Why not only data, but also groups of people are to be protected

Sharing is CAREing – now more than just „Goodwill“:

Trust is good, legal certainty is better. The World Intellectual Property Organization (WIPO) thought so too. On May 24, 2024, it enshrined elements of the CARE principles in an international treaty for the first time. Here I explain why this is a significant step in international law and what it means in practice.

WIPO, CARE – what is that?

To avoid to immediately throwing around various buzzwords and making heads spin, here is a brief explanation of the most important terms used in this column.
WIPO was founded on July 14, 1964 with the aim of promoting intangible property rights worldwide. It is a specialized agency of the United Nations and can conclude international treaties in the field of intellectual property. International treaties are legally binding for the contracting parties – usually the members of the organization.

The CARE Principles are based on the “Declaration on the Rights of Indigenous Peoples” – or UNDRIP for short – created in 2007. Specifically, they were developed in 2019, so they are still quite green behind the ears compared to other principles and laws. As the title suggests, the CARE principles are about the rights of indigenous peoples. In particular, they deal with indigenous data sovereignty. The background to the development was the idea that principles for fair data exchange have so far mainly related to the object of exchange – i.e. the data itself.

However, particularly in the context of the traditional knowledge of indigenous peoples, it became clear that there is also a group of people – i.e. a subject – that requires protection. And this is precisely where the CARE principles come in and complement the FAIR principles.
In terms of content, the CARE principles are primarily concerned with ensuring that a collective benefit, especially for the indigenous peoples themselves, can be derived from the use of indigenous data. In addition, CARE provides for the protection of indigenous peoples’ rights to their own data, particularly in relation to governance and (self-)management, in such a way that all users should disclose the purpose for which they wish to use traditional data.

When using data throughout the entire data cycle, care should also always be taken to treat traditional knowledge with respect for the underlying values, customs and people.

The catch with ethical principles such as CARE and FAIR

The CARE principles certainly contain many good approaches and provide a certain golden standard for data processing.
However, ethical principles are usually one thing above all: not legally enforceable. Like the FAIR principles, they are not legally binding. As a result, affected indigenous people whose knowledge has been used for data generation contrary to the requirements of the CARE Principles have no way of enforcing compliance. Compliance is the responsibility of those who process the relevant data.

How do the CARE Principles come to WIPO?

We have now learned that WIPO regulates international intellectual property matters.
We also know that the CARE Principles are about strengthening the rights of indigenous peoples with regard to their data sovereignty. And this is where we come full circle: WIPO has the authority to legalize the principles enshrined in the CARE Principles. And that is exactly what it has now done.

What is changing now?

The 27th WIPO Treaty now stipulates for the first time that patent applications for inventions based on or using indigenous knowledge or indigenous genetic resources must disclose this knowledge together with the country of origin of the knowledge. It also regulates the obligation of the contracting states to issue a set of rules with consequences for those who have violated their duty of disclosure. In addition, the member states are to create possibilities for the subsequent rectification of information deficiencies without retroactively revoking patents.

What happens next?

The treaty is currently being submitted to the member states for signature. It may well be a while before the regulations from it make it into national law. But we can see from these developments that ethical principles of data management have the potential to become legally binding. It is therefore worth setting a good example in several respects and adopting a FAIR approach to research data.