WIPO Members Seek Deal To Negotiate On Traditional Knowledge Protection

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World Intellectual Property Organization members this week are intensively working toward agreement on a proposal to start negotiations for a tool to better protect traditional knowledge, genetic resources, and traditional cultural expressions, after nearly a decade of talking about the subject.

Key differences remain to be bridged, perhaps most importantly whether to work towards an internationally binding legal instrument or something less substantive.

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 29 June to 3 July.

Talks are continuing Friday in a plenary session after lengthy informal consultations, as states work toward agreed language on how the committee will proceed, sources said. There is also a new proposal from the European Union to be submitted Friday morning that the group sees as a possible compromise.

The committee’s two-year mandate is up in October, and how it is told to carry work forward is seen as critical. The committee recommendation for the future will be forwarded to the WIPO General Assemblies for a decision in September.

Thursday afternoon, there was an “emerging consensus” among many developing countries for a mandate to move to text-based negotiations within a set time-frame, according to proponents. To them, this would mean moving toward eventually creating an international, legally-binding instrument. This is necessary to adequately protect traditional knowledge and genetic resources, they say, and is a proposal based on work of the African Group submitted before the meeting began.

But some states – such as Canada, the European Union, Switzerland, the United States and others – have argued this week that it is premature to decide what kind of outcome to aim for, saying that first they had to understand better the issues at hand and then what kind of outcome would be best will be more clear. Concerns expressed during a text-based discussion on Wednesday, available in a document written during the plenary posted below, need to be addressed, they said.

The new EU document is available here [doc], and includes the text “no outcome… is excluded, including the possible development of a legally-binding international instrument or instruments.”

Where is IP Protection When Developing Countries Need It?

At the plenary session on Thursday afternoon, sources said, there was an exchange of requests for explanations on why a legally binding instrument is necessary as well as why one is undesirable.

There was frustration among developing country supporters of a legal instrument, who felt accepting elements of the document from Wednesday would unacceptably weaken what they see as critical parts of a new mandate, according to participants.

For the first time in an intellectual property forum, developing countries are asking for protection of their rights, said an Indian delegate. It has mostly been the rights of developed nations that have been protected in the past, and the creation of a legally binding instrument is a matter of equity and justice, the delegate added, according to meeting participants.

Another developing country said that if there were multinational corporations in the back of the room, rather than indigenous groups, it is debatable whether the need for a legally binding instrument would be in question, participants said.

“Is this the intention to go around in circles for the last nine years without any clear concrete outcome?” asked Indonesia in a statement made to the meeting obtained by Intellectual Property Watch, adding it was regrettable “that after so much time and resources been devoted to this exercise, we see that it goes nowhere.” They then offered to cosponsor the African Group’s proposal. The African proposal called for negotiations for a legally binding instrument (a more flexible term than a treaty), with a proposed instrument text to be submitted to the General Assemblies by 2011.

But frustration on the other side ran high as well, as several countries intervened to ask the status of the Wednesday document – notably Canada and Germany, according to sources – and said that their concerns had not been adequately addressed.

Wednesday’s Negotiations Yield Options, Not Consensus

The Wednesday document, available here [pdf], is heavily bracketed (not yet consensus) and reflects negotiations on the text originally written by the African Group. It contains alternative options and reservations and in some cases added detail to the African text, most of which were made by the United States, the European Union and Mexico.

The European Union, Mexico, and the United States had requested the deletion of ‘text-based negotiations’ from the African proposal, and all three had suggested weaker language on the goals of the negotiation, reflected in the document as alternatives.

Mexico’s proposal omitted legally binding, though it kept international instrument; sources said the country had later explained it wanted an expert body to suggest the best kind of instrument.

The EU alternative in the text added ‘or non-legally binding instrument’ as an option.

The United States’s alternative language was the strongest deviation, removing ‘internationally legally binding instrument’ entirely in favour of language on ‘an outcome or outcomes.’ But the country later explained to Intellectual Property Watch their position is that “no outcome of the IGC is excluded, including the adoption of a legally binding international instrument, and no outcome should be prejudged.”

Countries that remain hesitant in these areas say there is still inadequate understanding as to what traditional knowledge, genetic resources, and traditional cultural expressions are, and what protecting them might entail.

Three ‘gap analyses’ on the three issues were written in 2008 as an attempt to address concerns of this nature, but there is no working definition of terms and some countries believe this is a necessary first step before what to do about the problems can be decided.

For example, said one such country, if a database that could provide evidence of prior art (and therefore prevent misappropriation of traditional knowledge in patent applications) could suffice, then that might be a better solution than a legal instrument. The analyses, and comments that member states have made on them, are available here.

There have also been differences expressed as how to best accelerate the negotiating process, and how much acceleration might cost (IPW, WIPO, 30 June 2009).

A group of like-minded countries that includes the African Group as well as many members of the Asian Group and the Group of Latin American and Caribbean states met Thursday morning to determine if it was usable as a negotiating text, but in the end too many disagreements remained.

The African Group, in an opening statement delivered by Senegal earlier in the week, said that it was critical in the new IGC mandate not to extend the same terms of reference and the same approach that had led the group to its current state of deadlock (unofficially translated from its original French).

“The comparison between the hopes and the results obtained” by the last mandate, the statement said, “are a measure of the disappointment of our group,” though, it added Monday, the African Group remained hopeful in a positive outcome.

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

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