Update on WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge
With thanks to Tahlia Miller-Dietrich, Arts Law Volunteer
Patently fairer
Referral of the World Intellectual Property Organization (WIPO) Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (the GRTK treaty), to Parliament’s Joint Standing Committee on Treaties (JSCOT) signifies an important domestic legal moment in Australia’s historic support for a new international framework involving First Nations peoples’ traditional knowledge in the context of intellectual property. Arts Law has always participated in WIPO’s intergovernmental committee on traditional knowledge, traditional cultural expressions, genetic resources and folklore (IGC) along with other key stakeholders within Australia (for instance, IP Australia) and continues to honour the tenacity and persistence of the Indigenous Caucus in the IGC whose years of effort led to the landmark GRTK treaty, which we reported on previously here. Readers of our newsletter may recall that, in the words of WIPO, the treaty’s mandatory patent disclosure requirement involves obliging “patent applicants to disclose the country of origin of the genetic resources and/or the Indigenous Peoples or local community providing the associated traditional knowledge, if the claimed inventions are based on genetic resources and/or associated traditional knowledge.” The GRTK treaty is not yet in force. Australia signed in December of 2024 but like many other signatories, has not yet ratified. In mid-May of this year, GRTK treaty was tabled in both Houses of Parliament with a National Interest Analysis outlining the reasons it is in our national interests to ratify it in the context of economic, environmental, social and cultural impacts and a description of its domestic implementation. At the same time, the GRTK treaty was referred to JSCOT. JSCOT is currently examining the proposed treaty action, having received submissions. It may conduct hearings and will report to Parliament. Though its recommendations are not guaranteed, they are likely to be very persuasive. Arts Law did not make a submission, however, our expectation is that JSCOT will recommend the ratification of the GRTK treaty. If Australia deposits instruments of ratification to WIPO this will bring the total number of ratifications to four (at the time of writing), which will mean 11 more are needed for the treaty to be in force.
First Nations artists
For Aboriginal and Torres Strait Islander artists and their communities, knowledge, heritage and cultural expressions are often interlinked and inseparable. Although this treaty text and the reference to JSCOT is concerned with the patents system, First Nations artists may view the significance of the subject matter as intertwined with other ‘products of the mind’ and culture. Its impact may be important as a signifier but may prove to be less so in terms of its effect on how Australia’s patents system deals with Aboriginal and Torres Strait Islander sovereign knowledges and genetic resources, including in terms of their interrelationships with traditional cultural expressions and heritage.
Of purpose and practice
The purpose of the GRTK treaty is to strengthen the integrity of the patent system. It requests greater transparency where patent applications involve genetic resources for traditional knowledge associated with those resources. This disclosure requirement is designed to reduce the risk of patents being granted for inventions that are not genuinely novel or inventive, particularly where the invention relies on knowledge held by Indigenous peoples or local communities; “Indigenous peoples or local communities” is the language used by WIPO and other United Nations fora.
Article 31 of the United Declaration on Rights of Indigenous Peoples suggests that the introduction of the GRTK treaty should not be merely technical or administrative but should involve meaningful consultation with Indigenous peoples.
A balancing act
The implementation of the GRTK treaty will require careful balancing. Through its patents system, Australia’s support for innovation, patent certainty and international cooperation will need to be balanced with ensuring that disclosure systems are effective, culturally appropriate and developed in consultation with First Nations experts and communities. An example of the limit of the effectiveness in practice include the confirmation embodied in Article 4 of the GRTK treaty that the obligations on patentees are not retrospective which limits its ability to address past issues (which will provide greater certainty for existing patent applicants and rights holders, of course).
Overall
The GRTK treaty may be understood as part of a broader movement toward more ethical and accountable intellectual property systems. Its importance lies not only in preventing erroneous patent grants, but also in recognising that genetic resources and associated traditional knowledge are connected to peoples, cultures and rights. For Australia, ratifying the GRTK treaty will raise important legal and policy questions about how to align patent law with First Nations participation in law-making about intellectual property as well as international obligations and the protection of traditional knowledge. Fifteen countries are required to ratify the GRTK treaty before it will come into force. To be implemented domestically, our Patents Act 1990 (Cth) and the Patents Regulations 1991 (Cth) will need to be amended to include disclosure obligations (patent applicants’ obliged to disclose origin or source of genetic resources and/or the associated traditional knowledge on which the invention is based and relevant procedural requirements for the form of disclosure), as well as dealing with the consequences for failure to disclose (e.g. patent application refused or in the case of the omission coming to light after the grant, revocation), including any remedies. We do not expect that any attention will be paid to the interrelated nature of traditional knowledge and cultural expressions that fall outside of the patents system, and this may be a point of contention for First Nations artists whose hopes were high off the back of understandings about the promises of international law-making in this space.
