By William New
Developing countries this week are seeking ways to generate progress in a World Intellectual Property Organization committee on traditional cultural expressions and other issues of importance to developing countries. But developed countries and to some extent the WIPO secretariat appear to be reluctant to allow the committee, which is at the start of a new two-year mandate, to leap too quickly ahead, according to participants.

The WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (the latter now referred to by WIPO as traditional cultural expressions or TCEs) is meeting from 25 to 29 February. The next meeting of the committee, often referred to as the IGC, is scheduled for next October, just after the next WIPO annual General Assemblies.

During this week, significant attention has been paid to TCEs and traditional knowledge, according to participants. By the end of Thursday, the meeting had moved to “informal” status, and members were beginning to debate the typically complex subject of the committee’s future work.

A key issue this week, according to participants, has been a push to increase the involvement of the WIPO secretariat in the committee’s efforts. The committee has been meeting for years, but snagged at the first sign that it might have been moving toward the start of negotiations for a treaty on the protection of traditional knowledge and TCEs. A couple of years ago, the secretariat put forward documents reflecting the committee debate that looked to some like an early version of draft treaty text.

Some developed countries have resisted such negotiations, arguing for years that more study is needed on the subject and preferring an emphasis on national law. Meanwhile, some developing countries charge that their resources are being subjected to misappropriation and that an international instrument is urgently needed to stop it. Indigenous groups, concerned about indigenous knowledge, also are playing a significant role in this week’s discussions.

There are currently 10 issues related to the protection of TCEs under consideration by the committee, as set out in document WIPO/GRTKF/IC/12/4(b). They are: definitions; who should benefit from protection or have the rights; what is the objective of IP protection (e.g., economic or moral rights); what forms of behaviour would be unacceptable or illegal; exceptions and limitations; length of protection; what gaps are there in existing IP protection; sanctions or penalties; which issues should be addressed internationally and nationally; and how should foreign rights holders and beneficiaries be treated.

The African Group continued to be steadfast in its urging that the committee’s objective should be to develop and adopt an international instrument, possibly non-binding. It is common for WIPO norm-setting committees to negotiate treaties or other instruments.

The African members during the week issued a proposal on the 10 issues related to TCEs and traditional knowledge protection. They called for the establishment of expert groups for each area. In many areas, they said there is significant agreement. Others also have indicated an optimism about the committee’s work for its new two-year mandate.

The secretariat was drawn into the debate again when earlier in the week, Brazil proposed that for each of the 10 issues, the committee chair invite the secretariat to make an intervention to comment on main issues. The secretariat would draw on knowledge it has accumulated in the committee’s work, identify convergence of views or main alternatives, and make legal or technical clarifications.

The concept might lead to a new starting point that would look less like the treaty language so worrisome to developed countries, an official said. It might also move talks in the committee toward areas of convergence and divergence, without which there is “a recipe for a neverending story,” the official said. The Brazilian suggestion was not agreed, however.

What emerged was a secretariat proposal to prepare a “gap analyis” for the next committee meeting that would describe:

“1. what protection already exists at the international level for traditional cultural expressions/expressions of folklore (TCEs/EoFs);
2. what gaps exist in existing legal mechanisms at the international level for the protection of TCEs/EoFs, illustrating these gaps, to the extent possible, with specific examples and describing, to the extent possible, experiences at the national and regional level in addressing these gaps;
3. what options exist to address any identified gaps, including legal options, whether at the international or national level, and capacity-building measures.”

The African Group on Thursday issued a proposal for future work that urged acceleration of the committee’s work, and made five recommendations. They were:

“1. The secretariat should have a more focused role in the future work of the IGC and, as proposed by some delegations, should continue to provide constructive comments on the list of issues.
2. The “gap analysis,” as proposed by the secretariat, should take cognisance of the complete list of issues in its totality.
3. The future work of the committee should be approached in a methodical manner with a view to building consensus on the list of issues.
4. The focused expert group(s) should be established and held prior to the 13th session with the purpose to further study the outstanding issues thereby building consensus to advise the committee.
5. The work of the focused expert groups and that of the secretariat on the gap analysis should be properly sequenced so as to enrich the other without affecting the completion of the other’s work.”

Algeria, as chair of the African Group, told the meeting that the expert groups could involve non-governmental groups, and are envisioned as a way to build consensus and advise the negotiators but would be non-binding.

The proposal for a gap analysis was generally supported by governments, though several made suggestions for ways to ensure it results in a concrete contribution to progress in the committee, such as to also highlight points of convergence and divergence.

Developed countries opposed the proposal for an expert group, and to the secretariat gap analysis sought to add analysis of protections and gaps at the national level in addition to the international level, recognising the additional work it would mean for the secretariat.

The Group of Latin America and the Caribbean suggested it could support the gap analysis, but added a call for intersessional meetings of member countries this year, and backed a proposal for the drafting of a document on points of convergence in the committee.

Genetic Resources

Indonesia and others earlier in the week urged that the committee not discuss duplicative matters, such as in the case of genetic resources, an official said.

Developed countries have sought to raise the profile of genetic resources in the committee. The European Union is pushing for a change to the agenda order for the next meeting to put genetic resources first instead of last as it has been for several years.

But this proposal to change the agenda has met with opposition from some developing countries that argue that there is little sign of substantive discussion on genetic resources in the committee while it is beginning to show progress in the area of TCEs. They would prefer to continue to focus attention first on the most-evolved area in the hope of achieving some consensus, they said.

Developing countries also likely would prefer discussions of genetic resources to remain primarily at the World Trade Organization, where there is an increasingly popular developing country proposal to amend the Agreement on Trade-Related Aspects on Intellectual Property Rights (TRIPS) to require the disclosure of origin of genetic material and related traditional knowledge in patent applications. WTO is generally seen as a forum with more impact since it includes an economically based dispute settlement system. Developed countries generally oppose the WTO amendment proposal, and might be expected to prefer debate to be held in WIPO.

William New may be reached wnew@ip-watch.ch.