Access and benefit sharing will top agendas at several different intergovernmental bodies this year on issues of biodiversity, environment, food security and traditional knowledge, and stakeholders will be watching the movement across fora of emerging models and potential pitfalls from parallel negotiations.

Also a critical question this year is whether a dramatic shift in ‘business as usual’ – including the way intellectual property is managed – is needed to prevent potentially catastrophic shifts in the global climate.

And whether natural systems governing genetic diversity and traditional systems governing indigenous knowledge can be accommodated by an intellectual property regime originally built to serve a particular form of technological development is a question that will continue to be asked.

Four intergovernmental agencies will be particularly active this year on these issues: the United Nations Convention on Biological Diversity, which has an October 2010 deadline to finalise an access and benefit regime for handling genetic resources; the World Intellectual Property Organization, where a new mandate for text-based negotiations was given to a committee on traditional knowledge, genetic resources, and traditional cultural expressions; the UN Framework Convention on Climate Change, whose December meeting in Copenhagen left open questions on IP for the development and transfer of technology; and the International Treaty on Plant Genetic Resources for Food and Agriculture, which has an operationalised access and benefit-sharing system.

At the Convention on Biological Diversity, several dates are key in the lead-up to the 18-29 October decision-making Conference of the Parties (COP) in Nagoya, Japan, by which time the organisation is meant to have completed an international regime on access to genetic resources and benefit-sharing.

There is a single draft text for such a regime, but many sources from the negotiations have mentioned its “1,000 brackets” – that is, its extensive remaining areas of disagreement.

Regional consultations plus two informal meetings and one formal meeting remain for members of the CBD to solve those issues, which include unresolved questions in intellectual property and compliance and traditional knowledge as well as the regime’s legal nature (IPW, United Nations, 24 November 2009).

“The main message,” for the CBD, Valérie Normand, the programme officer on Access & Benefit Sharing for the secretariat, told Intellectual Property Watch is a “sense of urgency… [there are] only a few months left and still a lot of work to be done.”

The last scheduled formal meeting of the working group on access and benefit sharing, at which text is meant to be consolidated in preparation for the Nagoya COP, will run from 22-28 March in Cali, Colombia.

The first informal meeting in preparation is 26-29 January in Montreal. This “friends of the co-chairs” meeting involves and is meant to address “key issues” in the negotiations, although the particular issues had not yet been specified, said Normand. It involves 18 representatives from parties, one representative from presidencies of the previous and upcoming COP meetings, and two representatives each from indigenous communities, civil society and industry.

Immediately preceding the Cali meeting there will be two days of regional consultations, said Normand, and before that (from 16-18 March) there will be inter-regional consultations organised by the co-chairs of the working group. The 16-18 March consultations will focus on preambular text, definitions, and “provisions relevant to the consolidation of operative text of the international regime,” according to the outcome document [pdf] of the previous formal working group meeting in November 2009.

There is also a review paper being prepared for the Cali meeting on ‘concepts of genetic resources through history,’ Normand told Intellectual Property Watch. The paper is meant to help member states gain better understanding of genetic resources, particularly as the term relates to traditional knowledge, according to the November outcome document.

The results of this organisation’s work will be watched by members of all other fora dealing with access and benefit-sharing, genetic resources, or biodiversity, several sources said.

“The results of the CBD will affect the treaty and other related systems,” said Francisco López, from the secretariat of the International Treaty on Plant Genetic Resources for Food and Agriculture.

Geoff Tansey, an expert on food security and a Joseph Rowntree Visionary for a Just and Peaceful World, said that it is critical the CBD’s work develop in ways that “support the development and implementation of the International [Plant] Treaty” which already has a system on access and benefit-sharing established.

Negotiators at the WIPO Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions (IGC) will also be watching the ongoing CBD work, as some – in particular developing countries – want to ensure that discussions on genetic resources at WIPO do not undermine the faster-moving discussions at the CBD (IPW, WIPO, 10 December 2009).

This process should ideally complement the process at WIPO, an Indonesian diplomat told Intellectual Property Watch. Indonesia is one of the key proponents of a legally-binding international regime to protect traditional knowledge and traditional cultural expressions.

WIPO TK Committee Looks to Build Trust, Speed Work

For the first time in years there was substantive discussion on traditional knowledge at the World Intellectual Property Organization in December 2009. It was hoped a new, stronger mandate for the long-standing (and slow-moving) IGC would free the group from a two-year-long holding pattern in which process discussions had stalled all work.

However, there is still a significant ‘trust gap’ to be breached, as evidenced by a further stall in process negotiations over how to conduct intersessional meetings intended to increase the speed at which a means to protect the resources of indigenous communities is found (IPW, WIPO, 14 December 2009).

Because of this stall, an intersessional meeting planned for early 2010 will not take place. The next IGC will take place from 3-7 May. There had been some discussion at the December meeting of moving the next IGC to March or April, but this was the earliest feasible date, WIPO said.

Before the next IGC, the WIPO secretariat is to prepare revised working documents on traditional cultural expressions and traditional knowledge, reflecting amendments and comments made during the meeting in December. These papers were supposed to be made available to governments at the end of January, after which there is a scheduled one-month comment period.

It is the hope of key proponents of an international instrument to protect traditional knowledge, traditional cultural expressions and genetic resources that there will be a continuation of text-based negotiations in 2010, a diplomat from Indonesia told Intellectual Property Watch, adding the “hope that discussions of the intersessional working group will not jeopardise text-based negotiations.”

Additional pressure may be on WIPO as a recent report [pdf] by the UN Permanent Forum on Indigenous Issues raised questions about the WIPO process (IPW, United Nations, 14 January 2010).

On Climate, IP Still Undecided

After a difficult negotiation in Copenhagen, the UNFCCC has much work ahead of it in 2010 to turn the agreement they walked out of Denmark with into an instrument which can be legally binding by the end of the next decision making meeting from 29 November to 10 December in Mexico.

Intellectual property law, which is part of the negotiation on technology creation and transfer, has been one of the more difficult areas of the negotiation. Still-bracketed options in the most recent text [pdf] propose either eliminated references to IP in the text, or spelling out that no international IP regime can interfere with technology transfer and requiring parties to the UNFCCC to take steps to exclude ecologically sound technologies from IP protection.

“Technology transfer was unresolved in Copenhagen,” said Baskut Tuncak from the Center for International Environmental Law, adding that how the technological mechanism actually gets implemented still remains to be seen.

“Clearly, the IP issues were a major stumbling block in Copenhagen,” noted Tansey.

The Copenhagen Accord says that “in order to enhance action on development and transfer of technology we decide to establish a technology mechanism to accelerate technology development and transfer in support of action on adaptation and mitigation that will be guided by a country-driven approach and be based on national circumstances and priorities,” but it provides no details on what this mechanism is or what its development might entail.

Discussions on IP and climate change have often focussed on the production of new forms of energy technology. Many, primarily from developed countries, have argued that a windmill or a solar panel is fundamentally different than the creation of a medicine – and therefore, the effect on IP on their dissemination is also different, and perhaps less important. But there is indication that discussions on IP and climate change technology might be broadening this year.

“Agriculture hasn’t been within the remit of UNFCCC,” but “we think agriculture will become part of its agenda” especially for adaptation and mitigation in respect to climate change, said Denise Dewar, the executive director of plant biotechnology at CropLife.

Climate change and biodiversity are critical issues on the agenda of the International Treaty on Plant Genetic Resources for Food and Agriculture, a treaty geared at maintaining biodiversity through shared innovation and related materials on seeds.

And the Center for International Environmental Law is in the process of completing a study on IP and nanotechnology. Nanotechnology has been put forward as one of the many technological solutions to climate change – innovations such as flexible solar panels or more efficient windmill blades can be made with nanotechnology, said Tancuk. But there has been little research into its potential environmental effects.

“There’s some consensus on the effects of climate change, but on which technologies will be necessary to adapt to climate change, there’s less common understanding,” he added.

2010 is a “critical year for the treaty,” said Francisco López, of the International Plant Treaty secretariat.

The treaty is “operating, having an effect – it’s a different way of doing things from almost anything else that’s been done,” said Tansey, adding it is important that “everything is done to turn into practice the commitments made in the treaty on in situ conservation and Farmers’ Rights.”

There is a high-level roundtable on biodiversity planned for July 2010 (tentatively for 1 July) that will pave the way for new approaches to analysing the organisations work, said López.

And the Food and Agriculture Organization with the International Fund for Agricultural Development, the Consultative Group on International Agricultural Research (CGIAR) and others will host a conference on agricultural biotechnologies in developing countries in Guadalajara, Mexico from 1-4 March to discuss development and dissemination of agricultural technologies relevant to the rural poor.

Is the UN Where Movement Will Happen?

Whether discussions in these UN fora can truly help govern an increasingly fast-moving environmental technology industry is a question companies working in those fields will continue to worry about 2010, an industry source told Intellectual Property Watch. Negotiations in UN agencies often take years to complete, by which time often the social and market situations they were trying to regulate no longer exist, the source added.

And there are signs of solutions emerging elsewhere.

There are general trends in the discussions on intellectual property and climate change that may come up across fora. For example whether prizes for environmental technology have any potential, suggested Tancuk.

There will be more discussion around public-private partnerships this year, as these are “critical to enable technology transfer, particularly in the developing world,” said Dewar.

Agriculture company Dow AgroSciences is, for example, working with the research organisation the Donald Danforth Plant Science Center looking at improvements in staple-crop cassava, Dewar said. She added, strong IP systems remain important to the private sector when it trades or transfers technology.

And the imminent challenge of a shifting climate may lead to more fundamental questions, said Tansey. Questions “about what kind of society and future we want, and what kind of innovation and change will take us there.”

“The trend we’re having tends to focus on innovation coming through a corporate dominated, IP dominated approach,” but this may not be the best way. The challenge, said Tansey, is in “shifting from one way of doing things to another” when “we’re not yet sure what all the other ways are.” So, he said “we’re clinging to the old IP and market systems, but “if we’re serious” about solving climate change different approaches may be necessary involving social, economic and political innovation not simply technological.”

Discussion on these topics may be addressed at other international fora as well.

Talk about bringing the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement in line with the CBD – which have been ongoing since a ministerial meeting in Doha, Qatar in 2001 – is likely to continue at 2010 TRIPS Council meetings, so far scheduled for 2-3 March, 15-16 June, and 26-27 October.

At the WTO, the discussion hinges on whether to require disclosure of origin on genetic resources used in patent applications. A majority of WTO member governments support the idea, which has also been linked to two other unfinished IP issues. However, it is unlikely that significant movement will be made here unless there is significant movement elsewhere in the Doha round.

And UN Director General Ban Ki-Moon has declared 2010 the International Year of Biodiversity, and background materials provided as resource material for the year’s celebrations include information on traditional knowledge, biopiracy, and intellectual property.