By Kaitlin Mara
Late Friday evening, weary government officials had to admit they had reached a deadlock in negotiations on international protection of traditional knowledge and folklore at the World Intellectual Property Organization.

“No agreement,” said the meeting’s chair, Rigoberto Gauto Vielman, leaving the closing plenary.

The lack of an outcome from the weeklong meeting of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore signals deeper differences among WIPO membership over protection of these areas.

The mood was one of frustration and exhaustion Friday as remaining delegates shuffled out of the meeting, some wondering what had happened to a week that at its beginning – with the encouragement of WIPO Director General Francis Gurry to move to concrete progress, two detailed analytical background papers from the secretariat, and a proposal from the African Group for stimulating new ideas – seemed poised to be a productive one.

But after a day of opening statements and discussions in the plenary sessions reverting to a rehash of positions that were largely unchanged from past IGC meetings, it became clear that progress during the thirteenth IGC meeting from 13-17 October would have to be made in the area of future work, and in particular on a mandate repeated at last month’s general assemblies to find a way to accelerate the Committee’s work. At the twelfth session of IGC in February, the committee agreed to consider a decision on possible intersessional work as a means of acceleration.

And success on this matter, while elusive, still seemed nearly within grasp all week. Even going into the final plenary session, meeting Chair Rigoberto Gauto Vielman told Intellectual Property Watch “I think they’ll succeed.”

The mandate to accelerate still stands and the work of the IGC will resume when the committee reconvenes in March for a regular meeting, where the possibility of intersessional work can be again discussed. The WIPO Program and Budget Committee had allowed for four IGC meetings between 2008 and 2009, and two meetings remain in the coming year.

Some participants tried to make the best of the outcome. “There was no bad faith or ill will,” said Gauto during the meeting’s close, according to a source. “We do not have to speak of failures.”

“Nothing is better than a bad deal,” said a representative from Bangladesh. And a delegate from Kenya said there was still hope for the next meeting. Another African delegate said “we all tried our best.” Many delegates simply expressed regret that no consensus had been reached.

What stalled this week’s meeting was disagreement on two competing proposals on future work: one submitted by the Africa group early Monday morning 13 October and one tabled by Gauto at midday on Friday. The chair’s text adhered closely to a text circulated by France, which sources said was on behalf of the European Union, in informal sessions earlier on Friday.

Group B, the developed nations, expressed support for the chair’s text, calling it “progress” from the Africa proposal, according to sources. The majority of the Asia group supported the African text as a basis for negotiations, according to a source, though they were willing to also discuss the chair’s text. The group of Latin American and Caribbean states did not have a unified stance, but most supported intersessional work.

Key disagreements were over the composition of the proposed three working groups, timing of the sessions, and whether or not to make the three meetings concurrent. The three working groups would focus on issue areas: one on traditional knowledge, one on traditional cultural expressions, and one on genetic resources.

The African proposal calls for working groups limited to experts. Having the groups open would just become another IGC, said an African delegate, who added that Africa was after “real discussions among experts” aiming toward something “concrete and substantive, not declarations.” A GRULAC member said the reports from experts meetings in Geneva could be nonbinding but could help spark new ideas for the stuck IGC.

But some member states are wary about not having a representative in the process. A delegate from Latin America said that not knowing the experts, their profiles, or who would choose them was a problem.

According to sources, Mexico had presented in informal sessions a compromise solution that would have involved inserting the African Group’s proposal for an expert group comprised of 37 nominated experts into the chair’s text, with the caveat that no member state be prevented from sending representatives if they wish to do so.

There also were discussions over timing, with some members saying intersessional meetings would be too expensive and with others not pleased with an idea presented in Friday morning’s informal sessions of holding expert group meetings during the week of the next IGC, as the working groups would then cut into the time available for full IGC plenary sessions. Some developed nations had said they would be willing to extend the length of the next IGC by several days as a compromise.

The idea of holding the three working group meetings concurrently, which first appears in the chair’s text, is problematic for small delegations, not all of whom have enough experts to attend concurrent sessions.

Competing Texts

The text circulated by France suggested three “informal working groups” – one on traditional knowledge, one on traditional cultural expressions (folklore) and one on genetic resources – meet immediately before the next IGC meeting, which would only be two days long. The first three days of the normally five day IGC would be devoted to the working groups, with the last two devoted to the IGC plenary sessions. The groups would be open to any member state or civil society group interested in participating. The chair’s text builds on this, changing the title of the informal groups to “informal expert working groups,” and specifying that the groups would meet in parallel during the first three days.

The African Group, which drafted its initial proposal before the IGC and met bilaterally with other regional groups all week in an attempt to create a proposal acceptable to the entire coalition, also submitted a final proposal on 17 October reflecting changes made throughout the week.

The 17 October African text calls for three working groups, but specifies that the meetings not be held concurrently, that they be prior to the next session of the IGC and each last five days, and that they be limited to a group of 37 experts. This proposal also had the official support of Indonesia, Malaysia, Pakistan and Thailand.

A revised text, entitled “draft decision on future work” and released late on Friday evening proposed the compromise of replacing the next IGC with an “Extraordinary Expert Session of the Committee” allowing for consecutive meetings of three expert groups, each for two days, and with the composition of the groups to be decided by the chair in consultation with members. But many members were not happy with this proposal. “It means we lose an IGC,” said a delegate from Latin America.

At a plenary session on Friday afternoon, the chair called for states to lay out the points they needed to insist on, and the areas in which there was flexibility.

This frustrated one delegate, who said that that discussion should have been held early in the week, not so late in it. A separate delegate wondered, in conversation with Intellectual Property Watch, whether there had been politics behind the process, and a representative from Zimbabwe questioned in plenary whether there had been procedural oversight or a deliberate attempt to stall the process, sources said.

Delegates pointed to a similar situation in the Development Agenda negotiations in 2006 in which the same chair late in the meeting introduced a proposal that did not appear to reflect compromise, or the wishes of many developing countries (IPW, WIPO, 30 June 2006).

Kaitlin Mara may be reached at kmara@ip-watch.ch.