WIPO Governments Push On New Folklore Treaty Text; Indigenous Peoples Disappointed

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After a late start, delegates at the World Intellectual Property Organization today are trying to make up for lost time in an attempt to draft a potential treaty text to protect traditional cultural expressions on the last day of a weeklong meeting. The first revision of draft articles was issued yesterday at the end of the afternoon. The status of Indigenous Peoples was also examined by delegates the day before without much interest.

Combined efforts by a facilitator, Kim Connolly-Stone of New Zealand, and a group of experts from the regional groups in informal meetings for most of 11 and 12 July, yielded the first amended version of draft articles [pdf] coming from the 19th session of the WIPO Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) which took place in July 2011. The revised draft articles also contain comments by the facilitator.

The 22nd session of the IGC is taking place from 9-13 July.

The start of the session was delayed by the inability of the WIPO delegates to agree on the agenda at the start of the week (IPW, WIPO, 9 July 2012).

The plenary resumed briefly at the end of the afternoon on 12 July to allow for the text to be distributed to delegates and for Connolly-Stone to go over the main changes made to the set of draft articles [pdf] from IGC 19.

The plenary reconvened this morning so that delegates could make comments about the text for the record, Chair Wayne McCook said, adding that there would be no live drafting of the text. They went through all 12 articles with many comments, and left off for lunch with the objectives and principles.

Connolly-Stone first explained that as facilitator she considered and revised all 12 draft articles, and only articles 1, 2 and 5 were further amended by the experts group. The aim of the revision was to reduce the number of options and simplify the text, she said.

In Article 1 (subject matter of protection) a slight structural change was made, using two sub-headings: definition, and eligibility criteria, as was done in the draft articles on traditional knowledge, she said. Options one and two of this article have been combined into a single option in which she said areas of divergence were identified and submissions made during the early part of the week added.

Article 2 (beneficiaries) has just one option instead of two in the original text as the expert group tried to come up with one option reflecting all the issues that had been raised, Connolly-Stone said. The option contains brackets around specific issues, such as “local communities,” “who hold, maintain, use or develop” the traditional cultural expressions.

Policy options that were identified at IGC 19 in Article 3 (scope of protection), with one approach being flexible versus a more prescriptive approach have not really changed, she said. The option on equitable remuneration was deleted as she did not hear any support for this option either in IGC 19 or earlier this week.

According to the facilitator, Article 4 (management of rights) now has two options instead of one, the first is merging all previous options, and option two is a much shorter version, she said.

In Article 5 (exceptions and limitations), two options have been combined into one with brackets left to signal differences, in particular on mandatory exceptions for independent creation and permitted acts under copyright and trademark law.

In Article 6 (terms of protection), paragraph 3 of option 1, dealing with secret traditional cultural expressions, was removed. In Article 7 (formalities), which consists of one sentence: “As a general principle, the protection of traditional cultural expressions shall not be subject to any formality,” the facilitator just bracketed the opening phrase “As a general principle” as suggested by one delegation, Connolly-Stone said.

Article 8 (sanctions, remedies and exercise of rights) was restructured so that it better reflects the areas of agreement and divergence, she said. Main differences lie in measures being provided in accordance with national laws, or sanctions and remedies through enforcement and dispute-resolution mechanisms, including border-measures.

Very few changes were made to Article 9 (transitional measures), while in Article 10 (relationship with intellectual property protection and other forms of protection, preservation and promotion), Connolly-Stone said she tried to accommodate two very different approaches.

One of those approaches is to focus on IP international agreements, while the other one wishes to focus on non-IP agreements, and in particular those dealing with cultural heritage, she said. She summarised those two approaches with: “protection under this instrument should/shall take account of and operate consistently with, other international instruments including those dealing with intellectual property and cultural heritage” There were no changes in Article 11 (national treatment).

Keeping Indigenous Peoples in Their Place

During IGC 21, held from 16-20 April, the committee asked that the WIPO secretariat prepare an information document on practical, procedural and budgetary implications of suggestions put forward by the Indigenous Caucus.

On 11 June, in parallel with the expert group working on the draft articles, the plenary met to discuss document GRTFK/IC/22/Inf10 [pdf] on the participation of observers and particular on the status of Indigenous Peoples and the suggestions they had put forward in April.

Co-Chair Bebeb A.K.N. Djundjunan of Indonesia, chairing the plenary while McCook was attending the expert group, proposed to take comments from the delegates on the six proposals made by the Indigenous Caucus. The United States delegate said that document GRTFK/IC/22/Inf10 is an information document and that the plenary was only supposed to take note of it. The same remark was made by the European Union.

Djundjunan said the aim was to get feedback from delegates about the Indigenous Peoples’ suggestions. Wend Wendland, director of the Traditional Knowledge Division at WIPO, said no decisions could be taken on the basis of the document as such, but going over it in plenary was expected to allow member states to make proposals “flowing from the document” on each of the suggestions.

The delegate of Sri Lanka supported going through the six proposals. The Indigenous Caucus made a statement on the participation of Indigenous Peoples in the IGC [pdf] (in English), (in French), (in Spanish). In particular, they called on the IGC to adopt the recommendations of the United Nations Permanent Forum on Indigenous Issues, resulting from the “Comprehensive Dialogue with the World Intellectual Property Organization” on 10 May 2012 [pdf].

The first suggestion of the Indigenous Caucus was to create a new category for the participation of Indigenous Peoples, including the right to submit proposals, modifications and motions, and the right to vote. Indigenous Peoples are currently considered as observers and have the same prerogatives as other observers. In particular, any proposals made by Indigenous Peoples have to be supported by at least one member state to be considered by the committee.

According to the WIPO secretariat’s information document, under the WIPO general rules of procedure, participants in the IGC “may fall in either of the two following categories: they may be recognized as ‘delegates’ under Rule 7” or “they may be recognized as ‘observers’ under Rule 8.”

The recognition of a new status for Indigenous Peoples that would be different from observers “might imply either that those participants would be categorized as ‘delegates’ (option 1), or that a new category be introduced for indigenous peoples (option 2).”

Australia asked for clarification from the Indigenous Peoples representatives as to what they were considering. The Indigenous Caucus said that “clearly Indigenous Peoples are not states,” but they wished to have a special status that would give them the opportunity and the right to submit text proposals, to make amendments, motions, and to vote within the IGC process.

The United States said it would not support either option 1 or 2 “or anything which would elevate the status” of Indigenous Peoples at this time, due to the intergovernmental nature of the committee. This approach was supported by Russia, which said considering a new status would require further clarification.

The committee went through the six proposals without much comment or support from member states. Australia, Norway and Sri Lanka supported the 5th suggestion asking that “the Secretariat consult with the Chair of the Indigenous Caucus, inter-sessionally, regarding selection of panelists for the Indigenous Panel.”

An Indigenous Peoples’ representative told Intellectual Property Watch that the discussions were fruitless, and the absence of a decision on the document seemed like a bad omen on further considerations of the Indigenous People’s suggestions.

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

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  1. […] 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 was made reflecting work on these articles (IPW, WIPO, 13 July 2012). […]

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