Building Bridges Between IP and Indigenous Rights
WIPO Treaty Marks New Era
In May last year, following 25 years of negotiations, the WIPO Treaty on Intellectual Property, Genetic Resources, and Traditional Knowledge was ratified. It promises to mark a new era for indigenous rights and indigenous peoples. James Nurton reports.
“People are increasingly realizing the value that Traditional Knowledge (TK) has and the importance of respecting the communities who are the source and caretakers of this knowledge.”
So says Michael Pampalone, Founder and Principal, Dahan Pampalone LLC (USA), who is moderating today’s session, A Historic WIPO Treaty Involving Indigenous Rights: Its Impact on the Future of IP Rights (3:45 pm – 4:45 pm).
The Treaty on Intellectual Property (IP), Genetic Resources and Associated Traditional Knowledge was agreed by WIPO member states in May last year, following a Diplomatic Conference in Geneva, Switzerland.
"The western IP system does some really important things but there are gaps, and it doesn’t always meet the needs in terms of Indigenous Knowledge and culture.”
- Edwina Lewis | IP Australia (Australia)
At the time, WIPO Director General Daren Tang said: “Through this, we are showing that the IP system can continue to incentivize innovation while evolving in a more inclusive way, responding to the needs of all countries and their communities.”
“The Western IP system does some really important things but there are gaps, and it doesn’t always meet the needs in terms of Indigenous Knowledge and culture,” says Edwina Lewis, Director, Policy and International Affairs (Trade Agreements and Indigenous Knowledge) Policy and Stakeholders Group, IP Australia (Australia), who is taking part in today’s session.
“Over the past 20 years in Australia, I have seen greater recognition of the importance of appropriate engagement and greater understanding of why this is important. I’ve also seen a greater level of comfort in countries that used to be reticent about this,” she adds.
Fellow panelist, Isabella Estabile, Partner at Marinello Advogados (Brazil), has worked with Indigenous Communities and multinational companies on related issues, including obtaining prior informed consent before filming in indigenous territories. She also wrote her thesis on the interaction between TK and intellectual property (IP) rights.
“There is a lack of awareness of IP among some Indigenous Communities, but I have found that they are very interested to learn about IP rights and see them as a tool for development,” she says.
“One of their concerns is that it’s very common to see trademarks registered with indigenous names. A lot of traditional cultural expressions (TCEs) are being taken away, generally more due to ignorance than to bad faith,” notes Ms. Estabile.
Today’s session will explore the key features of the Treaty and its implications for all IP rights in the future.
“The Treaty doesn’t establish any Indigenous Rights. In fact, those rights may go back millennia. What it does is provide a transparency mechanism.”
- Michael Pampalone | Dahan Pampalone LLC (USA)
A Milestone for Indigenous Rights
The main feature of the Treaty is that it establishes a new disclosure requirement for patent applications for inventions based on genetic resources and/or associated TK: Patent applicants will have to disclose the country of origin of the genetic resources or, if the country is not known, the source.
In addition, where the claimed invention is based on TK associated with genetic resources, applicants will be required to disclose the Indigenous Peoples or local community who provided it. Where this is not known, the source should be disclosed.
Wend Wendland, Director, TK Division, WIPO (Switzerland), who is taking part in today’s panel, believes there is “enormous excitement and high expectations” about the Treaty. “It is a milestone as it is the first WIPO treaty to refer specifically to TK and to Indigenous Peoples,” he says.
During today’s session, he will clarify what the Treaty is and is not about. “The Treaty doesn’t mention the Convention on Biological Diversity (CBD) or Access and Benefit Sharing (ABS). There is no obligation on a patent office to verify the authenticity of a disclosure made; the new requirement is not retroactive; and the Treaty does not derogate from or modify any other international agreement. Post-grant sanctions for failure to disclose are possible only where there has been fraud,” he says.
The negotiations that led to agreement on the Treaty took 25 years and involved a diverse range of stakeholders, including representatives of Indigenous Communities.
“Quite a few organizations representing Aboriginal and Torres Strait Islander peoples have participated in this process as observers and it’s very important that they have been part of the conversation about what a Treaty should achieve. I believe the indigenous worldview has informed the negotiations,” says Ms. Lewis.
So far, more than 40 countries have signed the Treaty, and Malawi became the first to deposit its instrument of ratification on December 5, 2024. Australia signed the WIPO Treaty in December last year, and Ms. Lewis says the country is now looking at how the disclosure requirement could work in practice in the Australian context.
Brazil has also signed the Treaty. The country already has a patent disclosure requirement in the Biodiversity Law, but this only applies to genetic resources from Brazil.
“That will need to change when we implement the Treaty, once applicants will have the duty to inform the origin of the genetic resources claimed in a patent,” says Ms. Estabile.
“In the Brazilian patent system, you have to check a box and inform the PTO if the patent application contains Brazilian Genetic Resource or associated TK,” she explains.
If an applicant checks yes but does not present the registration number provided by the National System of Management of Genetic Heritage and Associated TK (SisGen) to demonstrate compliance with ABS legislation, the PTO will issue a requirement for disclosure.
“If the company still does not show the SisGen registration, the application will be refused. This administrative procedure will need to be improved once the Treaty is implemented in Brazil,” says Ms. Estabile.
She adds that, although implementation of the Treaty will lead to some changes to the law and procedure, “it will increase legal certainty for companies as it will reduce the reputational risk.”
"The issue of protecting TK and TCEs as forms of IP raises many complex questions which the IGC continues to negotiate.”
- Wend Wendland | WIPO (Switzerland)
Impact Beyond Patents
“The Treaty doesn’t establish any Indigenous Rights. In fact, those rights may go back millennia. What it does is provide a transparency mechanism,” says Mr. Pampalone.
In particular, he says: “The Treaty helps to provide a framework to make some progress in how we approach Indigenous Rights from a trademark perspective. It’s very important we discuss these issues. The consequence of not recognizing Indigenous Rights is a big risk for brand owners, in terms of social media and public backlash. It’s in everyone’s interest to recognize and value these rights.”
In the past several years, brands have become much more aware of issues relating to Indigenous Rights and TCEs. This has led to rebrands for products such as UNCLE BEN’S (now BEN’S ORIGINAL) and AUNT JEMIMA. Designers have started to pay more attention to the rights of local communities in sectors such as clothing, footwear, and furniture.
“In the fashion industry in particular, I find there is a sincere desire and willingness to approach these issues in a respectful and mindful way. There is so much benefit to be had for both brands and indigenous peoples. There is much more consciousness of and receptiveness to making sure these issues are approached in the right way,” says Mr. Pampalone.
Recognizing that brands and local communities have a lot to offer each other, Ms. Estabile adds that she sees her role as a lawyer as helping companies “to be allies not enemies” to Indigenous Communities.
“There is a lack of awareness of IP among some Indigenous Communities, but I have found that they are very interested to learn about IP rights and see them as a tool for development.”
- Isabella Estabile | Marinello Advogados (Brazil)
Overcoming Challenges
Further developments relating to Indigenous Rights and IP could be coming soon. At its 51st session from May 30 to June 5, 2025, WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, TK and Folklore (IGC) will discuss TK and TCEs.
“The issue of protecting TK and TCEs as forms of IP raises many complex questions which the IGC continues to negotiate,” says Mr. Wendland.
“There is momentum for change but there are big challenges, particularly when it comes to TCEs,” explains Mr. Pampalone. “For example, some of these TCEs are sacred and there is therefore a reluctance to disclose them publicly. That would make it difficult to compile a public database.”
Despite such challenges, panelists in today’s session are optimistic that bridges can be built.
“In Australia, we don’t see a tension between upholding our existing IP system and recognizing the rights set out in the UN Declaration on the Rights of Indigenous Peoples. But there are important questions to think through in terms of legal certainty in the IP system and ensuring the IP system is fit for purpose,” says Ms. Lewis. “I’m very open to hearing people’s concerns so we can make sure the system meets those needs while also doing better for Indigenous Rights and interests. It’s important to have that connection, but it’s not always easy.”
A key takeaway for brand owners is that greater knowledge and awareness of Indigenous Rights can help avoid problems and adverse publicity, says Mr. Pampalone: “There is a tremendous amount of value in TK. It should be about appreciation rather than appropriation.”
