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

Geneva is the headquarters of WIPO, the World Intellectual Property Organization, a UN agency for the global protection of intellectual property (IP: Intellectual Property). IP 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,” he told DW, “I saw that this could really be something fundamental, groundbreaking.”

Between May 13th and 24th, a diplomatic-level conference in Geneva is to create an internationally valid legal instrument that will improve the “effectiveness, transparency and quality of the patent system”. According to a press release from WIPO, the aim 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.”

For more than 25 years, developing countries and indigenous peoples have been pushing for the introduction of IP 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 by companies that exploit the inherited knowledge or cultural heritage of foreign countries or indigenous cultures.

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

“This doesn’t really fall into the existing IP system, such as patent law or copyright law,” Wend Wendland, director of the Traditional Knowledge, Genetic Resources and Cultural Traditions Department at WIPO, told DW.

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

In India, the implementation of these standards revealed something worrying: foreign countries, mainly industrialized countries such as the USA, had applied for patents for products that have been part of traditional practices in India for centuries.

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

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

The 193 member states of WIPO want to ratify an agreement in Geneva that will lead to more comprehensive protection of the disputed values. To this end, they have divided these values ​​into three areas that are particularly at risk: genetic resources, traditional knowledge and cultural heritage. Genetic resources include biological material, such as from plants or animals, that contains genetic information, while traditional knowledge or cultural assets are knowledge that has been passed down through generations 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 classic understanding of ‘intellectual property,'” says Dornis. “It could break the system in which a lot of things are just unprotected.”

Under the current IP law, protection for works of intellectual work ends a few years after the time of their creation. Many cultural assets and practices have been developed and passed on over hundreds of years, so they are not protected at all. And there is not a single creator or originator who could be entitled to a patent right. After all, this knowledge has emerged 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 a community’s knowledge, and then have it patented 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 patent protected.”

The conference in May will focus on genetic resources. It is intended to create legal requirements so that those applying for a patent within WIPO must disclose where the plant or traditional knowledge they want to use comes from and whether they have permission to use it. If such an agreement is reached, the focus will then turn to how the other criteria can be defined more clearly.

The draft law also aims to build data collections like Sattigeri’s. The TKDL in India, the world’s first database of its kind, has collected and translated information – much of it in Sanskrit – over decades, creating a data collection that patent attorneys can work with. Sattigeri told DW: “We focused on Indian health systems, namely Ayurveda and Unani, and what yoga schools there are here and a great deal of knowledge about everything related to health – including animal and plant health – and about cosmetics. “

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

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

According to Wend Wendland from WIPO, 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 there’s a lot of symbolism in it for many countries, too especially in developing countries.”

Author: Kristie Pladson

*The article “UN wants to combat theft of intellectual property” is published by Deutsche Welle. Contact the person responsible here.