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    Amid Proposals, Ambassadors Fail To Unlock WIPO Talks On TK, GRs

    Published on 4 February 2014 @ 10:34 am

    By , 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.

    Four Questions

    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.

    Strong Positions

    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 info@ip-watch.ch.

     

    Comments

    1. Divergence On Future Of WIPO TK Committee; US Proposes Work Plan | Intellectual Property Watch says:

      […] at the 26th session of the IGC in February be convened at the last session of the IGC in 2015 (IPW, WIPO, 4 February 2014). They also shared the view that a diplomatic conference should be convened “in the near […]


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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.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    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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