WIPO Traditional Knowledge Committee Agrees To Intensify Text-Based Negotiations

A meeting of the World Intellectual Property Organization committee on traditional knowledge, traditional cultural expressions and genetic resources drew to a close today with an unusual ending: applause, and an agreement.

Over the last several years, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) had stalled on negotiations related to future work, and in particular on negotiations over “intersessional” working groups to take place between biannual meetings of the full IGC.

Today (7 May) that changed. After a day of intensive informal negotiations, an agreement was reached on how to conduct intersessional working groups, and a date was found for the next one: 19-23 July at WIPO. These intersessionals are intended to help speed the committee’s work towards an “international legal instrument” for the protection of traditional knowledge, traditional cultural expressions and genetic resources, which the committee is mandated to create.

It is hoped that such an instrument will provide norms or laws to prevent the misappropriation the traditional property of indigenous and local communities. Traditional knowledge, traditional cultural expressions and genetic resources do not fit precisely into the current system of intellectual property, many argue, and thus need their own particular instruments for protection.

The text on intersessionals is a “balanced agreement” and is an important first step for the start of the discussion, said Makiese Augusto from the Angolan mission. A developed country participant agreed, calling it “definitely good for future work in WIPO.” Generally, delegates seemed satisfied with the agreement and pleased that the committee can move forward.

The only outstanding question remaining on the next intersessional is how indigenous representatives will be funded to come. A fund set up to support their participation in the IGC sessions is not yet authorised to provide support to related meetings, but the WIPO secretariat has promised to look for a solution so that they can participate in July.

The IGC met from 3-7 May, and was chaired by Philip Richard Owade, the ambassador of Kenya.

Intersessional Agreement

Remaining issues earlier today were on who could participate in the meeting, what its mandate would be, and how it would be funded. See the Intellectual Property Watch story from earlier today for further details and copies of the text under negotiation (IPW, WIPO, 7 May 2010).

The intersessional working groups will provide “legal and technical advice and analysis” and will “report to the IGC on the outcomes of their work and submit recommendations and texts relating to the discussion” at the IGC, the final text says. The text will be available here on Monday.

Member states and accredited observers will be represented by “one technical expert” who will “participate in his/her personal capacity.” Whether the participants should be experts or delegates was one of the matters for debate; also a debate was whether the intersessionals should be negotiating on or drafting text. There is some “constructive ambiguity” remaining in the text with regards to how these issues were handled, one participant – who said someone from the United States had come up with the phrase – told Intellectual Property Watch.

The first intersessional will last five days, and future intersessionals could be longer if needed, the text says.

Indigenous Representation in July

The one question as yet unresolved is how indigenous people will be funded to attend the July meeting. There is a proposal that the Voluntary Fund that currently sponsors indigenous participation in IGC meetings be extended to allow for sponsorship of participation in related meetings.

But changes to the Voluntary Fund are constrained by the WIPO decision-making General Assemblies, which will take place in the fall, after the July meeting, WIPO Director General Francis Gurry explained to Intellectual Property Watch. However, he added, the same states that participate in the assemblies have asked WIPO to look for a creative, practical way to ensure participation in July.

The Indigenous Caucus requested that the secretariat “consider alternative funding mechanisms” to allow for participation in July, according to a copy of their statement in plenary. The full statement of the Caucus is available here [doc].

“Indigenous people have identified this as a problem,” a member of the WIPO secretariat told Intellectual Property Watch separately. The “rules of the fund will be amended at the assembly” in time for future intersessionals, but for the first one the secretariat will make “every effort possible to come to a practical solution.”

Indigenous and local communities must be involved for the intersessional process to be legitimate, said Marcus Goffe, legal advisor to the Ethio-Africa Diaspora Union Millennium Council, which represents the Rastafari community. He also gave a reaction to the process in video [above].

The WIPO programme on traditional knowledge is larger than the IGC; it includes advice on databases and training[corrected] programmes on the relationship between IP and traditional knowledge, traditional cultural expressions and genetic resources. Its budgetary resources for the 2010/2011 biennium are on page 43 of WIPO’s programme and budget document, available here [pdf].

Avoiding Overlap with CBD

There were also several side events this week.

On Tuesday, the UN Convention on Biological Diversity (CBD) programme officer on access and benefit-sharing, Valérie Normand, provided an update on where things stand in an ongoing negotiation for the creation of an international protocol on genetic resources.

Several issues at the CBD are related to the work of the IGC, including finding “appropriate measures to ensure the monitoring and tracking of genetic resources once they have left the provider country, including the establishment of disclosure requirements” perhaps through IP offices, Normand told Intellectual Property Watch.

“Close cooperation” between the IGC and the CBD is “more than ever necessary to ensure mutual support and avoid overlap,” she said. Working with the CBD has also been the subject of analysis at the World Trade Organization.

On Wednesday, several governments presented at an event titled Perspectives from the South on Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions. The event was sponsored by Bolivia, and its Ambassador Angelica Navarro opened it. Also speaking were representatives of Bolivia, South Africa and the South Centre.

And on Thursday, the International Federation on Pharmaceutical Manufacturers and Associations hosted the Geneva Pharma Forum.

Andrew Jenner of the IFPMA discussed past projects. The first was an agreement between pharmaceutical company Merck and the Costa Rican Instituto Nacional de Biodiversidad (INBio) from the early 1990s in which INBio supplied Merck with samples of genetic resources for an up-front fee for Merck’s use in new products. In return, Merck provided technology transfer in the form of training and equipment. [Corrected:]Eli Lilly also had a successful agreement with INBio. But an attempted agreement between Eli Lilly and a researcher from Cameroon did not work out because the researcher was unable to obtain authorisation from the correct ministries, according to Jenner’s presentation[end of correction]. Access and benefit-sharing laws – which establish terms for the use of genetic resources – must be clear and usable in order to work, he said.

Antonio Paes de Carvalho, the president of Brazilian local company Extracta said that difficulties with access and benefit-sharing regimes in biodiversity-rich countries led most large pharmaceuticals to begin leaving natural resources and natural resource efforts as a source of innovation.

Carvalho said “you need professional amounts of money to bring things out of nature and into the market,” so it is necessary to have a “significant pharmaceutical partner.” But if local companies like Extracta negotiate agreements with local entities that own genetic resources, such as farmers, they can ensure they receive benefits, he added. Meanwhile, simplified contracts can be made between local companies and larger foreign entities. This might be easier than negotiating with all parties around the table, he said.