Nations Urge Legally Binding Biodiversity Outcome At WIPO

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By William New and Tove Iren S. Gerhardsen

Developing country members of the World Intellectual Property Organization this week are demanding that a key committee on genetic resources, traditional knowledge and folklore be mandated to agree on a legally binding international instrument for the protection of these areas.

But the demand is unlikely to be acceptable to developed countries that have shown resistance to it in the past. These countries likely will seek a weaker agreement such as a declaration on the issues’ importance but without any changes to existing legal structure, sources said. Such a declaration could be the outcome of a new proposal at the meeting from Norway, and anxieties about that could undermine its aim to dislodge talks by bridging disagreements, some said.

The 24-28 April meeting of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is the ninth session of this committee, which was set up in 2000. The committee has been extended to the end of 2007 and is setting out its work for the period.

One developing country official said it is in the interest of WIPO for the committee to continue, as it reflects favourably to have indigenous groups and others participating in the organisation’s work. But any continuance of the committee toward an outcome that does not result in legal changes would make little difference to those communities, the official said. The concern is that the committee will continue to be a “talk shop,” a source added.

In the first two days of the meeting, the focus has been on procedure such as the selection of a chair, opening statements from governments and others such as indigenous groups, and on the establishment of a voluntary fund to support such groups’ participation in proceedings.

The committee also is working under the possibility that failure in early April to agree on a work plan for the WIPO Standing Committee on the Law of Patents (SCP) could weaken the interest of developed countries to bargain in this week’s meeting, sources said (IPW, WIPO, 12 April 2006).

South Africa, speaking on behalf of the African Group, said the group “urges member states to focus and accelerate discussions with the view to achieving our aim, which is the establishment of a legally binding instrument.” Other regional groups have shown majority support for a legally binding pact as well.

Peru said in its opening statement that there seemed to be “quite a majority view” in the IGC that there is a need for a legal instrument to protect traditional knowledge. The Peruvian official urged delegates who still think that discussion of substance is “premature, to re-consider their position.”

Norwegian Proposal Draws Support, Scepticsm

A new Norwegian proposal on the protection of traditional knowledge and traditional cultural expressions (folklore), but not genetic resources, is the primary subject of discussion among delegations as it offers a compromise way to move the talks forward. The proposal highlights the long-standing disagreement over the notion of a legally binding tool, and instead suggests the group should steer clear of problematic areas and focus on those on which it says all can agree. This would include basic objectives and principles. The proposal calls for a high-level declaration.

The proposal also suggests considering use of Article 10bis (preventing unfair competition) of the 1883 Paris Convention (on basic patent and trademark rights) as a model for a new instrument on the protection of traditional knowledge from “misappropriation and unfair use.” This could involve prior informed consent and benefit-sharing arrangements, it said. Norway will submit a separate proposal on disclosure of origin in patent applications, it said.

A United States official said most Group B developed nations appear to generally agree with elements of the Norwegian proposal such as the principles and objectives, though more analysis of its Article 10bis proposal would be necessary.

But a developing country source said developed countries have long backed principles and objectives, and that it would likely lead to a less substantive outcome than developing countries are seeking. The African Group statement said, “While considering issues of general policy objectives and core principles, the African Group affirms that the work of committee should lead to the elaboration of a legally binding international instrument.”

Japan, Peru and South Africa have also submitted proposals but the Norwegian one is the most focused on moving forward the discussion at WIPO.

A Norwegian official acknowledged that the proposal (WIPO/GRTKF/IC/9/12) was linked to Norway’s Sami population but said it was in general a goodwill attempt to bring about some agreement by the end of 2007.

A developing country official raised doubts about the Norwegian proposal as it only focused on the non-binding parts of a regime. The official also said that the proposal reflected that there was no consensus at WIPO on how to move forward on genetic resources.

In its opening statement, the Asian Group avoided the words “legally binding” regime, reflecting internal disagreement in the diverse group. “The group is concerned about the phenomenon of biopiracy cases as well as the misappropriation of traditional knowledge and folklore,” it said. “The group feels that IGC within its mandate should take a comprehensive and holistic approach to facilitate constructive discussion in order to make progress on the issues related to genetic resources, prior informed consent and benefit-sharing.”

But Thailand, the coordinator of the Asian Group, took a stronger view in calling for the developed of an internationally legally binding instrument at WIPO, an official said. The majority of the members of the Asian group take this view. At press time the group had not commented on the Norwegian proposal.

Indonesia, which is chairing the meeting, pointed out problems with the Norwegian proposal, in that it does not cover genetic resources. An Indonesian official told Intellectual Property Watch that it would like to see a legally binding instrument at WIPO for genetic resources. The official said that Indonesia does not want to introduce restrictions or make it difficult for patents but said there is a need for commodities for the countries with biodiversity abundance.

Australia and the United States support the Norwegian proposal and one non-governmental source said that the general feeling seemed to be that “finally there is somebody doing something.”

The European Union said it hoped that its proposal on genetic resources, submitted to WIPO in late 2004, would be discussed at the meeting and would be accepted by developing countries. It proposes disclosure of origin of genetic resources in patent applications, but does not suggest that it should be possible to revoke patents (if the country of origin is found to be incorrect, for example) as developing countries want, one official said.

Other Proposals

Peru’s submission of 27 February 2006 (WIPO/GRTKF/IC/9/10) is the same paper that Peru submitted to the World Trade Organization Council for the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in October 2005. It is an “analysis of potential cases of biopiracy,” the paper says. Peru said the paper had nothing new and the submission was “only to be coherent and give an example of what we think on biopiracy.”

The South African proposal is on an indigenous knowledge systems policy for South Africa (WIPO/GRTKF/IC/9/11). Such a system would be an “enabling framework to stimulate and strengthen the contribution of indigenous knowledge to social and economic development in South Africa,” the paper says.

A Japanese delegate told Intellectual Property Watch that its paper (WIPO/GRTKF/IC/9/INF/3) provided an example of Japanese guidelines on access to and benefit sharing of genetic resources, which have been developed by a non-governmental organisation. The paper also suggests the setting up of a search database at WIPO for genetic material, he said.

On 24 April the Norwegian UN Ambassador Wegger Strømmen also gave a “narrative” of the outcome of a seminar held in Oslo in early February at which these issues were discussed, the source said. Among the participants was WIPO Deputy Director General Francis Gurry.

Hard to Pick Up After SCP?

One developing country official told Intellectual Property Watch that as discussions of incorporating the IGC with the patent harmonisation discussion at the SCP collapsed for the year after a 10-12 April informal session, hopes were not too high for this meeting either. The official predicted that there would be “some problems with this meeting” as well. The IGC is generally seen as a committee where developing countries are seeking something, while in the SCP, developed countries have been doing the seeking.

“I think the ‘political’ issue is whether there is political commitment to discuss the documents on traditional knowledge and folklore in a way that could lead us to have real concrete text-based negotiations for a future legal instrument,” a Peruvian official told Intellectual Property Watch.

On 24 April, Indonesia was named committee chair for one year. The meeting began with a panel session with seven representatives from various indigenous communities, including the Masai in Kenya, who expressed their concerns.

For example, a representative of a small Pacific Island nation said that “bungee jumping” derived from a custom in his country but the idea had been appropriated by a person from New Zealand and developed into a huge business. He questioned how current intellectual property rules could protect an idea like this, and said his community was divided in terms of who owned the rights.

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