WIPO Traditional Knowledge, Folklore Committee Closes In Consensus; Experts To Help

The World Intellectual Property Organization committee charged to find effective ways to protect traditional knowledge and folklore closed a weeklong meeting in consensus on several items, among which are two revised texts to be discussed further at the next session.

After a 36th session which was described by many as disappointing, last week’s 37th session of the committee gleaned some results, with decisions [pdf] on the establishment of an ad hoc expert group for the next session of the committee, a recommendation for the upcoming WIPO General Assemblies, and the agreement on new revised texts.

The 37th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) took place from 27-31 August.

On 31 August, the committee facilitators issued the second revision of draft articles [pdf] on TK, and a second revision of draft articles [pdf] on TCEs. The facilitators are Paul Kuruk, vice-chairman, Ghana International Trade Commission (GITC), Ministry of Trade and Industry, and Lilyclaire Bellamy, executive director, Jamaica Intellectual Property Office (JIPO).

This second set comes after first revisions [pdf] (IPW, WIPO, 30 August 2018), and was elaborated taking into account comments made by member states on the first revisions during formal and informal sessions, according to the two facilitators.

The IGC works on the protection of genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions, or folklore (TCEs). According to the IGC mandate [pdf] for 2018/2019, the IGC discussed GRs for the first two sessions of the mandate, and the four next sessions – starting with the 37th session – are devoted to TK and TCEs.

Recommendations to the General Assembly

A set of recommendations was adopted by the IGC last week. Such adoption was underlined as “significant” by IGC Chair Ian Goss, since it is the first recommendation made by the committee to the General Assembly in the last ten years, apart from the mandate, he said.

The recommendations call for the IGC to continue to work towards agreement on an “international instrument(s), without prejudging the nature of outcome(s), relating to intellectual property which will ensure the balanced and effective protection of” GR, TK, and TCEs.

At the last session, a second revision of the GRs text, approved by most members of the IGC, was blocked by the United States (IPW, WIPO, 2 July 2018). The decision acknowledges the progress made on GRs and calls on delegates to consider next steps in relation to GRs, TK, and TCEs.

The negotiation on GRs is considered by a number of developing countries to be mature enough for the WIPO General Assembly to recommend the convening of a high level negotiating meeting (diplomatic conference) in the next biennium (2020/2021). Some countries, such as members of Group B developed countries, think that there is no agreement on some basic principles of how GRs should be protected so more work is needed. One of the sticking points of the GRs discussions is the mandatory disclosure of origin in patent applications.

Some developed countries have put forward a number of proposals on the three subjects, calling for additional studies, in an effort to bring more facts to the discussion. However, developing countries are considering that those are merely delay tactics.

Indigenous Peoples Fund Depleted, What Next?

Given the recurring depletion of the Voluntary Fund, which makes it possible for indigenous peoples and local communities representatives to attend IGC meetings, indigenous peoples proposed last week that the WIPO general budget contributes to the Voluntary Fund. This was supported by some member states, including Brazil and South Africa.

This proposal of using the WIPO general budget is not new. In 2014, Australia, Finland, the Holy See, New Zealand and Switzerland tabled a proposal [pdf] at the WIPO Programme and Budget Committee (PBC), suggesting that a maximum sum of CHF60,000 be allocated to the Fund in 2015. But the proposal was not approved by the PBC (IPW, WIPO, 15 September 2014). At that time, it was opposed by the United States, Germany, Sweden, and Indonesia.

WIPO estimated last year its total revenue for the 2018/2019 biennium at CHF 826 million (US$ 866 million), and its expenditures at CHF 725 million (US$ 760 million) (IPW, WIPO, 11 September 2017).

A representative of the indigenous peoples last week said he was not sure if delegates understand the poverty of many indigenous peoples and local communities.

The recommendations adopted this week recognise the importance of indigenous peoples and local communities participation in the IGC, and encourage members “to consider contributing to the Fund and consider other alternative funding arrangements.”

Ad Hoc Expert Group

The mandate of the IGC includes the possibility to get help from an ad hoc expert group on specific legal, policy or technical issues. The IGC last week agreed on the establishment of such a group to support member states on issues related to TK and TCEs.

An ad hoc expert group was also called to help the IGC on GR issues prior to the 36th session, in June (IPW, WIPO, 27 June 2018).

Each regional group, the European Union, the so-called Like-Minded countries, and the Indigenous Caucus will be invited to nominate their experts to the expert group, according to the IGC 37 decisions.

The ad hoc expert group is expected to meet in December, prior to the 38th session of the IGC, the dates of which were not confirmed by press time.

REV2: Back to Alternatives

The second revisions (REV2) of some draft articles on TK and on TCEs were approved by the IGC to serve as a basis for further discussions at IGC 38.

In the first attempted revision (REV1) of draft articles on TK [pdf] and TCEs [pdf] coming from the last session on those subjects, the two facilitators presented the two sets of draft articles on the same document side by side. The IGC is addressing TK and TCEs at the same time because a number of issues are common to the two subjects. The second revision of the articles however was presented in two separate documents.

The facilitators attempted to streamline Article 1 (Objectives), Article 2 (Use of Terms), and Article 3 (Beneficiaries). They also worked on a preamble section for TK.

A number of delegates asked that alternatives describing their preferred language be re-established in REV2, such as the European Union, the United Kingdom, Italy, Japan, and the United States.

On the TK REV2 text, Article 1 (use of terms) and Article 2 (policy objectives) have been switched, and three alternatives to objectives have been reinserted. For example, Alternative 3 states that the objective should contribute toward the protection of innovation and to the transfer and dissemination of knowledge, and recognises the value of a vibrant public domain.

The public domain, how it is defined, what it is constituted of, and the use of it are subjects of dissent at the IGC.

In Article 4 (Beneficiaries), which had been streamlined in REV1, now has three alternatives. Alternative 2 includes the mention of holders of “protected traditional knowledge.” This concept has been denounced by indigenous peoples and some countries as restricting the protection for a number of sessions.

On the TCEs REV2 text, Article 2 on objectives has three alternatives in much the same manner as the TK text. An article on eligibility criteria (Article 3) has been reinstalled. It includes an alternative asking that in order to be protectable, the TCE should have been used by holders for a term to be determined by each member states, but not less than 50 years.

This concept has also been pointed out as incompatible with indigenous peoples and local communities by indigenous peoples and some countries since its introduction some sessions ago.

The Indigenous Caucus, in a closing statement, said the gap analysis conducted by WIPO on the protection of TK [pdf] and TCEs [pdf] shows that the IP system is not sufficient to protect GRs, TK, and TCEs of indigenous peoples, and a new set of rules taking into account collective cultural rights is necessary.

 

Image Credits: WIPO. Photo: Emmanuel Berrod