WIPO Committee To Decide Fate Of Treaties To Protect TK, Genetic Resources, Folklore

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World Intellectual Property Organization committee members will decide by tomorrow whether to recommend WIPO move to final high-level negotiations on the protection of genetic resources, traditional knowledge and folklore.

The 25th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), taking place from 15-24 July.

All delegations taking the floor in a 22 July WIPO committee meeting appeared to support the continuation of the work of the committee for another two years. But only developing countries insisted on the binding character of the instrument or instruments being discussed in the committee, and the need to set a clear date for a high-level meeting (diplomatic conference) during the next biennium.

After a week described as difficult by delegations, WIPO members on 22 July launched into a three-day stock-taking exercise to evaluate progress made, identify areas of specific concern, and future work on the protection of genetic resources, traditional knowledge and folklore (traditional cultural expressions).

This IGC session has a double purpose. One was to advance work on a draft instrument protecting specifically traditional cultural expressions (TCEs) during the first five days (IPW, WIPO, 18 July 2013).

The other is the stock-taking of TCEs, and – based on earlier meetings this year - genetic resources (GR) (IPW, WIPO, 8 February 2013), and traditional knowledge (TK) (IPW, WIPO, 28 April 2013).

Last week on TCEs, efforts to clean the draft text of brackets were laborious. A first revised version of the draft text was issued on 17 July, and a second revision [pdf] of the text was released on the last day (19 July), with the plenary agreeing to transmit it to the WIPO General Assembly in September.

Diplomatic Conference in 2014-2015 Biennium?

Algeria, on behalf of the African Group, said the IGC is of particular importance for the African continent and the conclusion of the IGC would lead to an increase in development and wealth of its population.

In the three draft texts, the issues are clearly set, the delegate explained, citing the subject matter of protection, the beneficiaries of the protection, the scope of protection, and exceptions and limitations.

As a way forward, the African Group asked that the mandate be renewed and that a clear time line be established, with a number of sessions of the IGC determined so that the texts are ready for a diplomatic conference. The need for thematic sessions and cross-cutting sessions of the IGC should be recognised, the delegate said.

This was supported by a large number of developing countries, such as the Group of Latin American and Caribbean countries (GRULAC), and a “like-minded group,” represented by Indonesia, Brazil, Egypt, India, and South Africa, who said it is “quite evident” that some member states are showing a lack of political will. Many developing countries who took the floor deemed the texts mature enough to plan for a diplomatic conference.

Belgium, on behalf of the Group B developed countries, said the group is seeking a balanced outcome for protection of TK, TCEs and GR. The result, the delegate said, should be a solution that provides clarity, legal certainty and flexibility for all stakeholders. Despite progress on the texts, outstanding issues remain, he said.

“We do not find that our discussions have yet resulted in outcomes that lend themselves to be the basis for an instruments, or instruments of a legal nature whether binding or non-binding,” the Belgian delegate said. He added that Group B continues to believe that successful outcomes are achievable but that any outcome mutually decided should acknowledge that the protection of TK, TCEs and GR should not adversely affect creativity and innovation.

The United States said that within WIPO, the topic of IP has different levels of support with some strong supporters of IP protection and others in favour of a weaker protection, some promoting harmonisation of systems while others promote exceptions and limitations to IP rights. It is thus not surprising that developing consensus on issues addressed in the IGC is time-consuming, it said.

“We would like to avoid any commitments that would prejudge the outcome of our work,” the US delegate said.

Detailed discussions of facts and a meaningful technical discussion have been lacking in the process he said, calling for studies on the use of a mandatory disclosure requirement in patent applications, which would be helpful to the debate. With room for discussion of specific examples and the opportunity to be informed by studies, “the US can support the extension of the IGC mandate,” he said.

TCEs “Most Frustrating Meeting of the Year”?

Australia delivered a stern statement saying that last week’s discussions on the TCEs text had been “perhaps the most frustrating of our meetings this year,” in contrast to the progress achieved on GR “with disclosure proponents agreeing on an administrative approach to disclosure rather than substantive examination, this was a significant shift in position from a number key countries.”

Although TK did not achieve such progress, discussions were conducted in a very positive spirit with robust but respectful discussions, he said. He called for delegations, as a way forward, to better capture the spirit of these meetings than last week.

He also asked that delegations come to the IGC “prepared to discuss core policy issues of substance and engage collaboratively with each other, and not use the excuse ‘I must contact capital’.” At this stage, the delegate said, “Australia would hope member states are appropriately represented by capital of Geneva-based staff of sufficient seniority, technical and policy competence, and authority to negotiate, based on a clear negotiating strategy in good faith.”

He also called for delegations “not divide our negotiations into a north-south debate,” stating that Australia was considered as a developed country but “has much in common with developing countries.”

Australia aligned itself with Group B and said more work is needed, supporting the extension of the IGC mandate.

Mandatory Disclosure, Public Domain

A number of developed and developing countries said a critical issue blocking progress in the GR discussions is in relation to the mechanism requiring disclosure of origin of genetic material. On this subject, Australia noted that “many arguments against disclosure reflect a dated position not based on what is on the table, an administrative approach not based on substantive examination.”

The EU said the disclosure requirement would create legal uncertainty and there is still disagreement whether disclosure should be included in the instrument or not. The EU also said that it was important on TK and TCE to make sure material to be protected was not already in the public domain. This concern was shared by several developed countries, such as the US.

Developing countries are strong proponents of mandatory disclosure.

The indigenous community called for the committee to take into account other international instruments, in particular human rights laws. The representative of the Tulalip Tribes said the public domain is a copyright concept.

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

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