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Blog, Traditional Knowledge

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

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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

Blog

Can One Country Block Everything in WIPO?

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One of the questions swirling around Geneva these days is whether one country can block all progress alone. In WIPO last week, the U.S. laid down a couple gauntlets that may reappear at the Program and Budget Meetings next week. The US delegation asserted that, despite WIPO being a member of the United Nations, “[t]he United States does not support any proposal … intended to advance the implementation of the SDGs.” It also took aim at so-called “DEI” projects, asserting that “the policy of the United States to use clear and accurate language that recognizes women are biologically female and men are biologically male,” and that “[t]he United States does not and will not support the implementation of any program that promotes any form of diversity, equity or inclusion, precepts or initiatives.” So, if other countries do not bend to this will and extract such expenditures from WIPO’s budget, can the US alone block progress? The quick answer is no.   Most Geneva-based institutions strive to make decisions based on consensus, which can account for the glacial pace of some policy agendas. In the World Trade Organization, the U.S. alone has ground the organization to a halt by refusing to concede to the appointment of Appellate Board members. The WTO operates based on a very strict norm of consensus. In general, WIPO strives to operate based on consensus and one or a few members can often block progress. But the rules of operation for WIPO actually allow for votes  and majority rule. There is a very recent precedent of using voting to approve the diplomatic conferences on the two most recent treaties adopted by the organization – the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (the “GRATK Treaty”), concluded at the WIPO Headquarters in Geneva, Switzerland in May 2024, and the Design Law Treaty (DLT) adopted in Riyadh, Saudi Arabia on November 22, 2024. Chapter VI of WIPO’s Rules of Procedure provide for voting on “[p]roposals and amendments submitted by a delegation … if they are supported by at least one other delegation.” (Rule 25). In such voting, “one half of the States members shall constitute a quorum,” and [u]nless expressly provided otherwise in the applicable treaties or in the present General Rules of Procedure, all decisions shall be made by a simple majority.” These rules were used to sideline US opposition to moving toward diplomatic conferences on the GRATK Treaty and the DLT in the 55th Session of the WIPO General Assemblies (GAs) in July 2022. In that meeting, the US called for several votes to overcome Russia’s opposition to funding IP technical assistance in Ukraine. As Margo Bagley described in a recent article published by the Geneva Graduate Institute, these calls opened the door for voting strategies by others: But where some saw opposition, others saw an opportunity. If WIPO members were open to voting on one issue, how about another? What about a Diplomatic Conference (DipCon), or two? Diplomats from demandeur countries in the IGC conferred with diplomats from high-income countries who wanted adoption of the draft Design Law Treaty, which had been languishing for years in a different WIPO committee and proposed a horse trade: agreement to two DipCons to result in two new treaties. If each group agreed to support the combined proposal (and lobbied like-minded states to do so as well) and the matter came to a vote, there should be enough votes to pass the measure – strategic opportunism at its best. In the end, the minority of countries opposed to the diplomatic conferences, including the United States, abstained rather than vote against the proposals. But the threat of a vote and willingness to call for one enabled the majority of countries in favor of the treaties to move them forward over the protestations of a minorty. Majority rule prevailed. A similar linkage between two normative agenda items – the Broadcast Treaty and an instrument on Limitations and Exceptions – is being pursued in the SCCR. Cf https://infojustice.org/archives/44840 (WIPO IGC Director Wend Wendland noting: describing the “overt linkage between two seemingly unrelated normative agenda items, inspired by ‘package deals’ and ‘single undertakings’ agreed on in other organizations such as the WTO” as ”a novelty in WIPO”). The EU and allied countries are pushing for a diplomatic conference on the Broadcast Treaty. The African Group and allied countries took the position in the last SCCR that “an instrument on the protection of broadcasting organizations should advance to a Diplomatic Conference jointly with an instrument on limitations and exceptions that meets the 2012 General Assembly’s mandate.” https://infojustice.org/archives/46253 At the last SCCR, the US maintained its support for discussing an instrument on “objectives and principles” for limitations and exceptions, and thus it is not formally opposed to progress on an L&E instrument. But even if it changed its position to block consensus, there is a procedural avenue – through voting – to overcome the opposition. Voting is generally only called for in the General Assembly and the Broadcast Treaty and L&E instrument will not be moving at the next meeting. But if the US blocks the budget based on its opposition to sustainable development and DEI considerations, we may see more rounds of voting at the next GA this July.

Blog, IP and Development

Counterfeit Concerns or Development Disconnect? A Look at the UK Proposal at CDIP/34

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A debate broke out at the 34th session of WIPO’s Committee on Development and Intellectual Property (CDIP) about a proposal from the United Kingdom on “Development of Strategies and Tools to Address Cross-Border Trade in Counterfeit Trademark Goods in Developing Countries.” The project aims to support customs enforcement against counterfeit trademark goods. If adopted, this would appear to be the first CDIP project focused explicitly on such border enforcement mechanisms. The project was criticized by many developing countries for not aligning adequately with the spirit and objectives of WIPO’s Development Agenda and was postponed until the next meeting.  The Development Agenda was adopted in 2007(WO/GA/34/16) to reorient WIPO’s IP activities to support sustainable development, emphasizing flexibilities, public domain preservation, and inclusive innovation. The Development Agenda was adopted at the same time multinational industries were pushing for new international norms on customs and border enforcement as part of the so-called “Enforcement Agenda.” See Susan K. Sell, The Global IP Upward Ratchet, Anti-Counterfeiting and Piracy Enforcement Efforts: The State of Play,, PIJIP Research Paper Series. No. 15, 2010), http://digitalcommons.wcl.american.edu/research/15/. Around this time, developing countries often blocked efforts of developed countries to reorient IP policy discussions toward work on enforcement. In this context, only one recommendation on IP Enforcement was included in the final 45 Development Agenda Recommendations, listed under “Other Issues,” and emphasizing “broader societal interests”. To approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”, in accordance with Article 7 of the TRIPS Agreement.  Although other WIPO Committees, primarily through the Advisory Committee on Enforcement (ACE), work on IP enforcement capacity building, the issue has not been adopted into the CDIP’s work. Thus, the UK’s proposal breaks some new ground for the Committee. The UK presented project CDIP/34/4 as a capacity-building initiative to help developing countries prevent the flow of counterfeit goods at their borders. It outlines a three-pillar structure: case studies on smuggling methods, operational guidelines for customs risk assessment, and training sessions tailored to national needs. According to the  UK Statement at the CDIP:  “The primary objective of the proposed project is to strengthen the technical capability of the beneficiary countries to counter the threat of counterfeit goods entering their national borders. Given the large scale of cross-border counterfeit goods trade, this project if adopted will not only help protect the domestic economy and public safety of beneficiary countries but also strengthen IP enforcement to the benefit of trademark owners globally. The project is built on three pillars. First pillar will focus on the examination of the ways in which counterfeit trade markets enter the borders of the beneficiary countries. (…)The second pillar will aim towards enhancing the counterfeit risk assessment framework of each beneficiary country through the production of bespoke operational guidelines. (…)The third and last pillar concerns the provision of the capacity building programme including virtual and on-site training. Strong concerns came from the African Group (led by Algeria), Nigeria, Brazil, Indonesia, Bangladesh, Lesotho, Pakistan, and others. The main arguments raised against the UK proposal focus on three core concerns.  First, the project frames counterfeiting as a problem specific to developing countries, reinforcing stereotypes and ignoring the global, transnational nature of illicit trade. For example: Lesotho: “My Delegation views this formulation as inherently discriminatory and imbalanced. By singling out Developing Countries as the locals of counterfeit trade, the proposal reinforces harmful stereotypes and overlooks the global and complex nature of counterfeiting. This is not merely an issue confined to any one region or development status. It involves supply and demand chains that spend developed and developing nations alike, including transit routes, manufacturing hubs and consumer markets across all levels of economic development. We are concerned that this approach risks stigmatizing Developing Countries, diverting attention from the need for shared responsibility, equitable cooperation and inclusive capacity building mechanisms. Moreover, it does not sufficiently account for the historical and structural trade imbalances that limit Developing Countries’ abilities to enforce Intellectual Property rights effectively.” Nigeria: “The current text concentrates on border interdiction but pays insufficient attention to identifying, analyzing, and dismantling the production and manufacturing hubs where counterfeit goods originate. Without shining a light on those upstream nodes, enforcement at the border will remain a costly game of catch-up. While enforcement capacity is important, the proposal overemphasizes seizure and risk profiling at the expense of public facing awareness, trader training, consumer education and private sector partnerships, all of which are indispensable for reducing demand and using the culture of respect for Intellectual Property. By concentrating resources on investigative and interdiction tools, the proposal risks diverting limited WIPO budget away from development-oriented priorities including MSME support, market formalization and innovation promotion.” Second, the proposal was criticized for adopting an enforcement-heavy approach that prioritizes border interdiction over development-oriented measures such as capacity building for innovation, support for informal economies, and public awareness.  Algeria (on behalf of the African Group): “The African Group is not in a position to accept this proposal in its current form. We call on more developmental goal of this project which is currently centered around enforcement aspects.” Third, it lacks alignment with the WIPO Development Agenda, particularly by failing to incorporate TRIPS flexibilities, safeguards against over-enforcement, and mechanisms to ensure proportionality and development impact. Indonesia: “First, we are concerned that this project advances a predominantly investment-oriented approach which may not fully align with the core principle and objective of the WIPO Development Agenda. In particular, we note the absence of sufficient safeguards for informal economy and the lack of adequate consideration for flexibilities provided under the Trade Agreement, both of which are crucial for developing countries, including Indonesia. Second, we are concerned that the

Blog

Why Limitations and Exceptions Still Deserve a Bigger Role at WIPO CDIP

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As WIPO’s Committee on Development and Intellectual Property (CDIP) prepares to meet for its 34th session this May, an important question is back on the table: Are we doing enough to support access to knowledge, culture, and education through copyright limitations and exceptions? These legal flexibilities—designed to enable libraries, educators, researchers, and others to use copyrighted content under certain conditions—are vital tools for development. But despite being central to WIPO’s 2007 Development Agenda, they still play a limited role in the organization’s work. WIPO’s latest reporting shows a continued emphasis on supporting IP protection and enforcement. In the Director General’s report to the CDIP, most activities are framed around helping countries strengthen their IP systems. There is a brief mention of the Standing Committee on Copyright and Related Rights (SCCR) and its ongoing discussions on the Broadcasting Treaty and exceptions for libraries and education. But these references don’t tell us much about the real developmental impacts of those discussions—or the need to ensure that any new treaties respect countries’ ability to design exceptions and flexibilities that serve the public interest. There are some positive signs. One project approved at CDIP/30 supports the use of Text and Data Mining (TDM) by African research institutions. This is the first CDIP project specifically focused on copyright limitations, and it’s a promising example of how IP flexibilities can directly benefit research and innovation. But it’s also the only one of its kind. Meanwhile, WIPO’s Flexibilities Database—which could be a key resource—still focuses almost entirely on patent law and hasn’t been updated to include copyright-related flexibilities or real-world examples of how countries are using them. So what can be done? One idea is for Member States to propose new CDIP projects that explore how copyright limitations and exceptions can support public goals—like providing access to education materials, enabling preservation in cultural heritage institutions, or facilitating scientific collaboration. Another is to ensure that norm-setting activities, such as negotiations on the Broadcasting Treaty, are carefully monitored by CDIP to assess their development impacts. These steps wouldn’t require major changes, just a commitment to make sure the tools already embedded in international IP law are better understood and more widely used. As WIPO’s work continues to evolve alongside emerging challenges like artificial intelligence, access to digital content, and global inequality, the importance of copyright flexibilities is only growing. CDIP was created to help balance the global IP system, and that balance depends on more than protection—it depends on access too. By giving limitations and exceptions the space they deserve, Member States can help WIPO truly deliver on its promise of development for all.

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A Step Forward: World Intellectual Property Organization’s Copyright Committee Inches Forward on Broadcast and Limitations

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The Forty-Sixth Session of the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) concluded with modest but meaningful progress on key agenda items, including on the Broadcasting Treaty, the limitations and exceptions (L&Es) agenda and the agenda item on copyright remuneration in the digital environment. The SCCR was Chaired by Vanessa Cohen, Copyright Director of Costa Rica. Broadcasting Treaty: Refined Focus, Continued Dialogue The Committee continued its examination of the Draft WIPO Broadcasting Organizations Treaty, which has been on the SCCR’s agenda since its first meeting in 1998. After the first failure to create a basic text for the negotiation in 2006, the 2007 General Assembly mandated that the SCCR achieve “agreement on objectives, specific scope and object of protection” before a recommendation to complete the treaty in a diplomatic conference. (WO/GA/34/16). The GA has further instructed that the Broadcasting Treaty be “confined to the protection of broadcasting and cablecasting organizations in the traditional sense” and “based on a signal-based approach” (WO/GA/33/10, para 107, 2006).  The Chair’s statements for SCCR 44 and 45 aptly summarized the current consensus on the committee on the bounds of a text that could be advanced to the Diplomatic Conference: “With respect to objectives, there is common understanding … that the treaty should be narrowly focused on signal piracy, should not extend to any post-fixation activities and that it should provide member states with flexibility to implement obligations through adequate and effective legal means” and “that the object of protection (subject-matter) of the treaty is related to programme-carrying signals linked to linear transmission”. But the bounds of these concepts have been pressed by Chair’s Drafts of a treaty that continue to use exclusive rights as a baseline, including rights to fixation and to make available stored programs on the Internet. This SCCR featured more vigorous debate over the draft than at the last few SCCR meetings, with a larger number of countries offering specific comments on provisions including on national treatment and reciprocity, exceptions and limitations, the protection of signals used in making available stored programs, and the functioning of the mechanism for alternatives to exclusive rights.  Some member states, including the European Union, the Central European and Baltic States Group (CEBS) and the Group of Latin American and Caribbean Countries (GRULAC) supported moving the current text to a diplomatic conference. But the two days of deliberations showed significant concern about many of the draft text’s provisions. After the deliberations showed a lack of consensus on the document, Brazil proposed that the Broadcast Treaty be removed from the formal agenda of the SCCR and be worked on by groups of countries outside of the SCCR. Ultimately the Chair’s Summary concluded that the facilitators would create a new draft text and the item would remain on the agenda without any endorsement of a timeline toward a diplomatic conference. Opposition to the current Chair’s Text appeared to be growing. The Africa Group noted that “some members are concerned about the potential overreach of those protections, fearing that they could restrict access to broadcast or create unintended barriers to the flow of information.” The Asia Pacific Group similarly reported the views of some of its members “determination as to whether and how Intellectual Property rights should apply with respect to broadcasting is also a development to the issue that requires a delicate balance.” The Africa Group stated an additional position that “an instrument on the protection of broadcasting organizations should advance to a Diplomatic Conference jointly with an instrument on limitations and exceptions that meets the 2012 General Assembly’s mandate.”  Among the “Group B” coalition of wealthy countries, the United States continued to raise serious substantive objections, stating the view that “significant work remains to be done” on the Chair’s Draft, which “continues to exceed the GA mandate for a signal based approach to protect broadcasters in the traditional sense.” The US stated that it supports “a narrow text that is focused solely on the live signal,” including through deletion of the Chair’s Draft’s rights to fixation (Art 7) and making available stored programs (art 8).  Ultimately, while the level of engagement on the Broadcast Treaty was elevated, it does not appear the current text, especially its extensions to Internet-based transmissions and post-fixation rights to stored content, have sufficient consensus to move to a diplomatic conference. Limitations and Exceptions: A Foundation for Bridging Divergence The key issue for the limitations and exceptions agenda is reaching an agreement to begin text-based work on the 2012 GA mandate to work toward an “appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms)” on uses by libraries, archives, museums, educational and research institutions, and persons with other disabilities (WO/GA/41/14). In SCCR 43, the Committee adopted a Work Program SCCR/43/8 REV to draft “objectives, principles, and options” for potential instruments. As noted above, the African Group will not support moving the Broadcast Treaty to a Diplomatic Conference without an instrument on L&E prepared to also be endorsed for finalization.  The Chair announced at the start of the L&E agenda that she had a meeting of “volunteer” member states the week before the SCCR to consult on ways forward. She further proposed that she could use the Chair’s position to “help put together a list of objectives and principles that could be seen as ground, a common basis” and that “could be seen as the cornerstone for a soft law instrument” that “could be an important tool used by WIPO and adopted by the General Assembly, it could provide Member States with significant guidelines and guiding principles.” She further proposed “the possibility of appointing facilitators to try and identify that common base.” All countries implicitly endorsed moving to text based work on principles and objectives for limitations and exceptions. The debate in the Committee was about where to start. Group B and CEBS endorsed starting to discuss the US proposed document – SCCR/44/5. The African Group and many developing countries opposed beginning with

Blog, Broadcast Treaty

Knowledge Ecology International will host roundtable on negotiating text for a WIPO Broadcast Treaty, April 3, 2025

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In a Knowledge Ecology International (KEI) post made earlier today by James Love, KEI announced that it will host an informal roundtable on the WIPO broadcast treaty text that will be discussed at the WIPO SCCR 46 meeting from April 7 to April 11, 2025.  The meeting documents are available from WIPO here: https://www.wipo.int/meetings/en/details.jsp?meeting_id=86568, including the current negotiating text, here: https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=641471 KEI’s announcement on the roundtable is linked here and can be read below: The format of the roundtable will be an information discussion of specific articles in the text, dealing with such issues as the definitions of beneficiaries and protected broadcasts, the rights granted, the provisions on national treatment and formalities, the treatment of fixation and post fixation rights (if any), the duration of protection, limitations and exceptions to rights, and other topics. Sean Flynn, The Director of the Program on Information Justice and Intellectual Property at American University Washington College of Law, Luis Villarroel Villalon, the Director of Innovarte ONG in Chile, and James Love, Executive Director of KEI, will present some proposals for the text, but any of the particpants in the Zoom call will be encouraged in participate and share views as well. The discussion will be recorded. To register for the call, use this link: https://us02web.zoom.us/meeting/register/eeboYsSbSXSkDL6Xx3bsnA KEI will be posting links to some additional links to background documents shortly. 2023. Love, James P., “Comments on the September 6, 2023 Draft of a WIPO Broadcasting Treaty, the Definitions, Scope of Application, National Treatment and Formalities” (2023). Joint PIJIP/TLS Research Paper Series. 110.https://digitalcommons.wcl.american.edu/research/110 2023. James Love. The Trouble With the WIPO Broadcasting Treaty. Joint PIJIP/TLS Research Paper, Series. 85. March 2023. https://digitalcommons.wcl.american.edu/research/88 2023. Bernt Hugenholtz, Simplifying the WIPO Broadcasting Treaty: Proposed Amendments to the Third Revised Draft,https://digitalcommons.wcl.american.edu/research/111 2023. Bernt Hugenholtz, The WIPO Broadcasting Treaty: Comments on the Second Revised Draft,https://digitalcommons.wcl.american.edu/research/84 2025. SCCR 46, PIJIP Technical Comments 2025. Schirru, Luca; Vyas, Lokesh; Jawara, Haddija; Ruthes Gonçalves, Lukas; McGee, Katie; Misto, Yara; and Flynn, Sean Michael Fiil, “Documentary History of the Broadcast Treaty in the SCCR (Global Version)” (2025). Joint PIJIP/TLS Research Paper Series. 145.https://digitalcommons.wcl.american.edu/research/145

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Statement of User Rights Network on Design Protection for Graphical User Interfaces

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Professor Sean Flynn delivered the following statement at the World Intellectual Property Organization Standing Committee on Trademarks on the proposal by the United States and others for a Joint Recommendation on Graphical User Interfaces.  The Global Expert Network on Copyright User Rights is an association of IP professors around the world which includes many who also specialize in design law. We support the proposal by the African Group for a study on GUIs before moving further on the proposal for a joint recommendation.  In particular, I draw attention to the work of Professor Sarah Fackrell‬ Burstein, who has studied the use of design law protection on GUIs in the USA. She pointed out in correspondence with me that in the USA “Copyright protection is generally available for this subject matter,” but companies use design protection for GUIs “so they can subvert the low standards of copyright.” In her work Uncreative Designs, 73 Duke L.J. 1437 (2024), she describes how in the USA GUIs are sometimes granted protection that would not meet the copyright standard by the Supreme Court in Feist v. Rural Telephone, which held that information alone without a minimum of original creativity cannot be protected by copyright. One can see many interesting examples of such GUIs at her BlueSky hash tag #SubFeistDesigns https://bsky.app/hashtag/SubFeistDesigns  The US experience suggests that the terms in the joint recommendation may be very important and guidance may be needed for countries that do not want to promote extending protection to GUIs that is beyond that normally available under trademarks and copyrights in most countries already. It may be especially useful to study the potential impacts on large generic markets, such as those for cell phones, where expanding IP promotions for GUIs may negatively affect emerging industries.  We would be happy to work with the African Group and others interested in engaging the scholarship in this area. 

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Knowledge Ecology International Publishes Highlights from WIPO Discussions on Graphical User Interfaces

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The 48th session of the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) is considering two submissions from various delegations on Graphical User Interfaces (GUIs). A recent Knowledge Ecology International post authored by Thiru highlighted the key details from WIPO discussions on GUIs, and can be read at this link, or below: SCT 48 – Highlights from WIPO discussions on graphical user interfaces Posted on March 26, 2025 by Thiru As mentioned in a previous blog, Under the topic of industrial designs, the 48th session of the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) is considering two submissions. The first submission is an updated proposal (SCT/44/6 Rev.4) on a Joint Recommendation for Industrial Design Protection for Designs for Graphical User Interfaces, submitted by Canada, Israel, Japan, the Republic of Korea, the United Kingdom, the United States of America and the European Union and its member states. The second paper (SCT/46/5) is a proposal by the African Group for a Study on the Impact of Design Protection for Graphical User Interface (GUI) Designs on Innovation. In advance of the Committee’s consideration of these two papers, the WIPO secretariat convened an information session on 21 February 2025 on Graphical User Interface (GUI) Design Protection. On Monday, 24 March 2025, a number of delegations weighed in on design protection for graphical user interfaces; several delegations referenced the February 2025 information session. The following extracts are taken from WIPO’s speech to text live transcript. This item will be revisited on Wednesday, 26 March 2025. In its opening remarks, Colombia on behalf of the Group of Latin American and Caribbean region (GRULAC) said: “We are also following with interest the ongoing discussions on the protection of graphical user interfaces, GUIs, recognizing their increasing relevance in the digital economy.” Pakistan, on behalf of the Asia Pacific Group, expressed interest in the African Group proposal on a study on the impact of design protection for GUI designs on innovation (SCT/46/5). As regards industrial design protection for GUIs, most APG Member States are of the view that innovation by local firms through utilization and adoption of existing technologies can significantly improve local technological capabilities and enable a form of learning by doing. Such avenues can play an important role in the catch-up process of nascent industries in developing countries with industrial development in other countries. The group, therefore, remains interested in following up with further deliberation on the revised proposal for a study on the impact of design protection for GUI designs on innovation contained in document SCT/46/5. The APG also views the continuation of discussions on the revised proposals regarding the utilization of country names or geographical names of significance as a priority. The group aims to engage in a spirit of collaboration to refine existing proposals towards an appropriate outcome based on inputs from concerned Member States. On this matter, the Chair noted: Item 4 involves two proposals. First, updated proposal by the of Canada, Israel, Japan, the Republic of Korea, the UK and the U.S.A. and the EU and its Member States for a joint recommendation concerning industrial design protection for designs for GUI which is contained in document SCT/44/6 Rev.4. And Another proposal which is made by the African Group for a study on the impact of design protection for GUI designs on innovation which is contained in SCT/46/5. I would like to remind you the fact that in the previous SCT meeting, SCT agreed to invite the Secretariat organize a virtual information session on GIU design protection prior to the next session of the SCT. Actually that information session took place online on the 21st of February. Now I request the Secretariat to report on the information session on GUI design protection. Now give the floor to the Secretariat. The WIPO Secretariat reported: Thank you, Mr. Chair. Good morning, ladies and gentlemen. I will briefly report on the online information session on GUI design protection that was requested by SCT 47 in its March 2024 session. The information session took place online, exclusively online on February 21st this from 1:00 p.m. to 3:00 p.m. The session was structured in three parts. First, a discussion on the development of GUI designs in various sectors. This discussion was moderated by Mr. David Stone, a solicitor at A&O Sherman in London and featured also speakers from Saudi Arabia, the Republic of Korea and Brazil and Nigeria. Secondly, there was a presentation by the Secretariat on the findings from the two SCT questionnaires on GUI design protection. And finally, there was a presentation by WIPO’s department for economics and data Analytics on the economic research on GUI designs that has been carried out by the department. The information session around 200 Delegates registered for this information session. which was followed by 145 Delegates. The European Union provided the following perspectives: Thank you, Mr. Chair. The European Union and its Member States would like to congratulate you and your Vice Chairs on your election and we are looking forward to working during this session under your able guidance. Regarding the topic of GUI designs, the EU and its Member States would like to firstly thank the Secretariat for organizing the virtual information session on the 21st of February. We have listened with great interest to the reports of experts, the findings of the two questionnaires and the update about the forthcoming report by the chief economist of WIPO. The information session provided valuable insights into the current landscape of design protection across various jurisdictions. The presentations revealed significant commonalities in how different countries approach GUI protection and this suggests a strong foundation for potential international harmonization of design law. However, areas of divergence were also highlighted which present opportunities for working towards developing more unified and comprehensive approaches to GUI design protection on a global scale. On this basis, Mr. Chairman, we continue to be convinced that adopting the joint recommendation in document SCT/44/6 Rev 4 is a practical way

Blog, Traditional Knowledge

Why the WIPO IGC Deadlocked

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By: Chidi Oguamanam Chidi Oguamanam, representative of Nigeria and University of Ottowa Professor of Law, provides analysis of the failure to endorse a new consolidated text by the 50th session of the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC). The article was originally published by ABS Canada, and is reprinted here with the author’s permission.   Link to article Discord over Rights and Measures-Based Approaches to the Protection of TK and TCEs Scuttles WIPO IGC 50 By: Chidi Oguamanam Backdrop to the 50th WIPO IGC Session At the 50th session of the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC), delegates arrived with expectations for a better outcome. However, after one week of deliberations from March 3-7, 2025, experts and diplomats failed to achieve consensus over an improved working text of international legal instrument(s) for the protection of traditional knowledge and traditional cultural expressions (TK/TCEs). The last session of the WIPO-IGC (the 49th session) was stalemated because the majority of delegates agreed that they failed to narrow gaps in the working texts of TK and TCEs from the 47th WIPO-IGC session. At the 49th session, delegates resolved not to transmit any instruments to the 50th session, which meant that they would fall back to the text of the 47th session to the collective disappointment of the Committee and its Finnish Chair, Anna Vuopala, at the December 2024 meetings. The 50th WIPO-IGC session was chaired by Brazilian diplomat Ms. Erika Patriota, who was invested in breaking the jinx of the 49th session. Despite her best efforts through a methodology that relied heavily on informal sessions as well as drew from the facilitation skill of the Filipino Friend of the Chair, Anne Adlon, the session’s intended purpose to narrow gaps and deliver on an improved text of negotiating instruments was not met. A hopeful start on the first couple of days resulted in ridding the two working texts (TK and TCEs) of a few redundant and unsupported alternative articles. However, a methodological failure arising from not reining in delegates who were determined to contribute new textual language, and who were determined to even substitute in wholesale fashion some existing articles, pushed the Committee off-balance away from narrowing gaps. Rights and Measures-Based Approach is Now a Critical Schism There was a palpable ideological schism among delegates on the perennial high level conceptual question over the nature of the instrument in relation to intellectual property rights. On one side are demandeur delegations who favour negotiating the TK/TCEs instruments as sui generis, or what one delegate characterizes as “IP+.”  On the other side are those who prefer that the instruments be in sync with conventional IP rights – with term limits, elaborate exceptions and limitations, and accommodation of the so-called “vibrant public domain.” More prominently and equally worrisome at the 50th WIPO-IGC session was a palpable division among delegates along “rights-based” and “measures-based” approaches to the protection of TK and TCEs. In simple terms, the rights-based approach is premised on the recognition of inalienable and existing rights of Indigenous Peoples and Local Communities (IPLCs) to their TK and TCEs as a fundamental anchor for the protection of those rights and the premise upon which any consequential measures are based. On the other hand, proponents of the measures-based approach, who are mainly non-demandeurs led by the United States and its allies in Group B (Japan, Canada, South Korea, Switzerland, UK), the EU, the Central European and Baltic States (CEBS), etc., are inclined toward a measures-based approach. The latter group of proponents of the measures-based approach proactively emphasizes and promotes a list of policy, regulatory, persuasive, and non-binding measures to encourage the “safeguarding” of TK and TCEs. In the opinion of these proponents, a soft-law (i.e., non-binding) approach is the preferred nature of such measures. The argument is that, in accordance with its mandate, the Committee should not prejudge the nature of the instrument that will result from its work. For most non-demandeurs, a measures-based approach is a suitable pathway to a non-binding treaty. For the demandeurs, that is, IPLCs as well as mostly developing countries of the global south who coalesce around the mainly fluid category of like-minded countries (LMCs), the African Group, the Group of Latin American and Caribbean Countries (GRULAC), India, China, and some members of the Asia Pacific Group (APG), a rights-based approach is preferred. The demandeurs support a stronger and binding instrument in the nature of the already-concluded treaty from the work of the Committee – the 2024 WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. For this group, the fact that the Committee is required not to prejudge the outcome of its deliberations does not preclude designing a binding instrument. For demandeurs, the narrow focus of non-demandeurs on a non-binding instrument misses the other consideration regarding the outcome of the Committee’s work, which relates to whether it would result in a single or multiple instruments. At the beginning, the Committee set out on a pathway to three instruments, namely, TK, TCEs and Genetic Resources (GRs).  It has agreed on only one instrument so far, which is the binding instrument on GRs. Cut-and-Paste Merger for Artificial Consolidation Despite a lack of consensus, the 50th IGC attempted to merge the two remaining negotiating instruments on TK and TCEs into one document, in contrast to their being negotiated in parallel, which has been the practice. It is not as if no attempt has been made in the past at consolidating the two remaining documents. In February 2023 and March 2023, the Jamaican Chair of the IGC, Lilly-Clair Bellamy, raised the Chair’s Consolidated Texts of TK and TCEs, which some delegations wanted to be used as a working instrument at the aborted 49th session of the IGC. The attempt at the equally aborted 50th session to merge both texts in a cut-and-paste merging approach reflects the potential inclination of delegations toward a consolidated instrument. The Committee appears open to consider a single TK/TCE instrument to complement the

Blog, Broadcast Treaty

The (Long) Road to the Broadcast Treaty: A Brief History

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Lokesh Vyas; Luca Schirru; Sean Flynn  Members of the research team from the Program of Information Justice and Intellectual Property (PIJIP)’ Geneva Center published a “Documentary History of the Broadcast Treaty in the SCCR” (2025). Joint PIJIP/TLS Research Paper Series. 145. https://digitalcommons.wcl.american.edu/research/145/ The document traces the discussions and statements made by Member States across all SCCR and General Assembly meetings from the launch of the Standing Committee on Copyright and Related Rights in 1998 to the 45th meeting of the committee in 2024. The history can be used to analyze the evolution in the statements, positions, and proposals of countries over this long history. This note describes the pre-history of the Broadcasting Treaty before the creation of the SCCR. Berne Convention Broadcasting entered the international copyright scene in the 1928 Rome Revision of the Berne Convention, with the introduction of Article 11bis to the Berne Convention: “Article 11bis: (1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the communication of their works to the public by radio-diffusion.(2) The national legislations of the countries of the Union may regulate the conditions under which the right mentioned in the preceding paragraph shall be exercised, but the effect of those conditions will be strictly limited to the countries which have put them in force. Such conditions shall not in any case prejudice the moral right (droit moral) of the author, nor the right which belongs to the author to obtain an equitable remuneration which shall be fixed, failing agreement, by the competent authority.”[2] The exclusive right in 11bis is limited to communications “to the public” by the particular means of “radio-diffusion.” It thus did not cover issues such as rebroadcasts by other means (e.g. cable, internet, etc.) or one-to-one transmissions. Article 11bis(2) gives governments flexibility in how to regulate the right. The importance of public interest regulation was emphasized by the Sub-Committee on Broadcasting which discussed the issue at the conference.[3]  In 1948, Article 11bis(1) was expanded to cover additional technologies, and Article 11bis(3) was introduced, creating an exception for “ephemeral recordings made by a broadcasting body by means of its own facilities and used for its own emissions”.[4] The provision also permitted legislation to authorize the preservation of such recordings in official archives if they held exceptional documentary value.  The 1967 Stockholm Revision brought further modifications: Article 11bis(1) was revised to include the terms “broadcasting” and “rebroadcasting”. Article 11bis(2) remained unchanged; the wording of Article 11bis(3) was slightly modified, though without any substantial legal effect. Rome Convention The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome, 1961) convened jointly by two UN agencies: ILO and UNESCO, as well as BIRPI (WIPO’s predecessor), included a related right of broadcasting organizations. As James Love has described:  “Broadcasting organizations made a discrete case for inclusion in the treaty as a beneficiary, even when making no creative contribution. Backed by sheer lobbying power, broadcasters claimed that, unlike theater owners, record or bookstores, they were tasked with making works available to the public without direct compensation from listeners, often with additional public service obligations, and were entitled to rights, even when none existed for the works broadcast.”[5] The treaty defined “broadcasting” as “the transmission by wireless means for public reception”[6] and “rebroadcasting” as “the simultaneous broadcasting by one broadcasting organisation of the broadcast of another broadcasting organisation”.[7] The treaty was thus limited to the protection of live broadcasts by traditional wireless means. The Rome Convention included a list of permissible limitations and exceptions.[8] Brussels Convention As Delia Lipszyc noted with the rise of orbiting or geostationary satellites in international telecommunications since 1965, broadcasting organizations expressed the need for adequate protection against the ‘piracy of signals’ when their television programmes were transmitted by space satellites.[9] The Rome Convention left ambiguity on this issue as it only covered “wireless” transmissions, raising doubts about whether it applied to broadcasts relayed through satellites.  International discussions on the legal challenges of “intercontinental broadcasts of television programmes by satellite” began in 1968 and 1969. Following these meetings, UNESCO and BIRPI jointly convened a Committee of Governmental Experts to examine copyright and related rights issues affecting performers, phonogram producers, and broadcasters due to satellite transmissions. The committee met three times—in Lausanne (1971), Paris (1972), and Nairobi (1973)—laying the groundwork for the 1974 Diplomatic Conference in Brussels.[10] In the 1974 Brussels Diplomatic Conference Report, Lipszyc notes that the General Rapporteur highlighted the issue’s urgency, as recognized by the three Committees of Governmental Experts. They explored several possible solutions, including: 1.) the revision of the International Telecommunication Convention or of the annexed Radio Regulations; the revision of the Rome Convention (1961); 2.) the adoption of a new multilateral Convention; or 3.) some other formula, such as the confirmation of the existing international agreements or 4.) the adoption of a straightforward resolution condemning the piracy of signals. Quoting from Lipszyc:  “As the preparatory work progressed, a consensus emerged in favour of the third solution; even though some countries considered that the Rome Convention granted broadcasters protection against unauthorized rebroadcasting of their signals transmitted by satellites, it was still clear that, because of the few accessions to that Convention, it did not immediately lend itself to a solution of this problem at world level. … At the meetings of the three Committees of Experts, discussions focused mainly on a number of drafts of a new multilateral convention designed to prevent the rebroadcasting of signals transmitted via satellites by distributors for whom they were not intended; but it proved particularly difficult to arrive at a general consensus on the content and terms of this Convention”. The above-referred Report highlighted that the main difficulty arose at the meeting of the First Committee of Governmental Experts (Lausanne, 1971) and took up a great deal of the proceedings of all three preparatory meetings. The problem was to know whether, if exclusive rights were granted to the originating broadcasting organizations in the sphere of private law and within a new international

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