Divergence On Future Of WIPO TK Committee; US Proposes Work Plan

The World Intellectual Property Organisation committee seeking to devise a way to protect genetic resources and traditional knowledge from misappropriation is trying this week to refine potential treaty texts and to agree on a recommendation to the upcoming General Assembly. Developing countries are pushing for a final negotiation next year, while the United States proposed a work plan for 2015.

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 and has two major aims. The first is to identify common language between the three draft texts coming from earlier sessions of the IGC this year, to see if some language could be harmonised between them, and the second is to agree on a recommendation to the upcoming annual WIPO Assembly in September.

WIPO Director General Francis Gurry today urged member states to agree this week on the terms of a recommendation to the General Assembly.

The Assembly, he said, “is not in a position in the course of its five or six-day meeting, when it deals with the whole business of the organisation, to deliberate and to negotiate, except on some final points.” He added, “The General Assembly cannot assume the function of a committee of experts.”

Last year’s Assembly could not complete its work during its regular meeting and had to convene an extraordinary session in December (IPW, WIPO, 3 October 2014). One of the stated reasons for this was the number of decisions to be taken by the General Assembly due to the lack of recommendations made by committees.

Today (7 July), the United States submitted a work plan [pdf] for 2015. The US-proposed work plan includes three sessions of the IGC in 2015 on the committee’s three topics: genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs, or folklore).

Those sessions would each include three days of text-based negotiations with no indigenous panel (regular sessions of the IGC normally include a panel of indigenous and local communities). This would be followed by one day on practical aspects of databases, and one day of a cross-cutting session (much like what the IGC is holding this week) to discuss similarities and differences in the approaches of the three separate subjects. The last session on TCEs would not include the session on database but instead, one day to draft a recommendation for the 2015 Assembly.

The document also states that should the 2015 Assembly fail to reach a decision on a diplomatic conference “the IGC will continue to meet in the next biennium with the same frequency as other WIPO committees…” The US proposal has not yet been discussed by the IGC.

Before going into smaller expert groups, the IGC chair, Jamaican Ambassador Wayne McCook, opened the floor for regional coordinators and individual countries for opening statements.

Developing Countries in Starting Blocks

In general, the appreciation that countries are giving of the draft texts (on GRs, TK and TCEs) is dissimilar. Group B of developed countries, as well as the Group of Central European and Baltic States, and the European Union deem that a lot of work remains to be done on the three draft texts, while developing countries claim a level of maturity in coherence with the convening of a final negotiation meeting (diplomatic conference) in 2015.

The African Group advocated for a diplomatic conference in 2015, as did Pakistan, Indonesia, Sri Lanka, Malawi, Zimbabwe, Zambia, and India.

Developing countries, such as Indonesia for the like-minded developing countries, Bangladesh for the Asia and Pacific Group, and Peru underlined the ongoing misappropriation of their resources. Indonesia said the current intellectual property regime cannot sufficiently protect GRs, TK and TCEs.

“The absence of such international binding instrument has served the continual misappropriation [of resources] and has contributed to the imbalance of the global IP system,” the delegate said.

Paraguay, on behalf of the Group of Latin American and Caribbean countries, suggested that a meeting gathering high-level officials, such as the one organised at the 26th session of the IGC in February be convened at the last session of the IGC in 2015 (IPW, WIPO, 4 February 2014). They also shared the view that a diplomatic conference should be convened “in the near future.” A diplomatic conference is the final stage in a treaty negotiation.

India said it has concerns over the “continued use of the term ‘public domain’ ” in the TK and TCE texts. The concept of public domain, the delegate said in a written statement, “is not the appropriate concept to determine the nature of TK to be protected, and the proposed definition will exclude substantial valuable TK/TCEs that are subjected to misappropriation from protection.”

The Group of Central European and Baltic States and Group B developed countries found that a number of issues remain open for further discussion. In particular on genetic resources, the delegate from the Czech Republic said special attention should be given to the impact of a disclosure requirement in patent applications so that it does not lead to legal uncertainty.

The European Union Reaffirms Possible Disclosure Requirement

Delivering a long statement, the EU said their engagement in the IGC was illustrated by their flexibility, notably by proposing a mechanism under which they “could contemplate agreeing to a requirement to disclose the origin, or source, of genetic resources in patent applications.”

“This does not mean we could accept any form of disclosure requirement,” the EU delegate said. “To be acceptable, the disclosure requirement would have to contain safeguards as part of an overall agreement to ensure legal certainty, clarity, and appropriate flexibility.”

“However,” he tempered, “the crucial issue of sanctions and remedies remains without resolution. It is essential that we avoid any outcome that would adversely affect in any way the validity and effective enforcement of patent rights. If we cannot establish agreement over this key issue, then our work may be better placed in developing effective defensive measures to prevent the erroneous grant of patents.”

On the nature of the instrument, the EU said the IGC could not succeed in balancing a better recognition of TK and TCEs and at the same time safeguarding existing freedoms and the public domain, if binding instruments were to be pursued.