Before the controversies prompted by the TRIPs Agreement, the WIPO was largely unknown to the human rights debates. WIPO was established in 1967 via the WIPO Convention, which stated its central mission and objective as: ‘to promote the protection of intellectual property throughout the world’ (Article 3). Its mission was modified somewhat when the WIPO joined the UN in 1974 as one of its specialized agencies through the Agreement between the United Nations and the World Intellectual Property Organization (hereafter the UN-WIPO
Agreement). In particular, the UN-WIPO Agreement obliged the WIPO to respect human rights in accordance with the Charter of the United Nations. Article 1 of this Agreement stated a redefined goal for WIPO as the following: ‘for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development.’ It also required the WIPO to be observant to the work of relevant entities within the UN system.
However, a number of commentators in an increasing number of studies suggested that the WIPO had not fully embraced its new role as a specialized agency of the UN (May 2006, 2000, Musungu & Dutfield 2003). For a long time, the WIPO managed to escape possible scrutiny by successfully positioned itself as a technical and supporting unit.
Nevertheless, since the WIPO took on the role to assist the TRIPs Agreement administered by the WTO, it had been under heated scrutiny as never before. In 2000, the WIPO established a treaty-making body known as the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (a.k.a. IGC) that is currently
negotiating draft texts to become the new treaties that would have implications for the well-being of IK and IK-holder communities. In comparative terms, there is a huge discrepancy between the IGC and the practice of drafting the UNDRIP, as discussed above. Indigenous peoples have openly expressed frustration and difficulty engaging with the WIPO/IGC process affecting them.66 Unlike the UNDRIP process, the IGC is not based on open
participation but selective participation at best. Full participation and decision-making power are reserved and guaranteed for the WIPO’s constituencies, that is the member-states and powerful interest groups like business corporations. This is one of the major problems for indigenous delegates whom I have spoken to at UN forums. At best, indigenous peoples could be considered as stakeholders (not rights-holders), if taken into account at all. Even with the status of stakeholder, indigenous peoples are simply too small in number for the WIPO to consider them significant or relevant.67 As Claudia Geiringer (2012) pointed out, the WIPO largely operates on utilitarian and welfare economics models.
In addition to the non-participatory working method, the WIPO does not subscribe to international standards for indigenous peoples’ rights according to the UNDRIP. This poses the most serious problem for indigenous peoples. The UNPFII had called upon the WIPO to adopt the UNDRIP and to engage with UN mechanisms regarding indigenous peoples’ rights.
However, the WIPO remained reluctant. In a joint statement delivered at the 5th session of EMRIP in Geneva, the Indigenous Peoples Council on Biocolonialism (IPCB) and
Indigenous Peoples and Nations Coalition (IPNC) reiterated the recommendations issued by
66 Rosemary Coombe (2001) also noted the WIPO’s early track record of hostility toward indigenous peoples.
67 Not many indigenous persons register for IPRs like patent, copyright, or trademark.
the UNPFII (Harry 2012, ECOSOC 2012). They reiterated concerns about the suitability of WIPO for drafting treaties concerning IK. In their opinion, IK should be handled elsewhere and with direct participation of indigenous peoples as rights-holders according to the UNDRIP process. Another concerning practice is the CBD’s governing body known as the Conference of the Parties (COP). As Peter Drahos pointed out, the COP has in effect
‘deferred developments on TGKP [traditional group knowledge and practice] largely to WIPO’ (Drahos 2004, p. 14). This is seriously problematic, because it means that the COP is endorsing the WIPO’s practice and narrow interpretation of IK. Article 2 of the CBD, which laid out the scope of the Convention, overlapped with indigenous peoples’ conceptualization of IK (see table 4 below). By handing IK over to the WIPO, IK is potentially at the disposal of powerful companies who are behind the IPRs regime. Unless the IPRs regime undergoes dramatic reform, there is nothing to curb its expansionist practice from cashing in on what it considers profitable from the wide scope of IK. There is also no incentive for it to develop its capacity to care for the communal needs and aspirations of indigenous peoples.
Table 4: CBD Article 2 and 8(j) (Article 2 [excerpt]):
“Biological diversity” means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.
“Biological resources” includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.
“Ecosystem” means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.
“Genetic material” means any material of plant, animal, microbial or other origin containing functional units of heredity.
“Genetic resources” means genetic material of actual or potential value.
(Article 8(j)):
Subject to its national legislation, respect, preserve and maintain knowledge, innovations and
practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider
application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices;
However, as a specialized agency of the UN, the WIPO needs to recognize that its role is not only to promote IPRs as widely as possible to the world through WTO agreements or otherwise. It has the obligation to take into account the impact of trade agreements on human rights such as the TRIPs. At a minimum, it should uphold the basic principle of ‘do no harm’. These are unresolved problems at the institutional level that are not easy to overcome.
Furthermore, I also question whether the property model is the answer to protect IK. The following section explores an alternative framework for further consideration.