WIPO Delegates To “Rationalise” Draft Texts To Protect GR, TK, Folklore

The World Intellectual Property Organization committee seeking to establish international instruments to protect genetic resources, traditional knowledge and folklore from misappropriation next week will attempt final clean-up of potential treaty texts ahead of the annual General Assembly in September.

The 28th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 7-9 July. This is expected to be a three-day “stock-taking” meeting.

Delegates are expected to analyse three draft texts coming out of the previous sessions of the committee and see if some topics, common to all three instruments, could benefit from similar language.

This “cross-cutting” review is of the texts that are expected to become international instruments protecting genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs, or folklore). The review is expected to lead to a stock-taking of progress made this year on the three issues and to a recommendation to the General Assembly.

Developing countries, which are demandeurs for international binding rules on the three topics, are pushing for a swift convening of a final negotiation conference (diplomatic conference) to conclude one or several treaties.

Developed countries have said they are not in favour of an international binding treaty (or treaties) but rather of soft law or guidelines. Some developed countries have a more flexible approach, such as Australia and Switzerland.

The review of the three texts “might result in agreed adjustments or modifications arising on cross-cutting issues in the texts to be transmitted to the WIPO General Assembly,” according to WIPO.

The draft agenda [pdf] includes the three texts that delegates should be looking at in this cross-cutting exercise. These include: the “Consolidated Document [pdf] Relating to Intellectual Property and Genetic Resources,” draft articles [pdf] on the protection of TK, and draft articles [pdf] on the protection of TCEs.

Also on the agenda are a number of proposals that proponents have asked be re-submitted for this 28th session. In particular, these include: a joint recommendation [pdf] on GRs and associated TK (submitted by Canada, Japan, Norway, South Korea and the United States) meant to serve as guideline for countries to address the problem of erroneous patents, and a joint recommendation [pdf] on the use of databases for the defensive protection of GRs and associated TK (submitted by Canada, Japan, South Korea and the US).

Canada, Japan, Norway, South Korea, Russia and the US also resubmitted a proposal [pdf] for the terms of reference for a WIPO study on measures taken to avoid erroneous patents and on compliance with existing access and benefit-sharing systems.

The replenishment of the WIPO Voluntary Fund, which allows indigenous peoples to attend IGC session is also expected to be discussed at this session. There is a proposal [pdf] from Australia, Finland, New Zealand and Switzerland. According to the proposal, in May, the fund was down to CHF 823.10 (about US$925). The four countries are proposing that the IGC recommend to the General Assembly in September to amend the rules of the fund so that contributions could be drawn from the regular budget of WIPO to replenish the fund.

A detailed draft programme [pdf] lays out the proposed timing for the three-day meeting. An indigenous panel is expected to take place on the first morning. The rest of the session is expected to be devoted to the “cross-cutting review.” On the last day, delegates are expected to discuss the contribution of the IGC to the implementation of the WIPO Development Agenda Recommendations.

A summary of the 28^th session documents can be found here [pdf].

Chair’s Suggestions on Cross-Cutting Issues

Last month, the IGC Chair Wayne McCook, the Jamaican ambassador, issued an informal document [pdf] reflecting the chair’s view on possible cross-cutting issues.

For example, on policy objectives, according to the document, “the IGC could … consider rationalizing and reorganizing the texts to avoid redundancies and irrelevance and place focus on common, concisely-stated core IP-related principles and objectives.”

Such IP-focused objectives could include the prevention of misappropriation and misuse, the promotion of innovation and creativity, and the prevention of improper or erroneous grant of IP rights, according to McCook.

Regarding the definition and use of terms, the document gives some suggestion regarding the prickly issue of the public domain, which some consider as essential and thus favour a limited scope of protection of TK and TCEs, and some contend that such protection should be robust and override certain concerns about the public domain.

“The definition of ‘public domain’ in the TCE text makes reference to ‘tangible and intangible material,’ whereas the TK text only makes reference to intangible material. The IGC could consider aligning the definition in both texts,” suggests the chair.

In the list of terms, the term “misappropriation” is referenced in all three texts but the TK and GR texts both carry proposed definitions of misappropriation while the TCEs text does not carry such definition, McCook remarks.

Also cross-cutting is the new introduction in the discussions of a “tiered approach,” emerging during the two last sessions of the IGC on TK and TCEs. This tiered approach would allow different kinds or levels of rights depending on the nature and characteristics of the subject matter.

According to the chair’s document, this tiered approach “proposes differentiated protection for already publicly available TK or TCEs, i.e.TK or TCEs that are widely diffused, available, without restriction, to the general public, widely known or used outside the community,

on the one hand, and secret/or of particular cultural or spiritual significance… on the other hand”

Other cross-cutting issues include the disclosure requirement in the TK and GR texts, sanctions in remedies in the TK and TCEs texts, and capacity building in all three draft texts.