For the first time in its history, a working group tasked with negotiating an international regime for access to genetic resources and the sharing of related benefits under the UN Convention on Biological Diversity (CBD) has agreed on a single negotiating text. But participants in the process say the text, while a comprehensive compilation of all divergent views on the regime, still has a way to go before becoming a consensus document.

A meeting immediately preceding the working group discussed specific provisions for the protection of traditional knowledge, which sparked some discussion as to the correct fora for protecting such issues, according to participants.

There have “not been real negotiations yet,” said François Meienberg of Swiss nongovernmental organisation the Berne Declaration. Several sources told Intellectual Property Watch that the text is still heavily bracketed - that is, not yet at consensus - and that the bulk of negotiating work has yet to be accomplished.

“There [has been] no real bracket-tackling,” said one source. Negotiations on traditional knowledge, often a contentious area, “seemed very cordial because [negotiators were] not really getting into the substance of that issue,” the source added.

And on intellectual property “the real battles for IP and compliance” have not yet taken place, said Meienberg separately.

The Ad-Hoc Working Group on Access and Benefit-Sharing met in Montreal from 9-15 November. One of the key outcomes of the meeting was the consolidation of text into what is now being called the Montreal Annex, Fernando Coimbra of Brazil told Intellectual Property Watch. Brazil is one of the leading voices in negotiating the ABS regime at the CBD, according to sources.

Another was to have two inter-sessional meetings before the next (and final) formally scheduled working group meeting, from 18-24 March 2010 in Colombia, in order to speed the process of text convergence. “We are working very hard to get the deal done,” said Coimbra, but there is a lot of work to do; that is why the inter-sessionals were scheduled, he added.

Another critical discussion held in November concerned the nature of the international regime, a delegate from an African country told Intellectual Property Watch. “Nature” means the degree to which the regime will be legally binding.

Most countries are amenable to a legally binding regime, the delegate said, with a few exceptions, notably Canada. This country seems to be the most reluctant to consider an internationally binding instrument, several sources told Intellectual Property Watch. At the November meeting, other countries who had previously been of the same mind (such as Japan) showed increased flexibility in considering legally binding aspects, sources said. Canada was still working on a statement in response to Intellectual Property Watch questions as of press time; it will be posted here when it is received.

Background

The CBD - the UN body tasked with “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” - decided to create an international regime in 2002.

At the 2008 CBD Conference of the Parties (the organisation’s biennial high-level decision-making meeting), a work plan for the Ad-Hoc Working Group was adopted, instructing it to lay out the details of an international regime, and determine if the regime would be legally binding, non-binding, or a combination of the two (IPW, Biodiversity, 30 May 2008).

In particular, it was decided [pdf] that the working group would meet three times before the next Conference of the Parties, which will take place 18-29 October 2010 in Nagoya, Japan. The Nagoya conference is the deadline for the group to have produced a finalised access and benefit-sharing regime.

Each of these three lead-up meetings was given specific tasks. The first, from 2-8 April 2009 in Paris, was tasked with negotiating text on the objective, scope, compliance, and fair and equitable sharing benefit-sharing and access. The meeting in November was tasked with negotiating text on: legal nature, traditional knowledge associated with genetic resources, capacity-building, compliance, and fair and equitable benefit-sharing and access.

Compliance and capacity building are areas of particular importance for developing countries, and the CBD called this working group meeting potentially the most important to date (IPW, IP Burble, 9 November 2009). The final meeting in March is meant to consolidate the text from the previous two meetings. But it appears from the outcome that there will still be substantive negotiating to do, unless work can be completed in inter-sessional meetings.

The COP in May 2008 also established three expert working groups on “(i) compliance; (ii) concepts, terms, working definitions and sectoral approaches; and (iii) traditional knowledge associated with genetic resources. Also, interested stakeholders were allowed to contribute proposals for consideration. “Every party was free to put text on the table,” said Meienberg.

March Meeting

Intellectual property issues, which Coimbra said primarily fit under the text on compliance, are expected to be discussed in March, according to the African delegate. However, the compliance issue cannot be resolved until the issue of legal nature of the agreement is resolved, the delegate added.

The March meeting is also expected to discuss the issue of disclosure of origin as a way to ensure benefit-sharing with traditional knowledge holders, said the African delegate. A group of 17 like-minded “mega-diverse” countries had submitted an article on disclosure, which has been on the table “for quite some time,” said Coimbra. The article is almost identical to a proposal for an amendment to the Trade-Related Aspects of Intellectual Property Rights agreement being negotiated at the World Trade Organization (IPW, WTO/TRIPS, 30 July 2009), he said.

The first of inter-sessional meeting will be comprised of approximately 25 people, 18 from CBD parties (that is, governments), 2 indigenous representatives, 2 civil society representatives and 2 industry representatives, along with a “friend of the chair.” It will meet at the end of January or beginning of February,in Montreal? said Meienberg. The second will immediately precede the March meeting, and will be open to a slightly larger group of representatives.

Forum Shopping Traditional Knowledge, and Hints of a Treaty

The recent successful renewal of the mandate of the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) (IPW, WIPO, 3 October 2009) has inspired attempts to push discussion on biodiversity out of other fora.

For example, this occurred in the WTO TRIPS discussions (IPW, WTO/TRIPS, 30 October 2009). This issue also came up at a 2-6 November meeting at the CBD specifically dedicated to traditional knowledge.

According to the African delegate, Norway tried to forward a text saying all legal issues related to traditional knowledge should be dealt with at WIPO. The European Union, the delegate added, suggested the IGC was working on a treaty for the protection of traditional knowledge. Whether or not the IGC mandate to negotiate an “international legal instrument” for the effective protection of traditional knowledge, genetic resources, and traditional cultural expressions constitutes a treaty has not yet been clearly stated. The director general of WIPO, when asked by Intellectual Property Watch, refused to interpret the text. Developing countries still want the issue discussed at the CBD, said the African delegate. The next meeting of the IGC at WIPO is 7 to 12 December.