Rising Friction On Whether To Move To WIPO Talks On Global TK Regime

By Tove Iren S. Gerhardsen
Halfway into a 10-day committee meeting of the World Intellectual Property Organization (WIPO), friction was rising between members seeking to prod the slow-moving committee to begin consideration of an international instrument for the protection of traditional knowledge and those who continue to resist the acceleration.

Developing countries calling for global assistance have been providing examples of why international protection regimes are needed, but meeting participants were already predicting that the only clear outcome to this week’s meeting may be a recommendation to extend the committee’s mandate to allow further discussion in the future.

The 3-12 July meeting of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is the eleventh session of the committee, and the last meeting scheduled under the current mandate (IPW, Biodiversity, 3 July 2007). Sources said, however, the mandate is likely to be renewed by the annual WIPO General Assembly in September.

One developing country source told Intellectual Property Watch on 6 July that it was “sad” that it looked like the only outcome of the eight-day meeting would be an agreement to renew the committee mandate. Sources indicated that the members appeared to be as far apart as ever and the gap had to be bridged to have any chance of an agreement on substance.

But many developing countries argue that this is not enough, and one source said he had expected more substantive discussions at this meeting. On 6 July, discussions mainly focused on the topic of traditional cultural expressions (TCEs)/expressions of folklore. The committee went through 10 questions (“list of issues”) that are a result of the previous meeting, and on which countries had commented by 30 April. The same questions also apply to traditional knowledge, and for both subjects revised objectives and principles are being considered, sources said.

As part of the 10 questions, sanctions and penalties were discussed as well as the question of, “Which issues should be dealt with internationally and which nationally, or what division should be made between international regulation and national regulation.” The source said the discussion had rather focused on time being ripe or not for international regulations.

Countries were largely divided along developed versus developing country lines on whether international regulation is needed in this area. But some developed countries are more open than others to considering an international instrument of some kind. Developing countries argue that the discussion has gone on long enough and it is time to start discussing a particular international regime, while developed countries say time still is not right to move to that stage.

The United States and Japan were among the latter. The United States said that documents prepared by the WIPO secretariat before the meeting were useful as background material for the discussion. Others expressed interest in basing discussions on these documents. The United States called for sustained and robust discussions of the issue that would be “informed by, and not driven by,” any particular outcome. Japan said it would have “serious concern” regarding the establishment of a legally binding international instrument.

New Zealand said the TCE protection it provides does not cover other states but as misappropriation also occurs outside New Zealand, it would be interested in exploring an international dimension of the issue. Norway said the core elements should be dealt with internationally but with flexibility emphasised.

But developing countries want protection now. They reacted strongly to developed countries’ statements of discussions being “premature,” referring to the committee’s five years of work and extensive examples of misuse. One delegate said the folklore issue had been in international discussions for 40 years, with Article 4 of the Berne Convention never having appropriately addressed the concern. Many of them referred to the insufficiency of national regimes. One developing country source told Intellectual Property Watch that in some countries governments are corrupt so that indigenous people need international frameworks to protect their interests.

India called for a legally binding international instrument and Indonesia said there should be a minimum standard of protection that countries could choose to increase. China said the IGC would not be necessary if national regulation was working.

Ethiopia and Algeria, chair of the African Group at WIPO, urged WIPO to move forward on the issue. Algeria said the international dimension of the issue had been recognised in other fora so the IGC was not to discuss whether it is needed. The Algerian official said it was the responsibility of WIPO to lead discussions on this, which could lead to an international legally binding instrument.

He asked delegates to contribute constructively as he said there were two sides as of Friday morning: Those who pushed forward and those who pushed backwards.

The Ethiopian official referred to work between WIPO and UNESCO [United Nations Educational Scientific and Cultural Organization] in 1984 on this issue, saying that some delegates still seemed to feel that the time is not ripe 20 years later. “When is the time ripe?” he asked.

Examples of misappropriation

A number of examples were offered at the meeting of traditional knowledge having become subject to private intellectual property rights held by others than the indigenous people.

Officials from Kenya and Ethiopia told Intellectual Property Watch about US coffee chain Starbucks’ misappropriation related to coffee in Ethiopia, a product used for washing detergent having been taken from Kenya and patented by a US university, and a handbag now patented and produced by a Japanese company. In addition, shoes called “Masai Barefoot Technology,” referring to the Masai people of Kenya, were sold in Switzerland, among other places, the officials said.

Maui Solomon of the Hokotehi Moriori Trust referred to a type of cigarette that refers to American “spirit” produced in Austria showing a first nation chief smoking. He said this was a contemporary case study of TCEs being misappropriated. This case involved the company, Austria, the United States and the indigenous people, illustrating the need for international regulation, he said. Indigenous people in Canada would take issue with statements he said had been made by Canada at the meeting that talks are premature, he added.

An official from South Africa referred to the musical Lion King and the original South African composer, Solomon Linda, who died without benefiting from his creation. With the help of the government, he said, the case was settled out of court in the United States after the composer died.

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.