From traditional wisdom to global innovation: a fairer future with the WIPO traditional knowledge treaty

On 24 May 2024, the World Intellectual Property Organisation (WIPO) approved the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (Treaty) at the Diplomatic Conference on Genetic Resources and Traditional Knowledge and Folklore. 

The Treaty is primarily concerned with the inclusion of genetic material in patent applications that derive from the traditional knowledge of Indigenous Peoples.

Negotiations for this Treaty began in 2001 and its approval marks a historic commitment by the international intellectual property community to recognise and protect Indigenous and traditional knowledge. Any member state of WIPO can become party to this Treaty. Once ratified by 15 members states, the Treaty will establish in international law a new framework for the requirement to disclose any genetic resources and associated traditional knowledge in patent applications.

Framework

The Treaty defines ‘genetic material’ as any material of plant, animal, microbial or other origin containing functional units of heredity.

Under the terms of the Treaty, each nation state that is a party to the Treaty must introduce, as part of the patent application process, the requirement for the applicant to disclose:

1. of any genetic resources incorporated in the patent;
2. the country of origin of the genetic resources but where the genetic resource derives from more than one country, the country of origin from which the genetic resource is actually obtained; and
3. if the claimed invention in a patent application is based on traditional knowledge associated with genetic resources, the Indigenous Peoples or local community who provided the traditional knowledge associated with the genetic resource.

Additionally, the Treaty requires each party nation state to establish information systems (such as databases) of genetic resources and traditional knowledge associated with genetic resources in consultation, where possible, with Indigenous Peoples, local communities and other stakeholders.

The Treaty also requires each national state to introduce appropriate, effective and proportionate legal and administrative measures to address a patent applicant’s failure to comply with the new disclosure requirements. This includes sanctions for any disclosure (or lack of disclosure) that is fraudulent. However, any such sanctions must not include the revocation or invalidation of a patent.

Global reception

Many countries have lauded the Treaty as being historic and groundbreaking in paving the way for a more inclusive global system.

The Indian Ministry of Commerce and Industry regards the Treaty as a significant win for India and countries of the Global South. Indonesia has welcomed the treaty as it opens opportunities to advance other issues related to traditional knowledge and traditional cultural expressions.

The Australian Government has commented that the Treaty established a new forum of legal recognition for Indigenous peoples’ traditional knowledge in the global intellectual property system. First Nations Australians will now be able to benefit from their cultural heritage and this will bring Australia one step closer to protecting Aboriginal and Torres Strait Islander intellectual property and cultural assets.

Australia is committed to protecting Australian Indigenous IP. In August 2022, the Australian Productivity Commission recommended a new IP regime to protect Indigenous IP in visual arts and crafts.

The Australian government is committed to delivering a draft of this new regime by December 2024. Extensive community engagement sessions are being held online and in 38 locations in each state and territory. Aboriginal and Torres Strait Islander people and relevant stakeholders are discussing what should be included in the new legislation to address the economic and cultural harm caused by unauthorised use of Indigenous IP.

Australia’s journey towards effective protection of Indigenous IP is ongoing. The positive developments in the past years coupled with the Treaty are indictive of imminent comprehensive protection and recognition of the deep connection between First Nations Australians and their knowledge system.