Design Law Treaty – Centre on Knowledge Governance

Asking the TK Question as a Reality Check: Echoes from the Cradle Principles

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

Developing Countries' Accomplishments in the WIPO Design Law Treaty

Sean Flynn and Luca Schirru / 24 January, 2025

Last year, two new intellectual property treaties were adopted by the World Intellectual Property Organization — one on the disclosure of uses of genetic resources in patent applications and a second on applications for design law protection. Although the design law treaty was promoted by wealthy countries of the global north, the final outcome shows the impact of developing countries who advocated for deleting or softening provisions that regulated substantive design law while protecting the ability to require information related to Traditional Cultural Expressions (TCEs), Traditional Knowledge (TK), or biological and genetic resources (GR). Opening the closed list for application criteria The main intent of the Design Law Treaty was described as harmonizing procedures and formalities for applying for design law protection. There is very little substantive international law on design protection, and the treaty was not billed as creating such minimum requirements. However, by proposing to restrict the elements that may be requested in a design law application, the basic proposal for the treaty in effect restricted what elements could be considered in granting protection. The basic proposal for the treaty followed the Trademark Law Treaty in proposing a closed list of elements that could be required in an application. The closed nature of the list was made clear in subsection 2 of what was ultimately included as Article 4 of the treaty, which states: “[Prohibition of Other Requirements] No indication or element, other than those referred to in paragraph (1) and in Article 10, may be required in respect of the application.” The problem with a closed list of application criteria is that it limits the substantive criteria that governments can rely upon in granting design law protection. As Bagley (2018, 995-996) argued: “by delineating a closed list of application requirements that countries can impose on applicants, the DLT in effect moves beyond formalities to placing substantive limits on countries in relation to design registration”. In the early stages of consideration of the Treaty, developing countries focused on the lack of language in the closed list allowing countries to require disclosure of traditional cultural expressions, traditional knowledge, or genetic resources used in the design seeking protection. The basic proposal for the DLT included two alternatives on these issues: “ALTERNATIVE A [(ix) a disclosure of the origin or source of traditional cultural expressions, traditional knowledge or biological/genetic resources utilized or incorporated in the industrial design;]” “ALTERNATIVE B [(ix) an indication of any prior application or registration, or of other information , of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design;]” During the negotiation, Knowledge Ecology International raised other issues that the United States and other laws require disclosure of in design law applications that were not included in the closed list. These included, for example, requirements to disclose uses of public funding and artificial intelligence in the creation of the design. There was considerable opposition from the “Group B” wealthy countries of the global north to the language in Alternative A including reference to “biological/genetic resources” in the permitted elements of an application. Delegations argued that such resources were not relevant to design law. In the end, the compromise text excluded direct mention of genetic resources but adopted open language that permits countries to require any application element deemed “relevant” to the registration of the design: Article 4 … (2) [Indication of Information] A Contracting Party may require, where permitted under the applicable law, that an application contain an indication of any prior application or registration, or of other information, including information on traditional cultural expressions and traditional knowledge, of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design. (3) [Prohibition of Other Requirements] No indication or element, other than those referred to in paragraphs (1) and (2) and in Article 12, may be required in respect of the application. The final outcome thus permits countries to allow disclosures of genetic resource information as well as information about uses of public funding, artificial intelligence, and other elements that a country deems relevant to the registration. Eliminating Term of Protection The basic proposal for the DLT included two options for requiring a term of protection. Term of protection is indisputably substantive, and many countries opposed its inclusion in the treaty on this basis. But two other treaties — the Hague Agreement and the WTO’s TRIPS agreement — have minimum terms of protection of 5 years and 10 years respectively. A proposal by the USA would have harmonized members to a minimum 15-year term, which is the present US law. [Article 9Bis Term of protection A Contracting Party shall provide a term of protection for industrial designs of at least 15 years from either: (a) the filing date, or (b) the date of grant or registration.], proposed by USA.[Article 9Bis Term of protection Contracting Parties shall have the option to comply with Article 17 of the Hague Convention or Article 26 of the TRIPS Agreement.], proposed by Nigeria. There was united opposition to any term of protection in the agreement by the Africa Group, GRULAC, and APG. As a result, fairly early on in the negotiation, Article 9bis was dropped from the negotiating text and no term of protection was included in the final treaty. Making the Grace Period Optional The basic proposal included language on grace periods during which a design could be disclosed without affecting its registerability. There are no regulations of grace periods in the Patent Law Treaty, Trademark Law Treaty, or the Hague Agreement. Concerns were raised that this provision may disproportionately favor larger firms in weather countries that “can afford to disclose their designs publicly without immediately filing for protection, potentially stalling local competitors who lack the financial or legal capacity to navigate complex intellectual property landscapes”. The final text established a grace period of 12 months but made this provision subject to a reservation. Thus, countries may join the agreement without binding themselves to the grace period