Experts discussing the protection of genetic resources at the World Intellectual Property Organization this week are struggling to stay within their technical mandate as the issues carry significant political impact. Discussions today resulted in a marked-up text on objectives and principles of a possible international instrument that reveals key differences among members on the role of IP, and of WIPO, in genetic resources.

The latest text on objectives and principles is available here [pdf]. It reflects previous submissions and comments and input provided so far this week.

The Third Intersessional Working Group (IWG 3) of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 28 February – 4 March. Country experts are gathered to try to produce a document that would be a basis for negotiations towards a legal instrument on the protection of genetic resources at the 18th session of the IGC from 9-13 May.

On the agenda this week is a set of working documents, including submissions by countries.

This morning, experts discussed a document on objectives and principles [pdf] for an instrument, based on a submission [pdf] made by Australia, Canada, Japan, Norway, New Zealand and the United States, as amended by the African Group in a submission [pdf], made at the 17th session of the IGC, according to sources.

The African proposal is guided by the notion that the work of the IGC should be “mutually supportive” of the Convention on Biological Diversity (CBD) and the Nagoya Protocol and “should not run counter to the objectives of the CBD and the Nagoya Protocol (Article 3 bis of the CBD Nagoya Protocol).” It also says the IGC negotiations “should be without prejudice to the negotiations in the WTO on the mandatory disclosure proposal in the context of the implementation related issues of ‘examining the relationship between the TRIPS Agreement and the CBD.’”

Experts and observers in plenary added language to the text as well as brackets around some language on which there was no agreement, according to sources. Among the areas of divergence were: the mandatory disclosure of origin of genetic resources, prior informed consent and fair distribution of benefits, public domain, legal certainty, and derivatives.

Sources said that the discussions at times strayed from the technical side toward a more negotiating tone.

Meeting Chair José López de León, second secretary of the Mexican mission in Geneva, said that the document including all comments and brackets was unworkable, and set up a drafting group to try to clean up the text.

The drafting group will have to clarify and confirm the relevance of the objectives and principles in the context of the IGC mandate and terms of reference. The group should bracket text considered outside of the IGC mandate or which is considered as political commentary, according to the drafting group terms of reference.

A new version of the text was published this afternoon, which is the one the drafting group will be working on.

Programme for Remainder of Week

This afternoon, the chair circulated a draft programme [pdf] for the remainder of the week. The drafting group was to meet later today, and also tomorrow after the day’s plenary session. On Thursday, the draft text prepared by the drafting group on objectives and principles will be discussed in plenary session. The text will be open to comments but not for re-drafting, the programme says.

According to sources, the working group includes about 30 experts coming from countries such as India, the United Kingdom, Ecuador, Bolivia, the Netherlands, Switzerland, the United States, China, Chile, Japan, and some observers.

Also this afternoon, options in working document IWG 3/6 were discussed. This discussion is expected to continue tomorrow.

Indigenous Peoples Concerned Over IP Focus

According to an Indigenous Peoples source, some country experts are in the discussion trying to get an intellectual property instrument but the mandate of the IGC is to protect genetic resources and associated traditional knowledge not currently protected by intellectual property rights.

The talks are mainly focusing on the intellectual property system and the Indigenous Peoples would like to see more balance in the discussion about other options than protecting genetic resources through IP rights.

The IP system locks in knowledge or genetic resources, first because it puts proprietary rights on them, and after the patents expire, they become locked into the public domain. The IGC mandate, the source told Intellectual Property Watch, is to protect traditional knowledge and genetic resources wrongfully granted through the IP system and make sure the IP system prevents the extension of unlawful rights granted on genetic resources and traditional knowledge.