WIPO Members Move To Detailed Talks Toward Folklore Treaty

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Delegates negotiating early stages of a treaty on traditional cultural expressions this week got down to details of what to protect, from whom and how in late-night drafting sessions at the World Intellectual Property Organization, and found a work plan for the immediate future on genetic resources as well. Meanwhile, indigenous groups continued to raise concerns about the process.

For the second time in a row, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) ended in a round of applause, as governments seem at long last to have left behind procedural hang-ups that had stymied negotiations in recent years and are now fully engaged in grappling with the difficult substantive issues around protecting areas of knowledge that do not fit into the current intellectual property system. The issues are many, but that WIPO is getting down to serious work on them is by most taken as a positive sign.

“We have embarked on a long and arduous journey, but with good will we can reach our destination,” said meeting chair Ambassador Philip Richard Owade of Kenya at the closing plenary.

The draft conclusions of the IGC are available here [pdf], but it should be noted that several amendments to this document were made before it was adopted in plenary. A summary of some of these is made below.

Governments in the 6-10 December IGC made progress with a draft text on the protection of traditional cultural expressions, facilitated by the work of a July “intersessional” gathering of experts intended to advise regular sessions of the IGC. The July meeting had produced a text [pdf], but it was unclear before this week how it would be used. An early decision to base talks on the intersessional text was encouraging for many hoping to quickly conclude the IGC’s mandate to negotiate legal instrument(s), as it meant the intersessional work was likely to speed the negotiating process as it was intended to do.

But discussions early in the week saw the text grow significantly as participants added comments and proposed new wording. A copy of the mid-week text is available here [pdf].

Progress picked up in final days, and it was a more consolidated document – available here [pdf] – that was agreed to be submitted as a working document for the IGC at its next session from 9 – 13 May 2011.

There will also be informal consultations with the meeting chair between now and May to continue work on reducing the options and alternatives that are in the current text on traditional cultural expressions. Any text that might arise from the chair’s consultations will be submitted to the May IGC as a chair’s text and will not supersede the text produced during the IGC.

Delegates were also able to settle a disagreement on procedure for future work on genetic resources in informal consultations on Friday. This disagreement had hinged on whether and how to advise an intersessional expert working group meeting on genetic resources 28 February to 4 March on whether it should first discuss creating a list of objectives and principles for an eventual instrument on genetic resources or tackle a list of options for what that instrument might include. In the end, this proved not too difficult to solve when it was decided the experts should “devote adequate time to discuss both objectives and principles and options, with at least one day on objectives and principles and at least two days on options.”

Where things are likely to get difficult on genetic resources is in substantive talks. The issue is being discussed in several international fora (details below), and many countries – in particular developing countries – are keen to see that WIPO’s discussions fit in to what has already been done elsewhere.

“It is our belief that WIPO’s contribution … to the protection of genetic resources should be targeted primarily at making the intellectual property system help member countries comply with the provisions of the Nagoya Protocol on access and benefit sharing,” said a statement of the Development Agenda Group on the issue, referring to the recent conclusion of an access and benefit-sharing regime at the UN Convention on Biological Diversity. The full DAG statement on genetic resources is available here [doc].

Some countries – notably Bolivia and Venezuela – have also spoken strongly against the privatisation of genetic resources in general, a principle that nationally in both countries is not legal.

Discussions on traditional knowledge are expected to continue and intensify when experts convene to discuss the topic on 21-25 February.

Governments also asked member states to draw up two glossaries – one on IP and traditional cultural expressions, and one on IP and traditional knowledge – to help define terms being used in the negotiation. There is already a glossary on genetic resources.

Indigenous Concerns

“We are concerned that in the discussions at this IGC the issue still continues with the lack of understanding of indigenous norms regarding the human rights of Indigenous Peoples,” said the statement of 16 organisations representing indigenous people, is available here [pdf].

These rights include: self-determination and self-government; ownership of intellectual property and genetic resources; participation in decision-making, including prior informed consent; and conflict resolution, the statement says.

Also “it is presumptuous to claim that Indigenous Peoples rights and interests are protected at the community level and will be secured under domestic law once an international legal instrument is negotiated. States who come to these IGC and related meetings should be held accountable to their history and their current actions to protect Indigenous Peoples’ traditional knowledge and their genetic resources,” the statement said, and called on delegations to consider adding indigenous representatives to their delegations.

Also this week, a non-governmental group called Genetic Resources, Traditional Knowledge and Folklore International was approved as an observer to the IGC. The group is intended to represent indigenous peoples and local communities first at WIPO and later at other UN bodies where matters concerning their rights and knowledge are concerned, and also has plans to provide technical advice and assistance to indigenous peoples in matters of negotiating protection of their resources.

Genetic Resources

The matter of genetic resources and intellectual property is addressed in the recently concluded Nagoya Protocol of the UN Convention on Biological Diversity (IPW, Biodiversity, 29 October 2010) and within the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council, where a majority of member states are calling for discussions on disclosure of origin of genetic resources used in patent applications.

There is no secretariat-produced set of objectives and principles at the moment, though there is a list of “options” for genetic resources protection [pdf], ranging from the creation of databases or guidelines to aid in protection, to mandatory disclosure of certain information (such as origin) of genetic resources, to mechanisms for benefit-sharing.

A submission by Australia, Canada, New Zealand, Norway and the United States [pdf] proposed draft objectives and principles.

A submission from the African Group [pdf] on future work for genetic resources, proposed to begin talks with the option of the mandatory disclosure requirement, taking into account the other relevant documents.

These documents include the objectives and principles document from Australia, Canada, New Zealand, Norway and the United States; a proposal on disclosure of origin from the European Union [pdf]; and a document on declaration of the source of genetic resources submitted by Switzerland [pdf], as well as the secretariat-prepared list of options. The submission also contains comments to the Australia, Canada, New Zealand, Norway and the United States objectives and principles.

A second document [pdf] from the delegations of Australia, Canada, Japan, Norway, New Zealand and the United States suggests discussion on objectives and principles and how the secretariat-presented options might fit within them.

Modifications to Draft Conclusions

Several changes were made to the draft conclusions before it was adopted by the Committee. They include:

On agenda item 6, traditional cultural expressions: a clarification in the first paragraph that discussions were based on document WIPO/GRTKF/IC/17/9 (draft articles prepared by the intersessional). In paragraph two, “intersessional” was removed from “to undertake informal intersessional consultations with all delegations.” And “for consideration by the Committee” was changed to “for consideration by the Committee, as it wishes,” and the final sentence was removed because it was seen to pre-empt the decision of the Committee on what to do with the text. These changes were proposed by France on behalf of the Group B of developed countries.

On agenda item 6, and on agenda item 7 on traditional knowledge, a clarification was added by the secretariat indicating that the each glossary it is preparing will be made available “as an information document.”

On agenda item 8, genetic resources: in the second paragraph, dealing with written comments on documents, references to four texts from this IGC were removed and comments participants were instead invited to provide “written comments on all relevant working documents.”

Paragraph 3 was moved to the end of the section, and the word “prioritized” was removed from “a draft prioritized list of options.” The Committee “requested” the intersessional was changed to “suggested that.”

In paragraphs 4 (now paragraph 3) “should” was deleted. In paragraph 5 (now paragraph 4) “should preferably” was deleted. All suggested changes in item 8 came from France on behalf of Group B.

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

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  1. […] The first intersessional working group (IWG 1) met from 19-29 July 2010 and addressed traditional cultural expressions/expressions of folklore. The group produced draft articles toward a possible international legal instrument, and asked that those articles be presented to the next IGC session, from 6-10 December, according to the summary report of the session [pdf]. (IPW, WIPO, 11 December 2010). […]

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