WIPO Poised To Move To Talks On Potential Traditional Knowledge “Treaty”

By Kaitlin Mara and William New
Member states of the committee on traditional knowledge, genetic resources, and folklore at the World Intellectual Property Organization on Friday must decide whether and how they will carry on the work of the committee after this week’s session ends. Inherent in that decision is whether the group sets the stage this year for negotiations on an international treaty on protection of these areas, according to some participants.

[ Update, as of 11h, 17 October : The Chair is meeting in an informal session with regional group leaders and their advisors, according to sources. Discussions are focussing on what form the intersessionals might take, ie “expert working groups,” “taskforces,” or “informal working groups,” as well as the composition of members.

A copy of a new proposal, which sources said was submitted on behalf of the European Union by France, will also be discussed. A copy obtained by Intellectual Property Watch sets forth the idea that informal working groups meet as a part of (rather than before) the next session of the IGC. The three groups would focus on definitions, beneficiaries, and goals for traditional knowledge and traditional cultural expressions and on disclosure of origin for genetic resources. The groups would be open to all, and would not have decision making power. The document also proposes an internet portal for electronic correspondence on these issues, and a consultative “group of friends of the chair”- which sources compared to the Green Room informal processes used at the World Trade Organization.

The document, in French only, is available here: 17 October proposal[pdf]]

What is important, a developing country proponent of treaty talks said Thursday night, is that there may be a change in the “structure” and “focus” of the committee’s work, “so we can get something done.”

“The African proposal is like a treaty-drafting exercise,” the official said, referring to a draft text that is providing the basis for the discussion of future committee work. The African Group is calling for a legally binding international instrument. A new version of the group’s proposal is available below.

But some countries, including some that do not see the necessity of an international treaty, remain concerned about moving too quickly in the committee if there is any uncertainty about underlying principles, and some have used concerns about the financial impact of additional meetings as resistance.

The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 13-17 October and again in the spring of 2009 under a mandate from the September WIPO General Assemblies to accelerate its work and with encouragement from the new director general to achieve concrete progress. But as that progress is not being achieved in the full plenary sessions (IPW, WIPO, 16 October 2008), most member states are looking to intersessional meetings to get the work done.

IGC Chairman Rigoberto Gauto Vielman, the Paraguayan ambassador, told Intellectual Property Watch that Friday would focus only on future work, but that this is “very complex.” Members will have to decide on whether to hold special meetings in between formal, scheduled committee meetings, which has proven as sensitive as the underlying topic of whether to proceed to negotiations of an international instrument on the protection of TK and TCEs. “There are many views,” he said, though the only formal proposal has been the African Group’s.

Gauto Vielman said it would not set a precedent in WIPO procedures if the group chose to hold intersessional gatherings, as it was done when he chaired the Development Agenda process several years ago.

Gauto Vielman, said last night he hoped to have a result by midday Friday and close the meeting.

New African Proposal

An updated 16 October version [pdf available here:
Africa Intersessional Proposal 16 October] of the African Group’s Monday proposal was the focus of discussion Thursday afternoon. The new text reflects the concerns raised and accommodations asked for by different member states, according to an African delegate, and will be the focus of work on Friday. The text outlines terms of reference for a series of technical expert working groups.

Major changes from Monday’s document [pdf] are that the working groups are on three issue areas rather than five topical areas. Special guidelines have also been drawn up for the working group on genetic resources, allowing for the consideration of those materials in light of conversations happening in other fora, specifically within the UN Convention on Biological Diversity, where work is being undertaken to build an international regime on access and benefit sharing for genetic resources (IPW, Biodiversity, 30 May 2008).

Also newly defined is the frequency and duration of the meetings, as well as the number of experts within each working group and the regional representation. The original African Group proposal had allowed for experts nominated by governments and by accredited observers, a certain number of the latter being from specifically indigenous groups, but had not specified how many of each.

The new document specifies numbers for these groups: 27 experts will be named by member states, and 10 by observers, 7 of which would be from indigenous and local communities. The member state representation would be: Africa 5, Asia 5, Latin America and Caribbean 5, Group B 5, Central European and Baltic States 3, Central Asian Caucasus and Eastern European States 3, and China 1.

But some members still appear to favour more open composition of the expert or working groups. And Al Benoit, senior policy advisor and technical representative of the Métis National Council in Canada raised doubts about the number of indigenous representatives (which reflect regional groups), saying it is “absurd” to think there is one expert “who’d understand all the needs and unique circumstances for the multitude of nations” on, for example, the North American continent.

Lots of questions remain, said a representative from Thailand. Much of the discussion on the intersessional expert groups revolved around a tension between states wanting to be as involved as possible in the expert process but at the same time wanting the groups to be small and closed for more effective discussion. Also at issue was how to ensure that the expert working groups lead to something more concrete than what has so far been achieved during the regular IGC meetings, and avoid duplication.

All of this must be resolved Friday, the delegate added, noting that a balance would have to be struck not only on the composition of the working groups but also on the different viewpoints over content and even over definitions.

If intersessionals are finalised, there is still a further hurdle – the choice must go to the Programme and Budget Committee on 12 December for approval of funding of the work.

Regional groups continue to hold internal meetings to coordinate their positions, but sources said differences remain within many regions.

Indonesia Sees Instrument As “Vital”

Intellectual Property Watch spoke to Indonesia, who has been a strong voice in pushing for a binding international instrument on genetic resources, traditional knowledge, and traditional cultural expressions, to hear the reasoning behind their stance.

“For a country like Indonesia,” explained Achmad Zen Umar Purba, a law professor and former director general of intellectual property rights at the Indonesian Intellectual Property Office, “where there are original works to be protected,” clear regulation is needed.

“An international legally binding instrument or instruments is a vital element to protect as well as promote TK and the respect of established indigenous traditions and intangible cultural heritage,” Indonesia said in its opening statement to the IGC, available here [doc]. The nation hopes to see this happen by the end of the decade, the statement adds.

Indonesia is working on national laws as a legal basis to protect genetic resources and TK and to take advantage of its economic benefits, said Purba, which include creating incentives for foreign investment in the country.

But much misappropriation, explained Arry Ardanta Sigit from the Indonesian delegation, is cross-border, meaning national law is inadequate to guard against it. Further, the intellectual property system is not designed for the kinds of ownership found in indigenous communities.

Patents, trademarks and copyrights are designed with individual benefits in mind, noted Purba, but traditional knowledge and genetic resources are rarely owned by an individual. Treating them as public goods is also not quite correct – while true that genetic resources and TK represent in a way the “common heritage of mankind,” he added, something should be given in return for the original owner. There also needs to be allowance for moral or sacred rights in a protection system.

The Indonesian views were echoed by Algeria during the plenary, speaking on behalf of Africa in calling for a legally binding instrument to protect and ensure consent of local and indigenous communities, said a source. Other nations commented on the need for an instrument to act as model legislation for countries looking for ways to protect indigenous resources, but unsure of ways forward, and an indigenous representative mentioned that such an instrument could be useful to give indigenous groups political leverage to protect their own resources.

The Indonesian delegation expressed a sentiment echoed by several other nations and indigenous groups: that ultimately what they want is respect for the knowledge of their people and a sharing of its benefits.

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