Long Week Ahead For WIPO Experts Considering Treaty On IP And Genetic Resources

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Having successfully advanced discussions toward treaties on the protection of folklore and traditional knowledge, country experts this week are meeting at the World Intellectual Property Organization to discuss the protection of genetic resources. But this time, it might prove trickier.

The positive results of the two previous working groups have established momentum toward producing the basis for an international treaty text. However, experts this week might face a tougher task with multiple working documents from which to work and the objectives might have to be humbler.

The Third Intersessional Working Group (IWG 3) of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), gathering country experts, is meeting from 28 February – 4 March. The aim is to try to produce a text that would be a basis for negotiations at the 18th session of the IGC from 9-13 May.

The IGC was established by the WIPO General Assembly in October 2000 with the objective of “reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection” of traditional knowledge, traditional cultural expressions and genetic resources, according to WIPO.

In order to help the process, the IGC established three expert working groups to meet between IGC sessions to address the three issues separately. The groups were tasked with providing expert advice and discussions on each subject and provide draft text as a basis for negotiations at the May IGC.

The First Intersessional Working Group (IWG 1) of the IGC worked on traditional cultural expressions in July and produced a text that will be presented to the next IGC (IPW, WIPO, 26 July 2010). The Second Intersessional Working Group (IWG 2) addressed traditional knowledge from 21-25 February and also produced a set of draft articles to be brought forward to the ICG (IPW, WIPO, 25 February 2011).

Key Issues this Week

A key issue of this week’s discussions is the mandatory disclosure of genetic resources in patent applications, according to sources. Another key point is the inclusion of derivatives in the discussions they said. Derivatives are referring to plant extracts, or metabolites (active compounds in plants or animals).

Both of those issues were keenly discussed in October during the negotiations leading to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity [pdf].

The experts meeting this week have a heavy load of working documents compiled by WIPO to go through, including proposals kept on the table by countries at the 17th IGC meeting in December (IPW, WIPO, 11 December 2010), such as the draft objectives and principles [pdf] proposed by Australia, Canada, New Zealand, Norway and the United States, a submission [pdf] by the African Group on genetic resources and future work, a proposal [pdf] by Switzerland on the declaration of the source of genetic resources and traditional knowledge in patent applications, and a document [pdf] submitted by the European Union also on the source of genetic resources and associated traditional knowledge in patent applications.

José López de León, second secretary of the Geneva Mexican permanent mission, was elected chair of IWG 3, and laid out its roadmap this morning. Today and tomorrow should be devoted to discussing objectives and principles with the aim of shortening the deadline if possible, he told Intellectual Property Watch.

The following days will be devoted to developing a matrix of different options, see where they fit with the objectives and principles discussed before, and define priorities. It is important to keep in mind that the discussions have to be kept at a technical level, he said.

On the topic of genetic resources, countries can be broadly defined by two extreme positions and the aim of this week is to deliver two options to which countries can relate to so that the IGC can start negotiating on that basis, he added.

According to participants, indigenous peoples vigorously opposed the mention in the objectives and principles of the sovereign rights of states over genetic resources, as that goes against the right to self-determination and the sovereign rights of indigenous peoples as stated in different United Nations conventions and covenants, and in particular their rights over their genetic resources. They also said that the human rights dimensions should be taken into account in the efforts to establish an international instrument.

Several countries such as Bolivia and Venezuela also said they wished to have national sovereign rights on the scope of patentability, in particular on life forms, according to sources.

The Nagoya Protocol, whose aim is to prevent unlawful appropriation of genetic resources, was adopted on 29 October (IPW, Biodiversity/Genetic Resources/Biotech, 29 October 2010). It includes languages on prior informed consent of indigenous and local communities (Article 6). The protocol was characterised by many as a good starting point but containing softening language like “as appropriate” and “where applicable,” with much left to interpretation and to national level implementation.

A developed country source told Intellectual Property Watch that disclosure of patent applications is an intellectual property issue and as such should remain under WIPO competence. Another developed country source said that the discussions on objectives and principles would be key to further progress.

On 25 February, Mexico became the fifth country to sign the Nagoya Protocol, according to a CBD press release [pdf]. The instrument will take effect at the 50th ratification by countries.

Side Events this Week

On Tuesday, South Africa will hold a side event to the IWG 3 on “The National Recordal System as multimedia platform for the recording, documentation and dissemination of indigenous knowledge in South Africa.” On Thursday, the International Centre For Trade and Sustainable Development and the United Nations Conference on Trade And Development (UNCTAD) will co-organise a panel discussion on The Nagoya Protocol on Access and Benefit Sharing and its impact on other multilateral debates on intellectual property and biodiversity.

Catherine Saez may be reached at info@ip-watch.ch.

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