WIPO Committee On Traditional Knowledge And Folklore Running In Place

By Kaitlin Mara
Work of the World Intellectual Property Organisation body dedicated to the protection of traditional knowledge and folklore this week has moved largely to informal meetings after progress in the full plenary sessions over the first few days proved elusive. Key points of discussion are whether to hold additional meetings over the coming year to intensify efforts and whether to begin discussing an international instrument on protection or some other approach.

Several delegates described discussions within the full session as repetitions of previous positions on possible solutions to the question of protection. The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) opened Monday, 13 October, but spent the first full day on opening statements from delegations. Discussion will go until 17 October, with the next official meeting scheduled for spring 2009.

At press time on Thursday, informal consultations were being held between the Group B developed countries and the African Group, with the plan of returning to plenary in late afternoon, sources said.

Behind the procedural debates are serious content questions revolving around what, if any, additional measures need be taken to prevent misappropriation of indigenous and local genetic resources, traditional knowledge (TK), and traditional cultural expressions (TCEs).

Proponents of a multilateral instrument argue it is necessary as most misappropriation is cross-border, making national legislation inadequate to prevent it.

Some developed countries like the United States feel more analysis is needed, some like those in Europe appear willing to discuss a non-legally solution, and a large number of developing countries support moving to discussion of a legally binding instrument. The secretariat has offered additional alternatives for consideration as well.

New committee chair Ambassador Rigoberto Gauto Vielman of Paraguay on Tuesday called for meetings with the regional group heads to seek a way forward, and regional group meetings, some with the chair, continued throughout the day on Wednesday.

Member states, led by an official proposal by the African Group, have called for intersessional small-group meetings in an attempt to accelerate the work toward concrete outcomes – which WIPO Director General Francis Gurry called for this month and which many developing nations feel are both urgent and overdue after eight years of discussions.

A delegate from Latin America on Tuesday expressed the opinion to Intellectual Property Watch that the best use of this week would be in drafting modalities for future work, and in particular for intersessional working groups to address specific issues. This opinion was echoed by several other delegates on Wednesday, though not all countries agree on the idea of additional meetings, and among those that do agree it is unclear what form intersessional meetings might take.

To date there is only the African proposal, which sets forth terms of reference for five proposed intersessional expert working groups on: definitions and object of protection, exceptions and limitations and duration, prior informed consent and moral/economic rights to knowledge, beneficiaries, and sui generis (in kind) options for protection.

This is an attempt to ameliorate what a delegate from Zimbabwe called “an agonisingly slow” process, considering that misappropriation continues apace without an agreement from the IGC on means to address it at a multilateral level. The Asian Group has voiced support for the intercessional meetings. Members of the Group of Latin American and Caribbean states have not yet reached consensus.

A developed country official said there “might be” an alternative proposal coming from Group B, but that no agreement had been reached. Some concerns about the intersessional working groups circulating are: the cost of running extra meetings in Geneva, the limits expense might place on participation.

A Swiss official suggested that there might be ways to improve progress during the IGC meetings, for instance by limiting opening statements to regional group heads and focussing on increasing written commentary between meetings. The official said it “is a pity” that less than 15 comments were submitted on either of the secretariat “gap” analyses on TK and TCEs prior to this week’s IGC.

The gap analyses are summaries of the discussions during past IGC meetings, authored by the secretariat at the request of member states, and outlining what is known so far about what falls under the rubric of TK or TCEs, where protection for these exists, and where there are gaps in protection. Eleven countries commented on the TK and TCE analyses; 3 observers commented on TK and two on TCEs. Currently, opening statements can run a full day of IGC meetings that usually last for five days.

Pressure Grows to Move to Negotiations

At book-ends of the discussion are those who believe there is an urgent need for a legally-binding international instrument and those who believe that the committee cannot move forward without a more precise definition of traditional knowledge, TCEs, and genetic resources, and what the goals are in seeking to protect them.

The first view in favour of negotiations is espoused most strongly by the African Group, which submitted an official proposal for such an instrument in July, as well as by the Least-Developed Country group, many members of the Asian Group, some members of the Group of Latin American and Caribbean states, and several indigenous rights organisations.

The latter view is primarily espoused by the Group B developed countries, though the members of Group B are not uniform in their positions. The European Union, for instance mentioned the possibility of considering sui generis systems or a non-binding international instrument in their opening statement, and the Swiss delegate said that “premature to decide at this point in time whether a solution should be binding or non-binding” and that “no options should be excluded at this stage.”

A developing country official called the insistence on finding perfect definitions after years of negotiation and two detailed gap analyses the developed countries “dragging their feet.”

Kaitlin Mara may be reached at kmara@ip-watch.ch.