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Ten Questions About Internet Governance

On April 23 in Sao Paulo, Brazil, the “Global Multistakeholder Meeting on the Future of Internet Governance,” also known as “NETmundial” in an allusion to the global football event that will occur later in that country, will be convened. Juan Alfonso Fernández González of the Cuban Communications Ministry and a veteran of the UN internet governance meetings, raises 10 questions that need to be answered at NETmundial.


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    New WIPO Text On Traditional Knowledge Protection Cleaner But Issues Remain

    Published on 28 April 2013 @ 7:17 pm

    By , Intellectual Property Watch

    The main goal has been achieved for World Intellectual Property Organization delegates who started last week with the task of improving a document to become an international instrument protecting traditional knowledge. Consensus has not been met on core issues, but a cleaner text has emerged, reflecting a clearer understanding of positions, sources said.

    A new revised version [pdf] (Rev. 2) of the draft instrument text was issued this morning, on the last day of the 24th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which met from 22-26 April. The text will be transmitted to the WIPO General Assembly in September.

    According to IGC Chair Ambassador Wayne McCook of Jamaica, given the complexity of the negotiations this week, only four key articles were discussed: Article 1 (Subject matter of protection), Article 2 (Beneficiaries of protection), Article 3 (Scope of protection), and Article 6 (Exceptions and Limitations).

    The new text is a leaner version of Rev 1, since it does not include comments by the facilitators. Article 1 contains an additional paragraph 1.4 referring to the limits of the protection, and mentioning that the protection should not extend to traditional knowledge in the public domain, and an additional paragraph 1.5 on the use of databases to prevent the erroneous grant of patents. Both of those elements have been contentious and defended by some developed countries, such as European Union members, Japan, and the United States.

    Article 3 still has two major options, one which is rights-based, granting rights to beneficiaries, and the other measure-based, concerning measures to be adopted to ensure the protection of traditional knowledge. Some countries, such as those in the African Group, said both options should be combined into a single one because of their complementarity. But this was opposed by some members such as the EU and Canada.

    Article 6 now contains two defined types of exceptions to the protection: general exceptions, and specific exceptions.

    If all country delegates who took the floor to offer comments hailed progress on the text and the leadership of McCook, they also said some issues are still unresolved.

    A number of developing country delegations had issues with Article 1.2 on the definition of TK associated with genetic resources. In particular, the African Group suggested this could be put in a list of terms. On the new paragraph 1.4 of Article 1, they said it seemed to be an attempt to put limits on the subject matter of protection and suggested that this paragraph be moved to Article 6 on exceptions and limitations.

    TK in the Public Domain: A Core Issue

    In Article 6, the definition of the public domain has been a challenge in the IP system at the national and international level, the South African delegate said on behalf of the African Group. “We would not want to burden TK with the indecision of the IP system collectively in defining the public domain,” the delegate said. “It cannot be a responsibility of TK to solve an ancient long problem.”

    The South African delegate told Intellectual Property Watch later that the public domain is not defined internationally. It also is treated in different ways by different areas of IP, such as copyrights and patents. “It is a contested domain,” he said. There is no disagreement on the fact that it needs to be discussed, he added, but “we need to draw contours around this idea.”

    The issue of the public domain present common challenges for many countries, he said, in particular on the proposal to protect TK in perpetuity. As long as it meets the criteria, and as long as TK is used and maintained by indigenous peoples and local communities, it could be protected, contrary to most IP protection, he said.

    The EU, seconded by Canada and the US, repeated their insistence that the public domain is an issue of “great importance,” and is a key part of the definition of TK.

    Additional Developed Country Texts Turned Away

    Three additional texts were on the table of this 24th IGC session: a joint recommendation [pdf] on GR and Associated TK, submitted by the delegations of Canada, Japan, Norway, South Korea and the US; terms of reference [pdf] for a study by the WIPO secretariat which would measure the merits of mandatory disclosure requirements; and a another joint recommendation [pdf] on the use of databases for TK protection. The two last documents were submitted by Canada, Japan, South Korea and the US.

    The introduction of these texts in previous sessions had already raised concerns from developing countries which considered them as attempts to side-track discussions of the IGC on the text of an instrument that they wish would become a legally binding instrument.

    The proponents of these documents presented them on Friday as means to prevent the erroneous grant of patents by helping IP offices to access prior art information. The study, they said, would measure the costs and benefits of a mandatory disclosure requirement in patent applications. A mandatory disclosure requirement would require patent applicants to disclose the origin of genetic resources in patent applications, and in the present case, genetic resources associated with TK.

    Brazil on behalf of the Development Agenda Group, said the DAG only speaks in the IGC to discuss procedural matters. The three documents have been presented before, and were taken note of during the IGC session on genetic resources (IPW, WIPO, 8 February 2013), the delegate said, adding that the mandate given by the General Assembly stipulates work on the existing draft articles. After 12 years of discussions and gap analyses, he said, the three new proposals would only create a parallel effort that would jeopardise discussion in the IGC. This was supported by India, South Africa, and China.

    Chair McCook reminded proponents that the mandate was to discuss the draft articles and not any other documents. “We will not have a contest of documents,” he said.

    Algeria, speaking on behalf of the African Group, said it had great concerns with the three proposals and did not see the link with the mandate and the document currently being negotiated. They said they were wary of the potential prejudice the proposals could have on the outcome of the IGC.

    Specifically on the terms of reference of the study by the WIPO secretariat which would measure the merits of mandatory disclosure requirements, developing countries said many studies had already been carried out on the subject. South Africa said the terms of reference of the study display a biased approach by focussing only on the erroneous granting of patents instead of also taking into account the impact of misappropriation on indigenous communities. Peru said the study was only taking the perspective of patent offices.

    On databases, the African Group said databases were an important issue that could be addressed once an international binding treaty is established. India concurred.

    The three documents were noted by the IGC. The WIPO Secretariat issued draft decisions of the 24th session [pdf], which were approved with no modification except the addition of a mention in item 5 of the draft decisions stating that the three tabled documents have been noted.

    Several delegations pointed out that the text, as it stood, needed more work and some differences still needed to be breached. They said they were looking forward to the stock-taking exercise which is expected to take place in July, at the end of the IGC session on traditional cultural expressions, from 15-24 July. The EU said key issues were not solved and policy approaches divert widely as the EU, for example, thought the protection of TK should be addressed by a non binding instrument. The IGC was established by the WIPO General Assembly in October 2000. Its mandate has been renewed several time and the current mandate expires in 2013.

    The texts achieved in IGC 23 on GR and IGC 24 on TK are expected to be transmitted to the General Assembly and are not meant to be reopened, McCook told Intellectual Property Watch, although member states might decide to make some comments or additions.

    An Unusual Mirrored Exercise

    As noted by a developing country delegate, in the IGC, developing countries are the demandeurs of a legally binding instrument protecting TK, GR and traditional cultural expressions. In this context, developed countries put forward much of the same arguments that developing countries present in other negotiations in order to retain flexibility and policy space. For example, the delegate said, developed countries in the IGC are keen to reduce the subject matter of protection, and its scope, but are insistent that exceptions and limitations are widely available.

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

     

    Comments

    1. Top 10 Weekly IP & Patent News Update - Article One Partners says:

      [...]  WIPO Text on Traditional Knowledge Protection Cleaner, But Issues Remain – Intellectual Property Watch  [...]

    2. WIPO Members Back In Negotiations On Protection Of Traditional Cultural Expressions | Intellectual Property Watch says:

      [...] New WIPO Text On Traditional Knowledge Protection Cleaner But Issues Remain [...]

    3. Report Seeks To Advance Discussions On Shared Traditional Knowledge | Intellectual Property Watch says:

      [...] The study also hints that monetary benefits should be shared with indigenous people and communities even when their TK has already entered the public domain, an issue on which WIPO members found themselves at odds last April, during the text-based negotiations on the document to become an international instrument protecting traditional knowledge (IPW, WIPO, 28 April 2013). [...]

    4. South Africa To Launch National Traditional Knowledge Recording System | Ethnos Project says:

      [...] the NRS is publicly available but it is not in the public domain, as it belongs to the communities (IPW, WIPO, 28 April 2013). In the system, all contextual information about traditional knowledge is translated into English, [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

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    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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