WIPO Draft Treaty Text On Genetic Resources Joins Folklore, Traditional Knowledge

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Country experts this week took up the challenge of doing the groundwork for negotiations towards a treaty on the protection of genetic resources at the World Intellectual Property Organization. Breaking uncharacteristically early on the final day today, the experts’ work delivered a set of options reflecting all points of views for negotiators to work from.

Participants said producing a negotiating text on genetic resources was a significant achievement given the substantial number of documents the experts had to work from at the start of the session (IPW, WIPO, 28 February 2011). Some asked that the larger committee on these issues consider the human rights dimension in its upcoming negotiations.

A draft summary report [pdf] of the working group meeting was approved today, with some small final changes to be reflected in a later version.

Two of those late changes in the draft summary report were on point 7, on options considered most likely to achieve the objectives, regarding who recommended that the IGC request the secretariat to proceed with and finalise the matrix. Instead of, “IWG 3 also recommended that the IGC request the secretariat….”, it will read, “Some experts in IWG 3…”, reflecting lack of consensus. Also, a reference to option A3 (guidelines or recommendations on defensive protection) was deleted.

Another change is on point 8, which is the glossary of key terms. The phrase ‘… ‘and agreed that it be re-issued” as an information document at the next session of IGC will be replaced by “on the understanding that it will be re-issued,” according to a WIPO source. The final version of the report will be published later by the secretariat, he said.

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

According to co-Chair Ian Goss, general manager of the Business Development & Strategy Group at IP Australia, which administers Australia’s IP rights system, although there were different views, it was a cooperative meeting where good technical discussion occurred on all options.

For co-Chair Tom Suchanandan, manager in the Advocacy and Policy Department of the South African Department of Science and Technology, this week saw more progress than the last 10 years. “This is the beginning,” with a long road ahead, he told Intellectual Property Watch, adding that the working group had laid the foundation of the upcoming negotiations.

“We took seven hours to compile a whole document,” he said, “That normally takes years.”

Yesterday, the experts worked on a document produced this week by a smaller drafting group, presenting objectives and principles of a potential treaty. A number of options were available for each objective, each in turn having principles with a list of different options (IPW, WIPO, 4 March 2011).

Today, experts tried to link the newly defined objectives and principles, and their set of options, to working document IWG 3/6 [pdf] prepared by the WIPO secretariat for this week’s session, IWG 3.

Goss told Intellectual Property Watch that the objectives and principles presented clearly the different views and issues that would help constructive discussions on genetic resources. He said the points of view could be divided into three main groups: the indigenous peoples and two groups with opposing views on the disclosure of the origin of genetic resources.

Document IWG 3/6 was originally based on two documents dating back to the 11th session of the IGC in July 2007. One was document 11/8/A [pdf], presenting a list of options on “the disclosure requirement and alternative proposals for dealing with the relationship between intellectual property and genetic resources; the interface between the patent system and genetic resources; and the intellectual property aspects of access and benefit-sharing contracts.” The other was document 11/8/B [pdf] on factual updates of international developments. Those two documents were merged into one document.

The subsequent document was amended and edited at several occasions, including countries’ input on their regional, national and community policies, measures and experiences regarding intellectual property and genetic resources, after a decision from the 15th IGC in December 2009.

Document IWG 3/6 contains a set of three clusters with a series of options: cluster A is on the defensive protection of genetic resources, with 3 different options; cluster B on disclosure requirements in patent applications for information related to genetic resources used in the claimed invention, with four options; and cluster C on issues in mutually agreed terms for the fair and equitable sharing of benefits arising from the use of genetic resources, with 3 options.

According to the draft summary report of IWG 3, experts examined which options are most likely to achieve the objectives as prepared by the drafting group. These objectives have been noted by IWG 3 but neither been adopted or endorsed. The objectives and principles, along with the comments on the text made during plenary will be compiled by the secretariat and send to the IGC for its consideration.

The secretariat will also have to present a summary of the discussion of IWG 3 on the three clusters of options. The document should include a matrix showing the links between the objectives and the cluster of options.

Suchanandan said he had voiced concern about some of the objectives and principles that could not be linked to the cluster of options in doc IWG 3/6, in particular new considerations on human rights that appeared in the text drafted by the working group, and did not exist in the previous document. There is a risk that they “fall through the cracks,” he said. He urged the IGC to consider the human rights aspect of the future instrument, and to refer to the WIPO Development Agenda.

This concern was echoed by an indigenous peoples representative who told Intellectual Property Watch that the working group was trying to match an old list of options to the new objectives and principles with the risk that some of the objectives might be left on the side. The options need to be expanded to reflect all of the objectives identified by the IWG 3 drafting group she said.

Indigenous Peoples Ask to Participate in IGC

According to the report, two indigenous peoples representatives expressed concerns about the status of indigenous participation in the IGC negotiations and suggested that the mandate of the IGC be revisited to take the views of indigenous peoples and local community. One indigenous peoples representative encouraged contributions to the WIPO Voluntary Fund for Accredited Indigenous and Local Communities.

The first intersessional working group of the IGC (IWG 1), held in July 2010, covered the protection of traditional cultural expressions and produced a negotiating text discussed during the IGC in December, and to be presented in May (IPW, WIPO, 11 December 2010).

The second working group (IWG 2) focused on traditional knowledge, and also produced a negotiating text to be presented in May (IPW, WIPO, 25 February 2011).

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

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