After an auspicious beginning on substantive issues, the World Intellectual Property Organization traditional knowledge committee stalled on matters of procedure at the end of its meeting last week. With no mandate, a committee working group will not meet in early 2010 as planned, and the full committee will move meet again sooner than scheduled to try to agree on process.

Still, the negotiations at the 7-11 December Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions (IGC) were not without hope. It is clear that differences of opinion still lurk behind the committee’s vaguely-worded new mandate to work to create an “international legal instrument” on these issues (IPW, WIPO, 3 October 2009), and years of little movement have eroded trust between opposing sides of the debate.

And consensus on how to handle “intersessional” meetings intended to speed the IGC’s work proved elusive, as even the chair’s last-ditch attempt at a compromise text near the end of the meeting was not able to pull positions close enough for agreement.

But there was also real discussion on substantive issues for the first time in years – such as on what constitutes a traditional cultural expression, or what legal form protection against misappropriation of traditional knowledge should take.

It is “hopeful that at least things have started moving in the right direction,” said a developing country delegate. The United States during final plenary called the substantive discussions a “positive step,” sources told Intellectual Property Watch. Saying that this was a failed session would be “going too far,” the developing country delegate added.

The “huge gap that existed when we began Monday was substantially narrowed,” IGC Chair Juan José Gómez Camacho, Mexico’s ambassador to the UN in Geneva, told Intellectual Property Watch. When “I referred to a gap, it’s a trust gap,” he added. However, it was “quite a remarkable breakthrough that the IGC had meaningful” substance-based discussions “after 4, 5, 6 years of stalemate on process,” he said.

Some members of indigenous groups were pleased to see text being discussed, though others said they were disappointed that things were not moving more quickly under the new mandate.

Though there was no agreement on how to conduct intersessionals, states have agreed to work from one draft text, an African Group proposal from earlier in the year [pdf]. Previously, the Group B developed countries had refused to work from this document, so this is an indication of flexibility, a developed country source said.

Still, the failure to reach agreement on a way forward “worries us because we want a draft document in 2011,” said an African Group member. An African Group proposal for the IGC submitted to the decision-making General Assemblies in October called for the creation of an international instrument, with a tentative deadline for a draft text set for the 2011 General Assemblies. The delegate added that his group had done the best it could to be flexible and accommodating but that “transparency, efficiency and respresentativity” could not be compromised.

The IGC will meet again “as soon as possible” – likely in March or April of 2010 – depending on how early needed documents can be completed, participants said.

Before the next meeting, the secretariat will prepare new revised working documents on traditional cultural expressions and traditional knowledge “reflecting proposed amendments and comments” on two earlier documents WIPO/GRTKF/IC/9/4 [pdf] and WIPO/GRTKF/IC/9/5 [pdf]). The secretariat will prepare these papers by the end of January, and governments will be able to submit comments until the end of February.

Governments are also invited to submit papers describing national experiences on genetic resources to the secretariat, and the secretariat will then create a revised working document on this issue. Its earlier version is available here [pdf].

“Trust Gap” Must Be Bridged

The lack of confidence in the IGC is “very serious, very obvious, and very surprising,” said the chair at the closing plenary session, several sources told Intellectual Property Watch. This was palpable in some of the reactions at the close of the meeting.

There was a gap in confidence between different parties, an African Group member told Intellectual Property Watch. Further, the delegate said, there had been an “absence of vision” as well as a lack of political will in some members, though Africa had presented a vision both “reasonable and pragmatic” for carrying forward intersessional work.

Group B was “a little stern,” a “little hard-line” on some issues during informal negotiations, said another developing country delegate. One such issue related to whether the working group could draft text, a work that the IGC had already started.

But the Group B coordinator said they had been flexible in saying the group could draft text if it was allowed to be open-ended, but said if only a limited number of experts were allowed to come then drafting “doesn’t make sense.”

The developed countries were “frustrated that nobody listened to what we said,” the coordinator added.

Some participants said they found it odd that Canada during the closing plenary objected to using the word “amendment” when referring to changes proposed to the documents on traditional knowledge and traditional cultural expressions, when some countries had in fact proposed amendments to those texts.

Canada, the participants said, did not like the word as it suggested the working documents were negotiating texts. The Group B coordinator later told Intellectual Property Watch that with a “negotiating text” (as opposed to a working document) it is harder to make changes or allow for its evolution, or to change its direction if the original approach turns out to be unworkable.

But, sources said, the chair pointed out that the mandate given the committee at the October General Assembly called for text-based negotiations, and the word stayed in the draft decision.

Intersessional Disagreements

There were three issues over which governments disagreed on the intersessional meetings, which the committee had first agreed to consider in February 2008 (IPW, WIPO, 29 February 2008). First was its objective or character, i.e., whether it should be a negotiating group or a technical group. The second was in whether it should be open or closed, and the third was in how its agenda should be handled, and in what order issue areas should be tackled.

A chair’s text released Friday had tried to resolve these three issues with compromise language. It is available here [pdf].

It called the group a “technical space and not a negotiating or decision making body,” and said its purpose is to provide technical advice in the form of a report. This seemed acceptable to both groups, according to sources.

The chair’s text said the groups should contain 41 experts nominated by member states (larger than the 27 originally called for by the African Group), plus 10 nominated by observers. It also allowed that any state could attend as an observer, “trough [sic] its regional coordinators +2.” Group B had wanted the group to be totally open ended, and the African proposal had called for it to be limited to the experts.

The African coordinator said his group was not totally satisfied, but could accept this situation, sources said. Group B could handle limited experts but wanted to add that no prepared texts are brought to the working group and no drafting of text is done, several sources said; but this was hard for others to reach agreement on in text-based form, the Group B coordinator said.

Lastly, the chair’s text proposed that the first intersessional group handle traditional cultural expressions and traditional knowledge not associated with genetic resources, that the second handle traditional knowledge associated with genetic resources and genetic resources, and that the third intersessional handle all three issues in parallel.

This was an attempt to bridge the gap between the African Group, supported by a large number of developing countries, which wanted each session to tackle only one of the three issues and Group B, which wanted each session to handle all three issues at the same time.

This was harder to agree on, partly because of complex connections between the WIPO process and other processes related to genetic resources in other fora, such as in the UN Convention on Biological Diversity that have deadlines during the course of the working group meetings.

It is “very important for IGC to take note of what is going on at CBD,” Olivier Jalbert of the CBD secretariat at a side event during the week, adding that by March the CBD is meant to have a final text on access and benefit sharing on genetic resources, which will include details on handling IP. But at CBD a lot of the difficult work of defining misappropriation, defining traditional knowledge, and sorting out other technical issues has been done, he said.

But there’s a lack of certainty of views on the process, a member of academia participating in the meeting told Intellectual Property Watch. And the uncertain future of genetic resources issues in other international bodies makes some (mainly developing country) members wary of discussing them at WIPO, for fear of potentially weakening faster moving processes; other states, mainly developed countries, have argued those issues should be relegated to WIPO only and therefore must be discussed during the IGC.

But there has been progress, said the chair, adding he had “no doubt that we will have a decision at the next IGC.”

Indigenous Groups Need Representation, Too

Meanwhile, indigenous groups are concerned about how they will be represented in the intersessional working groups when they do take place. WIPO has a voluntary fund for accredited observers, but there is a screening process whereby who is funded is selected by WIPO, Marcus Goffe, the legal counsel of the Ethio-Africa Diaspora Union Millennium Council, which represents the Rastafari community, told Intellectual Property Watch.

For the intersessional working groups, indigenous observers would like more say in who represents them as the work of the groups is so important.