African
plants, marine life and microbes have frequently been targeted by companies
bioprospecting for new medicines, cosmetics and agricultural products – often
without prior and informed consent, acknowledgement and benefit-sharing, a
practice known as ‘biopiracy’.[2]
It was for this reason that African countries were at the tip of the spear in a decades-long struggle to introduce an important change to patent procedure that resulted finally in a new Treaty adopted by all the members of the World Intellectual Property Organization (WIPO) at a Diplomatic Conference in May last year: the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.
For many years, an intergovernmental committee of WIPO (known as the ‘IGC’) conducted
the negotiations that led ultimately to the Treaty’s adoption.[3]
What the Treaty says
The
most significant change brought about by the Treaty is that it requires patent
applicants to disclose the origin or source of genetic resources and associated
traditional knowledge their inventions are based on.
This
new disclosure obligation will lead to greater transparency about the
commercial use of a country’s biodiversity and what benefits are being created
and for whom, triggering inquiries into whether national access and
benefit-sharing regimes have been complied with – and, if not, this information
could lead to benefit-sharing that might not otherwise have occurred. Provider
countries, Indigenous Peoples and local communities will then stand to gain a
greater share of the monetary and non-monetary benefits that arise from the
commercialization of their resources.
In this way, the Treaty contributes to environmental justice.
Further,
specific language proposed by Indigenous Peoples’s representatives resonates
throughout the text, and they will play a role in the Treaty’s implementation.
In this way, the Treaty contributes to social justice and procedural equity.
This
new transparency requirement will also help reduce uncertainty about the
validity of patents over bio-based inventions. This will lead to higher quality
patents and greater trust in the patent system.
Africa’s leading role
A
stand-out feature of the Treaty is that it is the first intellectual property
treaty for which developing countries were the proponents. For one of the first
times in the history of international intellectual property law, they were not
policy-takers but policy-makers. This may be intellectual property’s first
truly pro-development treaty.
Indeed,
developing countries, as well as Indigenous Peoples and local communities, called
for such a new patent disclosure requirement for over 25 years and they in
particular have hailed its
adoption.
Africa
played a leading role in the long and winding journey to the Treaty. I am
reminded in particular of the contributions over the years of figures like
Philip Owade from Kenya who chaired the IGC from 2009 to 2011, Vivienne
Katjiuongua from Namibia who chaired one of the two key negotiating tracks at
the Diplomatic Conference and negotiators such as Yonah Seleti, the late Tom
Suchanandan and Shumi Pango (South Africa); Pierre du Plessis (Namibia); Catherine
Bunyassi Kahuria (Kenya), Chidi Oguamanam and Ruth Okediji (Nigeria); Paul
Kuruk (Ghana); Amadou Tankoano (Niger), Mohamed Bakir (Algeria) and Georges-Rémi
Namekong (African Union), to name only a few.
Prospects for the Treaty’s success
Africa is leading the charge too in bringing the
Treaty into force.
Among the 44 countries that
signed the Treaty within the one-year period allowed for signing, the majority
are African.[4]
Signing the Treaty does not
mean countries are bound by it, however. Countries become bound by treaties
when they either ratify or accede to them.
This Treaty will come into
force three months after 15 countries have either ratified or acceded to it.
So far, two countries have joined
the Treaty (Malawi and Uganda).
The influence of the Treaty
on the continuing negotiations in WIPO on the protection of traditional
knowledge more broadly and traditional cultural expressions is at this stage
unclear, yet expectations are high.
It is too soon to make
predictions about the success of the Treaty – however that may be judged.
While
the Treaty’s adoption last year was a momentous milestone in the evolution of
the patent system, it is critical that the Treaty comes into force as soon as
possible.
Countries
should therefore now show their commitment to the Treaty by joining it and
bringing it to life.
[1] Wend Wendland was
for many years a Director of the World Intellectual Property Organization
(WIPO). He is now an independent expert working at the intersection of
intellectual property and global issues such as biodiversity, cultural
heritage, agriculture, health and Indigenous Peoples. He is also an Adjunct
Professor at the Law Faculty, University of Cape Town, South Africa. He is
contactable at wend@wendwendland.com and his
website is at https://wendwendland.com
[2] African Centre for Biosafety, ‘Pirating
African Heritage: The Pillaging Continues’, 2009; Jay McGown ‘Out of Africa:
Mysteries of Access and Benefit Sharing’ (Edmonds Institute, 2006).
[3] WIPO’s
Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore (the IGC)
[4] See
https://www.wipo.int/export/sites/www/treaties/en/docs/pdf/gratk.pdf
The
author’s book The Journey to the WIPO Treaty on Genetic Resources and
Associated Traditional Knowledge: Policy, Process and People (Edward Elgar,
November 2025) provides an insider’s account of the colourful and eventful journey to the Treaty’s adoption from
the first proposal at WIPO for a new patent disclosure requirement in 1999 to
the adoption of the Treaty 25 years later. It analyses the Treaty
and its negotiating history, lifting the curtain on how its adoption by
consensus was achieved, identifying the key individuals involved and providing
insights into how the Treaty’s ultimate success may be judged and achieved. The book is now available on the Edward Elgar Publishing website. For a limited period, get a 35% discount by using the code
WEND35 at checkout.
