WIPO Folklore Committee Stuck In Starting Blocks; Indigenous Peoples Wave UN Declaration

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On opening day of a weeklong meeting of the World Intellectual Property Organization committee on the protection of folklore, what was characterised as a procedural matter by the chair kept delegates in informal consultations most of the day without reaching a compromise on the agenda. And at the outset, a panel of Indigenous Peoples reminded delegates of the United Nations Declaration on the Rights of Indigenous Peoples and called for considerations of the Declaration during this week’s negotiations.

The 22nd session of the WIPO Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 9-13 June.

By late afternoon, IGC Chair Amb. Wayne McCook of Jamaica had to admit defeat on reaching consensus on the agenda. At the root of discontent is an agenda item (9) on the future work of the IGC put forward some days ago by the Group B developed countries.

Developing countries said, as in the previous session, that the discussion on future work of the committee was not in the mandate of the IGC and remained the prerogative of the WIPO General Assembly.

The chair said numerous different wordings were worked on in the course of the day without reaching a satisfactory formula for all countries. Options for the wording of item 9 of the agenda included: “exchange of views on further work of the Committee,” or “exchange of views on future work of the Committee,” or “exchange of views on further matters concerning the IGC.”

Egypt, on behalf of the African Group, said the group could not adopt the agenda with item 9 and proposed the deletion of this item. The United States said it supported Group B’s request of this agenda item and opposed its suppression. Brazil, on behalf of the Development Agenda Group, said they “did not see the need for this new agenda item.”

McCook requested the advice of WIPO Legal Counsel Edward Kwakwa, who said that if the proposal for deletion was supported by another delegation, a vote could be undertaken by show of hands. South Africa seconded the proposal.

Considering the late hour with only minutes to go before the end of the session, and a number of procedural matters to consider for a vote, the chair decided that the plenary would reconvene in the morning to examine the situation again. He expressed disappointment and said the committee “was embarking in this third IGC on the wrong footing.” He added that he expected “that the cool of the night may enable the engines to return to firing on all cylinders.”

WIPO DG Invokes Spirit of Beijing

At the start of the day, in his opening remarks, WIPO Director General Francis Gurry acknowledged a “full room” as indicating the importance of the subject matter to be discussed this week. He reminded the delegates of the recent adoption by WIPO members of the Beijing Treaty on Audiovisual Performances [pdf], and the “extremely constructive atmosphere” that prevailed during the Beijing discussions.

All delegations in Beijing, in their closing statements, remarked on the importance of the spirit being observed during negotiations and the importance of carrying it throughout the WIPO work programme, Gurry said. He made a plea to all delegates present “to honour that call” this week.

Gurry also called delegations to make contributions to the voluntary fund, as the fund has only at this stage enough resources to cover one more IGC. The fund helps participants from developing countries to attend.

Indigenous Peoples Seek Nod to UN Declaration in Draft Text

The first half day of the IGC was devoted to the Indigenous Peoples panel, as has been the case since 2005, according to WIPO. The decision dates back to the IGC’s seventh session in 2004.

The theme of this session’s panel was “Intellectual Property, Traditional Cultural Expressions and the United Nations Declaration on the Rights of Indigenous Peoples: Perspectives of Indigenous Peoples.”

Valmaine Toki, vice-chair of the UN Permanent Forum on Indigenous Issues and lecturer at the Faculty of Law of the University of Auckland, New Zealand, said the problem of the process of the IGC is twofold: the first is the ability of Indigenous Peoples to participate meaningfully within the process and the second is to recognise the intrinsic rights of Indigenous Peoples to their traditional knowledge (TK), genetic resources (GR) and traditional cultural expressions (TCEs).

Toki suggested two practical steps to address the process problems: establish an indigenous co-chair to the IGC, and establish a panel of indigenous experts on international human rights law to ensure the text aligns with those basic international human rights norms and principles.

Article 31 of the UN Declaration on the Rights of Indigenous Peoples says Indigenous Peoples “have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions.. including human and genetic resources…. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.”

Also important, she said, is Article 18 on decision-making. It says that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decisionmaking institutions.”

Toki said the UN Permanent Forum on Indigenous Issues (UNPFII) [pdf] met in New York in May for its 11th session and formulated a number of recommendations, some of which were directly related to the discussions in the IGC.

In particular, the UNPFII recommended a general alignment of the draft text of the IGC with the international human rights norms and principles. Another recommendation asked that “WIPO recognises and respects the applicability and the relevance of the Declaration as a significant international human rights instrument that must importantly inform the IGC process as well as the overall work of WIPO,” Toki said.

Mattias Åhrén, head of the Saami Council Human Rights Unit and lecturer at the Faculty of Law, University of Tromsø in Norway, commented on the draft articles of the IGC on TCEs to be discussed this week.

Åhrén also said that it is important to remember the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. He also stressed the need for capacity building for indigenous and local communities.

Paul Kanyinke Sena, a member of the UN Permanent Forum on Indigenous Issues and East Africa Regional Representative, said there was a lack of participation of Africa in the IGC and called donors to increase their contribution for African indigenous communities.

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

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