Patenting Traditions: Why are plant rights activists going to Geneva in May?

By |Published On: April 30th, 2024|

A brief introduction to the global treaty on Intellectual Property, Genetic Resources, and Traditional Knowledge Associated with Genetic Resources (GRATK) and its potential role in the development of ethical and fair policy reforms for naturally occurring psychoactive substances.

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This article first appeared in Cannabis Embassy News and is written by the Cannabis Embassy Permanent Mission to Geneva and its ambassadors: Kenzi Riboulet-Zemouli (Spain), Manu Caddie (Aotearoa New Zealand), Michael Krawitz (USA), Paula Kahn (USA / Guatemala) & Larissa Maier (USA)

The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations (UN) dedicated to developing a balanced and accessible international intellectual property (IP) system. For more than two decades, government representatives within WIPO, along with other stakeholders including commercial entities, NGOs, and Indigenous representatives, have been working towards solutions to protect Indigenous peoples and other local traditional communities from the misappropriation of their ecological and cultural heritage. The first formal solution advanced is a global treaty on Intellectual Property, Genetic Resources, and Traditional Knowledge Associated with Genetic Resources (GRATK). [1]

The work towards creating a binding international agreement reflects continued global concerns over the management and protection of our planet’s biological heritage and the human knowledge and know-how relating to plants and fungi, as well as related ecosystems. Various plants and fungi have a long history of being extracted as a “resource” taken, studied, and used by commercial pharmaceutical and agricultural companies, researchers, and governments with inadequate informed consent (if any), protections for, and benefit-sharing with the human and ecological communities of origin. These unfair and unethical practices arising from the research and commercialization of products inspired by TK are often referred to as “biopiracy.”

At the UN this March, the example of Cannabis sativa L. biopiracy was presented. Endemic to Africa, Asia, and Europe, and present elsewhere for centuries, TK on the plant and its “landraces” (varieties that evolved naturally in specific regions) represent invaluable assets for commercial research & development. Cannabis is currently subject to a high number of patents, none of which disclose or inform in any way on the provenance, origins, and the work of generations of IPLC over centuries to preserve plant varieties and associated knowledge without which these patents could never have been conceived. This happens at the expense of the communities for whom Cannabis is a traditional crop, and also at the expense of the plant itself as hybrids have rapidly diluted landrace genetics in many locations. The GRATK treaty could directly prevent these abusive patent practices and, hopefully, more. While this trend is ongoing for most of the biological heritage of our planet, living organisms like Cannabis or Erythroxylum (coca), Papaver (poppy) or numerous species of fungi under international or local control see their vulnerability to biopiracy increased by prohibitionist global drug policies. [2,3]

Draft GRATK Treaty: 20 years in the making

The history of GRATK begins in the early 2000s when the issue of genetic resources (GR) and traditional knowledge (TK) increasingly entered international legal discussions, at the demand of ‘developing’ countries, particularly in Africa, Asia, and Latin America. Countries rich in biodiversity and Indigenous cultures argued that their GR and TK had been used without appropriate recognition or compensation, leading to calls for an international framework to address these issues.

In response, WIPO established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in 2000. The IGC’s mandate was to explore intellectual property issues that arise in the context of access to GR and the fair and equitable sharing of benefits arising from their utilization, as well as the protection of TK and “folklore” (also known as “Traditional Cultural Expressions”).

Over the years, the IGC has engaged in complex negotiations aiming to draft legal instruments (treaties) that could effectively protect the human rights and IP-related rights of Indigenous peoples and local communities (IPLC) over their GR and associated TK. These negotiations have been enlightened by the objectives of the Convention on Biological Diversity (1992) and the Nagoya Protocol (2010), which introduced for the first time in international law the concepts of Fair and equitable Access and Benefit-Sharing (FABS)  derived from the use of GRs, including through appropriate access to and transfer of technology, the obtaining of the Free Prior & Informed Consent (FPIC) of IPLC to collect their resources, and various monetary and non-monetary benefits. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) adopted by the General Assembly in 2007 has been acknowledged in the draft texts of the GRATK treaty.

The draft text of the legal instrument offers various protection mechanisms, including disclosure requirements around the origin of GR and associated TK in patent applications, as well as measures to prevent the misappropriation and misuse of such resources. These discussions have also considered the rights of IPLC to control, and economically benefit from, the use of their knowledge and resources.

Negotiations have been challenging due to differing views on the scope of the protection, the definition of what constitutes traditional knowledge, and how best to balance the interests of IPLC with those of other stakeholders, including industries and researchers in Western countries which have benefited from unhindered access to GR and TK over past decades. Inevitably, commercial interests from the richest countries seek to water down the text to ensure they have as much freedom to do as they please without being encumbered by strict ethical provisions around free, prior, and informed consent from the communities of origin or fair and equitable benefit-sharing rules.  

As of the last sessions in September 2023, the IGC has yet to finalize the text of the instrument, reflecting the complexity of reconciling diverse legal, cultural, and economic interests. However, a final meeting of the parties in Geneva over two weeks in May 2024 represents the final step in establishing a comprehensive international framework that is supposed to respect and protect the rights of Indigenous and local communities while fostering innovation and responsible sharing of knowledge and resources globally. The completion of this instrument would mark a significant step forward in the field of international intellectual property law, addressing some of the most pressing issues related to biodiversity and cultural heritage in the modern world but leaves much to be desired in terms of real protections and fair rules for the control of GR and TK.

At this point, it is unclear whether the treaty would include elements that we consider quintessential: 

  1. Free Prior Informed Consent (FPIC) of legitimate IPLC right holders as part of the disclosure requirements;
  2. enact Fair and equitable Access and Benefit-Sharing mechanisms (FABS), inspired for instance by provisions in the Nagoya Protocol and the High Seas Treaty;
  3. coverage of GRs also needing to include digital sequence information (DSI) derived from genetic resources;
  4. recognition of the rights of Nature (including GRs) to own themselves and their own information.

A team of advocates at the GRATK Diplomatic Conference

A group of drug policy and Indigenous rights advocates have come together under the Cannabis Embassy to work in a range of international fora including the GRATK treaty at WIPO. The Cannabis Embassy is a horizontal advocacy, knowledge, and support platform of the global cannabis movement and allies, that gathers grassroots, non-profit organisations and experts from around the world, relaying the concerns of communities with an interest in the conservation and (eventually) fair use of any of the plants, fungi, and other forms of life under international drug control. Beyond Cannabis, the Embassy defends broad drug policy reform and supports allies affected by the prohibition of other plants and fungi. As consultative status observers, we have followed IGC discussions since 2018 and will have a voice at the GRATK Diplomatic Conference and in future work of the WIPO on IPLC rights to protect GR and TK.

It is pleasing to see the IGC move to a Diplomatic Conference in May to finalize the treaty after two decades of discussions, but reservations and serious concerns remain about the contents of the current text and the decision-making methodologies used.

Present all over the planet, and used by humans since prehistory, Cannabis and other genetic resources with a psychoactive effect, and human communities associated with these plants and fungi, are subject to two-fold high risks:

  1. The general lack of protection for IPLC concerning their genetic resources, traditions, and rights to access and benefit-sharing, and lack of conservation strategies for their ecosystems and cultures;
  2. The outright ban of psychoactive plants and fungi, and criminalisation of associated TK and folklore by international and domestic prohibition laws (including an explicit treaty provision calling governments to eradicate Indigenous medical uses of some controlled plants[2] and decades of uprooting and chemical spraying of these sacred, endangered “drug” species, to try “eradicate” them[3])

It’s a long way to reparations for IPLC victims of this double-edged sword against their cultural inheritance and traditions. But that long way starts with an international legal environment that is fair and just, not designed to maintain the current imbalance of power in favor of large companies and academic institutions over the rights and dignity of Indigenous peoples, local communities, and small farmers around the world.

The world wants this treaty to bridge the gaps in international law, but for now, it looks more like a fragile, one-way rope bridge. We continue to regret the selection of the “Chair’s text” in 2022 as the basis for the negotiations, and lament the rigid methodology adopted during the 2023 sessions, that impeded the incorporation of any of the amendments proposed by India which would have rebalanced the text with regards to the decade-long gained consensus in wording agreed on in the Consolidated Text. 

In January 2024, the Cannabis Embassy prepared a position paper with a detailed list of recommendations that was submitted to a number of jurisdictions requesting feedback ahead of the Diplomatic Conference. The main points from our position paper are summarized below.

The State of Discussions & Our Proposals

Unfortunately, after 20 years of IGC debate on a draft text, it was superseded last year by a new ‘Chair’s Text’, which substantially reduced protections for Indigenous peoples and local communities, by limiting the scope only to new patents. We continue to recommend the original Consolidated Text and IGC’s previous consensus as the reference standard when any new proposals are being considered. 

The Preamble of any treaty is a fundamental part and a guide to understanding and interpreting its provisions. To avoid closing the door to future improvement of the instrument, we recommend adding references to the broader Intellectual Property system, beyond patents, in the Preamble of the GRATK draft treaty. 

While the UN Declaration on the Rights of Indigenous Peoples is currently included, direct recognition of the UN Declaration on the Rights of Peasants (UNDROP) along with acknowledgment of the Rights of Nature should also be included. Acknowledgment that there are other cultural ways of thinking about property rights and Nature, in particular, inspired by Indigenous cosmovisions and customary practices, should also be noted. 

In the same way, UNDRIP, UNDROP, and recognition of IPLC and Nature rights should be included in several clauses, a reference to the emerging multilateral Access and Benefit Sharing systems and ethos would also be useful, in both the Preamble and Articles.

Article 3, which deals with Disclosure Requirements for patent applicants, is a key article. The country of origin of the GRs should be included and, if different, the country from which the GRs were obtained. The same approach should apply to TK.

Patent applicants should be required to provide proof of FPIC from legitimate right holders in these cases. The deadline for the completion of full specifications should not differ from commonly used submission timelines under the regular procedures of each patent office.

Possible Exceptions & Limitations to the disclosure requirement are covered in draft Article 4. There, the emphasis needs to be on stringent conditions around any “special case” exceptions to prevent misuse and ensure that these exceptions do not serve as loopholes that undermine the intent and purpose of the GRATK treaty as a whole. Similarly, in the draft Article 6 dealing with Sanctions & Remedies, a robust sanctions framework, without a maximum limit on penalties for breaches, should be created. Patent revocation must be contemplated as a possible sanction for patents based on GR/TK and filed in violation of the disclosure requirements.

Draft Article 7 relates to “Information Systems”. The express authorization of IPLC and other legitimate right holders must be required before uploading information on GR and TK in any database. Any information systems must respect the rights of these groups over their natural heritage and associated traditional knowledge, and have the right to say no to the placement of information on their GR and TK on any restricted-access or public-domain information system alike.

More clarity is required around who has access to the information systems and under what conditions, particularly for foreign patent offices. The GRATK information systems established should follow data governance guidelines that integrate the FAIR (findability, accessibility, interoperability, reusability) and CARE (collective benefits, authority to control, responsibility, ethics) principles. IPLC representation should be meaningfully included and actively participate within any technical working groups related to the Treaty and its information systems and ensure a fair geographical spread in participation and decision-making processes.

Conclusion

The completion of the proposed GRATK treaty at the WIPO next month represents a critical juncture for international human & environmental rights, and intellectual property law, particularly concerning some of the people most adversely affected by colonialism, human trafficking, and enslavement in the past, and now by its subsequent expressions in a post-, at times neo-colonial, world: Indigenous Peoples and local rural farmer communities. 

While progress is evident, significant challenges remain, especially around achieving a truly equitable balance that respects IPLC rights while accommodating development and scientific interests. The Cannabis Embassy is cognizant of the complex, multifaceted nature of these negotiations, highlighting specific concerns about psychoactive genetic resources and the broader implications for traditional knowledge and cultural heritage.

The forthcoming Diplomatic Conference in May 2024 provides a pivotal opportunity to address these complexities. However, the basis of the negotiations—the controversial “Chair’s text”—and the procedural hurdles observed in recent sessions signal a precarious path ahead. As we approach this critical meeting, the international community must strive for a treaty that not only fosters innovation and shares knowledge but also ensures robust protections for the most vulnerable stakeholders involved, and for endangered species and ecosystems. The GRATK treaty has the potential to set a global standard for respecting and protecting biodiversity and cultural knowledge, and open a new chapter and area of international law. However, it is imperative that it does not become a one-sided agreement that fails to address the core concerns of IPLC and other marginalized groups, ensuring that in the final text their voices are heard and, along with Nature itself, their rights are adequately protected and promoted.

***

[1] Read WIPO’s 1-page Executive Summary of the draft GRATK treaty and the 4-pages “Explainer”

[2] Article 49 of the 1961 Single Convention on narcotic drugs required total eradication within 15/25 years after entry into force. For cannabis, this Article 49 could only be used until August 2000 at the latest.

[3] The UN Drug Convention of 1988 and the UN General Assembly Special Session of 1998 both called for the eradication of traditional plants and fungi under control, pledging a “drug free world” by 2008.

Glossary of abbreviations 

CBD Convention on Biological Diversity
FABS Fair and equitable Access and Benefit-Sharing
FPIC Free Prior Informed Consent
IPLC Indigenous Peoples and Local Communities
UNDRIP UN Declaration on the Rights of Indigenous Peoples
UNDROP UN Declaration on the Rights of Peasants
IP Intellectual Property
GR Genetic Resources
TK Traditional Knowledge
DSI Digital Sequence Information
GRATK GR And TK associated with GR
WIPO World Intellectual Property Organization

Cannabis Embassy is a sui generis, ad’hoc independent State without territory.

Proclaimed 17 March 2024.

Supported by non-governmental organizations ENCOD, FAAAT-Forum Drugs Mediterranean, Fields of Green for ALL, Cannabis Sans Frontières, Veterans for Medical Cannabis Access, and others.

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About the Author: Myrtle Clarke

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