WIPO Committee Extends, Adjusts Mandate On Traditional Knowledge, Folklore

By Tove Iren S. Gerhardsen
After intense, last-minute discussions, a World Intellectual Property Organization (WIPO) committee decided to renew its current mandate, with a slightly stronger emphasis on the direction of its future work.

Meeting Chair I Gusti Agung Wesaka Puja, the Indonesian ambassador, told Intellectual Property Watch that “the old mandate still exists” but that there was a “new direction” to “further explore” the issues.

According to participants, the issue of “future work” proved to be the most contested agenda item at the 3-12 July meeting of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The agreed text, together with other agenda items, will be included in a report to be submitted to the September WIPO General Assembly, which will make the final decision.

The current renewed mandate states that, “no outcome of its [IGC] work is excluded, including the possible development of an international instrument or instruments.”

It also states that, “the committee agreed to work towards further convergence of views on the questions included in its previous mandates, in particular, within the areas of TCEs [traditional cultural expressions] and TK [traditional knowledge], on the list of issues agreed at its tenth session.”

One source said that Australia, Canada and New Zealand would have liked stronger emphasis on genetic resources, while the United States, among others, did not.

The agreement was reached after a small group (the African Group, Australia, Brazil, Canada, Japan and the United States) met in “informal informal” discussions, followed by an informal meeting, discussions continuing in groups in the hallway and finally a decision in plenary on overtime. The meeting was thus a waiting exercise for those delegates who had not defected and attended the eight-day-long meeting to the end.

An indigenous group representative from Ecuador expressed dissatisfaction with the outcome. The “mandate must be made more clear and sustainable,” he said, adding that indigenous people had to contribute more to the discussion. There were many NGOs in the meeting, but in the end high-level discussions, it was “only governments,” he said.

A New Zealand delegate said afterward that the meeting had delved into substantive issues, and the agreement reflected “a good compromise between the various positions.” Another developed country source also welcomed the substantive discussion that was based on 10 issues for TK and TCEs.

An Indian official said the meeting managed to continue discussions, while a Brazilian delegate said the meeting went “a little beyond” a simple renewal of the mandate.

A number of officials said that the agreement was a small move forward, while others said nothing has changed. This is “an agreement to talk further about how to talk, rather than an agreement on what the substantive frame should be and what to pursue within it,” Dyebo Shabalala from the Center for International Environmental Law said.

There was general agreement that the work of the IGC, which formally ended with this session, should be extended. The Brazilian official told Intellectual Property Watch that there was “a clear convergence” between developed and developing countries that the IGC could not stop here. The official also said the IGC had been dealt with on its own and not linked to other WIPO committees such as the Standing Committee on the Law of Patents and Provisional Committee on Proposals for a WIPO Development Agenda, which has been the case in the past.

But there was disagreement as to “how to characterise [the IGC’s] future work,” in the words of a US official. This relates to the IGC’s “mission” statement, as well as what documents the work should be based on, sources said. For example, the African Group wanted to state clearly that the IGC should work towards an international agreement, while many developed countries opposed this. The Brazilian official said that discussions of the issues had showed that Group B of developed countries had a lot of limitations and could not go very far.

Sources said the United States, Canada and Japan opposed the language in an 11 July proposal from the African Group which said the IGC should work towards a legally binding instrument, and an 11 July text from the chair (IPW, WIPO, 12 July 2007), which stated that it “should work towards producing concrete, substantive outcomes by the end of 2009.” Canada also took issue with a later reference to the mandate as it had a very strict instruction from home only to renew the current mandate, sources said.

A US official told Intellectual Property Watch that they “don’t want [to] prejudge any outcome,” emphasising that the mandate states that no outcome is excluded, and discussions are meant to facilitate a common understanding. The United States was opposed to “presuming something that is not there,” he said.

The US official said that, “we actually want the work to move quickly,” but indicated that jumping to conclusions not agreed by everyone could have the opposite effect and slow things down. For instance, the United States has resisted language that would commit the group to a negotiation for an international instrument.

As for the documents, future work now will be based on WIPO/GRTKF/IC/11/4( c) for TCEs, WIPO/GRTKF/IC/11/5( c) for TK and WIPO/GRTKF/IC/11/8( a) for genetic resources. These were all prepared for this session, while the documents mentioned in the 11 July chair’s proposal relate to the ninth session.

One source said that the issue of documents has become very important for how to move forward, noting that member states themselves cannot prepare them and the secretariat may only do so when it is asked. The source said that Group B had opposed basing discussions on certain documents as they felt the secretariat had written them too much in a treaty format, while other delegates did not only want a cut and paste format.

The Final Text on Future Work

There were 10 issues addressed in the meeting, including future work. The adopted text on the IGC’s future work now reads as follows (to compare with changes from the chair’s first draft, see IPW, WIPO, 12 July 2007).

DECISION ON ITEM 10: FUTURE WORK

The Intergovernmental Committee reviewed the progress made on its substantive agenda items at the current and previous sessions of its current mandate, and

(i) Agreed that progress had been made on its substantive work to date;

(ii) Agreed that its work had greatly benefited from the enhanced participation of representatives of indigenous and local communities made possible by various initiatives including the successful launch of the WIPO Voluntary Fund, and also from the participation of intergovernmental organisations;

(iii) Agreed to recommend to the WIPO General Assembly that the current mandate of the Committee be renewed as set out in document WO/GA/30/8, paragraphs 93 to 95, namely that;

– the Committee “will continue its work for the next budgetary biennium on questions included in its previous mandate”;
– “its work will focus, in particular, on a consideration of the international dimension of those questions, without prejudice to the work pursued in other fora”, and
– “no outcome of its work is excluded, including the possible development of an international instrument or instruments”;
– the IGC would be urged ”to accelerate its work and to present a progress report to the session of the General Assembly” in September 2008.
– The General Assembly would further request “the International Bureau to continue to assist the IGC by providing Member States with necessary expertise and documentation.”

(iv) With respect to the content of paragraph (iii), the Committee agreed to work towards further convergence of views on the questions included in its previous mandates, in particular, within the areas of TCEs and TK, on the Lists of Issues agreed at its Tenth Session, with a view to making appropriate recommendations to the General Assembly.

(v) Agreed concerning its substantive working document on item 7 (TCEs/EoF) that:

-the Secretariat should prepare a factual extraction, with attribution, consolidating the view points and questions of Members and Observers on the List of Issues considered during the Eleventh Session including their comments submitted in writing for the Eleventh Session, subject to review of Member States and observers and without prejudice to any position taken on these issue, and

-As agreed at the Tenth session, document WIPO/GRTKF/IC/11/4( c) remains on the table in its existing form and comments made in relation to it are noted.

(vi) Agreed concerning its substantive working document on item 8 (TK) that:

-the Secretariat should prepare a factual extraction, with attribution, consolidating the view points and questions of Members and Observers on the List of Issues considered during the Eleventh Session including their comments submitted in writing for the Eleventh Session, subject to review of Member States and observers and without prejudice to any position taken on these issues, and

-as agreed at the Tenth session, document WIPO/GRTKF/IC/11/5( c) remains on the table in its existing form and comments made in relation to it are noted.

(vii) Agreed concerning its substantive working documents on item 9 (genetic resources) that:

-the Secretariat should prepare a further update of international developments based on document 11/8(b) which would include omissions identified in the current session, more recent developments, and any other relevant developments reported to the Committee, and

-the document WIPO/GRTKF/IC/11/8(a) remains on the table in its existing form and comments made in relation to it are noted.

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