Failure to resolve the deadlock over traditional knowledge at the World Intellectual Property Organization would call into question the organisation’s role, some member states said this week, as the chair of the General Assemblies tabled a text in an attempt to bridge major gaps that still remain. Meanwhile, the organisation adopted a commitment to approve the availability of documents in all its languages.

“While WIPO is in a deadlock, other organisations are moving forward,” said a delegate from Pakistan at a plenary session 28 September. “If we continue to move away from these issues here, WIPO will find itself marginalised in the international arena.”

“We have to justify” coming to Geneva and returning home “empty-handed without anything to show” for these meetings, an African delegate told Intellectual Property Watch. They are not asking for aid, the delegate added, but for the tools to solve development issues themselves. Traditional knowledge and genetic resources are key resources for that goal, the delegate said.

Chair’s Text Aims At Compromise

The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions (IGC) has an uphill battle over the next two days to reach a convergence that has eluded the committee at its last two sessions.

General Assemblies Chair Ambassador Alberto Dumont of Argentina held an ambassador-level meeting of regional group coordinators plus one Tuesday night, at which little progress on a way forward was made, sources at WIPO told Intellectual Property Watch.

As the WIPO General Assemblies, meeting from 22 September to 1 October, draw to a close, the chair’s text is a last-ditch effort to find a middle ground on which delegates might be able to agree. Generally the general assemblies are for signing off on recommendations from specialised committees, but the IGC’s lack of agreement at its previous two sessions has left the decision as to its continued mandate up to the Assemblies.

The new text written by Amb. Dumont is available here [pdf].

At bookends of the debate are a proposal by Africa to engage in text-based negotiations towards a legally-binding international instrument and a proposal by the United States to “work towards a convergence of views” though without a defined outcome and without text-based negotiations. The proposal of Africa is being supported by Group of Latin American and Caribbean States (GRULAC) as well as most of the Asian group.

There are also mid-way proposals on the table from Europe and from Australia (IPW, WIPO, 25 September 2009).

The chair’s text preserves the desire of the African group to undertake text-based negotiations with the objective of creating an international instrument or instruments. But it excises the term “legally-binding,” which some countries and the US in particular had shown resistance to, and which the African group and its supporters had highlighted as essential. This is likely to be the most difficult issue to bridge, said sources from both sides of the issue.

It also includes a chapeau, which appears to be essentially derived from the European proposal, affirming that the General Assembly “respects and recognizes the wish of indigenous and local communities and member states that their” traditional knowledge, traditional cultural expressions and genetic resources “should not be misappropriated and misused.”

Can WIPO “Move Forward With The Tide Of History”?

Meanwhile, frustration at the difficulty of consensus was palpable. This was especially so among developing countries calling for a legally-binding international instrument, as Benin said it is “time for us to move forward with the tide of history.”

“We believe our countries are being treated unfairly,” said a delegate from Burundi during the plenary session, in reference to the fact that there is as yet no international instrument to protect traditional knowledge and genetic resources. “We have value attached to artists in the Western world while” traditional knowledge “is exploited elsewhere,” he said. “The [WIPO] Secretariat is an arbiter and should intervene,” he added.

We “want our discussions to come up with specific results,” said the delegate of Senegal on behalf of the African Group.

Expanding the benefits of the intellectual property system in developing countries is one of the key objectives of the Development Agenda at WIPO, said a delegate of Ecuador, on behalf of GRULAC during a plenary session this week (according to an unofficial translation), adding that a decision on the IGC should reflect Development Agenda principles.

But others questioned the legally-binding instrument as an outcome. Korea suggested in plenary that “perhaps we can prevent misappropriation without proprietisation,” and suggested looking at options to protect traditional knowledge and genetic resources within the existing system, and several developed countries said a renewed mandate for the IGC should not commit to a specific outcome.

Should WIPO Be The Forum?

A delegate from Canada said during the plenary that the country is “of the view that the IGC is the most appropriate forum for substantive discussion on genetic resources, traditional knowledge and traditional cultural expressions.” She added “we would be very disappointed if these no longer fell under a WIPO committee.” Canada has argued in parallel discussions at the World Trade Organization that protection of genetic resources has no place in IP and trade laws.

Japan also said “this house is the most appropriate forum” for handling these issues during the plenary session.

But others were not as certain. “If the very institution that is expected to… does not have the political will to complete an instrument capable of providing legal protection to [traditional knowledge, genetic resources, and folklore], maybe it’s time for us to consider some other avenues,” said Indonesia in a prepared statement And Botswana and Zimbabwe mentioned efforts through the African Regional Intellectual Property Office (ARIPO) to create a regional instrument, while Ecuador spoke of creating a national biodiversity and traditional knowledge database that would include sui generis protection measures.

WIPO Promises Faster Translation

One success of the General Assemblies this week was an agreement on text dealing with translation. Member states – led by Spain with the support of Chile, Costa Rica, and Uruguay – had been calling for documents to be available in all WIPO working languages sooner. The Spanish version of the budget had, for example, come out “just a few hours before the beginning of the” Programme and Budget Committee meeting, Spain said in a statement. They asked that resources be organised so that non-English language texts are available earlier.

The agreed text on use of languages is “Upon the specific request of Member States, the Secretariat will improve the timely availability of documents in the appropriate WIPO official languages for its meetings.”