WIPO TK Committee Moves To Consultations To Map Out Future Work

By Tove Iren S. Gerhardsen
With a day remaining in the World Intellectual Property Organization (WIPO) committee meeting on traditional knowledge and genetic resources, the chair has moved to informal consultations with regional coordinators to discuss the future of the committee, whose mandate expires this year. Meanwhile, the African Group has submitted a new paper to the meeting.

The meeting chair, Indonesian Ambassador I Gusti Agung Wesaka Puja, said on 11 July that he wants to discuss the “future work” of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), and come back in plenary in the afternoon.

The 3-12 July meeting is to send its recommendation on whether to continue the committee to the September WIPO General Assembly. The committee is looking into whether IP protection is needed for indigenous people’s knowledge and resources and if so, the nature of such protection.

Heading into the consultations, the African Group presented a position paper on recommendations for the “future work and mandate” of the IGC. It states:

“The committee agreed to recommend to the General Assembly that the mandate of the committee be extended to the next budgetary biennium to work in an accelerated, result-oriented manner to realise concrete outcomes within the context of the international dimension of its mandate by prioritising the development of a legally binding international instrument.”

The proposal says that the IGC has carried out “sufficient work in studying and analysing national experiences” and it is time to move to developing an international instrument.

The division between countries wanting to continue to focus on studies and preparatory analysis and those who want to move to discussions of a legally binding instrument has been stark throughout the meeting. Some sources said some of the problems identified were meant to further delay the process, which reaches back 11 sessions of the committee (IPW, WIPO, 9 July 2007).

How the work of the IGC is different from that of other organisations, such as the Convention on Biological Diversity (CBD), has been another topic of discussion.

Overlap with CBD?

At a 10 July side-event, representatives from the CBD presented progress of a working group (”WG-ABS”) focusing on developing an access and benefit sharing system for genetic resources. They were asked about how these negotiations are overlapping with the work of the IGC and what would happen when one of the bodies finish first.

Timothy Hodges of Environment Canada, who together with Fernando Cassas of Colombia has been elected co-chair of the WG-ABS, said that WIPO is working on this more in the context of IP, while CBD has a broader mandate. But he emphasised that there is potential for synergies and in theory one could include related provisions from other organisations.

Hodges said the Food and Agriculture Organisation (FAO) had already ”won the race” with an agreement on plant genetic resources, and the idea is not to duplicate other efforts, but to reinforce them.

One source said the CBD focused on sustainable development, but that as WIPO now is near adoption of a Development Agenda, the mandate of the organisation may be broader. Others emphasised the need for coordination among the organisations but also at the national level as genetic resources is being discussed many places, also at the World Trade Organization.

The outcome of the CBD discussions could become legally binding, as could the outcome of the IGC. Recently in the CBD process, a ”certificate of compliance” has been suggested that would ensure that the users of genetic resources have obtained the consent of the provider country and follow the rules of that country.

When asked about countries that do not have such rules for access and benefit sharing of genetic resources, the CBD secretariat said that this is required for all CBD members, but some countries are waiting until an international standard has been agreed to.

The WG-ABS will meet on 8-12 October in Montreal, Canada and on 21-25 January 2008 in Geneva. The Conference of the Parties (COP) 9 meeting will take place in Bonn, Germany in May 2008, and the deadline for developing an ABS scheme is by COP in 2010. There is also a parallel process for traditional knowledge (regarding Article 8(j) of CBD). Separately, a CBD meeting on technology transfers and IP will be held in Geneva on 10-12 September.

Discussing the Substance

Regarding traditional knowledge and traditional cultural expressions, participants at the IGC have commented on a list of 10 issues or questions identified at the last meeting. One of the issues is, “Who should benefit from any such protection or who hold the rights to protectable TCEs/EoF [expressions of folklore]?”

WIPO has captured this in document WIPO/GRTKF/IC/11/5/c (page 24), which many indigenous groups and delegations support as a basis, including Nigeria, Mexico, Peru and China. One concern, however, is the reference to “recognised individuals” possibly being among the beneficiaries, which could be interpreted as extending the rights of community property to individuals.

A number of countries calling for a binding international legal instrument to protect TK said the indigenous people and communities should benefit, arguing that these were not difficult to define. Others more sceptical to such an outcome for the IGC highlighted issues related to who should benefit. Many called for further studies and sharing of national-level experiences.

In the discussion of the beneficiaries of protection of traditional knowledge, the United States was among the countries asking whether members of a community living abroad would be considered rightful holders of TK and a community that would benefit from TK protection, or would it only apply to the communities in their home countries.

Japan said that as for who benefits from protection, it was not clear what a community is versus an indigenous group, or whether religious groups and Internet communities would also be beneficiaries of protection.

Japan also outlined a complex matrix of a community living in another country, or being divided between two countries, or two communities in the same country. This concern was shared by Russia. But a representative of an indigenous non-governmental organisation (NGO) took issue in the plenary with what he called Japan’s ”mathemathical analysis,” and accused it of ”trying to postpone the basic discussion.” The NGO representative said the true TK holders are indigenous peoples and local communities.

Nigeria said that contemporary communities including on the Internet already have IP rights, and another indigenous NGO said it is a ”no-brainer” and ”common sense” who the rights holders are, and that it is clear the IGC is not the forum to discuss the protection of say, the rights of Australian motorcycle gangs.

Another NGO suggested that UN documents such as the CBD and the UN Declaration on the Rights of Indigenous Peoples (which will be concluded in less than three months) might help clarify these questions.

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