WIPO Committee To Increase Focus On Genetic Resources

By William New
In a recent meeting, a World Intellectual Property Organization (WIPO) committee agreed to increase its activity related to intellectual property rights and genetic resources. This could have significance for negotiations on the issue currently at the World Trade Organization, according to sources in Geneva.

The 30 November to 8 December meeting of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) had focused less on genetic resources in recent years before this meeting (though there was a 2005 proposal on it from the European Union).

Instead, the committee has been a forum for debate on how to better protect local communities’ rights to their traditional knowledge and folklore (often now referred to by diplomats as cultural expressions). The IGC meeting managed to break a longstanding deadlock on how to discuss these issues. At the meeting’s end, they adopted essentially unchanged a document approved in the committee on 6 December (IPW, Traditional and Indigenous Knowledge, 6 December).

Talks on genetic resources, meanwhile, have been mainly at the WTO, oriented around an effort by developing countries such as Brazil and India to amend the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The proposed amendment would require the disclosure of origin of biological materials in patent applications.

But a group of developed countries such as the United States have opposed the efforts at the WTO, and during the IGC meeting sought to increase attention to genetic resources at WIPO instead. Some saw the outcome as a small sign of new activity on the subject at WIPO.

The committee asked the WIPO secretariat to draft options for future work and an update on international developments on genetic resources. It also extended its next meeting, the committee’s eleventh, to 8 days, from 3-12 July. A suggested programme of work will be circulated with the draft agenda before the meeting, the IGC decided.

“It’s a fresh start on genetic resources issues,” said one participant, who added that disclosure of origin already is under consideration in WIPO in the context of traditional knowledge.

The source said it is not uncommon for WIPO to work through technical aspects of an intellectual property issue and then see it move to the WTO where it becomes part of the “deal-making machine.” The 1994 TRIPS agreement is an example.

The proposed TRIPS amendment on disclosure of origin was placed on the table by proponents with a wide range of other, unrelated negotiating issues. It would be more difficult to overcome opposition in WIPO, where the issue is not directly tied to a trade-off in another area. At WIPO, the offset of genetic resources with traditional knowledge and folklore is “not an exact fit,” the source said. For instance, there is no text on genetic resources as there is in the other areas.

Also, WIPO may be limited in what progress it can make on genetic resources policy, as an agreement on the issue already exists – the UN Convention on Biological Diversity – and WIPO’s work is intended to support it. In addition, work at WIPO is done without prejudice to the WTO or any other work, the source said.

“WIPO can’t just march in and say, ‘Okay guys, we’re taking over,’” the source said.

A proponent for the WTO disclosure amendment indicated to Intellectual Property Watch that the proponents are most concerned with pursuing the issue wherever they can get results. But he agreed that any policy on the use of genetic resources cannot be separated from the CBD mandate. And that mandate includes a requirement for including prior informed consent, which the official said cannot be known without disclosure of origin.

This already is mandated in India’s 2005 intellectual property law implementing the TRIPS agreement, sources said.

IGC Meeting Decision on Genetic Resources:

“Regarding agenda item 10 (genetic resources), on the basis of its discussions, the proposals made by a number of delegations, document WIPO/GRTKF/IC/8/9, and within the specific mandate of the committee established by the WIPO General Assembly, the committee requested the secretariat to prepare for its consideration at its eleventh session: (i) a document listing options for continuing or further work, including work in the areas of disclosure requirement and alternative proposals for dealing with the relationship between intellectual property and genetic resources; the interface between the patent system and genetic resources; and the intellectual property aspects of access and benefit-sharing contracts; and (ii) a factual update of international developments relevant to the genetic resources agenda item.”

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