By Kaitlin Mara
Government negotiators meeting in Bonn this week reached breakthroughs on two intellectual property-related areas of the United Nations Convention on Biological Diversity (CBD).

At the highest level of the CBD membership, agreement was struck on a way forward on creating a regime to ensure equitable access to biodiversity and equitable sharing of benefits resulting from its use. In addition, consensus was nearly reached on outlining principles and actions related to the protection of traditional knowledge and biological diversity.

Both documents were presented by their working groups in the closing plenary on Friday 30 May for acceptance as official documents by the assembled parties to the CBD and the CBD secretariat. Both were formally approved.

The 19-30 May Bonn meeting is the ninth session of the Convention on Biological Diversity’s governing body, called the Conference of the Parties (COP), which meets periodically to discuss the status of members’ achievement of the convention’s goals and implementation.

At a CBD meeting in 2002, it was decided to establish an international regime on equitable access and benefit-sharing (ABS). An ad-hoc working group was set up to address this issue, and after years of negotiations, the group finished work late Wednesday on its “most ‘unbracketed’ ABS decision in recent history,” said Susan Finston of the ABS Alliance, an association of biotechnology companies, on 28 May. Brackets refer to text lacking consensus.

By Friday afternoon, the ABS working group was able to announce in plenary that all brackets had been resolved in the main body of the ABS decision as well as in two annexes, a success that a CBD secretariat member declared “one of the great achievements of this meeting.”

[Clarification: while the the above statement was made in plenary, there are in fact brackets remaining in the first annex of the ABS text, according to CBD sources]

The CBD, opened for signature at the 1992 Earth Summit in Rio de Janeiro, represented a global understanding of the vital importance of environmental resources in underpinning economic success. It also asserted that financial gains brought about through the use of scarce resources had to benefit a wide variety of people to be effective. The convention set out to achieve three major aims: “the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits from the use of the genetic resources.”

The latest copy of the ABS decision available as of press time can be downloaded here.
Update: A later copy of the ABS decision, said to the document submitted to final plenary, is now available to subscribers by clicking here.

The latest copy of the agreement on traditional knowledge, Article 8(j) of the convention, available as Friday morning, is available here.

Access and Benefit-Sharing Text

On ABS, the COP reached agreement on the decision, which sets out a work programme for the next several years. The annex of the document, where disagreement remained until 30 May, was originally not on the table for discussion at the COP meeting. But the working group forged ahead with discussions and was able to reach consensus by the end of the day, according to sources.

The annex text, much of which was developed at a working group meeting in January, lays out the objective, scope, and key elements necessary to create a benefit-sharing regime.

Among the mandates under discussion in an early draft of the text obtained by Intellectual Property Watch is that an ABS regime take into account IP aspects of genetic resources and traditional knowledge. Other important components up for consideration included: linking access to genetic resources with benefit-sharing, access to technology and technology transfer, and mechanisms to promote equality in negotiations.

Of particular importance to developing countries are the sections on compliance with ABS rules and capacity building, sources said. A final version of the agreement was not available at press time.

The 28 May draft COP decision called for three meetings of the Ad Hoc Working Group on Access and Benefit-Sharing, with approximate dates for those meetings in 2009 and 2010, where negotiations on unresolved issues in the annex would be discussed and then consolidated.

In the work plan contained in the decision, the most significant mandate, according to sources, is the instruction to “clearly [identify] the components of the international regime that should be addressed through legally binding measures, non-legally binding measures, or a mix of the two.”

Expert Groups to Meet

No consensus could be reached on the issue of legality this week, according to François Meienberg of the nongovernmental Berne Declaration*, who is in Bonn for the meeting. Instead, a process was laid out for a series of technical groups to meet to lay the groundwork for decisions to be made at upcoming formal ABS working group meetings in 2009. The text says that these three technical and legal expert groups will focus on compliance, concepts and working definitions for the document, and traditional knowledge associated with genetic resources. It also calls for studies to be commissioned.

Co-chair of the working group Fernando Casas of Colombia said during the final plenary that these technical working groups will be the “key to success” in creating the international regime on ABS. The last COP meeting in 2006 set the year 2010 as the goal for having such a regime in operation.

The terms of reference for these expert groups can be found in the second annex.

Also announced during the final plenary session was an agreement on the “nature” of the ABS regime. Five options had been proposed by 28 May, some calling for a legally binding regime with cooperative enforcement between parties, some not mentioning enforcement and allowing for the whole or parts of the instrument to be non-binding, and one calling for the discussion on nature to be delayed until substance is finalised. The final decision on these was unclear as of press time.

[Update: the agreement was to leave the five options as basis for further negotiations, according to CBD sources]

Section C of the annex to the ABS decision discusses compliance. The working group was able to achieve “bricked” status on three points under this section. This means, according to Meienberg on 29 May, that a black box was added next to points in the document to indicate that those points would most likely go into a future agreement. These agreed upon points in the text are to develop tools to: encourage awareness of the need for access and benefit sharing, monitor whether ABS goals are being met, and enforce compliance.

However, defining specifics about what the “tools” could entail has been tasked to the expert working group on compliance, whose terms of reference can be found in Annex II, Section A. The work is likely to be substantive. Parties are “very polarised” between North and South, said an official source, and “that is likely to remain the same.”

The official acceptance of the ABS document was met with enthusiasm, as Malaysia offered to host the next working group, Sweden and Spain offered financial support for the technical committees. Current CBD President Sigmar Gabriel of Germany congratulated the ABS working group heartily in the final plenary, calling their work a “real breakthrough.”

Article 8(j) Traditional Knowledge Protection

The CBD’s traditional knowledge agreement is “in good shape,” John Scott, programme officer for CBD Article 8 (j), told Intellectual Property Watch. Article 8(j) covers issues related to biodiversity and indigenous and local communities. The “conference room paper” on Article 8(j) set out guidelines for defining, documenting, and protecting indigenous knowledge as well as the rights of indigenous people and local communities to participate in the definition and protection of their knowledge, including by sui generis (in kind) means.

All brackets, or disagreements, on Article 8(j) are gone, with one exception related to climate change. But most significant in 8(j) is what was not taken out, said an official source.

There was a struggle, explained Scott, on the part of Canada and the European Union, to rewrite the work programme to focus primarily on conservation and sustainable use. But there was resistance, especially from Latin America but also from the African group and indigenous people, who were concerned such a rewriting would be done before adequate discussion.

“Everything relating to 8(j) is central [and] should be debated in detail” Bolivia’s delegation said in negotiations last week calling for the working group to remain in formal sessions rather than be pushed into informal side meetings.

There also was concern, Scott added, that a refocusing of priorities would get in the way of important unfinished or unstarted work in the original text, such as the development of guidelines for mechanisms ensuring prior informed consent for indigenous and local communities, country of origin identification for genetic resources, or reporting misappropriated or unlawful use of genetic resources.

Scott said he was “pleasantly surprised” that the final document kept all issues in the text. It means, he said, that the next meeting of the 8(j) working group will have “a full agenda” with lots of contemplation on unstarted tasks. But it is good that “we won’t be rushed into making any decisions before full discussion,” noted Scott, adding “that is very useful at this stage.”

Items in 8(j) involving intellectual property include: a request for the executive secretary of the CBD to work with the World Intellectual Property Organization as well as the UN Forum on Indigenous Issues and the UN Educational, Scientific and Cultural Organization (UNESCO) to address issues involved in documenting traditional knowledge. Some indigenous groups feel that documentation may prevent biopiracy by proving that they have ‘prior art’ on their traditional knowledge, even without patents, while others feel that databases for documentation are inappropriate means to store indigenous ideas (IPW, Traditional and Indigenous Knowledge, 3 March 2008 http://www.ip-watch.org/weblog/index.php?p=945 ).

The Annex to 8(j), parts of which are still under negotiation, also sets out a draft code of conduct towards the cultural heritage of local and indigenous communities, which expressly acknowledges the importance of intellectual property as a part of that heritage.

The one exception to full consensus, which remained bracketed even when the document was accepted in plenary Friday afternoon, is the need for clarification on statements within section B related to the mitigation of harm caused to vulnerable communities by climate change. Scott said that this is due to disagreement as to what “mitigation” might entail, and that there is disagreement in particular between countries such as Brazil and China that maintain an interest in biofuels as a mitigating tool, and other countries where the idea is less popular. The text has been referred to high-level ministers for resolution.

* [Correction: François Meienberg works for the Berne Declaration, and not the Berne Convention, as the original text mistakenly stated]

Kaitlin Mara may be reached at kmara@ip-watch.ch.