WIPO TK Committee Chair Adjourns Session Abruptly, Demands Clear Positions

The World Intellectual Property Organization meeting on traditional knowledge and folklore meeting this week was abruptly adjourned by the chair this afternoon, to reconvene tomorrow morning, with a head-on challenge to governments.

Jamaican Ambassador Wayne McCook, chair of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC), suspended the plenary session after a delegation mentioned that it was not ready to support a binding international instrument for the protection of traditional knowledge and folklore.

The IGC has been trying for the last 14 years to find an agreement on ways to protect genetic resources, traditional knowledge (TK) and traditional cultural expressions (TCEs). The September WIPO General Assembly mandated that the IGC “…continue to expedite its work with open and full engagement on text-based negotiations with the objective of reaching an agreement on a text(s) or an international legal instrument(s) which will ensure the effective protection of GRs, TK, and TCEs.”

The afternoon session was an opportunity for delegations to present their views on cross-cutting issues between the draft articles addressing the protection of TK and TCEs.

Historically, most developed countries have been reluctant to commit to discussing a legally binding international instrument that could, according to them, jeopardise innovation and creativity. They are in favour of a softer instrument, such as a joint recommendation. Most developing countries are pushing for the swift convening of a diplomatic conference to agree on a binding instrument.

Today, the Central European and Baltic States Group said that the binding nature of the instrument was of concern, and the European Union suggested that non-binding instruments should be considered. When the Swedish delegate took the floor and said any instrument should be non-binding, flexible and sufficiently clear, the chair intervened and asked what exactly the delegations meant by non-binding instrument.

If by non-binding those delegations mean no compelling effect, “we need to understand what is meant by this,” he said.

“We need to be very clear on what we can or cannot do,” he emphasised. “If we are saying we want an instrument that affords greatest national flexibility, we can do that, but if we are going to say that this instrument has no capacity to compel that is a different thing.”

“If we are not going to allow ourselves the latitude to negotiate with full quiver, why are we here?” – IGC Chair Wayne McCook

“If we are not going to allow ourselves the latitude to negotiate with full quiver, why are we here?” he asked.

He said he was stopping the process because he had heard some delegations saying they do not agree on a binding instrument and at the same time he said he heard people advising against prejudging the outcome of the instrument.

“If we are saying this cannot be done, it cannot be binding, it cannot have treaty effect, if this is a red line,” he insisted, “[Then] let’s just call a spade a spade.”

“When we come tomorrow I want delegations to declare if you have national instructions that tell you that not now, not in 2015, … will you ever be able to agree to an instrument that is binding,”  he requested. “If you know now that’s impossible, let’s stop wasting each other’s time.”

The plenary is expected to reconvene tomorrow morning. McCook asked that delegations seek instructions from their capitals and called for a declaration at the outset of tomorrow’s plenary.

“If you intend to have an ambiguous negotiation you can have a new chairman,” he declared.

The chair’s declaration was met with a round of applause from a number of delegations.

The 27th session of the IGC is meeting from 24 March to 4 April (IPW, WIPO, 24 March 2014).