Traditional knowledge (TK) is loosely defined as knowledge, skills and know-how held and passed down intergenerationally by a community of people, including indigenous peoples, forming an important part of the community’s spiritual identity or cultural way of life. Formerly dismissed, gradually tolerated and now accepted in many forms, including complementary/alternative medicine, TK is now relevant to international negotiations in several areas of law.

There is firm recognition of TK’s interrelatedness with biodiversity conservation, global health, climate change and intellectual property. Protecting indigenous peoples’ knowledge is a determinant of planetary health because 80% of the world’s remaining biodiversity is stewarded by indigenous peoples, whose conservation is fundamental to sustainable and continuing use of traditional medicine (TM). The integral role indigenous knowledge systems play in conservation of natural environment is also reflected in how the State Parties to the Convention on Biological Diversity (CBD) are redesigning their national biodiversity strategies and action plans to link health and environment by 2024. This blog’s analysis is limited to negotiations in World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC) and CBD Conference of Parties (CBD COP).

1.      Fragmentation of TK protection

While there is consensus that protecting TK is imperative, TK is not protected as intellectual property under international law and is often subject to exploitation due to absent affirmative protection and a highly-fragmented international governance scape. There are parallel discussions on TK protection across myriad forums, including but not limited to the WTO, WHO, CBD COP and WIPO IGC.

The biggest contributors to fragmented TK protection in international law are the differing mandates of intergovernmental institutions, like the ones mentioned earlier. The problem exacerbates when each State is represented by usually different ministerial candidates at each institution, who present siloed and sometimes, divergent views according to policies of the national agencies they represent. With the slow-moving progress of WIPO-IGC in a highly contentious field like intellectual property (IP), attention must instead turn to leveraging developments in alternate forums (like CBD) to resolve this issue. In that respect, the advent of Kunming-Montreal Global Biodiversity Framework (KMGBF) in December 2022—adopted by the CBD COP—can catalyze the integration of international law for  affirmative TK protection as IP. I argue that the KMGBF can, and should, inject urgency into WIPO-IGC’s adoption of a legal instrument to protect TK.

2.       Differences between developing and developed countries  

Affirmative protection of TK as intellectual property is currently absent from this fragmented international legal framework. To harmonize the interplay of IP and TK, WIPO-IGC was established in 2001. In 2009, IGC’s mandate tasked it with drafting a legal instrument to protect TK against misappropriation. The proposed legal protections for TK have undergone drastic changes in substantive provisions over the past 14 years. WIPO General Assembly is scheduled to begin the conclusive negotiation of a  proposed draft that governs genetic resources and associated TK, in 2024.

There are several reasons for the inordinate delay in adopting a legal instrument at WIPO, since 2009. The starkest of them are differences between developing and developed countries, resulting in a lack of political will amongst developed countries to adopt a rights-based mechanism that protects TK. The enduring WTO’s TRIPS Agreement has failed to reconcile the normative goals of equity and justice with respect to TK and TM use by non-TK holders. Peru and India have previously argued at the WTO that TRIPS enabled misappropriation, referring to wrongfully-granted patents like the now-revoked turmeric patent. Implications of TK protection upon the heavily-guarded IP system—like changes to established patent application practice, by introducing a mandatory disclosure of origin requirement—are undesirable for countries who profit from the status quo. These diametrically opposing camps make it extremely difficult to design an approach that harmoniously incorporates affirmative protection of TK into existing IP rules. However, the CBD COP through KMGBF’s adoption unifies political will to protect TK, which can now be channelized to inject urgency into WIPO IGC negotiations. 

3.      Integration of political will to affirmatively protect TK  

CBD has a long-standing relationship with regulating sustainable use of TK and a stated intention to construct a mutually supportive relationship between IP protection and biodiversity conservation. Through Nagoya Protocol 2010, CBD COP built a multi-faceted biodiversity-health nexus (seen with pathogen sample sharing), thereby counteracting the inertia of siloes that dominates international law-making. This effort has paved the way for a holistic worldview on human and planetary health.     

The KMGBF was adopted in 2022 after four years of negotiation and guides global biodiversity conservation strategy until 2050. It is historic not only for placing TK preservation at the heart of complementary, multi-sectoral approaches to governance. It is also conclusive evidence of State practice with 196 States reaffirming a growing momentum towards affirmatively protecting TK. In devising considerations for the implementation of the KMGBF’s 23 targets nationally, it underscores the crucial role of TK protection through documentation and preservation. It further reaffirms the necessity of obtaining free and prior informed consent from TK-holders and ensures equitable benefit-sharing when utilizing genetic resources associated with TK.  

The adoption of KMGBF has demonstrated that political will to recognize and protect TK exists. This political will needs to now be channelized into the WIPO-IGC discussions. The KMGBF’s adoption presents an opportunity to foster inter-institutional collaboration between WIPO-IGC and CBD COP that aligns their mandates in developing a mutually-supportive instrument. All member states of CBD COP are also members of WIPO IGC. Through close cooperation and communication between State representatives and Secretariats of CBD COP and WIPO-IGC, there is a golden opportunity to bridge the gap created by fragmentation and steward political will of States into WIPO-IGC’s negotiations.

KMGBF’s historic adoption is the jumping board to deconstruct power asymmetries fueled by IP rules dominated by developed countries. It is a key milestone in catalyzing the adoption of a legally binding international instrument that confers the right to protect TK as intellectual property in 2024.

Kriti Sharma has been working as a Research Associate in the Global Health Law and Governance Program at the NUS Centre for International Law. She is a human rights lawyer by training and has obtained dual specializations in International Affairs and International Legal Studies from Sciences Po and Georgetown University Law Center, respectively.  

Read more on Asian law topics in the Asian Journal of International Law.