Status Quo For WIPO Committee On Genetic Resources; Dialogue Ongoing To Unlock It

The amiable mood which prevailed at the outset of the World Intellectual Property Organization committee on genetic resources and traditional knowledge meeting did not hold as negotiations on language of a potential treaty text to prevent misappropriation of genetic resources unearthed vivid divisions on the way to achieve such prevention. In addition, the participation of indigenous peoples is jeopardised by lack of funds, and the committee called for governments to help.

The 29^th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) took place from 15-19 February. This session, as well as the 30^th session, are focusing on genetic resources (GR).

After a lack of progress on the draft treaty text during the week, the IGC chair, Ian Goss from the Australian IP office, circulated a list of outstanding issues left to be discussed at the 30^th session of the IGC, scheduled for 30 May to 3 June.

The issues include mandatory disclosure of genetic resources in IP applications, the definition of misappropriation, and sanctions for non-compliance with disclosure, and the scope of protection the treaty would grant.

Also issued on the last day was set of draft decisions [pdf] – summarising the week’s work and what will be transmitted to the next IGC session – to which the list of pending issues is attached. The draft decisions were adopted swiftly without change on 19 February.

This week a different approach was tried to make progress on the draft text. A group of member states named as facilitators by the chair on 18 February issued a so-called non-official tentative draft text [pdf].

The tentative draft was based on the original compilation text [pdf] inherited from past sessions of the IGC. The facilitators’ draft text was also based on discussions on core issues which took place during the first three days of the meeting (IPW, WIPO, 18 February 2016).

This tentative draft text proved inefficient to bridge differences as member states embarked on multiple corrections, reflecting known and unchanged positions on 18 February. A version of the non-official text with track-changes from the original compilation text is here [pdf].

According to the draft decisions, the facilitators’ text will be referred to within the body of the report of the 29^th IGC session. No consensus was found on the future fate of this text, according to a source.

Goss called for delegations to meet and discuss before the next session of the IGC in May, to ease future discussions on core issues, such as disclosure requirement, sanctions, definitions of misappropriation, and scope of protection.

The IGC is a committee driven by developing countries, as they say biopiracy by developed country companies has been historic and is still rampant. A developing country source told Intellectual Property Watch that the exercise of redrafting the facilitators’ text of 18 February “showed a lot of bad faith” on the part of some developed countries.

The 2015 WIPO General Assembly decision [pdf] reinstated the work of the IGC after being suspended in 2015 for lack of agreement on the IGC work programme. The current mandate instructs the IGC to try to reach a common understanding on core issues.

Disclosure Requirement

One of the core issues discussed this week was the mandatory disclosure requirement in intellectual property applications. The applicant would have to provide the place where they found the genetic resource from which their invention is derived.

A number of developing countries would like the mandatory disclosure to relate to all intellectual property applications, such as copyright or plant variety protection.

Some developed countries, such as members of the European Union, would only consider mandatory disclosure for patent applications. Other countries, such as the United States and Japan, are of the opinion that there should be no obligation to disclose, as it would undermine legal certainty for patent applicants, leading to a lack of investment in certain fields of research, and be burdensome for both applicants and IP offices.

The disclosure requirement is meant to prevent IP rights to be granted on genetic resources without the consent of the owners of such resources and without adequate financial compensation if the products issued from those resources are commercialised.

Some developed countries have tabled recommendations on defensive measures as a substitute for the mandatory disclosure requirement, such as databases pooling genetic resources data, accessible to IP examiners.

Developing countries, which have established such databases, like the Indian Traditional Knowledge Digital Library, or the South Africa National Recordal System, said databases can only be a supplementary measure to disclosure.

South Africa also remarked on the cost of development and maintenance of such databases, which might put them out of financial reach of communities or developing countries. Indigenous communities also have concerns on the safeguards of those databases.

Sanctions

Another prickly point this week has been the issue of the kind of sanctions which should be applied if an IP applicant does not comply with a mandatory disclosure requirement. In the draft treaty text, pre-grant and post-grant sanctions are foreseen.

Among the pre-grant sanctions is refusal to grant a patent. Among the post-grant sanctions is the revocation of the patent.

Most developed countries do not agree with the revocation of the patent, which would in their view create legal uncertainty for patent seekers and undermine innovation, which in turn would cancel the chance of benefit-sharing.

Developing countries argue that only strong sanctions can deter misappropriation. Some countries, which have such an option in their national legislation, such as Brazil, said it was an exceptional measure, meant to be a strong deterrent. Brazil said it has not been used yet.

Subject of Protection, Definition of Misappropriation

The subject matter of the protection is also at issue, with developing countries asking that derivatives of genetic resources and associated traditional knowledge also be protected by the treaty.

The definition of misappropriation gives way to different interpretations. In the consolidation text, there are two options for the definition, both containing a number of brackets indicating that some words are non-consensual.

Option 1, which is favoured by developing countries, indicated that misappropriation is the utilisation and acquisition of GR, without the prior consent of those who are authorised to give such consent to such use in accordance with national legislation.

Option 2 opens up the possibilities of acquiring GR. It says misappropriation is the use of GR of another where the genetic resources have been acquired by the user from the holder through improper means or a breach of confidence, which results in a violation of national law in a provider country.

However, the definition goes on, if such GR has been acquired by lawful means, such as reading publications, purchase, independent discovery, reverse engineering and inadvertent disclosure resulting from the holders of GR, failure to take reasonable protective measures, is not misappropriation.

Both options include mention of traditional knowledge associated with GR, in brackets.

The EU also proposed a definition of misappropriation, which includes a mention saying that the inventor must have had physical access to the GR.

Voluntary Fund for Indigenous Peoples Still Empty

The return of the IGC sessions was marked by the noticeably small number of representatives of indigenous communities.

According to an indigenous peoples’ source, there were between five to ten representatives less than in previous sessions. According to the IGC meeting document [pdf], three indigenous peoples’ representatives could not attend, for lack of funds.

WIPO and Goss appealed to delegates to ask their capitals to contribute to the fund, underlining the importance of the participation of indigenous communities’ representatives in the IGC. Indigenous peoples and communities form a large part of GR and traditional knowledge holders.

Financing of indigenous peoples’ representatives at the IGC is normally made through a Voluntary Fund, created in 2005. The Voluntary Fund pools contributions mainly made by governments, and over the years, until January 2016, CHF 623,401 (about US$ 623,401) were contributed to the fund. However, the fund has been slowly depleted over the last years.

Biggest contributors have been Switzerland, with over a third of the total contributions, Australia, the Swedish International Biodiversity Programme, and Norway.

According to the IGC meeting document, CHF683 (about US$ 683) are now remaining in the fund. The US said its pledge for US$10,000 to the fund is expected to be processed soon.

 

Image Credits: WIPO