WIPO Assembly Approves New Work Mandate On GR, TK Protection

The World Intellectual Property Organization General Assembly today renewed the mandate of its committee working on the protection of genetic resources, traditional knowledge and traditional cultural expressions. The full membership approved a deal reached in an informal session on 27 September, and statements made today showed that profound differences remain.

At the close of the first week of the WIPO General Assembly meeting, taking place from 23 September – 2 October, delegates meeting in informal consultations reached an agreement on the renewal of the mandate, and details of the work programme of the committee (IPW, WIPO, 27 September 2013).

According to the document [pdf] adopted by the Assembly, which had only a minor change from the preliminary agreement published by Intellectual Property Watch on 27 September, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) should report to next year’s General Assembly so that it can take stock of progress made in 2014, and decide on convening a diplomatic conference.

It is still unclear whether there will be one instrument for all subjects or three separate ones. Whether it will be considered legally binding or not also remains in question.

Member states delivered statements today which reaffirmed their positions, and their divergences.

Developing countries are largely in favour of an international legal binding instrument(s), while a number of developed countries insist on a non-binding instrument. The perception of the maturity of the texts is also different from one group of countries to the other. Developed countries consider that much more work needs to be done on the texts, while a number of developing countries deem that substantial progress has been made and what is really lacking in the process is political will.

Some groups showed compromise. For example, developing countries agreed to the possibility for members of the IGC to request studies to inform the discussion of objectives and principles and a mention was added to the effect that those studies will not delay progress and preconditions to the text-based negotiations.

Developing countries such as the Latin American and Caribbean Group, India, and the African Group, indicated that a high-level negotiation (diplomatic conference) should be convened in the next biennium (2014-2015).

Nature of the Instrument

India said it had taken a number of steps at national level to protect genetic resources (GR), traditional knowledge (TK), and traditional cultural expressions (TCEs). But trans-boundary protection remains an unaddressed major challenge, said the delegate. Such a normative gap, she said, can only be closed by developing an international legally binding text on the three subject areas. India also asked that it be placed on record that it was not the position of India to allow additional studies since a large number of studies have already been conducted, she said.

The European Union reiterated that the preference of the EU member states was to reach a non-binding and flexible instrument(s) and said no decision had been reached on the nature of the instrument. Canada called for a clear, flexible and pragmatic outcome that preserves legal certainty. Germany said the renewal of the mandate is necessary considering the work left to be done and the outcome should be a legally non-binding instrument.

The US remarked that the texts coming out of the IGC meetings are still heavily bracketed, reflecting that countries are still far from agreement. First, consensus should be found on the principles and objectives and fundamental provisions of the potential instrument(s), the delegate said, adding that the US believes that the subject matter of the IGC is not mature for a diplomatic conference and the convening of a diplomatic conference would prejudge the outcome of the negotiations.

Australia, Switzerland: Middle Ground

Australia, which along with Switzerland has taken a “middle ground” approach in past IGC sessions, said some member states experienced frustration at the slow pace of negotiations but those negotiations were complex and considering new norms could impact the IP system and “the wider social policy.”

Norms discussed in the IGC also intersect with other international instruments, including the UN Declaration on the Rights of Indigenous Peoples, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, as well as “norms under consideration within UNESCO [UN Educational, Scientific, and Cultural Organisation], WTO [World Trade Organization], and WHO [World Health Organization],” said the Australian delegate. The facilitator of the informal consultations leading to the consensus this week was Ian Goss of Australia.

“One size will not fit all, critical will be establishing a flexible agreement which provides implementation flexibility at the national level,” the Australian delegate said.

Switzerland said substance must remain at the centre of the process and said the 2014 General Assembly should assess progress and consider, among other possibilities, the convening of a diplomatic conference.

Some countries, such as Thailand and Switzerland, called for member states to participate in the WIPO voluntary fund so that indigenous peoples can participate in the next IGC meetings.