Frustrations Show At Slow Progress On Protection Of Traditional Knowledge at WIPO

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At the close of a WIPO meeting to advance a text to become a potential treaty to protect traditional knowledge, some countries found that the results of the session were somewhat disappointing, although some progress had been achieved.

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was established years ago under a push from developing countries requesting protection for genetic resources, TK and traditional cultural expressions (TCEs), and according to some developing countries, developed countries have been dragging their feet to delay the convening of a diplomatic conference (a high-level treaty negotiation), hoped for next year.

The 21st session of the IGC took place from 16-20 April.

The draft decisions [pdf] of the session were approved with only minor textual amendments.

Earlier in the afternoon, delegates had found it difficult to agree on the second version of a text [pdf] produced by facilitators, presenting the draft articles to be submitted to the WIPO General Assembly in October.

On 18 April, delegates were given the first version of the facilitators’ text (IPW, WIPO, 18 April 2012). Three facilitators had been tasked with the arduous mission of aggregating all submissions by countries made during the first two days of the session with the draft articles issued from the work done in IGC 19.

Facilitators’ Text Meets Frosty Reception

Disagreement erupted on the final afternoon when the second text by the facilitators was issued. This text constitutes what will be transmitted to the General Assembly. Delegates were given a short time to meet informally before going to plenary and were then asked to signal any omissions or mistakes.

The Algerian delegate, speaking on behalf of the Development Agenda Group (DAG), which she said had not taken the floor before, said that the new document contained a chair’s note although this insertion was not discussed in plenary. The DAG countries requested that the note be removed, apparently out of concern that it might negate progress on the text made during the week.

Egypt, on behalf of the African Group, followed suit and said that in the context of the IGC session on genetic resources, a delegation had requested that a chair’s note be included in the draft articles, which was agreed in plenary but it did not mean that a chair’s note should appear in each text submitted to the General Assembly. Venezuela concurred. The African Group also asked that the comments of the facilitators appearing in the draft articles also be removed.

The chair’s note read as follows: “This text represents the results, at the conclusion of the IGC’s 21st session, in accordance with the mandate of the WIPO General Assemblies (contained in WO/GA/40/7). It represents a work in progress and is without prejudice to the positions of the participants.”

The proposal to delete the chair’s note and the comments by the facilitators was also supported by a number of developing countries, such as South Africa, Venezuela, Zimbabwe, and Kenya.

The European Union, for its part, said they “strongly supported” keeping the chair’s note. They said it did not reflect a negation of the work done, as some countries had indicated, but constituted a very useful explanation which might not be captured by the title of the document: The Protection of Traditional Knowledge: Draft Articles. The EU said that they did not consider the draft articles having a sufficient level of maturity.

The United States said the chair’s note merely stated the obvious. They could however concur with the wish of the room to delete it from the document, but not the facilitators’ comments.

Discussions were hitting a wall, and IGC Chair Wayne McCook from Jamaica called for a break so that member states could try to resolve the issue.

The United States submitted a possible solution, which they thought reflected consensus. They proposed to keep the title of the document as presented, then following the structure of document WIPO/GRTKF/IGC/21/4 [pdf], which is the document issued of the 19th session of the IGC, have an introduction consisting of the chair’s note proposed in the facilitators’ text, excluding the mention “and is without prejudice to the positions of the participants.”

Then, in the notes in page 3, which had also been challenged by a number of developing countries, only the first five bullets would be kept and the remainder of the bullet points removed and moved to an annex. Bullet point number 3 would now read “new language added by delegations in the last iteration of the document is underlined.” Finally, all the facilitators’ comments would be moved to an annex to the document. The US proposal was agreed upon by the plenary.

A Week of Tedious Discussions

Difficulties arose on 19 April when delegates were asked to read and proceed to live drafting of the first document produced by the facilitators. Initially, the chair had asked that delegates focus on areas of divergence but after discussions stalled with obvious entrenched positions, and growing frustration by some developing countries, another strategy had to be developed.

McCook, acknowledging the “membership difficulty proceeding with the integrated text as presented,” finally decided, after requesting two sessions breaks, that the plenary would continue working on the facilitators’ text but the order of the text would be reversed. Instead of considering the consolidated text with brackets and bolded parts, delegates should focus on the explanatory text inserted after the consolidated articles, including in a clear set, elements of convergence and elements of divergence.

Issues of divergence remain sharp and, according to a developed country source, much more time is needed to make sure the text is ready for the convening of a diplomatic conference.

Among areas of divergence in the definition of TK are the concept of TK being passed on from generation to generation, is “inalienable, indivisible and imprescriptible,” is “dynamic and evolving,” collectively generated, the description of the beneficiaries, TK that is widely known, and the mention that TK is “resulting from intellectual activity.”

Some delegates said that one of the problems came from the lack of a clear definition of a policy framework. Australia, for example, said that “much of the complexity in the text in our view is resulting from the lack of agreement on the fundamental policy issue” of the status of any particular element of TK. “That is whether it is secret or sacred, whether it is publicly known but not free to use, or whether it is in the public domain,” the delegate said.

Mandatory disclosure in article 4 bis is also an area of strong divergence. The EU, for example, suggested to bracket the reference to mandatory disclosure, while India said it looked forward to a good mandatory disclosure requirement but would like the disclosure to go beyond patents and plant variety protection. A developed country source told Intellectual Property Watch that mandatory disclosure in patent applications represented a problem, in particular because of the lack of clarity on the scope of disclosure.

Under the last agenda item, “any other business”, the EU said as GR, TK and TCEs had been discussed separately, there would be some need to “wrap up discussions” and agree on the recommendations to the transmitted to the General Assembly and asked that this be planned during the July session of the IGC on TCEs and added to the agenda of IGC 22.

Egypt on behalf of the African Group said that the General Assembly would take stock and consider the text that the IGC is requested to submit, evaluate progress, decide on convening a diplomatic conference, and consider the need for additional meetings. This responsibility, he said, should not be upon the IGC. The programme of work for IGC 22 will be five days to discuss TCEs, and too short to consider additional agenda items, he said. India concurred and said the next session should be solely devoted to TCEs.

The EU said it had not intended to suggest that an agenda item would seek to substitute the work of the General Assembly, and that in their interpretation of a normal working practice of WIPO committees, the committees summarise their work and provide a brief analysis of it to the General Assembly to help member states with their work.

Developing Countries Resentful of Methodology

According to a developing country source, only limited progress was accomplished this week, and the methodology for the next session will have to be looked at.

Another developing country source told Intellectual Property Watch that the text resulting from the 21st session was a much larger text than the preceding documents with some new language, that increased its complexity. However, the fact that areas of convergence could be identified, that all the ideas from member states were included and the articles now did not have several options, was a positive outcome.

According to the source, developed countries tried to make the text more complex in an effort to delay the convening of a diplomatic conference which could agree on an international legal instrument to protect genetic resources, traditional knowledge and traditional cultural expressions.

The source also said that only one day during the week was in fact dedicated to the process of negotiation and there had been no proper second reading of the second version of the text produced by facilitators, as the text was only issued at 3:30 on Friday. “The process was unfair to us,” he said. More time should be allocated in the next session and the methodology should be revised.

Indigenous Peoples’ Suggestion on Observer Rules Supported

According to the draft decisions, “the Committee requested the Secretariat to prepare an information document, for the next session of the Committee, providing information on the practical, procedural and budgetary implications” of a suggestion made by the Indigenous Caucus.

The suggestion includes that a new status for indigenous peoples be developed, separate from observers, that indigenous peoples be represented with any “friends of the chair” groups, that representatives of indigenous peoples be appointed as co-chairs of working and drafting groups, and that equal representation with member states on the Advisory Board of the WIPO Voluntary Fund.

The next session of the IGC, on traditional cultural expressions, will take place from 9-13 July.

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

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