WIPO Members Tee Up Negotiation On Traditional Knowledge, Cultural Expressions

World Intellectual Property Organization members this week set the stage for text-based negotiations for an international instrument on the protection of traditional knowledge, folklore and genetic resources.

Three streamlined negotiating texts were approved to be discussed further this summer, taking the longstanding committee deliberations to a new level. Issues remaining include who should be the beneficiaries and the scope of the protection of traditional knowledge, and the mandatory disclosure of genetic resources in patent applications.

The 18th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) took place from 9-13 May, and broke early this week after an intensive four-day work schedule to clean up texts submitted to the committee by expert working groups.

In order to facilitate the work of the IGC, the three segments of the committee were divided among dedicated expert working groups which produced draft negotiating texts, two with a set of draft articles.

Over the week, sessions of informal open-ended drafting groups worked on the three separate texts. Today, the committee took note of the texts, which will be made available as working documents at the next session of the IGC, from 18-22 July, according to the draft decisions of the 18th session [pdf].

For the final texts, see (IPW, WIPO, 12 May 2011).

On traditional knowledge, the final text shows a number of options listed under each article, with changes proposed by member states, without attribution. Article 1 on the subject matter of protection , Article 2 on the beneficiaries of protection, and Article 3 on the scope of protection proved most difficult on which to find consensual language, according to a source.

The text prepared by the dedicated drafting group for traditional knowledge this week was based on a text issued by an expert working group earlier this year. A first version of the text issued this week included proposed text with attributions to countries (IPW, WIPO, 11 May 2011).

This version was then cleaned by removing the names of the member states or accredited observers that had made proposals, and the proposals of accredited observers that had not been supported by member states, according to the report of the rapporteur [pdf] of the drafting group, who was from New Zealand. Some options and alternatives were also trimmed down, the report said.

Policy issues identified in the text, according to the rapporteur, relate to the definition of traditional knowledge and the eligibility criteria, including whether to include a definition of secret traditional knowledge and whether the definition should include sacred traditional knowledge. Other policy issues include who are the beneficiaries of the protection, such as whether nations can be beneficiaries, and the scope of protection, including the extent to which protection could apply to traditional knowledge that is considered to be in the public domain.

Disagreement also shows on the sanctions, remedies and exercise of rights and whether the text should be prescriptive about sanctions or provide domestic flexibility.

On genetic resources, delegates worked on a set of objectives and principles, this third track of the IGC being the less mature in terms of negotiations and there are not draft articles yet. The acceptance of a text as a basis for continued work of the IGC was considered an accomplishment in itself, sources said.

According to the report of the rapporteur [pdf] of the open-ended drafting group on genetic resources, who was from Australia, the text issued today shows a significant reduction in options compared to preceding versions.

A number of options are still listed under each objective and the principles of each objective in the final text. One of the major issues in the protection of genetic resources is the disclosure of genetic resources in patent application. According to several developing country sources, disclosure is a key element of the protection of genetic resources, as opposed to some developed countries who think mandatory disclosure would only hinder the patent system, and innovation, according to some sources.

The committee adopted the decisions of 18th IGC and asked that the decisions and any interventions made to the committee be circulated for comments before the next IGC.

The committee chair, Philip Owade of Kenya said the next meeting of the IGC would be “critical” to the process, and said he welcomed any proposals on the next session, according to a participant.

And a question for the future is whether the final instrument or instruments will be legally binding or not. But even then, it will presumably only apply to countries that ratify it.