[Federal Register Volume 88, Number 204 (Tuesday, October 24, 2023)]
[Notices]
[Pages 73000-73003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23386]
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DEPARTMENT OF COMMERCE
Patent and Trademark Office
[Docket No.: PTO-C-2023-0020]
Formal Tribal Consultation on WIPO IGC Negotiations
AGENCY: United States Patent and Trademark Office, Department of
Commerce.
ACTION: Notice of Tribal Consultation meetings and request for
comments.
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SUMMARY: The United States Patent and Trademark Office (USPTO),
Department of Commerce, announces a formal Tribal Consultation, and
requests written comments on issues involving genetic resources (GR),
traditional knowledge (TK), and traditional cultural expressions
(TCEs). These topics are being discussed at the World Intellectual
Property Organization (WIPO). Specifically, the WIPO Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge, and Folklore (traditional cultural expressions) (WIPO IGC)
is undertaking negotiations regarding how best to protect GR, TK, and
TCEs of Indigenous Peoples.
DATES: Webinar Dates: The webinar for federally recognized Tribal
Nations and their proxies will be held on Tuesday, January 16, 2024,
from 3 to 5 p.m. ET and Wednesday, January 17, 2024 from 3 to 5 p.m.
ET. The webinar for state recognized Tribes and other Tribal members,
Native Hawaiians and their representatives, and inter-tribal
organizations, will be held on Friday, January 19, 2024, from 3 to 5
p.m. ET and Tuesday, January 23, 2024, from 3 to 5 p.m. ET. Please
register in advance to participate in one of these webinars at: https://cvent.me/bZRP3L. After registering, you will receive a confirmation
email containing information about joining the meeting. If you are
unable to join via the platform, a call-in number also will be
provided. The webinar for federally recognized Tribes is open only to
federally recognized Tribal Nations and their proxies and is closed to
the press. The webinar for state recognized Tribes and other Tribal
members, Native Hawaiians and their representatives, and inter-tribal
organizations is open only to these entities and communities and is
also closed to the press.
Comment Deadline: Written comments pursuant to the questions in
this Notice must be received by Friday, February 23, 2024.
ADDRESSES: Written comments may be submitted by email to:
[email protected]. Please use the heading ``WIPO IGC
FORMAL TRIBAL CONSULTATION 2023'' in the subject line.
If electronic submission of comments is not feasible due to a lack
of access to a computer and/or the internet, please submit comments by
First-Class Mail or Priority Mail to: Susan Anthony, Tribal Affairs
Liaison, Mail Stop OPIA, U.S. Patent and Trademark Office, P.O. Box
1450, Alexandria, VA 22314-1450.
FOR FURTHER INFORMATION CONTACT: Susan Anthony, Tribal Affairs Liaison,
Office of Policy and International Affairs (OPIA), USPTO, at
[email protected] or at 571-272-8459. Please direct media
inquiries to the USPTO's Office of the Chief Communications Officer at
571-272-8400. These webinars are closed to the media.
SUPPLEMENTARY INFORMATION: The USPTO has been actively engaged in
discussions in the WIPO IGC, along with other Federal agencies, and has
been responsible for leading the development of U.S. positions on WIPO
IGC issues. The USPTO's announcement for formal Tribal Consultation on
WIPO IGC issues aligns with the Federal Government's policies and
relationship with Tribal Governments, including: Executive Order 13175;
\1\ President Biden's Memorandum on Tribal Consultation and
Strengthening Nation-to-Nation Relationships; \2\ President Biden's
Memorandum on Uniform Standards for Tribal Consultation; \3\ and the
Tribal Consultation and Coordination Policy for the U.S. Department of
Commerce (``Policy'').\4\ The Policy requires that the Department and
operating units engage in meaningful dialogue with Tribes regarding
policies that have Tribal implications. This Tribal Consultation will
consist of a webinar for federally recognized Tribal Nations and their
proxies and a separate webinar for state recognized Tribes and other
Tribal members, Native Hawaiians, and inter-tribal associations.
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\1\ www.federalregister.gov/documents/2000/11/09/00-29003/consultation-and-coordination-with-Indian-tribal-governments/.
\2\ www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/.
\3\ www.whitehouse.gov/briefing-room/presidential-actions/2022/11/30/memorandum-on-uniform-standards-for-tribal-consultation/.
\4\ www.commerce.gov/sites/default/files/media/files/2013/tribal-consultation-final.pdf.
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In addition to these webinars, the USPTO seeks written comments
regarding the questions in this Notice. Written comments may include
comments responsive to the questions in this Notice, comments
responsive to issues discussed during the webinars, and any other
related concerns.
WIPO is a specialized United Nations agency based in Geneva,
Switzerland, that focuses on intellectual property (IP). Established in
September 2000, the WIPO IGC serves as a forum where WIPO Member States
\5\ and accredited observers can discuss the intellectual property
issues that arise in the context of access to GR and benefit-sharing,
as well as the protection of TK and folklore/TCEs.
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\5\ WIPO currently has 193 Member States: www.wipo.int/members/en/.
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Since 2009, the WIPO IGC has been engaged in text-based
negotiations on an international legal instrument for GR, TK, and TCEs.
The U.S. understands the term ``international legal instrument(s)'' in
the WIPO IGC mandate \6\ to include declarations, recommendations, best
practices, toolkits, and other forms of ``soft law'' and actively seeks
practical recommendations in addressing the matters under discussion
within the WIPO IGC. WIPO also has the authority to initiate norm-
setting discussions and to propose international rules for adoption by
a diplomatic conference or adoption by another WIPO body.
``International legal instrument(s)'' could also include a treaty or
international agreement, although there is no requirement that
prescribes this particular outcome. This request for comments seeks
Tribal input on, among other topics, whether a treaty or forms of soft
law are necessary to address issues regarding TK and TCEs.
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\6\ The current ``IGC Mandate'' may be found at: www.wipo.int/tk/en/igc. As of this writing, the IGC Mandate covers the biennium
2024/2025.
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The WIPO General Assembly, held in Geneva, Switzerland, on July 14-
22, 2022, decided to convene a diplomatic conference to conclude an
International Legal Instrument Relating to Intellectual Property,
Genetic Resources and Traditional Knowledge Associated with Genetic
Resources, based on document
[[Page 73001]]
WIPO/GRTKF/IC/43/5 (the Chair's text) and any other contributions by
Member States. The diplomatic conference is to be held no later than
2024.\7\ In September 2023, a special session of the IGC was held to
close certain existing gaps in the text to the extent possible. The
special session of the IGC was able to agree on only minor changes to
the original Chair's text. Also in September 2023, a Preparatory
Committee of the Diplomatic Conference convened and adopted rules of
procedure for the diplomatic conference.\8\ Tribes also may wish to
review the USPTO Federal Register Notice on WIPO IGC Negotiations on
Genetic Resources and associated Traditional Knowledge.
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\7\ The WIPO Press Release can be found at: www.wipo.int/diplomatic-conferences/en/genetic-resources/index.html.
\8\ Id.
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In July 2023, the WIPO General Assembly also decided to continue
the WIPO IGC text-based negotiations on IP and the protection of TK and
TCEs in the 2024-2025 biennium. Under its current mandate, the WIPO IGC
meets three times per year, with each meeting typically lasting for one
week, at the WIPO headquarters in Geneva, Switzerland.\9\ Participants
are WIPO Member States \10\ and various accredited Observers.\11\ The
USPTO, in consultation with other Federal agencies,\12\ has been
leading the development of United States positions on issues before the
WIPO IGC. This request for comments seeks Tribal input to inform the
U.S. Government as it participates in the ongoing WIPO IGC meetings on
TK/TCEs and in meetings related to the anticipated diplomatic
conference in 2024 on GR and associated TK.
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\9\ The IGC resumed its negotiations in a hybrid format after a
pause of two years caused by the COVID-19 pandemic, at the 42nd
session, February 28 to March 4, 2022.
\10\ See Member States at: www.wipo.int/members/en/.
\11\ See Participating in the IGC at: www.wipo.int/tk/en/igc/participation.html. The Observers include Indigenous Peoples and
local communities throughout the world. Among the Tribal Nations,
the Tulalip Tribes of Washington, through its Governmental Affairs
Department, is an accredited organization able to participate in
person or virtually both orally and, through the Secretariat, in
writing. Funding for Indigenous Peoples and local communities to
participate in person may be available through the WIPO Voluntary
Fund, upon timely application.
\12\ These Federal agencies typically include the American
Folklife Center at the Library of Congress, the International Trade
Administration, the U.S. Department of Commerce, the U.S. Copyright
Office, the U.S. Department of the Interior, and the U.S. Department
of State.
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On June 28, 2022, the USPTO hosted a webinar providing background
information on the WIPO IGC text-based negotiations to assist American
Indians, Alaska Natives, and Native Hawaiians and their representatives
in preparing for this Tribal Consultation. The webinar outlined the
Federal Government's positions on issues involving IP and GR, TK, and
TCEs, and opportunities for Tribal input with respect to the WIPO IGC
and with the Federal Government. Links to this webinar and to WIPO IGC
resources mentioned in the webinar can be found under ``Resources''
below.
Definitions. While ``Genetic Resources'' is defined in the
Convention on Biological Diversity (CBD) as ``genetic material of
actual or potential value'' and ``genetic material'' is defined as
``any material of plant, animal, microbial or other origin containing
functional units of heredity,'' \13\ the term GR has not been given an
agreed upon definition in the WIPO IGC. Definitions of TK and TCEs are
not the subject of international agreement and remain under discussion
in the WIPO IGC. For purposes of providing supplementary information
only, possible attributes of TK might include, but are not limited to,
knowledge that is passed from generation to generation, in fixed or
unfixed form, and linked with the national or social identity of
Indigenous Peoples and local communities. TK might include know-how,
skills, innovations, practices, teachings, and learning. Attributes of
TCEs might include, but are not limited to, subject matter that is
passed from generation to generation, usually in unfixed form but not
necessarily, based on community-oriented creativity and generally not
attributable to individual authors, and continuously used and developed
within the community. TCEs might take the forms of literature, music,
dance, games, mythology, rituals, and handicrafts. TCEs may also
encompass religious and sacred texts, arts and customs, other
expressions of faith, and ancient beliefs. Some forms of TCEs may be
considered secret or sacred, while others may be routinely used
commercially.
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\13\ See Article 2 in Home [bond] Convention on Biological
Diversity at: www.cbd.int. The U.S. is not a member of the CBD, but
accepts these definitions for purposes of the work in the WIPO IGC.
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The issue of ``public domain'' is a fundamental concept in the WIPO
IGC TCEs and TK discussions, defining the boundary between the
interests of holders of exclusive rights and the ability of others,
including the public, to access and use the subject matter to be
protected. Each type of intellectual property--patent, trade secret,
trademark, and copyright--recognizes a form of public domain. Various
approaches to defining the public domain have been considered in the
WIPO IGC, including in WIPO IGC 40: ``Public domain refers for the
purposes of this instrument to tangible and intangible materials that
by their nature are not or may not be protected by established
intellectual property rights or related forms of protection by the
legislation in the country where the use of such material is carried
out.'' Indigenous Peoples within the WIPO IGC have expressed concern
that defining the public domain is not susceptible to a uniform
dividing line between protected and unprotected elements and must be
more elastic. While WIPO IGC Member States generally have familiarity
with the concept of public domain in intellectual property, they may
not have experience in creating exclusive rights around TK or TCEs.
Thus, taking TK or TCEs out of the public domain remains a principal
issue of discussion within the WIPO IGC.
Request for information: While the USPTO welcomes any relevant
comments on the topics described in this Request for Comments, the
USPTO is particularly interested in comments responsive to the
questions below. A non-exclusive list of WIPO IGC resources on the WIPO
website--WIPO.int--and the USPTO website--USPTO.gov--follows the
questions below and may provide useful background information in
considering these questions. When responding to the questions, please
identify yourself and either your Tribal Government or that you are a
Native Hawaiian. If you are a Tribal or Native Hawaiian representative,
please identify yourself, whom you represent, and your involvement to
date, if any, in the WIPO IGC in person or virtually. Commenters need
not respond to every question and may provide relevant information,
even if not responsive to a particular question. For purposes of the
Questions for Comment below, please note that ``Tribe'' is intended to
refer to Tribal Nations, state recognized Tribes, other Tribes, and
Native Hawaiians.
Questions for Comment
1. Please describe how Tribes protect genetic resources,
traditional knowledge, and/or traditional cultural expressions.
2. Please describe your views on using the framework of
intellectual property concepts and laws, such as patents, trademarks,
copyrights, or trade secrets, to protect genetic resources, traditional
knowledge, and/or traditional cultural expressions.
[[Page 73002]]
3. Please describe your views regarding using any other means to
protect genetic resources, traditional knowledge, and/or traditional
cultural expressions. Please also include your views regarding:
a. whether eligibility criteria should be used to determine which
types of traditional knowledge, traditional cultural expressions, and/
or genetic resources would be protected and, if so, what criteria
should be used, and
b. what parameters, if any, should be placed on the scope or term
of protection for traditional knowledge, traditional cultural
expressions, and/or genetic resources.
4. Please describe your views regarding whether an international
treaty should be pursued to protect genetic resources, traditional
knowledge and/or traditional cultural expressions. If so, please
describe your views on what essential elements or conditions would be
necessary to include in an international treaty to ensure protection of
genetic resources, traditional knowledge and/or traditional cultural
expressions.
5. The WIPO IGC has not come to any conclusions about how to define
``traditional knowledge.'' Please describe how you would recommend
defining ``traditional knowledge'' or, alternatively, please provide
your views regarding the attributes of traditional knowledge.
6. The WIPO IGC has not come to any conclusions about how to define
``traditional cultural expressions.'' Please describe how you would
recommend defining ``traditional cultural expressions'' or,
alternatively, please provide your views regarding the attributes of
traditional cultural expressions.
7. The WIPO IGC has not come to any conclusions about how to define
``public domain.''
a. Please describe how you would recommend defining ``public
domain.''
b. Please share your views regarding how the concept of ``public
domain'' relates to genetic resources, traditional knowledge, and/or
traditional cultural expressions.
8. Please share your views regarding whether genetic resources,
traditional knowledge, and/or traditional cultural expressions that
have been widely diffused to the public are capable of protection,
whether they should be protected, and, if so, how they should be
protected, including any specific examples you may have. Please also
share your views on whether there should be any exceptions to such
protection.
9. Please share your views regarding whether genetic resources,
traditional knowledge, and/or traditional cultural expressions that
have been widely diffused to the public can continue to impact holders
and, if so, please share any specific examples you may have.
10. Please describe your recommendations, if any, on how to
identify traditional knowledge that has entered the public domain and,
therefore, may be freely used by others.
11. Please describe your recommendations, if any, on how to
identify traditional cultural expressions that have entered the public
domain and, therefore, may be freely used by others.
12. Please describe your recommendations, if any, on how to
identify genetic resources that have entered the public domain and,
therefore may be freely used by others.
13. Please describe the circumstances, if any, in which a holder of
a traditional cultural expression, genetic resource, and/or traditional
knowledge might be interested in permitting third party use. Please
include your views regarding:
a. what conditions or requirements a holder might place on third
parties in exchange for granting permission for such use;
b. how a third party, interested in potential use, could determine
whether something is a traditional cultural expression, genetic
resource, or traditional knowledge, and who holds it; and
c. who, with respect to the holder of a traditional cultural
expression, genetic resource, or traditional knowledge, would be the
appropriate authority to control, or grant permission for, such third-
party use.
14. Please describe real-world examples, if any, in which a Tribe
has authorized others to commercially use its traditional cultural
expressions, genetic resources, or traditional knowledge.
15. Please describe your views and any recommendations, including
any real-world examples, regarding the use by third parties of genetic
resources, traditional knowledge, and/or traditional cultural
expressions for research.
16. Please describe your views and any recommendations, including
any real-world examples, regarding the use of genetic resources,
traditional knowledge, and/or traditional cultural expressions by
archives, libraries, museums, or cultural institutions.
17. Please describe your views regarding how the unauthorized use
of traditional knowledge, traditional cultural expressions, and/or
genetic resources impacts Tribes, including any real-world examples.
18. Please provide your recommendations, including any real-world
examples, regarding how best to address unauthorized uses of genetic
resources, traditional knowledge, and/or traditional cultural
expressions.
Resources
Below is a non-exclusive list of WIPO IGC resources on the World
Intellectual Property Organization website, WIPO.int, that may be
useful in answering the above questions. In addition, the USPTO hosted
a webinar on June 28, 2022, providing information about the WIPO IGC
text-based negotiations to assist American Indians, Alaska Natives, and
Native Hawaiians in preparing for this Tribal Consultation. A recording
of the webinar can be found here: https://www.uspto.gov/ip-policy/patent-policy/uspto-formal-tribal-consultation-preview. The USPTO.gov
website also contains information about intellectual property,
including ``IP eLearning modules'' on intellectual property protection
and enforcement.
Report of Indigenous Expert Workshop on Intellectual Property and
Genetic Resources, Traditional Knowledge and Traditional Cultural
Expressions, dated February 26, 2023, can be found here: https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=601231.
Documents for the WIPO IGC meeting on June 5-9, 2023, including the
latest traditional knowledge (TK) and traditional cultural expressions
(TCEs) texts, can be found here: www.wipo.int/meetings/en/details.jsp?meeting_id=75419.
IGC 47 Summary can be found here: www.wipo.int/tk/en/news/igc/2023/news_0005.html.
The Non-paper Chair's Text of a Draft International Legal
Instrument relating to Intellectual Property and Traditional Knowledge/
Traditional Cultural Expressions:
The First Draft, dated February 21, 2023, can be found here:
www.wipo.int/meetings/en/doc_details.jsp?doc_id=600911.
The Second Draft, dated May 26, 2023, can be found here:
www.wipo.int/meetings/en/details.jsp?meeting_id=75419.
WIPO IGC Press Release: WIPO Member States Approve Diplomatic
Conferences for Two Proposed Accords, dated July 21, 2022, can be found
here: www.wipo.int/pressroom/en/articles/2022/article_0009.html.
Text associated with the announcement of the Diplomatic
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Conference on Intellectual Property and Genetic Resources:
``Substantive articles'' (Articles 1 through 9) from WIPO/GRTKF/IC/43/5
Chair's Text of a Draft International Legal Instrument relating to
Intellectual Property, Genetic Resources and Traditional Knowledge
associated with Genetic Resources: Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore: Forty-Third Session (wipo.int), as revised in the Special
Session of the Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore, September 4-8,
2023, is included as the Annex to document WIPO/GRTKF/IC/SS/GE/23/4 on
the Decisions adopted by the Committee on genetic resources and
associated traditional knowledge, and can be found here: www.wipo.int/meetings/en/doc_details.jsp?doc_id=620066.
General Information on the Diplomatic Conference on Intellectual
Property and Genetic Resources can be found here: www.wipo.int/diplomatic-conferences/en/genetic-resources/index.html.
Note that documents for all WIPO IGC meetings can be found here:
www.wipo.int/meetings/en/topic.jsp?group_id=110&items=10.
WIPO Publication: Intellectual Property and Genetic Resources,
Traditional Knowledge and Traditional Cultural Expressions can be found
here: www.wipo.int/edocs/pubdocs/en/wipo_pub_933_2020.pdf.
WIPO Publication: Protect and Promote Your Culture A Practical
Guide to Intellectual Property for Indigenous Peoples and Local
Communities can be found here: www.wipo.int/publications/en/details.jsp?id=4195.
WIPO Webinar Series: How to Protect and Promote Your Culture can be
found here: www.wipo.int/tk/en/protect_and_promote.html. These webinars
focus on intellectual property (IP) tools that can be used to protect
and promote traditional knowledge (TK) and traditional cultural
expressions (TCEs).
Documents describing key issues related to protecting traditional
cultural expressions (TCE)/folklore and traditional knowledge (TK) can
be found here: www.wipo.int/tk/en/igc/issues.html.
Presentations on Indigenous and Local Community Experiences can be
found here: www.wipo.int/tk/en/igc/panels.html. See also Indigenous
Peoples and Local Communities' Engagement: www.wipo.int/tk/en/engagement.html.
IGC Related Seminars, on intellectual property and genetic
resources, on IP and traditional knowledge, and on IP and traditional
cultural expressions can be found here: www.wipo.int/tk/en/igc/related_seminars.html.
Views from Speakers at the Seminar on Intellectual Property and
Traditional Cultural Expressions, on June 8 and 9, 2017, can be found
here: www.wipo.int/tk/en/news/tk/2017/news_0009.html.
P. Jaszi, ``Protecting traditional cultural expressions--some
questions for lawmakers,'' WIPO Magazine, dated August 2017, can be
found here: www.wipo.int/export/sites/www/wipo_magazine/en/pdf/2017/wipo_pub_121_2017_04.pdf.
Information on how to participate in the IGC, including virtually,
can be found here: www.wipo.int/tk/en/igc/participation.html. Note that
organizations requesting to be accredited as an observer at the IGC
must complete an accreditation form and submit it to WIPO at least 60
days prior to the first session that it wishes to attend.
Katherine K. Vidal,
Under Secretary of Commerce for Intellectual Property and Director of
the United States Patent and Trademark Office.
[FR Doc. 2023-23386 Filed 10-23-23; 8:45 am]
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