Professor Margo Bagley Helps Protect Indigenous Intellectual Property Rights on International Stage

Martin Girsberger, Margo Bagley and Georges Bauer

Professor Margo Bagley, center, stands with Martin Girsberger, head of the Sustainable Development and International Cooperation Unit of the Swiss Federal Institute of Intellectual Property and Georges Bauer, academic assistant to the unit. Girsberger served as head of the Swiss delegation to the World Intellectual Property Organization General Assembly.

October 28, 2015

The possibility of an international legal instrument to protect indigenous IP rights remains alive thanks to the efforts of Professor Margo Bagley and international delegates who worked down to the wire at recent World Intellectual Property Organization General Assembly talks.

The assembly, held earlier this month in Geneva, ended with a minutes-to-spare agreement to extend the work of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore for another two years. The work of the WIPO committee is considered essential for nations hoping to forge an instrument to fill gaps in the current global IP system relating to these three categories of subject matter.

"It was hard-fought, but that is what we've been working towards all year — getting IGC negotiations restarted," Bagley said.

At the assembly, Bagley continued her role as a special adviser to Mozambique and the Africa Group, and also served as a resource for other diplomats and governmental representatives who had questions regarding the intricacies of international IP law. Bagley is the Hardy Cross Dillard Professor of Law and Joseph C. Carter, Jr. Research Professor at UVA, an expert in international and comparative patent law issues, and co-author of the casebook "International Patent Law and Policy."

She said it's important that indigenous groups and local communities have protection for their traditional knowledge and folklore, and that patent regimes facilitate, not hinder, the proper acquisition of and sharing of benefits from genetic resources used to develop patentable inventions.

"There currently is an imbalance in the traditional IP system, which values and rewards certain kinds of creativity and effort, but not others," she said. "The WIPO IGC is working to ameliorate that imbalance."

The development of new drugs has been a driver behind the push for international legal efforts to protect genetic resources. With only 15 percent of plants around the world believed to have been examined for bioactivity, and only 1 percent of microorganisms, she said, a lot of room still exists for the development of highly useful — and highly profitable — pharmaceuticals.

"If biodiversity-rich provider countries feel they're being taken advantage of, then they may make it harder to obtain access to their genetic resources," she said. "So we want researchers to have access to these genetic resources to study them and to be able to identify and develop new cures and other products beneficial for society globally."

But the push for protections isn't all about money. Some intellectual property has deeper meaning to rights holders.

"There may be sacred rituals or artwork that are not widely known outside of a particular group or community — they're not necessarily secret, but they're not widely known — that a treaty could provide protection for and perhaps enable the creators to better control," Bagley said.

She gave as an example a carpet company that lifted designs from aboriginal artwork in Australia.

"This was such a violation for the artists because they are the keepers of the community knowledge that enabled them to develop the paintings," she said. "While they were able to get some relief using copyright law, this created several additional problems, for example, the fact that the protection has a time limit. For things that are sacred, a community would not want to have a time limit on its ability to control certain uses. Because as long as that community exists, this artwork is going to be sacred to its members."

Bagley, who helped draft assembly proposals for both the Africa Group and a diverse coalition of countries that included Switzerland, Norway, Kenya, New Zealand, Mozambique and the Holy See, said the talks could be tense when groups disagreed, but that cooperation ultimately won out.

"I was dashing back and forth between groups," she said. "It was actually very helpful that we had countries from different world regions willing to work together on these issues. There was a lot more cross-regional cooperation at these meetings, and that is something that has been sorely lacking, in the IGC in particular."

Bagley said it is fortunate for the future of WIPO and the broader IP system that the cliffhanger had a positive ending.

"If we had gone another year without substantive talks in the IGC, I'm not sure what it would have taken to get them restarted," she said. "Moreover, the failure to renew IGC talks would have threatened progress on the entire normative agenda at WIPO."

WIPO will reconvene the committee for several meetings in 2016-17, with the objective of deciding at the end of 2017 whether to continue committee-level talks or schedule a diplomatic conference for adoption of one or more IGC treaties.

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