WIPO: New 2-Year Mandate For Traditional Knowledge Committee; Design Law Treaty Stalls

Late tonight on the last day of the annual World Intellectual Property Organization General Assembly, delegates agreed on a mandate and a work programme of the committee seeking ways to protect genetic resources, traditional knowledge, and folklore from misuse and misappropriation. Meanwhile, no agreement was found on the convening of a high-level negotiating meeting for a new treaty on industrial designs.

The WIPO General Assembly was held from 2-11 October. The adopted decision is available here [pdf].

Numerous rounds of closed informal discussions were held during the Assemblies to try to find agreement on a mandate and a work programme for the Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions (folklore) (IGC). The sessions brought together very different initial proposals tabled by different countries, and ended in consensual language being adopted just before the close of the Assemblies.

The adopted version followed several previous drafts, one of which was published this morning (IPW, WIPO, 11 October 2017).

Slight modifications were made to the morning’s draft, including an additional sentence in the footnote to the effect that expert group(s) will work during the weeks of the sessions of the IGC.

The adopted decision tries to cater to requests made in the different proposals tabled: the European Union [pdf], the African Group [pdf], and Japan and the United States [pdf], as well as from the larger WIPO membership, as explained by Ian Goss, chair of the IGC.

For example, the EU and Japan/US proposals asked that there be a common understanding on the objectives of the IGC, and core issues, which is stated in paragraph (b) of the decision.

Also in the decision is a reference to exceptions and limitations to the potential treaties, and its relationship with the public domain, both the EU and the Japan/US proposals refer to the relationship to the public domain. The importance of exceptions and limitations have been underlined by some developed countries in IGC sessions.

From the African Group proposal, the adopted decision took the possible establishment of ad hoc expert group(s), although the African Group proposal envisioned the expert group meeting in between regular IGC meetings, and the decision only caters for six meetings of the IGC in the 2018/2019 biennium, and states that the expert group(s) would work during the weeks of the IGC sessions.

The African Group also asked that a diplomatic conference be convened in the first quarter of 2019 “to conclude and adopt a legally binding instrument that will ensure the effective and balanced protection of GRs, without prejudice to the Committee’s work on TK and TCEs.”

This was not retained in the decision, but the decision still states that the objective of the IGC is to reach an agreement on an international legal instrument(s), which has been one of the main requests of a number of developing since the beginning of the IGC. The EU proposal bore no mention of a diplomatic conference, while the Japan/US proposal stated that “the IGC will consider convening a diplomatic conference only after agreement on definitions, objectives, beneficiaries and scope, as well as the nature of the instrument, has been achieved.”

The agreed decision foresees that the 2019 WIPO General Assembly “will take stock of progress made, and based on the maturity of the texts, including levels of agreement on objectives, scope and nature of the instrument(s), decide on whether to convene a diplomatic conference and/or continue negotiations.”

The EU has regularly insisted on an “evidence-based approach” to the IGC discussion. In their proposal, they said the initial phase of the IGC is to base its work on studies and examples of national experiences. They also mention outputs of any expert panel(s) established by the IGC. The Japan/US proposal also mentioned an evidence-based approach.

The decision agreed today mentions that the work of the IGC will include an evidence-based approach, and expands on it with references to studies and other items. This had been taken out in an earlier version but made it back in.

The African Group has been cautious to ensure that the reference to “evidence-based” did not lead to delay tactics through countless studies. There is a safeguard in the text that “studies or additional activities are not to delay progress or establish any preconditions for the negotiations.”

The decision also includes the concept of “text-based” negotiations, which has been described as essential by the proponents of legally binding instruments.

Discussions on Design Law Treaty Pushed to Next Year’s Assembly

It is a well-known undisclosed fact that the issue of the IGC mandate and work programme has been linked to the fate of the design law treaty.

The decision to convene a diplomatic conference to adopt a new design law treaty has been postponed because of two pending issues. One of them is whether an article on technical assistance should be included in the treaty text, the other one is whether an article on a voluntary disclosure of source in design law applications should be included in the treaty text.

No agreement was found during this Assembly on the convening of a diplomatic conference, despite efforts by the chair of informal discussions, Adil El Maliki, chair of the Standing Committee on Trademark, Industrial Design, and Geographical Indications (SCT) to gain agreement on possible language on disclosure.

It was noted that while the EU did not get its wish for the design treaty, it did get several key “asks” in the IGC mandate renewal, presumably in exchange for letting mandate be renewed.

In the end, the General Assembly decided to continue considering the convening of a diplomatic conference on the design law treaty to take place at the end of the first half of 2019.

William New contributed to this report.

 

Image Credits: WIPO