Amid Proposals, Ambassadors Fail To Unlock WIPO Talks On TK, GRsPublished on 4 February 2014 @ 10:34 am
By Catherine Saez, Intellectual Property Watch
The World Intellectual Property Organization committee working on ways to protect genetic resources and traditional knowledge opened a weeklong meeting yesterday by gathering country ambassadors to try to inject momentum into discussions. But after the session, it appeared that many delegations had restated known positions. Everybody seemed to agree on broad goals, but not on the way to reach them.
The 26th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 3-7 February.
A decision by the WIPO General Assembly last September renewed the mandate of the IGC for another two years (IPW, WIPO, 30 September 2013). The IGC is aiming to offer protection to genetic resources, traditional knowledge and traditional cultural expression against misappropriation.
The General Assembly also decided that, “At the beginning of IGC 26 an Ambassadorial/Senior Capital-Based Officials meeting will be held to share views on key policy issues relating to the negotiations, to further inform/guide the process.”
According to a number of country delegates, the meeting proved disappointing. Even if it was useful to clarify countries’ positions, the same hurdles seemed to be getting in the way of consensus, sources said, one of which is the nature of the instrument(s), whether it should be legally binding or not.
A developing country delegate told Intellectual Property Watch that technical experts attending the IGC sessions do not have the mandate to make compromises, hence the ambassadorial/senior capital-based officials meeting. However, positions were merely restated he said.
Another developing country representative said there were “no hints of breakthrough” and a “strong feeling of frustration.”
A developed country source said the meeting had some merits, in particular to bring “some new people into the room,” and that the fact that the questions put forward by the chair allowed member states to reflect on “big picture” issues.
The discussion was organised around four questions addressed to ambassadors: what are the key policy issues and why; what are the suggestions for common ground; which issues belong to an international or a national instrument; and what process and what new modalities might advance the process.
In the afternoon, IGC Chair Wayne McCook, the Jamaican ambassador, read out the key points and what he characterised as “his initial reaction” to the morning session. In particular, he said there is a general view that misappropriation of genetic resources, traditional knowledge and traditional cultural expressions (folklore) legitimately held by owners is not acceptable.
This is at the heart of the work of the committee, which has been discussing for years how to prevent misappropriation and biopiracy. However, it appears not all delegations have the same definition of the objectives of the instrument to be developed. For instance, a developed country source told Intellectual Property Watch that work needs to be done to agree on objectives and principles.
McCook also reported that a number of delegations said the instrument being developed should be aimed at avoiding the erroneous granting of patents, and that it should assist with the prevention of poor quality patents.
The chair noted general support for disclosure of genetic resources in patent applications but no consensus whether it should be mandatory or not.
The relationship with other international instruments was also discussed with different points of views, he said.
Some delegations said the instrument being discussed should reinforce existing instruments such as the UN Convention on the Biological Diversity and 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, he said. But some other delegations do not favour any interference.
Divergence was also noted on whether the instrument should be binding or non-binding, or if some issues should be left to be dealt with at national level or not.
Past IGC sessions have shown that developing countries are largely in favour of an international legal instrument or instruments. Developed countries are in favour of a non-binding instrument or instruments.
Disclosure Requirement: “Key Normative Issue”
This week, delegates are expected to work on a draft text [pdf] on the protection of genetic resources.
McCook prepared a non-paper [pdf] reflecting the state of discussions after the last session in which he listed the IP issues associated with genetic resources, presenting the different positions on each subject, the objectives that the IGC was aiming to achieve, the solutions that are proposed to deal with the issues.
The last part of the non-paper is devoted to the proposed disclosure requirement, which he describes as “the key normative issue” of the discussions.
In particular, some of the issues are: the subject matter of the disclosure requirement; if it should apply to GR and associated traditional knowledge (TK); the nature of the obligation to disclose, the type of information to be disclosed; the trigger for disclosure; how the requirement would be implemented; and would any forms of compensation would be required.
Some of the statements delivered in the ambassadors meeting showed strong positions. The European Union said in its statement [pdf] that any disclosure requirement should have “a specific form with safeguards … to ensure legal certainty, clarity and appropriate flexibility.” They reiterated their preference for a non-binding instrument.
The African Group in its statement [pdf in French], said biopiracy is rampant and local communities’ rights are still being trampled. They asked for the convening of a high-level meeting in 2015 to reach an international legally binding instrument.
The ambassador of Mozambique delivered a statement [pdf] in which he said that “well-established principles of international law and intellectual property law already set the stage for the recognition within WIPO that all creativity is equal, and that knowledge in its various forms has economic and cultural value that can be appropriated or misappropriated.”
The outcome of the negotiation process should “contribute to an outcome that strengthens a number of WIPO’s organizational mandates including the promotion of intellectual property for development, strengthening the interests of developing countries in a more comprehensive regulatory approach to the protection of knowledge goods, and ensuring that the rights and interests of all knowledge creators, no matter where they reside or how they are categorized, is protected,” the ambassador said.
Switzerland, which has adopted a disclosure requirement in its legislation, gave a statement [pdf in French] with six guiding principles. The first is transparency. By introducing a mandatory requirement of origin of genetic resources and traditional knowledge in patent application, the patent system will reinforce transparency, both in accessing those resources and in the sharing of benefits. Predictability is also key, they said, as it will allow patent applicants to know exactly which information they should provide and where to get it.
Legal certainty for all stakeholders, practicability and usefulness of the system were also among the guiding principles.
On the Table this Week
This morning, delegates are expected to work in informal technical groups on the draft text carried over from the last session (IPW, WIPO, 8 February 2013).
Two joint recommendations are also under consideration.
The first one [pdf], a joint recommendation on genetic resources and associated traditional knowledge, was submitted by Canada, Japan, Norway, South of Korea and the United States, and aims in particular at the prevention of the erroneous grant of patents.
The second one [pdf] is a joint recommendation on the use of databases for the defensive protection of genetic resources and traditional knowledge associated with genetic resources, also put forward by Canada, Japan, South Korea and the US.
This second joint recommendation also aims at preventing the erroneous granting of patents with the use of databases. A proponent of those joint proposals told Intellectual Property Watch that agreeing on the joint recommendations would not prevent the IGC from pursuing work on an international instrument. The two joint recommendations, which would be immediately applicable, if agreed on would “inject some energy in the committee’s work.”
Canada, Japan, Norway, Russia, South Korea, and the US also submitted a proposal [pdf] for the terms of reference for “the study by the WIPO secretariat on measures related to the avoidance of the erroneous grant of patents and compliance with existing access and benefit-sharing systems.”
In addition to the chair, three vice-chairs were elected at the meeting, from Algeria, Switzerland, and Indonesia.
Catherine Saez may be reached at firstname.lastname@example.org.