WIPO Members (Again) Intensify Talks On Genetic Material, TK, Folklore

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World Intellectual Property Organization members this week agreed to a year-long plan to intensively negotiate for a legal instrument(s) on the protection of genetic resources, traditional knowledge and folklore. Next year’s annual WIPO assembly in October will decide on whether to schedule a diplomatic conference to finalise the instrument.

The agreement required intensive closed-door informal negotiations for several days during the week, and yet, the 12-month plan looks a lot like the last 12 months, which resulted in some progress but no breakthroughs. The success of next year’s plan hinges on fuller engagement by all parties, particularly those in Europe and North America, participants said.

The plan is for the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) to meet three times, with the final meeting extended several days to prepare a recommendation to the General Assembly. Folklore is also referred to as traditional cultural expressions.

The heavily bracketed IGC texts put before the Assembly are available here. The WIPO General Assemblies are taking place from 1-9 October.

The adopted IGC work plan is available here [pdf].

The IGC meetings will be in February (genetic resources), April/May (traditional knowledge), and July (traditional cultural expressions plus review of all progress).

Each subject meeting will be five days, and three extra days will be added on the July meeting to take stock of the international legal instrument or instruments and make a recommendation to the 2013 Assembly. The hope of proponents is to hold a diplomatic conference (high level negotiation) in 2014.

The traditional knowledge meeting in April/May will focus on four key articles: subject matter of protection, beneficiaries, scope of protection, and limitations and exceptions.

The July meeting on traditional cultural expressions will focus on the same four key articles as well. The final three days also should include a discussion of future work.

It is expected that informal consultations on key issues also will continue during the year as well, though no decisions will be taken except in the full committee, officials said.

The 2012 schedule was nearly identical, though the genetic resources issue was not as far along, and the Assembly was not called upon to decide on a diplomatic conference.

IGC Chair Wayne McCook, the Jamaican ambassador, reported to the Assembly plenary on 5 October that 3 and 4 October informal negotiations with “regional coordinators-plus-three, and other interested parties” had been “intense and lengthy.”

McCook put delegations on notice that for the coming year, making a “deeply held appeal” that all should “prepare to engage creatively in the negotiations,” and that “the degree of difficulty sets a demand for a degree of commitment.”

Both proponents and others claimed to have shown flexibility in negotiations this week.

Developing countries said in plenary that they had sought four meetings during the next year, and therefore had shown flexibility in agreeing to only three, with the final one extended three days.

Group B developed countries said they showed flexibility in allowing a three-day extension to the final meeting, something they do not want to become a habit at WIPO meetings. Group B members also said they have observed “divergences and sometimes conflicting” aspects in the text, but are “willing to continue.”

Indigenous Groups Fighting for Rights

An indigenous representative from Incomindios at the Assemblies addressed the plenary and urged that Indigenous Peoples be given an equal place at the table with governments who are deciding their fate. It is not enough to be an observer; they need the right to submit proposals, amendments, and to vote, he said.

“Without our equal participation, there will be no check and balance against the will of States and multi-national corporations to develop an instrument or instruments to protect us against exploitation,” the statement said.

The Incomindios statement is available here [pdf].

“It is not acceptable to reduce our rights to the lowest common denominator for Indigenous Peoples while promoting broader “States rights” standards that allows States and other parties to take our property without our free, prior and informed consent,” the indigenous group said in its statement. “We reserve all of our rights to every aspect of our cultural heritage, including our Indigenous Peoples’ knowledge, Indigenous Peoples’ cultural expressions, and Indigenous Peoples’ genetic/biological materials.”

Battleground IGC: Searching for the Spirit of Beijing

WIPO and its members have bent over backwards this week to hail the accomplishment of the new Beijing Treaty on Audiovisual Performances reached in June. And some are wondering how to infuse the complex IGC talks with that spirit.

South Africa gave particularly sharp words for the apparent low level of engagement by some delegations. It said that the only development in the IGC during the past 12 months – despite intensive meetings – was the development of a single document on genetic resources from which to work.

“IGC became a battleground,” South Africa said. “The Beijing spirit was absent from the IGC. Rather, the committee was dominated by brinkmanship.” The country called for a “radical … mind shift” on the part of all delegations.

Zimbabwe did not mince words either. “For how long shall we continue to call for IGC’s work to be expedited?” the representative asked. “It’s high time we reach finality.”

Zimbabwe took aim at the “foot-dragging” on the part of some delegations (often said to be the developed ones whose industries – like pharmaceuticals – may benefit from the absence of a stricter international regime controlling what they extract and develop from developing country resources).

“We should translate these beautiful statements into actions,” the representative said. The last few days showed that in the IGC, “the spirit of Beijing had withered away.”

Africa’s resources “[have] been misappropriated for centuries,” Zimbabwe said, and “cannot be protected by soft law.” Furthermore, WIPO does not issue recommendations, it issues treaties, he said, adding, “Those who do not like it do not have to sign it.”

The African Group in general said it “attaches great importance” to these issues, which it said will lead to growth and expansion in the region. It particularly encouraged more work to be done on genetic resources, and asked assurance that work is kept in line with the 2007 WIPO Development Agenda.

Algeria called for a legally binding instrument, and appealed to all member states to “show genuine commitment and not just statements of intent.”

Zambia said it has “abundant” resources such as dances or traditional medicines, and will lose out on their benefits without adequate protection.

Nigeria said “we expect an effective legal instrument,” and that “there is no point in wasting the resources” of past years if it is not going to be binding.

But the European Union said the IGC text should be “flexible, sufficiently clear, and non-binding.” It also reminded the Assembly that “no decision has been reached” as to the nature of the instruments. There has long been disagreement over whether talks will produce a treaty or something softer.

The work of the group is “far from mature,” the EU said. The regional group can “go along with” the work programme, it said, despite misgivings about the three-day extension.

Canada said there are still many differences and that it is “counterproductive to hurry a process when the content is not yet mature.”

Norway said it can agree to a legally binding instrument for traditional knowledge and traditional cultural expressions with a “robust public domain and reasonable exceptions.”

Switzerland said a commitment is needed to come closer to each other’s positions, and that the emphasis should continue through the multilateral approach of the IGC, with inclusivity and transparency.

India said that its own rules have been very effective in preventing misappropriation, but that an international legally binding instrument is needed.

The Development Agenda Group (DAG) said it was “deeply disappointed” that it took so long just to agree on the number of days to meet next year. It said informal consultations can play a key role, and can report back to the committee, which is “the only legitimate forum.”

It is “arguable” that the genetic resources text needs more work than the other two areas, the DAG said. Inclusion of a mandatory disclosure requirement is crucial, it said. This usually means the origin of genetic resources must be stated in patent applications. Political will is necessary to move the texts to a higher level of maturity by the Assemblies, the DAG said.

Ethiopia said these instruments “would end the current imbalance in the world intellectual property system.”

Hungary on behalf of the Central European and Baltic States said negotiations had reduced the number of options in texts, and identified key policy issues.

China, which is its own WIPO regional group, said the text-based discussions in IGC are fruitful and consultations should continue. China spoke up more often during the week than in the past, but only to issue terse agreement to the actions before the Assembly.

Australia said these are complex issues requiring flexibility for national implementation. The representative said that until recently, governments had not really been negotiating. Rather, they had just been “restating positions.” Now, however, “we know what divides us,” and need to start negotiating these, he said.

Australia and others raised the importance of respect for Indigenous Peoples’ culture and resources. The country recently made a donation to the Voluntary Fund that brings indigenous representatives to the IGC meetings.

Indigenous participation is crucial but the fund is no longer sufficient, Switzerland told the plenary, calling on states and other sources to help out with donations, as Switzerland has already done twice.

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

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