Late-Night Breakdown On Traditional Knowledge At WIPO; Future Unclear

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The World Intellectual Property Organization committee on the protection of indigenous knowledge, expressions and genetic resources failed to reach consensus on future work Friday, putting the future of the committee in the hands of the WIPO General Assemblies in September.

On future work, all that is contained in the report of the committee is that they “did not reach agreement on this agenda item,” despite days of effort on that issue alone.

The mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) expires this year, and deciding the next mandate of the group was the key task at the meeting from 29 June to 3 July (IPW, WIPO, 30 June 2009).

But disagreements, in particular over whether or not to aim for a binding international instrument, proved too strong and no bridge could be made even on a procedure for continued negotiation, according to participants. The order in which to negotiate was an issue, as some countries wanted to see the text of a possible agreement before deciding what kind of form it might take (i.e., an instrument, or a database, or something else), while others wanted to set a goal of a legally binding international instrument and then work on its text.

What the General Assemblies will do with the “no agreement” text is not clear; normally the assemblies act on recommendations from the committees.

Informal consultations are planned in the interim between now and the assemblies in late September, though details are unclear. Whether the committee still had a mandate after the meeting was a point of confusion as well during the final plenary, according to several sources, though it appears that in the end the mandate carries until the end of December this year.

The current mandate, contained in this document [pdf] from 2003, charges the committee to continue work “on questions included in its previous mandate… in particular, on a consideration of the international dimension of those questions, without prejudice to the work pursued in other fora, and no outcome of its work is excluded, including the possible development of an international instrument or instruments.”

Even what documents will be discussed is not fully clarified, as on the last day of negotiations a text-based proposal was circulated by the European Community (IPW, WIPO, 3 July 2009), and both Australia and then Canada made proposals during the final-day plenary sessions.

The later proposals were presented as attempts at reaching compromise, though some delegates wondered why such compromise texts could not have been circulated earlier in the week, or even before the session as was the African Group proposal [pdf]. A similar problem caused a breakdown at the last IGC (IPW, WIPO, 18 October 2008).

A majority of developing countries had supported the African Group proposal for accelerated work towards text-based negotiations and a legally-binding international instrument, sources said. Many said they wanted to increase the strength of the current mandate, which has not produced sufficient results over the last nine years.

Developed nations tended to prefer seeing the text of a possible instrument first before deciding on the outcome. But some developing nations were also wary of committing to something legally binding as well, citing potential problems working with national policy and other fora in which related negotiations are happening.

But the no-consensus outcome seemed disappointing to members from all sides of the debate.

If companies began to use and abuse the sacred symbols and names of indigenous people and continue to do it, it is because international intellectual property law has for a long time ignored and marginalised their needs, said a statement read by a representative of Senegal on behalf of the African Group on Friday.

“The assault of business on the heritage of humanity must be controlled and then reduced,” it added. “It is justice that demands this.” [note: unofficially translated from French. The entire statement, in French only, is available here [pdf].]

The European Union expressed its “deep concern with the outcome of the week,” in a follow-up statement obtained by Intellectual Property Watch, and expressed willingness to continue informal consultations before the assemblies.

The United States said in a statement afterward that it was “deeply disappointed that WIPO member states were unable to arrive on agreed text to renew the mandate of the IGC this week,” and reiterated its position that no outcome should be excluded or prejudiced (that is, decided before the text is seen).

Indigenous groups, too, were frustrated with the outcome. Two members of the Ethio-Africa Diaspora Union Millennium Council, which represents the Rastafari community, expressed disappointment to Intellectual Property Watch over the lack of an agreement, and in particular the lack of progress towards a binding international instrument.

A binding instrument is necessary because without it things will be business as usual, said Marcia Stewart (also known as Queen Mother Moses), the group’s international ambassador. “A law without teeth can be breeched with impunity,” she added.

Marcus Goffe, the council’s legal counsel, said that the loss of momentum at the end of the session was worrying, and said that the best explanation he heard as to why legally binding instruments are necessary is that biopirates cannot be simply reprimanded.

Separately, a member of a different indigenous community wondered about the strength of the interest of industrialised nations in protecting “the traditional knowledge and traditional cultural expressions of indigenous people, and the genetic resources of developing countries and indigenous peoples.”

And a statement of the Indigenous People’s Caucus delivered Friday reminded the committee that indigenous voices should be active in any negotiating process and within any expert group that might be assembled to discuss the issues.

But a Nigerian delegate expressed remaining optimism about the group’s future. “We will find a way,” he said. “Always you can get a solution at the twilight of an impossible hour.”

Kaitlin Mara may be reached at

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