How to handle work between meetings on creating a “legal instrument” of protection caused a stalemate in informal negotiations at the World Intellectual Property Organization traditional knowledge committee this evening. Unable to reach agreement on the composition and activities of the group, delegates have put the negotiations on hold and will reconvene informally tomorrow (Friday) morning.

Meanwhile, negotiations earlier this week were able to delve into substantive, rather than procedural issues, for the first time in over a year, according to participants. Two new texts have been produced: one on traditional knowledge and one on traditional cultural expressions.

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions (IGC) is meeting from 7-11 December. The committee was mandated by the annual WIPO General Assemblies to negotiate the text of an “international legal instrument (or instruments) which will ensure the effective protection of” genetic resources, traditional knowledge, and traditional cultural expressions.

The new documents are a record of differing suggestions by both governments and accredited observers. The first concerns policy objectives, projection against misappropriation, legal form of protection, and scope of and eligibility for protection of traditional knowledge; the second concerns the subject matter and beneficiaries of protection on traditional cultural expressions.

[Update: the document on traditional knowledge is available here [pdf], and the document on traditional cultural expressions is available here [pdf].]

These texts are labelled “informal draft record of specific suggestions” and it is unclear what their status is. Some governments say they are the beginning stages of an international legal instrument that the group has been mandated to negotiate, while others say they are part of a process of answering remaining questions before such an instrument can be written.

On intersessional work, much is left to decide and positions still remain opposed on several issues. An African Group proposal from earlier this year [pdf] is forming the basis of negotiations, the Group B developed countries have made a written observations on the text, primarily removing references to the specific size of the working group and to specific outcomes of the working group processes. [Update: the Group B written observations are available here [pdf].]

One critical point of disagreement is in who will attend the working group. The African text called for limited group of 27 representatives to be nominated regionally by member states, and for 10 experts nominated by accredited observers, with 7 of the 10 specifically to be nominated by indigenous groups. The Group B observations have removed the number limit, have said governmental representatives should be technical experts, and that observers may come to the working group as observers.

One source told Intellectual Property Watch that a potential compromise solution could be to allow the group to be open-ended, which Group B wants, but then allow the working group to engage in drafting text, which might reassure the African Group and a number of like-minded developing countries who are concerned that an open-ended working group will slow down the process of achieving an international legal instrument.

Also at issue is the way the working group discussions will be organised. The African proposal suggested focussing each of the three scheduled intersessional meetings on one of the three IGC issues, beginning with traditional cultural expressions in February or March 2010, moving on to traditional knowledge at the October 2010 intersessional, and then discussing genetic resources at the intersessional planned for February or March 2011.

One of the reasons for this is that countries want to use the outcomes of negotiations at the UN Convention on Biological Diversity (CBD), where negotiations on an international regime on access and benefit-sharing for genetic resources are moving quickly, with a deadline for completion in 2010. There is also fear that if genetic resources negotiations commence at WIPO they will undermine work on the same issue happening in other international fora like the CBD and also the World Trade Organization.

“We should learn from [the CBD] and not vice versa,” and should not be “exporting our habit of negotiations that don’t go anywhere … for almost 10 years,” a developing country delegate told Intellectual Property Watch.

Group B views genetic resources on an equal footing with the other two issues, and would like to discuss the three issues simultaneously at each of the intersessional meetings.

Delegates leaving informal negotiations this evening told Intellectual Property Watch they still expected a decision by the end of the meeting tomorrow night, as the working groups must have some kind of terms of reference.