WIPO In Marathon Two Weeks To Advance On Protection Of TK And Folklore

World Intellectual Property Organization members today launched a marathon meeting to advance work on a potential legal instrument to protect traditional knowledge and folklore from misappropriation and exploitation. The committee, which has been convening for well over 10 years, is hoping to finalise texts over the next two weeks.

Proponents of strong binding protection are hoping for the convening of a high-level meeting (a diplomatic conference) in 2015, but some countries are reluctant to commit to such a date.

The 27th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 24 March to 4 April. This extended session covers two of the three topics of the committee: traditional knowledge (TK) and traditional cultural expressions (TCEs, or folklore).

WIPO Director General Francis Gurry opened by saying that this 10-day session is expected to devote four days to TK, four days to TCEs and two days for “cross-cutting” issues. He called on delegates to show patience. The IGC “has been going on for a long, long time,” he said, and “an extraordinary amount of work has been put into the process.”

The committee is supposed to expedite its work and be able to submit to the next WIPO General Assembly in September text of an international legal instrument or instruments. The Assembly will take stock and decide whether to convene a diplomatic conference to finalise the instrument or instruments.

Gurry remarked on the leadership of IGC Chair Amb. Wayne McCook of Jamaica, and said the process is extremely complex, so patience is required, adding confidently: “We are making progress and we are going to have a result.”

The committee is tasked with finding ways to protect generic resources, traditional knowledge and traditional cultural expressions from misappropriation and misuse. Following the mandate given to the IGC by the WIPO General Assembly last September, WIPO delegates are to continue working on two draft documents, one set of articles on TK [pdf], and one set of articles on TCEs [pdf].

McCook thanked Indonesia for having convened an informal meeting on IGC issues on 11-12 March in Bali. Previous such meetings have been held in India and South Africa. The meeting was attended by Algeria, Australia, Bangladesh, Botswana, Brazil, China, Colombia, Egypt, European Union, Indonesia, Jamaica, Kenya, Malaysia, Myanmar, Peru, South Korea, South Africa, Switzerland, Thailand, Trinidad and Tobago, United States, Vietnam, Zambia, the WIPO secretariat, and McCook, according to a summary [pdf] by Bali meeting Chair Ambassador Triyono Wibono. [corrected]

The chair urged delegations to discuss substantive issues with each other over the two weeks, and asked for engagement between member states and observers, in particular, representatives of indigenous peoples and local communities.

“This is a negotiation,” he said. “Only through discussion, mutual respect and constructive engagement on all sides can agreement be reached.”

“This is not a comfort-building activity where we go to coffee with like-minded friends,” said the chair, urging that “every opportunity be taken to engage across positions.”

Cross-Cutting Issues

McCook prepared a document [pdf] on “certain suggested cross-cutting issues”. Cross-cutting issues are issues that are common to TK and TCEs.

In the document summary [pdf], [corrected] McCook explains that the IGC had previously identified four key policy issues : subject matter of protection, beneficiaries, scope of protection and exceptions and limitations. Similarities between the TK and TCE draft articles made the WIPO General Assembly consider some cross-cutting issues, to be debated.

McCook identified possible cross-cutting TK/TCEs issues:

“(1) the meaning of “traditional”;

(2) the beneficiaries of protection, in particular, the role of states or “national entities”;

(3) the nature of the rights, including the meanings of “misappropriation” and “misuse”; and

(4) the treatment of publicly available and/or widely diffused TK and TCEs.”

The complete document includes a table reflecting, side-by-side, the provisions of the two sets of draft articles. It also includes a summary of the consultative meeting on the IGC in Bali.

Delegates also will have to consider several other documents, such as a joint recommendation on genetic resources and associated TK, which Gurry said was re-submitted at this session of the committee. The document [pdf] was tabled by Canada, Japan, Norway, South Korea, and the United States.

A joint recommendation [pdf] on the use of databases for the defensive protection of genetic resources (GR) and TK associated with GR, drafted by Canada, Japan, South Korea and the US, was also resubmitted for this week’s session, as well as 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 system, originally submitted by Canada, Japan, Norway, Russia, South Korea, and the US.

Joint recommendations are considered to be softer instruments than a treaty. A number of developing countries are expecting a treaty.

Programme of Work, Methodology, Silent Cyberspace

McCook detailed the programme of work [pdf] of the two-week session and the work methodology The drafting of the revised versions of the draft articles will be undertaken in small groups, he said, as was the manner in previous sessions. The plenary will then review the texts that will be developed in the small drafting groups at least twice, he said.

The final session of each of the issues addressed during the two weeks will invite the plenary to correct errors in the draft texts and make comments, he said. Indigenous peoples representatives will be invited to the drafting groups, he added.

The chair imposed strict controls over communication of discussions held in the informal sessions.

“This is not to chill dialogue but instead to advance it,” he insisted. “We want the experts to be confident that the nature of their exchange are informal so that they can test ideas” in a way they would not in the plenary, which is formal and on the record.

Voluntary Fund Lacks Volunteers, Gurry Says

The voluntary fund which is used to finance the participation of indigenous peoples representatives in the sessions of the IGC has been drying up for some time (IPW, WIPO, 26 April 2013). Appeals have already been made by the secretariat and some member states, to no avail.

Gurry said that the voluntary fund has no longer any funds. “It is broke,” he said. He made an appeal to all delegations to find ways to contribute to the fund so that indigenous peoples can continue to have representation at the IGC sessions.

This was echoed by McCook who said “I am hoping the drying up of the voluntary fund is not symbolic” “The fact is that we are in a marathon and we have to make sure that we honour all of our commitments,” he pleaded.

“I am joining the DG in making a strong call that the voluntary fund be replenish,” he said. “We cannot falter in the last meters. If you don’t finish a race it is almost as if you never ran.”