TWN Info Service on Intellectual Property Issues (May26/02)
7 May 2026
Third World Network          

Talks on protection of traditional knowledge and traditional cultural expressions stalled
A Third world Network report by Sreenath Namboodiri

Developed countries continued to stall substantive text-based negotiations on an international legal instrument for the protection of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) at the World Intellectual Property Organization (WIPO).

This has deepened the concerns among developing country delegations and indigenous peoples’ representatives that the pace of work falls far short of the urgency demanded by communities whose knowledge and cultural heritage continue to be misappropriated with impunity.            

Spanning eight days from 6 to 13 March 2026, the session undertook text-based negotiations on Articles 2, 3, 4 and 5 of the draft instruments contained in documents WIPO/GRTKF/IC/52/4 (Traditional Knowledge) and WIPO/GRTKF/IC/52/5 (Traditional Cultural Expressions), covering the identification of beneficiaries, the objectives of protection, the scope of protection, and eligibility criteria.

There was no consensus on the textual proposals. The texts contained in documents 52/4 and 52/5 will be carried forward without amendment to the next session, IGC 53, tentatively scheduled for September 2026. Further, a proposal submitted by the delegation of the United States, contained in document WIPO/GRTKF/IC/52/6 and considered under Agenda Item 7, was likewise not resolved during the session and will remain open for further discussion in the intersessional period and at IGC 53.

The Stalled Process: A willful denial of rightful progress?

The negotiations on draft Articles 2, 3, 4, and 5 (WIPO/GRTKF/IC/52/4 and WIPO/GRTKF/IC/52/5) failed to yield any textual proposals enjoying consensus.

Concurrently, a controversial proposal submitted by the United States (WIPO/GRTK/IC/52/6) was kept open for further consideration at the next session, maintaining a top-down pressure on the talks that are supposed to be development-oriented. Procedurally a major point of contention was the allocation of the Committee's time to "information sharing sessions."            

Developed country delegations, led by Group B and the European Union, have consistently advocated for the continuation and expansion of information-sharing sessions, which they characterise as essential to building "mutual understanding" and deepening conceptual clarity before entering text-based negotiations.

The EU mooted for "at least two days" be dedicated to information-sharing at IGC 53. It indicated readiness to engage with the Secretariat and other delegations on the topics for future sessions.

Germany, speaking on behalf of Group B, maintained that the information-sharing sessions had proved "very helpful when entering into the negotiations on Traditional Knowledge and Traditional Cultural Expressions during the second week," and expressed the view that such sessions should be continued with the same time allocation at future IGC sessions, with a focus on "core issues and concepts."

The African Group's position directly challenges this framing, arguing that such sessions, when front-loaded at the start of sessions already constrained by a finite negotiating calendar, function in effect as a structural delay mechanism that compresses the time available for substantive text-based work.            

South Africa, speaking on behalf of the African Group, delivered one of the more pointed substantive interventions of the closing plenary, raising a direct procedural and mandate-based objection to the organisation of the session. Acknowledging progress in understanding, the African Group nonetheless put on record its view that the information-sharing sessions conducted over the first three days of the session had violated the terms of the IGC's working mandate. The African Group stated that the IGC mandate provides that any additional activities, including information-sharing sessions, "should not delay progress or establish any preconditions for the negotiations." In the Group's assessment, this condition "was not met at this IGC".           

The Latin American and Caribbean Group (GRULAC), coordinated by El Salvador, also raised concerns about the organisation of information sessions. GRULAC proposed that themes for these sessions be defined in advance, in consultation with regional coordinators, and that the sessions themselves be "staggered between the negotiation of the text" rather than consolidated at the start. The Group expressed its interest in participating as panelists in future sessions, a signal that GRULAC does not oppose information-sharing per se but insists it be structured so as to complement, rather than displace, text-based negotiations.           

China, while not directly critiquing the information sessions, offered a notably candid assessment of the state of negotiations. The Chinese delegation acknowledged that "for the moment, we haven't made substantive progress," noting that even minor textual changes had encountered difficulties. China drew an explicit comparison with the Treaty on Genetic Resources and Associated Traditional Knowledge (GRATK), warning that "we do not have the need to wait for another 25 years to conclude a new Treaty" (a reference to the quarter-century of work that preceded the GRATK instrument's adoption).

China suggested that the Committee consider establishing "milestone goals" to orient its work, and proposed practical intermediate steps such as sharing national and domestic legislative examples, establishing basic principles for TK/TCE protection, and producing comparative legislative commentary on the articles under discussion.

Peru, also intervening in its national capacity, reiterated its commitment to "sui generis protection" for TK and TCEs, called for "flexible, pragmatic, and constructive dialogue," and noted that while differences in positions remain, "there are areas of convergence as well."

Central Impasse: The Bracket Around 'Peoples'

The most consequential unresolved issue to emerge from the session, cutting across all four articles under negotiation, was the question of beneficiaries; and specifically, whether the term "Indigenous Peoples" should appear in the instrument free of brackets, with the same full legal recognition afforded to that term in the GRATK Treaty concluded in 2024.           

The Indigenous Caucus, speaking through the Tulalip Tribes, stated plainly that it was "disappointed that once more we could not reach an agreement to lift the brackets around peoples." The Caucus went further, arguing that resolution of this question is inseparable from the legitimacy of the instrument itself. It stated: "Beneficiaries is a central matter that needs to be resolved by the IGC for us Indigenous Peoples as well as local communities that create, generate, receive, develop, hold, use, maintain and transmit traditional knowledge and traditional cultural expressions".

The Caucus also noted that "most IP (intellectual property) systems were developed without consideration for or participation of Indigenous Peoples and of local communities," and argued that failure to recognise their "preexisting and prescriptible rights" to their own TK and TCEs would render any future instrument constitutionally inadequate. It called for both international and national protection mechanisms, including the recognition of "customary laws of Indigenous Peoples and of local communities," and drew a direct contrast between "rights-based approaches" and measures-based approaches.

Instituto Indígena Brasileiro de Propriedade Intelectual (INBRAPI), representing Brazilian Indigenous peoples, reinforced this position, noting that the IGC's mandate is the drafting of an "international Treaty to protect traditional knowledge and traditional cultural expressions of Indigenous Peoples and local communities," and that a sui generis approach that excludes rights-based recognition "rather contradicts our mandate and would lead to misappropriation".           

The delegation of Marshall Islands, speaking on behalf of the Pacific Island States, noted with concern that "certain core issues including what constitutes beneficiaries, the relationship between national and international protection measures and the questions of retroactivity continue to divide Delegations," characterising these as "not merely technical issues" but as reflections of "deeper questions about equity, sovereignty and the purpose of Intellectual Property protection in the contemporary global context."

Depleting WIPO Voluntary Fund for Accredited Indigenous and Local Communities: A call for support from core WIPO budget

The Indigenous Caucus placed before the Committee a governance issue that threatens the legitimacy of the IGC process itself: the depletion of the WIPO Voluntary Fund for Accredited Indigenous and Local Communities, which exists to finance the participation of Indigenous Peoples' representatives in IGC sessions.

The Caucus stated that "it is unacceptable that the voluntary fund is once again depleted and not effective in ensuring our full and effective participation." At this session, the participation of only two Indigenous representatives was funded — made possible solely by contributions from the government of Australia and anonymous donors, as confirmed by GRULAC's closing statement.

The Caucus acknowledged the contribution of Knowledge Ecology International (KEI) but stressed that reliance on ad hoc voluntary contributions is institutionally inadequate. The Caucus called on the WIPO General Assembly to authorise the use of WIPO's core budget to support Indigenous participation, arguing that "the legitimacy of this process depends on the full and effective participation of Indigenous Peoples and of local communities from all seven sociocultural regions."

INBRAPI echoed this concern, stating that "the legitimacy of this mandate depends on dialogue with us and not speaking of us behind our backs."

Other developments and Conclusion

The Republic of Albania formally notified the WIPO Secretariat at this session of its accession to the GRATK Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. Albania's accession was formally announced under Agenda Item 9 and welcomed by multiple regional groups, with Brazil specifically highlighting it as "an important milestone for the international IP system" that "serves as a reminder of the relevance of the work carried out in this Committee".            

Further, the first Indigenous Chair in the history of the IGC, Mr. Lane Fisher of New Zealand has committed to producing Chair's notes on the key issues and cross-cutting questions that emerged from the session's text-based discussions, with a target of posting these on the WIPO website within four weeks. These notes will form the basis for preparation ahead of IGC 53 and will not reflect any agreed textual changes to documents 52/4 or 52/5.

Further, the institutional structure for the 2026–2027 biennium was also confirmed: Mr. Fisher will serve as Chair, with Mr. Pablo Latore Talad of Chile and Dr. Alhanuf Al-Debasi of Saudi Arabia as Vice-Chairs. The advisory board on Indigenous Peoples’ participation was also constituted.           

What the closing plenary made abundantly clear is that the gaps separating delegations are not procedural refinements but substantive questions that go to the architecture of any future instrument. The question of who the beneficiaries of protection are, and whether Indigenous Peoples are named as such without qualification, implicates issues of sovereignty, customary law, and the relationship between international IP norms and the self-determination rights of peoples whose knowledge systems predate and operate outside the frameworks that the existing IP system was purportedly designed to protect.

The question of retroactivity is also foundational. As the delegation of the Marshall Islands observed, the communities these negotiations are meant to serve face ongoing misappropriation "without consent and without fair and equitable benefit sharing," and "every session without a conclusive outcome is a missed opportunity to provide legal certainty and protection that Indigenous peoples and local communities urgently need".

The IGC will tentatively reconvene in September 2026.+