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    WIPO Delegates To “Rationalise” Draft Texts To Protect GR, TK, Folklore

    Published on 3 July 2014 @ 10:47 pm

    By , Intellectual Property Watch

    The World Intellectual Property Organization committee seeking to establish international instruments to protect genetic resources, traditional knowledge and folklore from misappropriation next week will attempt final clean-up of potential treaty texts ahead of the annual General Assembly in September.

    The 28th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 7-9 July. This is expected to be a three-day “stock-taking” meeting.

    Delegates are expected to analyse three draft texts coming out of the previous sessions of the committee and see if some topics, common to all three instruments, could benefit from similar language.

    This “cross-cutting” review is of the texts that are expected to become international instruments protecting genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs, or folklore). The review is expected to lead to a stock-taking of progress made this year on the three issues and to a recommendation to the General Assembly.

    Developing countries, which are demandeurs for international binding rules on the three topics, are pushing for a swift convening of a final negotiation conference (diplomatic conference) to conclude one or several treaties.

    Developed countries have said they are not in favour of an international binding treaty (or treaties) but rather of soft law or guidelines. Some developed countries have a more flexible approach, such as Australia and Switzerland.

    The review of the three texts “might result in agreed adjustments or modifications arising on cross-cutting issues in the texts to be transmitted to the WIPO General Assembly,” according to WIPO.

    The draft agenda [pdf] includes the three texts that delegates should be looking at in this cross-cutting exercise. These include: the “Consolidated Document [pdf] Relating to Intellectual Property and Genetic Resources,” draft articles [pdf] on the protection of TK, and draft articles [pdf] on the protection of TCEs.

    Also on the agenda are a number of proposals that proponents have asked be re-submitted for this 28th session. In particular, these include: a joint recommendation [pdf] on GRs and associated TK (submitted by Canada, Japan, Norway, South Korea and the United States) meant to serve as guideline for countries to address the problem of erroneous patents, and a joint recommendation [pdf] on the use of databases for the defensive protection of GRs and associated TK (submitted by Canada, Japan, South Korea and the US).

    Canada, Japan, Norway, South Korea, Russia and the US also resubmitted a proposal [pdf] for the terms of reference for a WIPO study on measures taken to avoid erroneous patents and on compliance with existing access and benefit-sharing systems.

    The replenishment of the WIPO Voluntary Fund, which allows indigenous peoples to attend IGC session is also expected to be discussed at this session. There is a proposal [pdf] from Australia, Finland, New Zealand and Switzerland. According to the proposal, in May, the fund was down to CHF 823.10 (about US$925). The four countries are proposing that the IGC recommend to the General Assembly in September to amend the rules of the fund so that contributions could be drawn from the regular budget of WIPO to replenish the fund.

    A detailed draft programme [pdf] lays out the proposed timing for the three-day meeting. An indigenous panel is expected to take place on the first morning. The rest of the session is expected to be devoted to the “cross-cutting review.” On the last day, delegates are expected to discuss the contribution of the IGC to the implementation of the WIPO Development Agenda Recommendations.

    A summary of the 28th session documents can be found here [pdf].

    Chair’s Suggestions on Cross-Cutting Issues

    Last month, the IGC Chair Wayne McCook, the Jamaican ambassador, issued an informal document [pdf] reflecting the chair’s view on possible cross-cutting issues.

    For example, on policy objectives, according to the document, “the IGC could … consider rationalizing and reorganizing the texts to avoid redundancies and irrelevance and place focus on common, concisely-stated core IP-related principles and objectives.”

    Such IP-focused objectives could include the prevention of misappropriation and misuse, the promotion of innovation and creativity, and the prevention of improper or erroneous grant of IP rights, according to McCook.

    Regarding the definition and use of terms, the document gives some suggestion regarding the prickly issue of the public domain, which some consider as essential and thus favour a limited scope of protection of TK and TCEs, and some contend that such protection should be robust and override certain concerns about the public domain.

    “The definition of ‘public domain’ in the TCE text makes reference to ‘tangible and intangible material,’ whereas the TK text only makes reference to intangible material. The IGC could consider aligning the definition in both texts,” suggests the chair.

    In the list of terms, the term “misappropriation” is referenced in all three texts but the TK and GR texts both carry proposed definitions of misappropriation while the TCEs text does not carry such definition, McCook remarks.

    Also cross-cutting is the new introduction in the discussions of a “tiered approach,” emerging during the two last sessions of the IGC on TK and TCEs. This tiered approach would allow different kinds or levels of rights depending on the nature and characteristics of the subject matter.

    According to the chair’s document, this tiered approach “proposes differentiated protection for already publicly available TK or TCEs, i.e.TK or TCEs that are widely diffused, available, without restriction, to the general public, widely known or used outside the community,

    on the one hand, and secret/or of particular cultural or spiritual significance… on the other hand”

    Other cross-cutting issues include the disclosure requirement in the TK and GR texts, sanctions in remedies in the TK and TCEs texts, and capacity building in all three draft texts.

     

    Catherine Saez may be reached at info@ip-watch.ch.

     


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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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