Giving Indigenous Peoples a Voice Through Intellectual Property
May 21, 2020
For many decades, the Philippines has thrived in being a melting pot of cultures. This helped the country position itself to the world as a place that allows harmonious living among peoples of different roots and belief systems, a country that can mobilize groups to work toward common goals while effectively ensuring that each benefits from this collaborative work.
Comprising a part of this diversity are 110 ethnolinguistic groups, with an estimated population of 14 to 17 million[1] and whose centuries-old beliefs and knowledge have made invaluable contributions to the development of the Filpino identity we know today.
Indigenous peoples’ cultures, traditions, knowledge, systems, and practices have given the country invaluable gifts of art to satiate FIlipinos’ aesthetic urges. They may well support the achievement of national creative excellence as such is commonly attained through access to a wide array of sources that can stimulate our creative minds.
Beyond celebrating their enrichment of the local art scene, indigenous peoples have set in motion the engines of industrialization in essential sectors such as agriculture and medicine, owing to their farming techniques and extensive knowledge in biological resources as cornerstones of such economic advancements.
Furthermore, indigenous peoples are expected to continue having a vital role as calls for environmental protection to fight climate change grow stronger than ever. From their belief systems that are rooted deep on their spiritual reverence for nature, societies can learn ways of living in harmony with the environment.
Despite their huge contributions and importance to society, indigenous peoples remain in constant struggle to make their voices heard, whether in asserting their basic rights to land ownership or respect for their cultural beliefs and practices.
From this, the intellectual property system, which may be able to give them a certain degree of control over the exploitation and use of genetic resources (GR) under their custody, their traditional knowledge (TK) and traditional cultural expressions (TCE), can bring in positive change to their current circumstances.
Challenges in protecting indigenous peoples’ traditional knowledge
T'nalak cloth of the T'boli people from Lake Sebu. Photo by Nikka Cunom. Sourced from Creative Commons.
Indigenous peoples’ GRTKTCE embody their identity as a community. It is a living “body of knowledge,” constantly growing and evolving and is mostly unwritten, passed down through generations, and owned by nearly an entire indigenous group. This very nature of GRTKTCE poses a challenge in protecting them through an intellectual property regime which grants exclusive rights to an individual or entity for a limited period of time. For example, patent protection is limited to 20 years after which the invention covered by the letters patent becomes part of the public domain to be used and enjoyed by all.
To determine how GRTKTCE should be protected in relation to the intellectual property system, initiatives for an appropriate legal instrument have been launched in the international arena. One proposal is built on the view that GRTKTCE can fit peaceably within the intellectual property regime. An alternative proposal is recognizing that GRTKTCE requires a special kind of protection, outside of the intellectual property system.
Pending any norm-setting international legal instrument on the matter, intellectual property laws in many jurisdictions like the Philippines remain useful in protecting to a certain degree the innovations and expressions derived from the GRTKTCE of indigenous peoples.
For instance, collective marks like the hand-woven T’nalak fabrics of the T’nalak Tau Sebu Inc., mostly made up of T'boli women, are registrable and renewable every ten years. Also, the Intellectual Property Code of 1998, as amended, in compliance with the Berne Convention which the country is a signatory of, protects artistic and literary works from the moment of their creation.
In addition to the legal challenge, there are practical challenges as well such as the difficulty in distinguishing between GRTKTCE or cultural expression that is truly a product of an indigenous community and a work merely inspired from an indigenous culture or design. This concern is more real now with the emergence of the trend where indigenous weaves and textiles are used in mainstream fashion.
IPOPHL’s work on traditional knowledge
In 2017, the Intellectual Property Office of the Philippines entered into a joint administrative order (JAO) with the National Commission on Indigenous Peoples (NCIP), the lead agency that ensures the protection of the rights of indigenous communities in the country. The JAO provides the rules and regulations on intellectual property rights applications that involve the use of knowledge systems and practices of the indigenous peoples.
To carry out its obligations under the JAO, IPOPHL is reviewing its processes including possible revisions to forms used in the filing of intellectual property rights applications. The Bureau of Patents, for one, is finalizing revisions to its application forms for inventions, utility models, and industrial designs. Under the revised version, applicants will be required to disclose the source of origin or inspiration of their inventions or works if any GRTKTCE was involved, and they will be required to submit appropriate clearances from NCIP, if applicable..
IPOPHL is also a member of the Technical Working Group, headed by the Department of Environment and Natural Resources, in the latter’s program to implement the Philippine National Framework on Access and Benefit Sharing (ABS) of Genetic Resources and Associated Traditional Knowledge. The program aims to create a viable framework to ensure equitable sharing among indigenous communities of benefits —such as profit — from their plant resources and products which are utilized and commercialized by industries.
To this end, IPOPHL has suggested that communities and industries may jointly seek intellectual property protection for products or processes they developed together as a result of the ABS agreement. Intellectual property protection is seen to help indigenous community owners gain a fair share for their genetic resources.
International push for GRTKTCE protection
Members of the World Intellectual Property Organization (WIPO) created in 2001 an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to develop a harmonized international protection system for GRTKTCEs.
In 2019, the Chair of the IGC submitted a draft international legal instrument relating to GRTKTCE. Negotiations for the appropriate international legal instrument/s continues but countries remain divided on some matters including the mandatory disclosure when it comes to invention applications.
The IGC was supposed to meet in March 2020 but due to the pandemic, the meeting was cancelled.
IPOPHL, through the Philippines Mission in Geneva, Switzerland, participates in these negotiations. It is hoped that the IGC can substantially move forward under the new leadership at WIPO and once the COVID-19 crisis tempers in order to provide a direction on the protection of GRTKTCE. ### (Janina C. Lim, Media Relations Officer)
References
- FAST FACTS: Indigenous Peoples in the Philippines. Crafted by the United Nations Development Programme. Last updated in February 2010.
- Draft International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources. Prepared by Mr. Ian Goss Chair, WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Published April 30, 2019.