Creating a Framework to Protect Indigenous Rights: An Interview with Wend Wendland

Wend Wendland (WIPO, USA)

In July 2022, the World Intellectual Property Organization (WIPO) General Assembly decided to convene a Diplomatic Conference to Conclude an International Legal Instrument Relating to Intellectual Property, Genetic Resources and Associated Traditional Knowledge with Genetic Resources, no later than 2024.

Wend Wendland is Director of the Traditional Knowledge Division at WIPO. As part of the Global Challenges and Partnerships Sector, the Traditional Knowledge Division carries out WIPO’s work on the intersection of intellectual property (IP) and genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs). He recently sat down with the INTA Bulletin to discuss preparations for the Diplomatic Conference and to provide updates on WIPO’s efforts to protect and advance TCEs.

The quest for an international regime of the protection of TCEs has a long pedigree yet a consensual outcome has not been achieved so far. The same cross-cutting issues were the subject of discussions of WIPO’s Intergovernmental Committee (IGC or Committee) 47. While there has been some progress, important disagreements still persist. Based on the negotiation dynamics, do you believe that an international document may be finalized to be submitted before the WIPO General Assembly 2025? Please elaborate.
The short answer is “Yes, it may be.” For the moment, the negotiations on TCEs have been paused while countries prepare for the conclusion of the negotiations on genetic resources and associated traditional knowledge. The negotiations on GRs and associated traditional knowledge (ATK) will culminate in a high-level conference in 2024 aimed at adopting a new international legal instrument, most probably a treaty or convention. This meeting, called a diplomatic conference, is expected to take place in the first half of next year.

With this in mind, at IGC 47 in June this year, countries decided, sensibly in my view, that the IGC should not meet again on TCEs and TK (beyond TK associated with genetic resources) until October or November 2024. They also decided that the IGC should meet on two further occasions before the WIPO General Assembly in July 2025. On the one hand, I would say that, especially after a long hiatus in the negotiations, three sessions would not be enough for members to finalize a text on TCEs and TK.

On the other hand, a sufficient number of members might decide that the General Assembly in 2025 should convene a diplomatic conference in, say, 2026. They might be inspired by the General Assembly of 2022, which decided, to the surprise of many, to convene the Diplomatic Conference on GRs and ATK in 2024. This is why I would not rule out an attempt to convene a diplomatic conference at the July 2025 General Assembly, irrespective of how advanced the text/s are at that time.

What roadblocks are preventing consensus, and how can these be overcome?
Members and observers are still grappling with a number of core technical policy issues, such as a definition of TCEs; objectives; protection criteria; beneficiaries; scope of rights and exceptions; administration of rights; and the term of protection. In addition, the Committee still struggles to settle on efficient and effective working methods.

These very visible, substantive and methodological disagreements are merely symptoms, however, of deeper divergences on the very purposes and objectives of the negotiations. Members are not yet agreed on whether or not any eventual outcomes would be binding, and several members and observers have concerns with how special protection of TCEs might chill artistic freedom and cultural exchange. The carefully drafted new mandate of the IGC for 2024–2025 reflects but doesn’t resolve this tension between those members wishing an exclusive focus on text and those wishing a more elevated discussion on principles and objectives.

WIPO member states decided to fast-track negotiations on GRs and ATK by convening a diplomatic conference to conclude an international agreement on these matters no later than 2024. How will this affect the revitalizing of discussions on TCEs?
This is an interesting question. The negotiations had always treated the three subjects (GRs, TK, and TCEs) on an equal footing. This was because the three subjects are conceptually inter-linked and of equal importance to members and observers as a whole.

In any event, for Indigenous peoples, as well as many local communities, the distinction between the subjects is artificial. The General Assembly’s decision to separate out GRs and ATK and place them on a fast-track towards a new treaty or convention has disrupted this delicate arrangement. For example, in the likely event that a new treaty or convention is adopted, the origin or source of ATK used in an invention would need to be disclosed and the ATK may be included in databases before protection is in place for the TK itself. Therefore, one could expect that the fast-tracking of GRs and ATK would lead to a strong push from proponent countries for TK and TCEs to “catch up.” To this end—and inspired by the role that the Chair’s Text played in the GRs and ATK work stream—the current Chair of the Committee recently began work on a Chair’s Text on TK and TCEs.

On the other hand, I observe that work on TK and TCEs has not actually accelerated as initially expected. At its most recent session in June 2023, the Committee deferred further work on TK and TCEs until the last part of 2024. I noticed too that proponents have not, contrary to what I expected, pushed for the TK/TCEs Chair’s Text to become a working document, as had happened with the GRs/ATK Chair’s Text in 2021. There might be several reasons for this, including that all members, including proponents, recognize that the TK/TCEs still need much more work.

There are various national laws for the protection of TCEs, but these do not adequately cover the concerns for cross-border uses and exploitations, as well as uses on the Internet. If the international document for the protection of TCEs has not been adopted yet, or in case its nature is not legally binding, how should these types of infringements be addressed? And how do we achieve extra territorial protection of TCEs and their holders?
In the absence of an international instrument which includes a mechanism for international protection, based on national treatment or reciprocity, for example, there is no extra-territorial protection. This is a benefit—if not the main benefit—of enacting and implementing an international instrument. To the extent that a TCE might be protected as a work of copyright, then of course the international protection afforded by the Berne Convention would apply. Performances of TCEs are protected internationally under the WIPO Performances and Phonograms Treaty.

National laws protect TCEs within the territory of the relevant member state. This presents opportunities for misappropriation and misuse abroad. Although IP office examiners encountering trademarks containing TCEs of a foreign origin may rely on the provisions of their national IP laws (e.g., delusion), they may not always be aware of the existence of such TCEs. Do we need to develop best practices to guide examiners? If so, how could these best practices be developed. and is there room for the private sector to team up with WIPO in this endeavor?
Yes, based on discussions I have had, I believe trademark examiners in all regions—in national and regional IP offices—would appreciate more information on this subject so that they can make informed decisions.

This information could include the experiences, practices, and lessons learned of countries which already have specific mechanisms for handling TCE-related trademark applications, such as New Zealand/Aotearoa, for example. The United States Patent and Trademark Office’s Native American Tribal Insignia Database is another example. I could imagine an exercise in which trademark examiners from all regions meet virtually to share their questions and experiences.

I have been told that examiners might be sensitive about being provided with “guidelines.” So, as a first step, the results of these conversations—including summaries of existing mechanisms, frequently asked questions, and tips from other examiners on how to address TCE-related applications—could be compiled in the form of an informational resource. Over time, examiners could work towards distilling these in the form of best practices and eventually guidelines, consulting also trademark agents and brand owners.

Indigenous peoples’ representatives should be involved too. INTA’s support for such a process would be very valuable. WIPO’s Traditional Knowledge Division would be ready to play a role too if that would be helpful. Over time, I could envisage a short checklist and clear guide for examiners to use when handling a TCE-related file. This could be a very practical and useful tool, and it’s implementation by IP offices in all regions would contribute to improving the negative perception many Indigenous peoples have of the IP system.

In previous interviews with the INTA Bulletin, you’ve noted that many Indigenous peoples and local communities hold a negative perception of IP, and it is up to the IP community (policymakers, officials, rights holders, and practitioners) to tackle this perception issue. Surely, we must also take up this task in tandem with efforts to enhance protections of their IP (TCEs and TK). What are the implications of not doing so, and what progress are you seeing on this front?
The kinds of practical tools I mentioned in the preceding answer, developed in consultation with representatives of Indigenous peoples, would, I believe, go a long way. Similarly, the work that WIPO’s Traditional Knowledge Division is doing, including with INTA, on Indigenous peoples and the fashion industry, aims to create safe spaces for dialogue and relationship-building that can lead to effective and practical solutions. Our training, mentoring, and match-making program for women entrepreneurs from Indigenous and local communities is another example. (Thank you to INTA for the support provided by its Pro Bono Program.) This work is progressing well.

These activities of ours all share some common values and approaches. Personally, I am a firm believer in changing behavior by creating incentives for all actors to do things differently where needed, towards making a real and immediate difference in the lives of people.

Legislative initiatives, such as the multilateral negotiations underway at WIPO towards new international legal instruments, are a different kind of intervention. These negotiations are important to the vast majority of countries and communities around the world. Within the INTA membership, there is vast expertise and experience regarding how the IP system functions in practice and of the economic and cultural contributions that brands make to society. INTA’s participation as an observer in the negotiations would be very valuable in my view.

Views expressed by Mr. Wendland are not necessarily those of WIPO or any of its Member States.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

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