KEI statement at the WIPO General Assembly on negotiations on traditional Knowledge and traditional cultural expressions

IGC Statement by KEI at 2025 WIPO GA

Reflecting on the fact that the 2024 Diplomatic Conference on the treaty to disclose genetic resources and associated traditional knowledge came after more than two decades and more than 50 meetings of the IGC, we suggest that if you want some type of outcome in the near to medium term that achieves anything close to consensus, it seems useful to treat the GR and TK issues separately from the TCE issues, given differences in the issues and potential consensus among member states on these topics.

It may even be useful to consider narrowing the near term work on TK to the issues raised in the new WIPO treaty, regarding the disclosures in patent applications, particularly if there are achievable outcomes on misappropriation or benefit sharing related to patented inventions that incorporate TK.

In this regard, the IGC might want to look at the approach taken by the EU, which created a mandatory cross license of patent and sui generis plant breeder rights, as a model for how to treat cases where a product that uses either the patent or a sui generis right in GR or TK, requires access to the rights held by the other party.

[See: DIRECTIVE 98/44/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 July 1998 on the legal protection of biotechnological inventions, CHAPTER III Compulsory cross-licensing, Article 12]

Or, alternatively, another type of liability rule, at least for some types of widely disseminated TK, recognizing that other types of TK may have different treatment.

A pragmatic approach, of seeking incremental progress in narrower areas may provide for more momentum, as success in one area can lead to more success in another.

Concerning the issue of using TK to train AI, negotiators might want to review the recent EU regulation on European Health Data Spaces (EHDS), which provides a system of managing access to data in ways that are decentralized, pro-competitive, and respectful of social norms.

[REGULATION (EU) 2025/327 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 February 2025 on the European Health Data Space and amending Directive 2011/24/EU and Regulation (EU) 2024/2847]

Para 61 of the EHDS regulation notes that “

“The secondary use of health data for research and development purposes should contribute to benefiting society in the form of new medicines, medical devices, and healthcare products and services at affordable and fair prices for Union citizens, as well as to enhancing access to and the availability of such products and services in all Member States. . . . “

As the EU regulation shows, it is possible to condition access to data to affordability and access to products.