WIPO Traditional Knowledge Committee Moving Toward Legal Agreement

A World Intellectual Property Organization committee tasked with finding an international instrument to prevent the misappropriation of traditional knowledge, folklore, and genetic resources has begun in earnest text-based discussions and is now working to find an agreement on extra meetings intended to speed the process towards creating an international legal instrument.

What the mandate of these extra meetings will be, who will attend them, and how some attendees will be funded were critical areas to resolve as of press time. The latest available draft of the arrangements for this group, on which member states have been consulting in informal meetings with the coordinators of regional negotiating groups, is available here [pdf].

Meanwhile, the substantive negotiation on an international instrument has started in earnest, said several participants this week. This represents monumental progress for the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (IGC), which for nearly two years had been stalled on procedural issues to the point where it entered the October 2009 decision-making WIPO General Assemblies with no mandate and an uncertain future. The committee is meeting this week from 3-7 May.

Delegates reached an eleventh-hour decision in October to undertake text-based negotiations towards the creation of an “international legal instrument” to prevent misappropriation, and at the last IGC in December 2009 discussions were productive and text-based – though in the end the meeting stalled on how to run the extra meetings, so-called “intersessionals” because they would take place between regular sessions of the IGC, which happen twice a year. At the time participants cited a remaining “trust gap” between differing sides of the negotiation, after years of disagreement (IPW, WIPO, 14 December 2009).

It is the parameters for this intersessional work that delegates are trying to resolve today. Agreement has been reached to discuss traditional cultural expressions at the first intersessional meeting, and as of press time seemed to be moving toward agreement on other outstanding issues.

The main areas to iron out were: what the intersessionals can do, who can come, and how to support those who cannot afford to fund their own way.

The chair’s draft text from this morning says that the group can submit draft recommendations, including on text, for the consideration of the IGC. This text is something that originated from an earlier African group proposal on intersessionals, available here [pdf]. There was also a Group B of developed countries proposal for intersessionals, available here [pdf].

That African proposal had also called for the intersessionals to be limited to a small group of experts, but this was not acceptable to many countries who wanted to be there if the meetings were to also be drafting sessions, sources told Intellectual Property Watch.

In exchange for allowing the meetings to be drafting sessions, the chair’s text says that all member states and accredited observers may participate; to keep the meetings from being the same as IGC sessions, states and observers are limited to one delegate apiece in the draft. Sources indicated that this exchange might be questionable to some developing countries, who said technical experts should come and that expert suggestions are not the same as a negotiation between state representatives.

In exchange for this open participation, the chair’s text calls on WIPO to fund representatives from 71 developing countries. But this funding is to be strictly limited (see text for details, though these are open to change as the negotiation progresses). Indigenous participants will be funded by a “voluntary fund” established for their participation in normal IGC meetings, “subject to availability of funds,” the chair’s text said.

Negotiations Start

The IGC received the mandate from the 2009 annual WIPO assemblies to start text-based negotiations on an international legal instrument for the effective protection of traditional knowledge, genetic resources, and traditional cultural expressions. This week, delegates undertook text-based negotiations on traditional knowledge and traditional cultural expressions, basing those negotiations on “objectives and principles” documents prepared by the secretariat and available here (traditional knowledge) and here (traditional cultural expressions).

Working from these “objectives and principles” documents, delegates began to indicate areas where text should be added or areas where there is disagreement. This was an initial run through the text, so nothing was being deleted and all ideas were being included, with brackets around text where there was not consensus, participants said. Future negotiations will have to tackle these brackets to come to the final text.

Developed Nation Genetics Proposal

There also was discussion on genetic resources. It was important primarily to the Group B that genetic resources are given equal time and equal importance in these negotiations.

On genetic resources, there was not an “objectives and principles” paper at the start of the meeting, though a proposal for one was submitted by Australia, Canada, New Zealand, Norway, and the United States, and is available here [pdf]. The document was written by Australia, and was presented to other governments only a few minutes before the genetic resources discussion was to start, several sources told Intellectual Property Watch. As a result some countries asked that they be given more time to study it. The issue is scheduled to come up at the next IGC, according to participants.

The document of Australia and others sets out five objectives and principles on genetic resources, including conditions for access and who has the authority to determine access, measures for preventing bad (i.e., non-innovative) patents, relationships with related international and regional instruments, and the maintenance of the IP system in promoting innovation.

Uncertainty on Legally Binding Nature of Text

Progress this week does not mean future negotiations will be easy; in particular, deciding which, if any, parts of the agreement are to be legally binding is likely to be hard to resolve. Developing countries and many indigenous groups want binding protective measures against misappropriation, while developed countries have tended to be more hesitant, waiting to see what the instrument looks like before they decide if it should have binding effects. However, one participant from a developed country told Intellectual Property Watch that there is an understanding that at least some parts of the instrument are likely to be binding.