How to put an end to Western theft of intellectual wealth from developing countries – DW – 05/08/2024

A few years ago, German intellectual property law professor Tim Dornis was on sabbatical in California when the general secretary of the German Association for Intellectual Property Law (GRUR) contacted him.

“He said, ‘We’re about to see a very important development in Geneva that we need to look at. Because it could be something revolutionary.’

Geneva is home to the World Intellectual Property Organization (WIPO), a United Nations agency that promotes and protects intellectual property (IP) around the world. Intellectual property law deals with the legal protection and ownership rights of things that people create with their minds, such as inventions, art, and writing.

So Dornis, who represented GRUR at WIPO conferences in recent years, traveled to Switzerland and began looking into what was happening at WIPO.

“And then I realized that this could really be revolutionary,” he told DW.

Between May 13 and 24, a diplomatic conference will be held in Geneva to reach agreement on a so-called international legal instrument aimed at “improving the efficiency, transparency and quality of the patent system.”

According to a WIPO press releasethe instrument aims to “prevent patents from being granted in error for inventions that are not new or inventive with respect to genetic resources and traditional knowledge associated with genetic resources”.

Half a century in the making

For more than 25 years, developing countries and indigenous peoples have pushed for intellectual property laws that better protect their flora, fauna, traditional knowledge and culture from exploitation by outside parties.

In recent years, calls have increased for greater accountability from companies that use traditional knowledge or cultural heritage from foreign countries or indigenous cultures.

Fashion brands have been criticized for using traditional designs in a clothing line, and pharmaceutical companies have come under scrutiny for turning a medicinal plant into a medicine they can sell. Critics of this practice speak of cultural appropriation or, when it comes to the use of genetic resources such as plants, biopiracy.

“(This knowledge) doesn’t really fit within the framework of the existing intellectual property system, like the patent system or the copyright system,” Wend Wendland, director of traditional knowledge, genetic resources and traditional cultural expressions at WIPO. .

But the debate over legal protections in this area began in earnest much earlier, with the creation of the World Trade Organization (WTO) in 1995. This gave rise to a new set of international standards for property rights intellectual property that all WTO member states must implement.

In India, for example, the transition to this new system gave rise to a disturbing discovery: other countries, particularly industrialized countries like the United States, were filing numerous patents on products that were part of traditional practices in India for hundreds of years.

“I am talking about aspects like turmeric for wound healing, basmati rice for its fungicidal activity, etc.,” Viswajanani Sattigeri, director of the Traditional Knowledge Digital Library (TKDL) of India, told DW.

Ending the loss of heritage and knowledge

The problem? When a patent for traditional knowledge is granted to a third party, that party becomes the owner of that knowledge, Sattigeri said. “The nation is losing its own heritage and its own traditional knowledge.”

But now that could change. In May, WIPO’s 193 member states will meet and potentially ratify the first step of a legal instrument aimed at creating better protection for these assets.

WIPO has divided them into three areas that it considers vulnerable in the current system: genetic resources, traditional knowledge and traditional cultural expression. Genetic resources are biological materials like plants and animals that contain genetic information, while traditional knowledge encompasses generational wisdom within communities, which is usually transmitted orally.

This could include knowledge about biodiversity, food, agriculture, healthcare and much more. Traditional cultural expression includes artistic creations reflecting the heritage and identity of a group, such as music, art and design.

“This changes the classical understanding of intellectual property,” Dornis said. “(…) It could break the system that (says) a lot of things are not protected.”

Under current intellectual property law, legal protections for original creations tend to disappear after some time after their creation. But many traditional practices have evolved and been passed down for hundreds of years or more, meaning they would no longer be protected. There is also no single inventor to give credit to: knowledge is held by the community and it can be difficult to trace it back to a specific community or region.

It’s easier for a single third party to come in, gain knowledge from the community, and return to their own country where they can file a patent application based on what they’ve learned.

Dornis said this allows most developed countries to say “we’ll take this and we’re not going to pay you back.”

“But if you need a pharmaceutical invention and a medical product based on their genetic resources or traditional knowledge, you have to pay for the medicine because it is protected by a patent,” he said.

Disclosure and compensation

The May meeting will focus exclusively on genetic resources and attempt to adopt a so-called legal instrument that will require patent applicants in WIPO member states to disclose where they obtained the plant or associated knowledge from that they wish to use, and whether they have received permission. to use it. If this treaty is adopted, the focus will then be on creating clearer definitions for the other two categories.

This bill also aims to create databases, like the one Sattigeri manages, where this information can be easily found. India’s TKDL, which was the first of its kind in the world, has spent decades transcribing and translating information from traditional Indian texts – many of which are written in Sanskrit – into its database, creating a record of knowledge of the country that patent agents can consult.

“We targeted Indian systems of medicine, namely Ayurveda and Unani,” she said. “And what types of yoga practices exist here. And a wealth of information related to health, particularly animal and plant health, but also cosmetics.”

When reviewing a patent application, patent agents can search these types of databases to see if something similar already exists. The databases will also help countries track patents that rely on knowledge or resources extracted within their borders.

Biodiversity-rich countries have been calling for such disclosure requirements and databases for decades. This new agreement, if adopted, will not create new compensation requirements. But existing environmental laws already require that any financial benefits from an invention be shared with the country of origin. Stricter disclosure laws could therefore lead to greater financial compensation for these countries.

WIPO’s Wend Wendland said many developing countries view the regulations as “a significant step forward.”

“That’s why it’s important to them. It’s very technical, but it has a long history and it has a lot of symbolism for many countries, especially those in the developing world.”

Edited by: Uwe Hessler