People's medicines, age-old wisdom, someone else's profit

A few years ago, a German professor of intellectual property law, Tim Dornis, was on vacation in California when he was approached by the secretary general of the German Association for Intellectual Property Law (GRUR):

"Soon we will have an important development in Geneva that we have to follow. Because it could be revolutionary," Dornis heard over the phone.

Geneva is the headquarters of the World Intellectual Property Organization (WIPO), the United Nations agency that promotes and protects intellectual property worldwide.

Intellectual property law deals with legal protection and ownership rights for things people create with their minds, such as inventions, art, and writing.

So Dornis, who in recent years has represented GRUR at the World Intellectual Property Organization conferences, went to Switzerland and started asking what it was all about. "And then I realized that this could really be revolutionary," he told DW.

From today and during the next twelve days, a diplomatic conference will be held in Geneva where an agreement will be reached on an international legal instrument that seeks to "improve the efficiency, transparency and quality of the patent system".

According to a press release from the World Intellectual Property Organization, the instrument aims to "prevent the erroneous granting of patents for inventions that are not new or inventive with respect to genetic resources and traditional knowledge associated with genetic resources."

A protracted struggle

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

In recent years, there have been increasingly loud calls for greater responsibility of companies that use traditional knowledge or cultural heritage of foreign countries or indigenous cultures.

Fashion brands have been accused of using traditional patterns in patterns on clothing, and pharmaceutical companies have come under scrutiny for turning medicinal plants from other countries into commercial drugs.

Critics of this practice call it cultural appropriation or, when using genetic resources like plants, biopiracy.

"This knowledge does not really fit into the framework of the existing intellectual property system, such as the patent system or the copyright system," Vend Vendland, director of the department for traditional knowledge, genetic resources and traditional cultural expressions at this UN agency, told DW.

The discussion on legal protection in this area began much earlier, with the establishment of the World Trade Organization (WTO) in 1995. This created a new set of international standards for intellectual property rights in all member states.

In India, for example, the transition to this new system brought a disturbing discovery: other countries, especially industrialized ones like the United States, filed many patents on products that had been part of traditional practice in India for hundreds of years.

Stopping the loss of heritage and knowledge

Vishwajanani Satigeri, director of India's Digital Library for Traditional Knowledge, told DW that granting a patent for traditional knowledge to a third party means that party becomes the owner. "The nation is losing its own heritage and its own traditional knowledge".

Now that could change. The 193 member states of the World Intellectual Property Organization are meeting to adopt the proposed first step.

The World Organization considers three areas vulnerable in the current system: genetic resources, traditional knowledge and traditional cultural expression.

Genetic resources are biological materials such as plants and animals that contain genetic information, while traditional knowledge includes generational wisdom within communities, usually transmitted orally.

This can include knowledge about biodiversity, food, agriculture, healthcare and more.

Traditional cultural expression includes artistic creations that reflect a group's heritage and identity, such as music, art and design. "It changes the classic understanding of intellectual property," Dornis believes.

Under current intellectual property law, legal protection for original creations usually expires after a certain period of time has passed after their creation.

But many traditional practices have been developed and passed down for hundreds of years or longer, which means they are not protected in such a system.

There is also no individual inventor - knowledge is kept in the community and it is generally difficult to find the source of its origin in a particular community or region. A person can come from outside, gain knowledge from the community and return to his country where he can apply for a patent based on what he has learned.

Dornis says that this allows developed countries to say "we will take it and we will not compensate you for it".

"But if you need a pharmaceutical product that is based on a traditional genetic resource or traditional knowledge, you have to pay for the medicine, because it is protected by a patent," he said.

Disclosure and Indemnification

The meeting is now focused solely on genetic resources and the attempt to adopt a so-called legal instrument that will require patent applicants in member states to disclose where they obtained the plant or acquired the knowledge they want to use and whether they have been granted permission to use it.

If that agreement passes, the focus will then turn to creating clearer definitions for the other two categories.

The bill also envisages the creation of a database, like the one maintained by Satigeri, where such information can be easily tracked.

The Indian Library of Traditional Knowledge, the first of its kind globally, has spent decades transcribing and translating information from traditional Indian texts - many written in Sanskrit - into its database, creating a record that can be used by patent officers.

"We targeted Indian systems of medicine, namely Ayurveda and Unani," Satigeri said. "We've also listed the types of yoga that exist here. And a wealth of health-related information, including animal and plant health, as well as cosmetics."

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

Countries with significant biological diversity have been seeking the introduction of such a system for decades. This new agreement, if adopted, will not create new claims for damages.

But existing environmental law already requires that all financial benefits from an invention be shared with the country of origin. Thus, stronger data transparency laws could lead to greater financial compensation for these countries.

Vend Vendland of the World Intellectual Property Organization said that many developing countries see this kind of regulation as a "significant step forward".