WIPO Folklore Talks Headed To Assembly; Treaty Negotiation Unlikely In 2013

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The World Intellectual Property Organization committee addressing protection of traditional cultural expressions (folklore) concluded a weeklong meeting today with progress on a draft text but doubts about moving to a high-level diplomatic conference in 2013, according to participants. The issue now moves to the annual WIPO General Assembly in October, where some said the debate may become more heated.

It is time now for “intense” negotiations, the meeting chair, Jamaican Amb. Wayne McCook, told the plenary at the end. “The time for comfortable engagement is past, if we’re going to make the next period of our work count.”

The 22nd Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) met from 9-13 July.

McCook led the way to adoption at meeting’s end of a set of “Decisions of the Twenty-Second Session of the Committee” [pdf]. There was a discussion at the end of the meeting, particularly from the United States and Canada, about whether the document reflected concerns they had raised during the week. It was agreed to add brackets (meaning it is not agreed) to points in draft text of the instrument to reflect their concerns.

The 11 decisions, pertaining to the meeting agenda items, were broadly worded statements saying that discussion was held and views were expressed. Perhaps the stickiest agenda item was on future work, where developed countries tried firmly to raise it and some developing countries held their ground, apparently out of fear that it was a side-door attempt to renegotiate the committee mandate.

The 2011 General Assembly renewed the IGC mandate for the 2012-2013 biennium [pdf]. The mandate calls for the IGC to “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.

The mandate also said IGC 22 should focus on four key articles: Article 1 on the subject matter of protection; Article 2 on beneficiaries; Article 3 on the scope of protection; and Article 5 on exceptions and limitations. During the week, with the help of a facilitator, a revised draft text [pdf] was made reflecting work on these articles (IPW, WIPO, 13 July 2012). Further comments on this week’s draft text made today by member states will be included in the meeting report.

The committee set out to make progress on a draft text that is supposed to take the shape of an “international legal instrument,” based on the mandate agreed by members at last year’s General Assembly. But long-simmering disagreement over whether this means negotiating a “legally binding” instrument (sought be developing countries) or something softer (developed countries) is coming to a head.

The mandate also said that the 2012 Assembly will decide on whether to proceed to a diplomatic conference on the issues of traditional cultural expressions, traditional knowledge and genetic resources. Texts have been advanced on all three areas, with genetic resources lagging somewhat. But there is disagreement on whether the diplomatic conference should take place, or at least on what should be negotiated there.

There also remains no decision on whether there should be three separate instruments for each topic area, or one combined instrument.

There appears to never have been a diplomatic conference at WIPO on a non-legally binding instrument, and it seems implied to many that it also was intended this time to be binding.

“When you say dipcon [diplomatic conference], it is a binding instrument you are talking about,” a delegate from the African Group told Intellectual Property Watch. “We are not concerned about the attempt [by developed countries] to renege [on the commitment to a legal instrument] but rather the way they are trying to do it. They’re trying to reopen the mandate” set by the General Assembly.

But developed countries claim they have always had a different interpretation of “international legal instrument,” and are stridently pushing for something non-binding, like a declaration or a set of recommendations. They also said that the IGC in the past has provided input on future work of the committee to the Assembly, and this should not be different.

The current IGC mandate is for two years and so normally would not be discussed again until the 2013 General Assembly. There is only one meeting of the IGC currently scheduled for 2013. The upcoming October 2012 General Assembly is intended to take stock of where the IGC got to since last year and give instructions for the second year, perhaps adding a meeting or two to next year’s calendar in order to allow completion of work toward the international instrument(s).

A developed country source suggested that the non-binding instrument might be like the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) itself, which was raised during the week by indigenous groups demanding more rights in the committee proceedings. But ironically, the ease with which developed countries this week ignored indigenous concerns based on the non-binding UNDRIP may have provided more evidence to developing countries that soft law would not be effective in these matters.

Indigenous Groups’ Voices in the Wind

Indigenous groups attending the meeting from around the world continued to try to gain a higher status than ordinary WIPO observers, so that they could vote on proposals and have more say in the proceedings. They were given a greater ability to speak during plenary session of the meeting but were not successful in changing WIPO rules nor obtaining textual language they sought, and issued a strongly worded closing statement today.

“In spite of our repeated demands, and the recommendations of the UN Permanent Forum on Indigenous Issues, we are greatly disappointed that the IGC has not taken substantive and concrete steps to ensure the full, equal, and direct participation of Indigenous Peoples in WIPO processes that affect us,” it said.

They said their lack of participation “calls into question the legitimacy of the outcomes of the IGC processes.” They said they reserve all rights to every aspect of their cultural heritage.

The Indigenous Peoples closing statement is here [pdf].

In closing, McCook urged members to talk to each other and try to understand each other’s limitations and specific circumstances. “Less rhetoric, more dialogue,” he said. Several delegates told Intellectual Property Watch that they would be open to informal discussions, but that nothing had been formally planned yet.

WIPO in August will hold a first-time meeting of South-South cooperation on issues including those of the IGC.

After the meeting, McCook told Intellectual Property Watch that the meeting made progress, and that it is a “dynamic process,” but time is a factor. “Within the time we had, members engaged seriously and constructively,” he said.

William New may be reached at wnew@ip-watch.ch.

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