Traditional Knowledge, Folkore Treaty Texts Still Advancing At WIPO

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Delegates at the World Intellectual Property Organization this week continued work on evolving draft texts of treaties to protect genetic resources, traditional knowledge and traditional cultural expressions (TCEs), or folklore. But more work will be needed to complete them, according to participants.

Facilitators were designated by the meeting chair during the week to organise options more clearly and presented the plenary with different policy approaches on traditional cultural expressions and traditional knowledge (TK).

A document on TCEs [pdf] was issued yesterday by the facilitator, and a document for TK and two documents for genetic resources were produced this morning.

The 19th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 18-22 July with the main objective of cleaning up draft texts produced in preceding sessions and to decide on the future work of the committee, whose mandate is scheduled to end this year.

According to Committee Chair Philip Owade of Kenya, most of the substantive work on the texts has been done, as of this morning. After the first reading of the text early this week, Owade designated facilitators to conduct informal meetings on the three subject matters of the IGC. New Zealand was the facilitator for TCEs, Colombia and Canada were facilitators for TK, and India and Australia were facilitators for genetic resources, he told Intellectual Property Watch. The texts issued by those facilitators still include options and policy issues, but “they are much cleaner,” he said. Those texts are expected to be taken forward to the next session of the IGC.

Owade also established a group of friends of the chair to facilitate discussions about future work of the committee. This group of friends included regional negotiators, he said. The main issues for discussion included how to renew the mandate, when to convene a diplomatic conference for final treaty negotiation, and the number of meetings, he added. The friends of the chair should present the results of their consultations this afternoon in plenary, he said.

According to a developing country source, one of the issues that divided Group B developed countries and some developing countries were the number of meetings of the next IGC. Some developing countries insisted on having seven sessions in the next biennium, and developed countries would prefer to keep to the four regular sessions. Another issue is that some developing countries think that because genetic resources are lagging behind they should be given more time to be addressed, the source told Intellectual Property Watch.

According to a Group B source, so far this week, work has concentrated on four items for TCEs and TK: subject matter, beneficiaries, scope, and exceptions and limitations, which appear to be the more contentious. There is not yet a negotiating text for genetic resources, which is the less mature subject of the IGC.

Facilitators’ Documents

The facilitator’s document on TCEs [pdf] was issued yesterday, and includes two “policy approaches”. One provides “a definition of TCEs and eligibility criteria that is as simple as possible, avoids debate about the content and length of the list,” and leaves flexibility to national law. The other provides “a more detailed definition of TCEs and eligibility criteria that provides greater certainty,” in particular through listing of examples.

This morning, a second draft of the facilitators’ text on traditional knowledge [pdf] was released. This morning’s text presents two different policy approaches, “the first based on a circumscribed definition of traditional knowledge with limited scope of protection and responsibilities for Member States, and the second, rights-based, more expansive and prescriptive, notably in terms of Member States’ obligations.”

The document is aimed at helping the IGC eliminate overlap and repetition, but “still falls short in drawing clear linkages between the problems related to the protection” of traditional knowledge, “and the possible measures to be taken to address these problems,” the facilitators’ document said.

In particular, on the issue of whether secret and/or sacred traditional knowledge should be included in the scope of this future instrument, the document said that informal consultations had shown that further discussion is required.

On beneficiaries, the document shows that some countries favour a short definition of “indigenous and local communities,” but another approach includes “families, nations and individuals.” The document says that “this option reflects the position of countries that do not use the term indigenous peoples or local communities but consider that individuals or families maintain TK.”

The two policy approaches on the scope of protection of TK also starkly differ. One says that member states should have “maximum flexibility to define the scope of protection,” and the other one places stronger obligations for member states, with for example, giving beneficiaries the exclusive collective rights to authorize or deny the access and use of their traditional knowledge, and require “in the application for intellectual property rights involving the use of their traditional knowledge,” the mandatory disclosure of the identity of the TK holders and the country of origin, as well as evidence of compliance with prior inform consent and benefit-sharing requirements.

Genetic Resources Still Without Treaty Text

On genetic resources, the discussion is still two-tracked, with one set of draft objectives and principles, and one set of options for future work. Two documents were released this morning by facilitators, on objectives and principles. One of them presents an analysis and revised text [pdf], the other one is the facilitators’ text [pdf]. The analysis text shows revised text merging some of the options but retaining brackets to “take account of different issues.”

For example, in objective two, multiple brackets are still around language relating to intellectual property rights and patents in regards to TK, as this is an issue on which members do not currently agree, the document specified.

The second document on the set of draft objectives and principles aggregates a number of options that were in the draft document from the last IGC session. For example, objective two of this document, dealing with IP rights in relation with genetic resources contains a set of different language on the reasons preventing the patenting of GR, almost completely bracketed. The reasons include granting of a patent when it is not novel or inventive, without prior informed consent, mutually agreed terms, or granted in violation of inherent rights of the original owners.

On 19 July, a group of “like-minded” developing countries released proposals for the draft articles on the protection of TCEs [pdf], TK [pdf], and GR [pdf] (IPW, WIPO, 20 July 2011). This followed a submission on 8 July by Indonesia on behalf of the group of like-minded countries of a set of recommendations to the IGC. The group includes Algeria, Angola, Bangladesh, Colombia, Egypt, India, Indonesia, Malaysia, Myanmar, Namibia, Pakistan, Peru, South Africa, Tanzania, Thailand and Zimbabwe.

An Indonesian delegate told Intellectual Property Watch that the proposed texts had been considered by the facilitators when drafting their documents and Indonesia considered this as a considerable victory for the like-minded countries. They still are concerned about the fact that there has been some reluctance to establish a draft negotiating text for genetic resources, as it cannot go forward without such a text, he said.

Indigenous Peoples’ Concerns

According to an indigenous peoples’ representative, a lot of text proposed by indigenous peoples has not been considered in the documents issued by facilitators, and indigenous peoples need an opportunity to put their text forward and be “considered seriously by parties in future work.”

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

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