WIPO Committee Makes Last Run At Folklore Treaty Text Before Annual Assembly

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The last session of the World Intellectual Property Organization committee on the protection of folklore before the annual General Assembly promises to be lively as the prospect of a potential treaty exacerbates stronghold positions. The treaty fervently supported by developing countries as a way to protect their cultural heritage and biodiversity has met a more cautious view from developed countries.

The 22st session of the WIPO Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) will take place from 9-13 July.

Delegates will work on draft articles intended to be submitted to the WIPO General Assembly in October.

Last September, the WIPO General Assembly renewed the IGC mandate [pdf] for the 2012-2013 biennium. According to the mandate, the IGC should “expedite its work on text-based negotiations with the objective of reaching agreement on a text(s) of an international legal instrument(s).” This instrument should ensure effective protection of genetic resources, traditional knowledge, and traditional cultural expressions (TCEs) or folklore.

The mandate also indicates that IGC 22 should focus on four key articles: Article1 on the subject matter of protection; Article 2 on beneficiaries; Article 3 on the scope of protection; and Article 5 on exceptions and limitations.

Those articles were extensively discussed during IGC 19, in July 2011 (IPW, WIPO, 22 July 2011), during which a facilitator, Kim Connolly-Stone from New Zealand, was tasked to streamline them. Former IGC Chair Amb. Philip Owade of Kenya prepared a summary [pdf] of keys issues in the IGC at the close of his mandate.

Draft articles [pdf] for next week’s session reflect amendments proposed by member states, with proposed insertions underlined, and brackets around words or phrases that some delegations have asked to be deleted or questioned, according to WIPO. The draft articles also include some comments by the facilitator.

Prescriptive Approach vs. More Leniency

The protection of genetic resources, traditional knowledge and folklore is a primary concern for developing countries, which are concerned about misappropriation of their resources. They are generally in favour of a strong international legal instrument, in contrast to most developed countries, which would like more flexibility so that some decisions are left to national legislations.

The current draft articles reflect that dichotomy, with two distinct policy approaches.

“In draft Articles 1, 2, 3 and 5, one option generally gives more flexibility to national law and a second option is more prescriptive,” Wend Wendland, director of the Traditional Knowledge Division at WIPO, told Intellectual Property Watch. “For example, in Article 3, option 1 refers to economic and moral interests which should be safeguarded in a reasonable and balanced manner. By contrast, option 2 is more detailed and prescriptive.”

In Article 2, dealing with beneficiaries of the protection, one option names beneficiaries as Indigenous Peoples and local communities, while the second option includes also nations, families and individuals. In Article 5, the first option allows for few exceptions and limitations, while the second option provides more exceptions and limitations, which, according to the facilitator, lessen the protection for TCEs overall, compared to option 1.

During IGC 19, Indonesia submitted a contribution to the draft articles on the protection of TCEs on behalf of a number of like-minded developing countries (LMCs). The contribution of the LMCs, which is presented as a set of draft articles, now is a working document [pdf] for IGC 22.

“The Like-Minded Countries’ contribution was already discussed during IGC 19, in July 2011, and the draft articles for the upcoming session contained in document WIPO/GRTKF/IC/22/4 include some contributions from the LMCs,” Wendland said.

On 27-29 June, the LMCs met in Bali, Indonesia. According to the Jakarta Post, Algeria, Brunei Darussalam, Colombia, Egypt, India, Indonesia, Jamaica, Lebanon, Malaysia, Namibia, Pakistan, Peru, Sri Lanka, Tanzania, Thailand, and Vietnam participated in the meeting. WIPO and the intergovernmental South Centre participated, the story said.

According to the Indonesian Ministry of Foreign Affairs, the meeting aimed to “serve as a unique forum to discuss evolving issues and novel ideas between key delegates of Like Minded Countries (LMCs) on legal protection of” genetic resources, traditional knowledge, and traditional cultural exception.

According to the Indonesian release, “a Consultation Meeting among the Like Minded Countries (LMCs) with five key countries in the IGC WIPO framework” – Australia, China, New Zealand, Norway and Switzerland – was planned for the last day of the meeting. A source confirmed that the meeting took place. Two previous meetings took place in 2009 in 2001.

New Agenda Item on Future Work

According to WIPO, Group B developed countries very recently asked that a new item be added to the draft agenda [pdf] to discuss recommendations to the next WIPO General Assembly on the future work of the IGC.

During IGC 21, held from 16-20 April, the European Union delegation suggested that such an item might be added to the agenda of IGC 22. Since genetic resources, traditional knowledge, and traditional cultural expressions had been discussed separately, there would be some need to “wrap up discussions” and agree on the recommendations to be transmitted to the General Assembly (IPW, WIPO, 21 April 2012).

Developing countries had then asked that IGC 22 focus solely on TCEs, with the African Group saying that the discussion on future work of the IGC be left to the General Assembly, according to the draft report of the 21st session [pdf]. Egypt, speaking on behalf of the African Group, added that five days was a short time to cover the specific TCEs articles and would not allow for “additional agenda items that might require lengthy discussions.”

Role of Observers, Indigenous Peoples’ Status

At the 20th session of the IGC from 14-22 February, the International Indigenous Forum decided to withdraw from the discussions (IPW, WIPO, 22 February 2012). In particular, they felt that rules of procedure should allow their participation at all levels of the IGC. They later resumed participation after discussions with Chair Wayne McCook, the ambassador from Jamaica.

During IGC 21, the committee asked the WIPO secretariat to prepare an information document on practical, procedural and budgetary implications of suggestions put forward by the Indigenous Caucus and supported by Sri Lanka, according to the 21st session draft report.

In document GRTFK/IC/22/Inf10 [pdf], the secretariat presents information on six suggestions, among which are: a special status for Indigenous Peoples, separate from observers; representation of Indigenous Peoples in any “Friends of the Chair” groups; representatives of Indigenous Peoples appointed as co-chairs or working and drafting groups; and equal representation with member states on the Advisory Board of the WIPO Voluntary Fund.

At previous sessions, a number of countries have said that WIPO was a member-state driven organisation and should remain as such. During IGC 21, according to the draft report of the session, Egypt “recalled that Member-States had a regulatory status in the process, but that they supported the principles of transparency and inclusiveness by welcoming observer participation.”

However, they added, “some suggestions made by the Indigenous Caucus had direct systemic implications on the governance of WIPO as a whole, and it believed that the IGC was not the proper place to change the governance of WIPO.” This was seconded by Algeria.

Chair Consults on Methodology

Depending on the chair’s programme of work, remaining articles, objectives and principles could also be discussed during this session. According to WIPO, the chair has been consulting with regional groups. “The Chairman of the IGC has been holding consultations and has circulated a draft programme and methodology to regional groups,” Wendland said. They were to meet again on 6 July to discuss it further.

At the last session, some developing country sources told Intellectual Property Watch that only limited progress was made and the methodology for the next session had to be looked at.

According to the draft report of the session, Egypt, speaking on behalf of the African Group, regarding the work plan and methodology “requested for more time for consultations at the next session so as to advance work on the texts” at the next IGC.

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

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