WIPO Traditional Knowledge Committee Snags Over Future Work

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Negotiators addressing proposals for the protection of traditional knowledge, traditional cultural expressions (folklore) and genetic resources ran aground over whether to address potentially legal text before completing work on objectives and principles.

The committee will meet again on 4-12 December 2006, at the halfway point of its two-year mandate. Written comments on the committee activity may be submitted by 31 July.

The meeting may have been the last in Geneva for lead United States delegate Dominic Keating of the US Commerce Department, who has been tapped to head a new intellectual property enforcement office in New Delhi, India in the coming months, according to sources.

In this week’s meeting, developed countries, including Canada, Europe, Japan, and the United States, contended with attempts by developing countries led by South Africa (on behalf of all Africa), Brazil and India to make progress on substantive text.

After a full week of negotiations, from 24 to 28 April, discussions edged into the evening of the last day as a standoff almost led to no conclusion at all. Negotiators needed to stay even after the required United Nations translators were gone home, leading to talks only in English, an occurrence that led France to comment in untranslated French and register its displeasure.

Officials agreed to a decision on traditional cultural expressions/expressions of folklore that states: “The committee took note of the extensive comments made on the contents of document WIPO/GRTKF/IC/9/4, and the indications of a number of delegations that they would be submitting written comments to the secretariat. It was agreed that the question of subsequent steps would be taken up under agenda item 11, Future Work.”

The committee also took note of other documents in addition to 9/4, but it became the focus of most debate, along with a similar document on traditional knowledge, WIPO/GRTKF/IC/9/5.

A secretariat-drafted paper near the meeting’s end proposed to say that the committee undertook “substantive discussions” on genetic resources, even though the majority of the week was spent on traditional knowledge and folklore (which were only “noted” in the secretariat draft), according to sources.

In addition, the draft contained substantial text on genetic resources including a request that the secretariat prepare an “exploration” of issues related to developing a database or databases for genetic resources in patent examination. But all of this language was dropped after several delegations objected that it did not accurately reflect the week’s debate.

The biggest disagreement appeared to come on the future work agenda item. The committee members agreed to submit written comments on the traditional knowledge and folklore sections by 31 July, and extended the next IGC to 7 working days. But officials locked horns on whether the written comments should be compiled into a separate document, or integrated into the existing document.

At the heart of this debate was the desire of Brazil, South Africa and others to include these issues as part of the whole negotiation so that it might lead to a legally binding instrument for the protection of these areas. But Japan, the United States and others are deadset against their inclusion before the completion of talks about principles and objectives which they say would represent a foundation for further discussions.

Dropped from the future work was a suggestion to submit proposals for an “agreed interim outcome,” as some countries saw it as potentially prejudicing the committee’s work.

Ill-fated Tie to WTO Work; SCP Defeat?

Several sources postulated that a reason for the Canadian and US insistence that genetic resources not be overtly excluded from the future work programme is that it is useful for delaying WTO negotiations on the issue if they can continue to say it is being handled elsewhere. A Canadian official did not agree with the suggestion, while a US official acknowledged the link between various bodies, saying the WIPO committee’s work is necessary to inform the other bodies.

Sources also said that the defeat two weeks ago of a work programme sought by developed countries for the WIPO Standing Committee on the Law of Patents was an undercurrent this week that may have undermined progress. One source likened it to a sports match, with the developed and developing countries now tied at one apiece, with two more matches to go (a proposed treaty on broadcasters’ rights sought by some developed countries and the WIPO development agenda sought by some developing countries).

But a key developing country source said this week’s outcome was “reasonable,” and that the committee still has a mandate to discuss all issues, including the ones that could lead to a legally binding instrument.

Earlier in the week, officials also agreed to establish a voluntary fund for the participation of indigenous and local communities.

In the final minutes of the meeting, the committee found enough agreement to proceed after WIPO Deputy Director General Francis Gurry said he feared “a diplomatic linguistic incident,” according to sources. And the meeting chair, Ambassador I Gusti Agung Wesaka Puja of Indonesia, said that the group appeared to see “the light at the end of the tunnel, but the light might be the train.”

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