WIPO Folklore Talks Stalling; Work Continues On New Draft Text

Negotiators at the World Intellectual Property Organization this week are struggling to make headway on a draft text of an international instrument for the protection of traditional cultural expressions, or folklore. And accusations began to fly that certain developed countries are not engaging in good faith to move negotiations along.

“We take two steps forward and five steps back,” the South African delegate told a plenary meeting today. “Why do we come all this way to not be able to negotiate? This is not engagement.”

He called on the chair for protection against uncooperative negotiators. “We cannot continue in this spirit.” For his part, committee Chair Wayne McCook, the Jamaican ambassador, has been relatively forceful in trying to move the negotiations forward. But the issue is very complex as this would be a first-ever treaty/instrument of its kind.

The 25th WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 14-28 July. The first five days are on traditional cultural expressions (TCEs) and the final three days are on overall stocktaking of draft texts of instruments on each of the three committee topics.

The two-year mandate of the committee is up for renewal at the annual General Assembly in late September.

Member states previously agreed to negotiate a legal instrument on the protection of traditional cultural expressions (TCEs) and are under mandate this year – and this week in particular – to make progress toward a diplomatic conference (high-level negotiation). But a number of European delegations and others say they need time to analyse proposals or to consult with their capitals in order to negotiate on proposals emerging in the room this week.

Two neutral facilitators, from New Zealand [corrected] and South Africa, are involved in helping draft two revisions of the text this week. The first revision [pdf] was completed at midnight on 16 July, circulated on the morning of 17 July and was the subject of discussion all day. A second revision is expected on Friday morning. This first revision is only a draft and already has received many prospective changes based on yesterday’s discussions.

But when the first new revision was released yesterday it became quickly apparent that delegations from the European Union, Japan and the United States were not interested in moving forward with much of it, flatly rejecting several of the changes proposed by the facilitators. Through the day, these countries added brackets [signifying lack of consensus] around numerous sections of the text. Developing countries and indigenous groups also resisted some of the changes but tended to come up with alternatives to address their concerns.

This led an African delegate to remark half-seriously afterward that it would have been easier if they had put the whole text in brackets from the start. These negotiations were initiated by developing countries seeking protection from what they perceive as plundering of their cultural resources. Developed countries, generally speaking, have been in a receiving mode all along, hearing proposals and acknowledging which they can live with and which they cannot. They steadfastly oppose a legally binding treaty.

The changes in the first revision from the original version (WIPO/GRTKF/IC/25/4) are in the creation of a Preamble, pulling out broader concepts from the Objectives; Article 1 (subject matter of protection); Art. 2 (beneficiaries of protection); Art. 3 (scope of protection); and Art. 5 (exceptions and limitations). In Art. 1, the facilitators created a table that puts a new African Group proposal on the left side-by-side with the existing text on the right. They also moved the non-exhaustive list of the types of TCEs into a footnote.

The WIPO secretariat has been working to move the negotiations to a resolution. But some speculated that the pending renewal of the IGC mandate could be contributing indirectly to delays, as those who do not want a treaty or binding instrument could see advantage in two more years of simply talking. That would build on more than 10 years on the topic already.

“They are trying to make the document so murky,” said an African delegate. “This is what happens when the mandate comes up for renewal.”

The aim of the treaty is to find a way to protect expressions and practices that are common to a certain grouping of people, so that if others borrow an idea or expression, like a traditional song – the community from which it evolved can be rewarded or at least acknowledged as rightful owners of the original expression. The negotiation could be said to an attempt to apply the intellectual property rights system – or a similar type of right – to communal cultural property.

Western pop singers are known for occasionally hitting it big with songs they based on traditional ones. The songs they produce are copyrighted.

Despite the many years of negotiations, some rather fundamental issues remain unresolved this week. Negotiations are centred on the definition of TCEs, who the beneficiaries of protection will be, the scope of protection, and limitations and exceptions.

Some issues have been sticky for a long time and continue to present challenges, especially as different countries have different national policies on many of these issues. For instance, on who the beneficiaries of this protection would be, countries differ sharply on whether it should include indigenous “people” or “peoples,” or “traditional communities,” or “nations.”

“Peoples” would have a stronger legal impact than “people,” a participant explained. Traditional communities may be too broad for some but it works for others for whom essentially everyone in society is considered indigenous. And “nations” is a way of including the governments themselves who are at the table this week.

Some countries can live with one or another of these terms, some with all three.

The resistance by Europe to the use of the word “peoples” sent some indigenous representatives into a frenzy of charges of neo-colonialism. They argue that this debate was already resolved at the UN level with the agreement of the UN Declaration on the Rights of Indigenous Peoples.

Key issues are what types of expressions should be covered, and some are concerned that it not be made too narrow. Generally, the focus cuts across storytelling, music, dance and other rituals and handicrafts. Negotiators are trying to work out a balance between encouraging innovative uses of existing TCEs, and protection of them. Should the instrument only cover TCEs from antiquity, or could it also apply to newly emerging ones?

Another issue is whether TCEs should be said to be passed on from “generation to generation,” as some countries, such as El Salvador and Colombia, consider that they lost a generation to war, but are still able to carry forward the traditions to the next generation.

The irony of these talks is that the developed country governments and copyright industries find themselves using the precise arguments that developing countries use in other WIPO negotiations – pushing for a strong public domain, preserving access to knowledge, avoiding overly restrictive measures, ensuring exceptions and limitations.

Today, negotiators go back into closed-door informal session of a smaller group to try to make more progress before returning to plenary tomorrow.