Divergences Slow Work Of WIPO Traditional Knowledge Committee

By William New
Lofty policies ostensibly aimed at helping communities protect traditional practices of global interest are under discussion at the World Intellectual Property Organization this week. But procedural differences so far have been bringing them to the ground.

For the 30 November to 8 December Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC), the WIPO secretariat drafted several documents based on previous work and new comments from members. Of primary concern among non-governmental groups is the misappropriation of their resources.

Disagreements run between developed and developing countries on whether to discuss substantive issues, but there also are differences among developing countries on how to break the procedural deadlock in the committee and what the final outcome should be.

Secretariat documents for the committee include a summary of proposed options for a legal or quasi-legal instrument(s) on traditional knowledge and traditional cultural expressions, or folklore. The options include: a binding international instrument such as a treaty; a non-binding statement or recommendation; guidelines or model provisions; authoritative interpretations of existing legal instruments; or a political declaration on the importance of the issue.

Developed countries have shied away from a discussion of a legally binding text, which has been sought by developing countries including Brazil and India. This week, India remained firm on its desire for a legally binding instrument, while Brazil told the committee it would be “open, nevertheless, to explore a work programme or an agreed process through which phased consideration of all substantive issues could begin.” For this to happen, Brazil said, “perhaps it would be best to postpone, for the time being, the divisive debate on the legal nature of an outcome.

Instead, Brazil and others suggested a discussion on key issues to be resolved, without prejudice to existing documents. The secretariat produced two lists of issues (see below). A number of countries, including Mexico, Ecuador and the African Group, showed support for discussing the lists, as long as it was understood that they would not replace the existing draft texts from the secretariat.

Brazil referred to the lists as “a step back so we can move forward.” Brazil also suggested that the primary focus should be on traditional knowledge, as it encompasses genetic resources and could be extended to include folklore.

The existing secretariat documents include separate drafts on the protection of traditional knowledge (WIPO/GRTKF/IC/10/5) and on traditional cultural expressions (WIPO/GRTKF/IC/4). The latter documents appear somewhat like draft treaty language and contain sections on policy objectives, guiding principles and substantive provisions.

US, Japan Insist on Limited Focus

The United States, Japan and other developed countries have insisted that discussion must focus first on establishing principles and objectives, and that it is premature to begin discussions of substance on legal issues before clarification of the underlying concepts. A US delegate said that after clarification of principles and objectives and sharing of successful national experiences, the committee could decide whether guidelines or another outcome might be needed.

The majority of other countries have shown support for a discussion on all aspects of the texts in a “holistic” fashion, rather than just principles and objectives. Nigeria, on behalf of the African Group, pressed the resistant developed countries on their objectives for the committee. The United States called for a “step-by-step” approach. But developing countries raised concern that the absence of a deadline could mean principles and objectives are discussed without end.

The US and Japan also appeared to call for clearer definitions before proceeding. Nigeria, on behalf of African countries, and Peru, said operational terms were agreed to in the committee in 2002 and could be referred to.

Charles McManis, a law professor at Washington University in St. Louis (US), said there have been international agreements on intellectual property, such as the more-than-a-century-old Paris Convention (which provides a basis for WIPO), that did not define terms, and the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). He said “traditional knowledge is analogous to subject matter that patents protect, such as inventions,” for which no definition is given in the agreements.

India cited its 2005 national patent law under which allows the refusal of a patent grant for insufficient disclosure of origin of genetic resources or traditional knowledge. It highlighted an India effort to create of a traditional knowledge digital library. Nigeria said countries are prepared list what they think should be protected under different instruments.

If countries agree on elements of protection, they can then agree on the scope, level and duration of the protection, a Nigerian delegate said afterward. “We are not now discussing an international framework, we are discussing the elements,” he said.

Kenya called for a review of existing contracts involving traditional knowledge, and Ghana said there is a need for remedies for infringement of rights over traditional knowledge.

Meanwhile, Peru said, those countries arguing against substantive discussions on traditional knowledge and folklore appear to be seeking substantive discussions on genetic resources. “Documents are not put on the table just to say, ‘We have objections,’ but, what are the objections?” Peru said. “That is not showing good will from other partners in the discussion.”

“The bottom line is how to break the deadlock,” said the meeting chair, Ambassador I Gusti Agung Wesaka Puja of Indonesia.

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

[documents as original]

Traditional Knowledge

Issues

1. Definition of traditional knowledge that should be protected.

2. Who should benefit from any such protection or who hold the rights to protectable traditional knowledge?

3. What objective is sought to be achieved through according intellectual property protection (economic rights, moral rights?)

4. What forms of behavior in relation to the protectable traditional knowledge should be considered unacceptable/illegal?

5. Should there be any exceptions or limitations to rights attaching to protectable traditional knowledge?

6. For how long should protection be accorded?

7. To what extent do existing IPRs already afford protection? What gaps need to be filled?

8. What sanctions or penalties should apply to behavior or acts considered to unacceptable/illegal?

9. Which issues should be dealt with internationally and which nationally, or what division should be made between international regulation and national regulation?

10. How should foreign rights holders/beneficiaries be treated?
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Traditional Cultural Expressions/Expressions of Folklore

Issues

1. Definition of traditional cultural expressions (TCEs/expressions of Folklore (EoF) that should be protected.

2. Who should benefit from any such protection or who hold the rights to protectable TCEs/EoF?

3. What objective is sought to be achieved through according intellectual property protection (economic rights, moral rights?)

4. What forms of behavior in relation to the protectable TCEs/EoF should be considered unacceptable/illegal?

5. Should there be any exceptions or limitations to rights attaching to protectable TCEs/EoF?

6. For how long should protection be accorded?

7. To what extent do existing IPRs already afford protection? What gaps need to be filled?

8. What sanctions or penalties should apply to behavior or acts considered to unacceptable/illegal?

9. Which issues should be dealt with internationally and which nationally, or what division should be made between international regulation and national regulation?

10. How should foreign rights holders/beneficiaries be treated?

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