. This can lead to different countries having different enforcement standards, which can be exploited by patent applicants.

For instance, if a country A has stringent patent laws and on non-compliance of the treaty, and imposes rigorous fines, sanctions, damages, and even the cancellation of patent rights for non-compliance, it ensures a high level of adherence to the treaty. On the other hand, a country B is an economically and democratically weak nation and levies nominal fines in case of non-compliance of the treaty it can result in companies avoiding to register their patents in country A and country B can become ‘Patent Heavens’ for the companies.

US, followed by United Kingdom and France, topped the International IP Index, 2023[12], released by the U.S. Chambers of Commerce. Companies will hence refrain from registering their patents in such countries.

Non Obligatory Clause that Exempts Patent Offices to Verify the Authenticity of the Disclosure

As per Article 3, Clause 5[13] of the treaty, patent officer can give guidance but is not obliged to provide the verification of the authenticity of the disclosed information of the patent. This could lead to false or incomplete disclosures of information going unchecked, which can provoke the applicants to misguide the system and thus, it is detrimental to the IP rights of indigenous people.

Applicants may give misleading information about the source of the GRs or ATK used in their innovations if they are not required to confirm the accuracy of the information. For example, an organisation can misrepresent that a specific genetic resource originated in an area where it is typically found, instead than recognising the particular indigenous people who contributed the traditional knowledge linked to that resource. If the disclosure is not verified by the patent office, this bogus claim may remain unchallenged.

Applicants might also omit critical information about the true source of the GRs or ATK. For instance, they might disclose only part of the information, such as the country of origin, without mentioning the particular indigenous community that holds that traditional knowledge regarding GR, which, as per Article 3, Clause 2 of the treaty, they are required to disclose.

Non-Retroactivity Clause

A non-retroactivity clause given under Article 4[14] of the treaty states that patent applications filed before the treaty's adoption are exempt from its obligations. This clause’s motive is to prevent new restrictions from being applied retrospectively to already-existing patents and applications. Despite its attempts to uphold the rights of those who have already submitted patent applications, it presents significant challenges that could imperil the objectives of the agreement. A potential flooding of preemptive patent filings is one of the direct effects of the non-retroactivity provision. Businesses that plan to apply for patents in advance of the treaty's adoption might do so in order to escape the impending obligatory disclosure rules. Furthermore, the treaty does not safeguard the intellectual property rights of those indigenous people whose ATK of GRs has already been utilised without their consent or proper acknowledgement.

Lack of Uniform International Enforcement Mechanism

As per Article 9[15]of the treaty, contracting parties have been given the power to enforce the application of the treaty. One major shortcoming of the treaty is that different countries have varying degrees of compliance and enforcement due to its non-uniform enforcement system. The efficiency of the treaty is compromised by this disparity, which enables countries with weaker enforcement systems to turn into safe havens for defaulters. As a result, the treaty runs the risk of being seen as a toothless monster that lacks the ability to implement its goals.

While accommodating multiple legal systems requires flexibility, doing so frequently leads to inconsistent enforcement mechanisms. Nations with laxer enforcement protocols might not police the treaty's requirements rigorously, which would foster a climate conducive to noncompliance. For instance, a country lacking sufficient financial and legal resource infrastructure may find it difficult to sufficiently investigate and carry out the required disclosure responsibilities. The intended protections of the treaty may be circumvented by patent applicants who take use of these faults to file patents without adequately reporting the used genetic resources based on traditional knowledge.

No Mechanism for the Protection of Artistic and other TK

This treaty is only confined with genetic resources based traditional knowledge. There is still no mechanism for the protection of other intangible TK such as folklores, dance forms, ragas in music, art forms, etc. which need to be addressed by WIPO. WIPO must extend its focus beyond GR to encompass these diverse expressions of culture and knowledge.

Australia is a diverse country with a significant number of Indigenous Australians who have a long history of rich cultural heritage of traditional knowledge regarding natural medicines, art forms like handicrafts, paintings, etc. According to a draft study[16] by the Productivity Commission on visual arts and crafts made by Aboriginal and Torres Strait Islander people, two thirds of products sold in Australia that have an Indigenous style are bogus and have no connection to the Aboriginal and Torres Strait Islander people. Over $78 million was spent by foreign visitors for Indigenous-style artwork in the 2019–20 fiscal year, of which up to 75% was not created by Indigenous Australians. This is a matter of concern. This not only exploits the cultural rights of indigenous people but also their economic rights, which is also one of the reasons for the economic marginalisation of Indigenous Australians.

Conclusion

Since its founding, WIPO has been instrumental in addressing intellectual property concerns. However, WIPO has taken too long to understand that it was constituted not just for the protection of big corporations in developed nations but also to safeguard the IP rights of local communities in developing and underdeveloped nations, especially in the Global South. The treaty, in spite of being considered as historic, is similar to administering antivenom after the venom has spread throughout the body. It took quarter century long time to negotiate a treaty in an air conditioned room to save the traditional knowledge of indigenous communities, and save them from cultural and economic exploitation, which has resulted in widespread biopiracy by developed nations taking advantage of the vulnerability of the global south. Indigenous people have the absolute right to get their share of profit from the companies that are selling their age-old traditional remedies without even acknowledging their contribution, and even after this long time taken in signing the treaty, it is full of loopholes that can be exploited by business tycoons, thus absolving the purpose of the treaty.

Strengthening the enforcement mechanisms, establishing strict and clear penalties for non-compliance, requiring patent offices to verify disclosed information, reviewing the non-retroactivity clause to protect indigenous communities' rights retroactively, and encouraging international cooperation to create a uniform enforcement mechanism are all necessary to address these limitations and ensure the effectiveness of the treaty. WIPO should try to offer incentives to the companies to voluntarily disclose the origin of GRs, and ATK, for the patents filed before the treaty’s ratification, should encourage compliance and promote transparency. Furthermore, in order to continuously review and amend the treaty's provisions, close the remaining loopholes, and defend the rights of indigenous peoples and local communities, dialogue and cooperation between WIPO, member states, indigenous communities, and other stakeholders are essential.

In case of protecting artistic TK, which are intangible in nature and difficult to protect, WIPO ought to look for legal frameworks that are specifically designed to meet their needs. This can entail creating specific legislative frameworks, creating databases akin to India's Traditional Knowledge Digital Library to record and conserve cultural heritage, and promoting community-led initiatives to safeguard and promote these traditions. By addressing these challenges and fostering international cooperation, WIPO can continue to play a crutial role in preserving the traditional knowledge and genetic resources of local communities for generations to come.