Mismatch On Traditional Knowledge Treaty Text, Negotiating Sessions At WIPO

The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) at the World Intellectual Property Organization began its first meeting under a newly-minted mandate yesterday, though it seems matters of procedure may again take up much of the space for discussions, according to several delegates.

“We have as many interpretations [of the mandate’s meaning] as members,” said one developing country participant, adding that finding an agreement would be difficult.

The IGC is meeting from 7-11 December, and started with a caucus of indigenous representatives, on which several panellists spoke to their experiences. A new chair was chosen this week, Juan José Gómez Camcho, the ambassador of Mexico to the UN.

At the opening plenary session, there were discussions over the draft agenda [pdf], when the African Group (later supported by members of the Asian Group) asked that discussions on “intersessional” meetings intended to speed the work of the IGC take place earlier in the week. Three intersessional meetings were loosely scheduled by the October WIPO General Assemblies for February/March 2010; October 2010; and February/March 2011. The next IGC will be in May or June 2010, so a decision as to substance and method of work for the intersessional group must be made this week. A secretariat-prepared document [pdf] lays out some background questions for making this decision.

Those states were concerned that waiting until late in the week to talk about intersessionals will leave inadequate time for full discussion on the issue; in the end it was resolved by deciding to have informal discussions on the intersessional issue throughout the week. The African Group will take a leadership role in these, said a delegate from Nigeria. The African Group previously put forward a proposal on intersessionals [pdf] calling for a limited group of technical experts, rather than full membership, to be nominated by member states and accredited observers.

Overall, the IGC is working under a new mandate from the assemblies to “continue its work and undertake text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection of” genetic resources, traditional knowledge, and traditional cultural expressions.

There is disagreement on several parts of this mandate, sources said. Remaining questions include how and when the text-based negotiations will happen, with many developing countries calling for them to be undertaken immediately and some developed countries – primarily the United States, sources said – saying that there are still technical issues to be tackled before the group is ready.

Also at issue is on which texts to base negotiations, and the relevant importance of the three issue areas of the committee, sources said.

A group of like-minded countries that have been pulling for a strong IGC mandate and a binding legal instrument to protect against the misappropriation of genetic resources and traditional knowledge have advocated focussing on three texts: two gap analyses on traditional knowledge and traditional cultural expressions (documents WIPO/GRTKF/IC/9/4 [pdf] and WIPO/GRTKF/IC/9/5 [pdf]), and a list of options on genetic resources in document WIPO/GRTKF/IC/11/8(a) [pdf].

The like-minded governments, mainly developing countries, have said that focussing on these three texts, which contain language that could potentially be used in the legal instrument, is a good way to focus negotiations and avoid wasting time.

Other governments, primarily members of the Group B developed countries, prefer that no text be excluded from negotiation. Group B’s position also is that genetic resources are on an equal footing with traditional knowledge and traditional cultural expressions.

Members of the like-minded group are not placing as heavy a focus on genetic resources, preferring the discussions at WIPO to “complement and not undermine” parallel processes at the World Trade Organization and at the UN Convention on Biological Diversity on genetic resources, according to a statement by Indonesia.

Members of the like-minded group of countries include at least: Algeria, Angola, Bangladesh, Botswana, Brazil, Ecuador, Egypt, Guatemala, India, Indonesia, Iran, Malaysia, Mexico, Nepal, Oman, Peru, the Philippines, Senegal, South Africa, Sri Lanka, Thailand, Yemen, Zambia and Zimbabwe.

The intersessional work [pdf] also will be a key area of discussion. A major issue to be resolved here is in who will conduct intersessional work and what its mandate will be. Group B would like for the intersessional working group to be an open-ended group of experts, in which any country can participate.

The like-minded countries are concerned that an open-ended intersessional will not accomplish anything. They point to nearly a decade of negotiations at the full IGC plenary, and argue that a new way of working – with a limited group of experts – is necessary in order to move the IGC forward.

The like-minded group met in Bali, Indonesia from 23-27 November, and prior to that in Montreux, Switzerland on 29-30 October and have produced a text. The meetings said that the documents 9/4 and 9/5 are “sufficient material for commencing negotiations” and reaffirmed commitment to “vigorously pursue” an international legal instrument, according to a statement by Indonesia. The meeting was also attended by WIPO, WTO, the Food and Agriculture Organization and the South Centre, according to a press release.

Indigenous Peoples’ Caucus

Representatives of indigenous groups had a chance to speak on the first morning and shared their views on intellectual property rights and the protection of lands and resources belonging to their groups. Indigenous groups are classed as observers in the IGC and are not permitted to directly negotiate on policy there.

Indigenous people are “owners of their own cultural heritage,” said Debra Harry, executive director of the Indigenous Peoples Council on Biocolonialism.

But this heritage does not “need another international instrument that facilitates the commercialisation of indigenous knowledge,” she said. Instead, the framework for protecting indigenous knowledge already exists within human rights law.

In particular, Harry named Article 31 of the UN Declaration on the Rights of Indigenous People, which guarantees the right of such groups to maintain, control and develop their cultural heritage, and Article 19 says “states shall consult and cooperate in good faith with the indigenous peoples … in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

There are “real dangers when you start to apply IP rights over” collective cultural heritage, said Harry. First, it compartmentalises and alienates traditional knowledge (separating it from the people and environment in which it exists). Then, it recasts it in intellectual property terms, changing the nature of what is being protected. This is “inappropriate to apply in an indigenous context,” said Harry, especially considering that indigenous people want perpetual protection, which WIPO Director General Francis Gurry has said is not on the table, she concluded (IPW, WIPO, 22 October 2009).

Preston Hardison, a policy analyst with the Tulalip Tribes of Washington Governmental Affairs Department, said his tribe is creating an IP code; they have been working on it for four years, and expect to finish in 2010. It’s a complicated issue, he said, because not all indigenous groups share the same view about how they want their knowledge handled.

This becomes particularly problematic when different tribal groups, each sovereign, share knowledge between themselves. In this context, prior informed consent may become problematic.

Rodion Sulyandziga from the Russian Association of Indigenous Peoples of the North said that “democracy is not just power to the people … it’s also protection for the minority.”