Author name: Chidi Oguamanam

by Chidi Oguamanam* First Published by ABS Canada here. Republished on Infojustice with the permission of the author. Delegates to the World Intellectual Property Organization Special Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC) resumed and concluded their last deliberations for the 2024-2025 biennium on May 30-June 5. Most of the first day was used for the traditional opening statements through which major negotiating blocs and delegations signalled to one another their expectations for the 6-day meeting. No Appetite for Impasse The 51st session was unique in many ways. It was co-chaired by Anna Vuopala (Finland) and Erika Patriota (Brazil). Respectively, each of the two Chairs superintended over two failed IGCs – IGC 49 and IGC 50. Their co-chairing of the last and final sessions of the IGC for the biennium was expected to draw from their experiences from the two failed previous sessions in a row. The odds were in their favour. Neither of the hardliner demandeur nations or blocs nor their non-demandeur counterparts were disposed to filibuster negotiations. Any such outcome would potentially result in non-renewal of the IGC mandate for the next biennium (2026-2027).  It was clear to the delegates that mandate renewal was the biggest issue on the agenda listed under item 6 for the session (Taking Stock of Progress and Making a Recommendation to the General Assembly). Tension on Rights-based and Measures-based Approaches Remains Yet, despite the priority of mandate renewal, there was no let up to the tensions that partly led to the two failed IGCs. The United States, Japan and their Group B allies as well as CEBs, and Switzerland were bent on enumerating a litany of measures in the text in preference to rights. They construed a measures-based approach as having priority over a rights-based approach to the protection of TK and TCEs. At the 50th session, the US delegation, with the active support of Japan, Korea, Canada and Switzerland introduced the language of “safeguarding” to further entrench their measures-based approach and conceivably to water their expectation for a soft and non-binding instrument. This sentiment is also shared by the EU as a bloc. The attempt to center a measures-based approach stoked tension and resistance on the part of the broad coalition of the Indigenous Caucus, African Group, Group of Like-Minded Countries, China, the Group of Latin American and Carbbean Countries, some members of the Asian Pacific Group and New Zealand. It also nearly derailed the 51st sessions with demandeurs insisting on blocking those safeguarding aspects of measures-based languages regarding TK and TCEs. Nigeria deplored the deliberate attempt at regime duplication as a ploy to undermine the IGC mandate on TK and TCEs which is clear on effective protection of the subject matters. For Nigeria and the Africa Group, safeguarding of TK and TCEs is dealt with at the UNESCO. As a compromise, those textual drafts on safeguarding and measures-based were taken on board by the three facilitators of the 51st sessions (Ghana, US and Colombia) in an ambiguous procedural circumstance and kept in square brackets under “Alternative X”. This was to preserve the sanctity of the Facilitators’ Alternatives carried over from the IGC 49 texts (WIPO/GRTKF/IC/49/4; WIPO/GRTKF/IC/49/5 which was the default working document and same as from IGC 47) around which there remains a broad coalescing of understanding. Thus, the two texts (TK and TCEs) from the 51st session did little to close gaps. In sum, the delegations agreed on modest progress on the two texts of the TK and TCEs from the 51st sessions. The progress included modest striking out of a few texts that did not have the backing of any interested bloc as well as the bracketing of the US and allies-backed Alternative X.  The remaining two days were devoted to mandate negotiations. United States-led Charge to Weaken IGC Mandate The mandate was negotiated through a combination of deliberations at the informal sessions with ratifications at the plenary. The United States delegation left no doubt regarding their determination to limit the IGC meetings and to whittle down its mandate, a move that was strongly supported by Japan, Switzerland and some Group B allies. The United States went as far as proposing a maximum of two meetings, arguing for resetting the IGC for lack of progress. From the perspective of demandeurs, if there was lack of progress, the blame lies with non-demandeurs whose strategy for scuttling progress remained obvious. For the demandeurs, there was need to keep the momentum created by the two recent WIPO treaties of 2024 – the GR Treaty and the Riyadh Design Law Treaty. These developments called for more meetings and not less. Framing GRs in the TK/TCEs Mandate After GR Treaty In addition to different narratives of progress and dissonance over the number of meetings, another issue of contention for the mandate was how to frame GRs into the mandate given the conclusion of the GR treaty. For IPLCs through the Indigenous Caucus, the conceptual holism of TK, TCEs and GRs is not undermined by the fact that a GR treaty has been concluded within the framework of patents. For the Caucus, the Africa Group, GRULAC and LMCs and other demandeurs, discussions about GRs cannot be severed from TK and TCEs notwithstanding the conclusion of the GR treaty.  As a compromise position, delegates agreed that GRs will continue to be part of the IGC mandate, save that there will be no normative negotiations capable of reopening the GR text. Debate over an Evidence-based Method The next most prominent issue in the mandate negotiations was the palpable suspicion among demandeurs and non-demandeurs on the language regarding collection of evidence to inform negotiations.  Evidence-based methodology has been an integral part of the mandate and the work of the IGC. Demandeurs insisted that there is a deluge of real-world evidence and studies, now increasingly magnified by emergent national and regional regimes on the protection of GRs, TK and TCEs. They maintained that the tendency by non-demandeurs to fixate on an

Traditional Knowledge (TK) has become a key consideration in discussions on intellectual property. In May 2024 the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge was adopted, requiring patent applicants to disclose the source or origin of the genetic resources and/or the associated traditional knowledge in patent applications. A provision allowing countries to request disclosure of TK in Designs was also included in the Design Law Treaty. But is the prevailing approach to TK sensitive to the real needs of people in Africa and the Global South? In this theoretical intervention Professor Oguamanam challenges the TK paradigm and urges that we ask a deeper question about the function TK plays in the hierachy of knowledge governance. Oguamanam urges that we build on the Cradle Principles to protect the fundamental human rights of knowledge producers and users through equitable dispersal of benefits and to “combat unidirectional informational resource extraction and misappropriation that aggravates inequities and injustice.” The following talk was first presented at the Conference on Copyright and the Public Interest: Africa and the Global South in Cape Town. The video of the presentation below can be watched here. Asking the TK Question as a Reality Check: Echoes from the Cradle Principles* by Chidi Oguamanam** TK is inherently and all round borderless. TK’s defiance of epistemic borders is its reality before the current melding of all kinds of boundaries – disciplinary, conceptual and a lot more. The idea of TK is itself a colonial conceit. The qualification of other peoples’ knowledge as cynically traditional presupposes the existence of an authentic or a default knowledge system. The renewed escalation of interest and consciousness around TK globally and on our continent has never been more exciting as it is equally troubling.  TK is Africa’s significant factor endowment, a strong even if less celebrated, less articulated, and less harnessed continent’s competitive edge.  Its subsistence and survival in the digital age is now a stuff for our collective challenge. I propose that while there has been a remarkable shift around TK on the teleological realm, we run the risk of undercutting TK’s optimal and enduring potential for our continent. We need to first invest in theorizing TK and in tackling the conceptual morass that saddles it. For the privilege of this intervention, I intend to sow some provocative seeds around TK. First, do we ignore the epistemic conceit and the erroneous assumptions over the taxonomy of “traditional knowledge?” May be yes, because of the inherent risk of chasing a red herring.  Second, do we engage the biggest elephant in the room, which is the scope of TK? The last question unravels a very important opportunity. It requires a full consciousness at all times of TK’s defiance of conventional borders. There has been consistent attempt to trifurcate TK into TK, properly so called, Traditional Cultural Expressions and Genetic Resources. This trifurcation project is a signifier of colonial influences on our epistemic autonomy. In Africa, and some non-Western civilizations our knowledge systems which, for emphasis, includes our languages, are the windows to our worldview. That worldview is fundamentally holistic, serving as a glue to our identity and much more.   The trifurcation approach is deeply problematic. It has the danger to condition our thinking and our approach to TK in ways that serve the pragmatic purpose of fitting TK within established disciplinary boundaries and knowledge governance frameworks. Trifurcation is not only an exercise that happens at WIPO or the CBD or other places where TK is on trial before Western establishments. TK has been subjugated to the characteristic inclination of western knowledge systems (the western science) to dissect ideas into their minimalist compartments and to erect artificial and often highly politicized disciplinary boundaries. And in the paradigm of pitting the west with the rest, TK is often profiled within these molecular epistemic models. The consequence of this tendency is the disembodiment of TK from its custodians and its ultimate disempowerment as a knowledge system on its own merit and integrity. Here are a few examples, when TK is framed around Genetic Resources, we are forced to pigeonhole and defend it in the court and laboratory of the life sciences. This explains why we focus on TK in agriculture, in seeds; in health, in medicines, in pharmacology; ecology, botany, forestry, horticulture and environmental sciences, etc.  To further perpetuate the conceit in each of these fields or disciplines, TK is further devalued with the “ethno-prefix”, as a knowledge system that has little prospects for scaling. We know the opposite is true. Similarly, when TK is framed in the expressive repertoire, we locate it within the established canons of the humanities, the liberal arts and aspects of the social sciences. In this compartment we focus on TK in entertainment, music, storytelling, poetry, (folk songs, folklore); arts and crafts, cuisine, gastronomy, and other miscellaneous renditions that fit within western canons and disciplinary borders. From the prism of the TWAIL, we see a highly dedicated international legal, political and institutional order (with its municipal minions) invested in deepening the balkanization project in contrast to TK’s holistic essence. These powerful institutions have carved out TK in bite sizes reflecting their politically positioned structures with nuanced jurisdictional contestation over aspects and parts of TK in the guise of latter-day TK protectionism. In these institutions, the interests of TK holders are often subjugated to the institutions’ primary loyalty in the defence of their political and economic mandates.   In trying to understand the fraught conceptual challenge around TK and its strategic weakening, the biggest evidence is the superimposition of alien knowledge governance framework over TK. The superstructure of knowledge governance is western intellectual property. It was designed without regard to TK and its producers. The international order has never given any serious attention to an alternative knowledge governance model outside the western intellectual property system. TK and its holders are summoned to the court of intellectual property to plead their validity. Objection to this approach is symbolized by the marginal appeals