WIPO Members Back In Negotiations On Protection Of Traditional Cultural Expressions

Members of the World Intellectual Property Organization this week are attempting to advance 13-year-old negotiations on the protection of traditional cultural expressions (folklore) to a point where they can enter final high-level treaty negotiations. But some developed countries are putting up resistance to any instrument that would be legally binding, saying it is “premature,” which could change the outcome of the negotiations.

The 25th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 15-24 July.

WIPO Director General Francis Gurry opened the meeting by encouraging delegates to carry forward the spirit that was present in Marrakesh, Morocco last month when they successfully completed a treaty on copyright exceptions for the visually impaired.

“This is an exceptionally important meeting that is taking place now,” Gurry said, encouraging them to “find the means to converge so they can go forward with a good recommendation to the General Assembly.” The annual assembly of member states meets in late September.

The first five days of this week’s meeting are devoted to negotiating an instrument on traditional cultural expressions (TCEs), looking at issues such as defining what is a TCE, establishing who are the owners, what is the scope of rights, and what exceptions should there be (such as research or public health).

The final three days of the current meeting will be a stocktaking of the negotiations on all three topics (TCEs, TK and genetic resources) in order to formulate a recommendation to the annual General Assembly in September on whether to proceed to a high-level treaty negotiation known as a diplomatic conference.

Bangkok Retreat, IGC Chair’s Paper

A “retreat” involving member states was held in Bangkok, hosted by the Thai government, just prior to this week’s meeting at WIPO. According to the meeting chair’s summary, the 5-7 July informal meeting was attended by 55 participants from 29 countries and organisations. It was chaired by Thailand’s ambassador to the UN, Thani Thongphakdi.

[Update:] The Bangkok chair’s paper from the event is available here [pdf].

Participants at the Bangkok meeting identified areas of convergence and pending issues, and made recommendations. For TCEs, this included, for instance, coming to this week’s meeting prepared to explain why certain terms are used or whether alternatives might be possible. They were also encouraged to check with capitals on specific articles in the draft text.

At the outset of the meeting, the chair, Jamaican Ambassador Wayne McCook, circulated an “informal issues paper,” dated 21 June, which outlined where talks stand. He cited various existing instruments and said that they provide “pockets of protection” but that there is “no comprehensive international legal protection system for TCEs.” The issue paper highlighted areas still lacking consensus in the various articles of the draft instrument text.

The United States and Japan today said that the many outstanding legal questions about issues such as scope of the agreement mean that it is still “premature” to have a legally binding instrument. But all parties appear committed to some sort of instrument.

And a key difference among delegates, as in the past, is whether the instruments that emerge from this process should be legally binding or not. Developing countries have long pushed for it, but developed countries do not agree. There is a possibility that the outcome of the years of negotiations could end up as little more than a non-binding declaration on the importance of protection of these areas.

The process of the week will be to hold negotiations in informal sessions of up to six delegates for each region, alongside the plenary sessions. Next week’s stocktaking is not intended to reopen the draft texts but rather just go through them to consider whether they are ready for diplomatic conference. IGC Chair McCook said delegates should not say the negotiations are non-transparent, despite the smaller informal sessions replacing work in plenary. He said the approach is intended to create a more comfortable atmosphere for delegations to test ideas.

This is the third meeting of the IGC this year. The committee met on genetic resources in February (IPW, WIPO, 8 February 2013), and on traditional knowledge in April (IPW, WIPO, 28 April 2013). WIPO is budgeting for a diplomatic conference on one or three instruments on these subjects in the next biennium, 2014-2015.

An underlying aim of the work at WIPO is to encourage innovation while ensuring the fair and equitable sharing of benefits. It has been noted that in somewhat of an opposite situation to most other normative discussions in WIPO, developed countries are the ones insisting on a robust public domain and exceptions and limitations to any protections that might emerge.

It is still unclear whether or how the existing intellectual property system would apply to these areas. There has been discussion of creating new sui generis rights.