New US/Japan Proposal On Mandate For WIPO Traditional Knowledge Committee

The United States and Japan have submitted a joint proposal for the next mandate of the World Intellectual Property Organization committee on the protection of genetic resources and traditional knowledge, whose mandate must be decided this week. The new proposal comes on top of proposals from the African Group and the European Union. If there is a large consensus saying the committee should continue its work, the objectives of the committee and the way to achieve them differ widely.

Today the WIPO General Assembly, taking place from 2-11 October, discussed one of the most sensitive issues of this year’s assembly: the renewal of the mandate and the work programme for the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

The United States and Japan submitted a new proposal [pdf] last night, suggesting a mandate for the IGC for the 2018/2019 biennium. This follows a proposal [pdf] by the African Group, and a proposal [pdf] by the EU.

Much like the EU proposal, the US proposal calls for working on common understanding on core issues, such as definitions, objectives, scope of protection, safeguarding, and the relationship with the public domain. The US proposal considers that convening a diplomatic conference (a high-level treaty negotiation) should be decided only upon agreement on definitions, objectives, beneficiaries and scope, as well as the nature of the instrument.

The US proposal suggests four IGC meetings over the next biennium, and a number of studies.

Several Takes on Work Progress

On the progress achieved in the current 2016/2017 biennium, opinions widely diverge. Proponents of expediting one or a set of binding legal instruments to fight misappropriation of genetic resources, traditional knowledge, and traditional cultural expression (TCEs) are of the view that progress have been substantial on three texts and time is now ripe to go to the next step, in particular on genetic resources. Those countries include the African Group and the Asia and Pacific Group.

Other countries, such as the European Union members, the group of Central European and Baltic States, and the United States find on the contrary that progress achieved is minimal and substantive differences on core issues remain, preventing further steps in the direction of normative instruments. The EU for example said it cannot support prioritisation of a single instrument, as progress, according to the EU, can only be made through a “holistic approach.”

Another group of countries aimed at the middle ground, underlining progress achieved.

The EU proposal indicates however that on genetic resources, the IGC should continue work on the current draft document, “having in mind the 2005 EU proposal for a formality disclosure requirement.” While on TK and TCEs, the IGC should explore the currently available protection regimes, including existing IP instruments on the protection of copyright and related rights, geographical indications, and trade secrets, as well as other national and international instruments, to identify possible gaps in the protection currently available for TK and TCEs.

The EU does not support any inter-sessional IGC working group sessions, as suggested in the African Group proposal.

The US also said the three areas of the IGC should be discussed together, but diverging from the EU, said they are concerned about the disclosure requirement.

The African Group proposal suggests the convening of a diplomatic conference in the first quarter of 2019 to conclude and adopt a legally binding instrument to protect GR.

Elements in Each Proposal and Beyond

Informal consultations are being organised to be conducted by two facilitators: Jukka Liedes, special advisor for the Finnish Patent and Registration Office, and Marcela Paiva, Counsellor at the Chile permanent mission. Ian Goss of Australia, chair of the IGC, indicated today that the facilitators would develop a single document based on the view of all member states, not only on the three proposals.

Some countries indicated that elements in the three proposals should be considered in finding a solution, including some Latin American countries, and Switzerland, who also said that the 2016/2017 mandate would provide a good basis to build upon for the new mandate.

Switzerland also underlined points it finds interesting in the proposals which have been tabled. They agreed with the African Group on the maturity of the GR discussions, and said an expert working group is an interesting suggestion. However, a diplomatic conference would be premature, the Swiss delegate said.

Switzerland agreed on the EU’s position on the importance of getting a common understanding on core issues, but that discussion should not be dissociated from text-based discussions.

 

 

Image Credits: Catherine Saez