TWN Info Service on Biodiversity and Traditional Knowledge (Oct13/01)
2 October 2013
Third World Network

WIPO: Genetic resources, traditional knowledge and folklore mandate extended

Geneva, 2 Oct (K. M. Gopakumar) – The World Intellectual Property Organization (WIPO) will continue to work on genetic resources, traditional knowledge and folklore amidst divergent views among developing and developed countries.

WIPO’s General Assembly that is meeting in Geneva from 23 September to 2 October mandated the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to work for two more years, i.e. the 2014 -15 biennium, in a decision made on 30 September.  The divergent views of the Member States on the nature of the document to be produced, the maturity of the text etc. came out in the open during their interventions.

[This is the second extension of the mandate of IGC for a text-based negotiation for   an international legal instrument. The first mandate was given in 2010 for two years. In 2012 the General Assembly extended the mandate for one year. ]

The new mandate also authorizes the IGC to hold three sessions in 2014. The IGC is to submit to the 2014 General Assembly the text(s) of the international legal instruments that will ensure the legal protection of genetic resources (GR), traditional knowledge (TK) and traditional cultural expressions (TCE).  The Fifty Second session of the Assembly in 2014 will take stock and consider the progress made on the text(s) and decide on convening a Diplomatic Conference. It will also consider the need for additional meetings. 

(A Diplomatic Conference is the United Nations procedure to negotiate a treaty.)

The proposed three meetings will cover both thematic and cross cutting issues.  The first meeting (the 26th IGC session) will focus on GR and will be held in February 2014. The focus of the second meeting in April 2014 (27th IGC session) will be on both TK and TCE.  The third meeting in July (28th IGC session) will focus on cross cutting issues. This session is also to take stock of the progress and to make a recommendation to the 2014 General Assembly.

At the beginning of the first meeting in February a meeting of Ambassadors/senior capital-based officials meeting will be held  “to share views on key policy issues relating to the negotiation, to further inform/guide the process”.  The IGC may decide to hold further such meetings during the sessions in April and July.

The focus of the IGC sessions is to build on the existing work carried out by the Committee and use all WIPO working documents including WIPO/GRTKF/IC/25/5 (Consolidated document relating to intellectual property and GR), WIPO/GRTKF/IC/25/6 (draft Articles on the protection of TK), WIPO/GRTKF/IC/25/7 (draft Articles on the protection of TCE) for the text-based negotiations.

The WIPO General Assembly decision on the IGC further “take note of the possibility for members of the IGC to request studies or to provide examples to inform the discussion of objectives and principles, and each proposed article, including examples of protectable subject matter and subject that is not intended to be protected, and examples of domestic legislation”. The decision also states that, “examples and studies are not to delay progress or establish any preconditions to the text based negotiations”.

In addition, the General Assembly requested the International Bureau to continue to assist the IGC by providing Member States with necessary expertise and funding for the participation of experts from developing countries and least developed countries.

The European Union (EU) conveyed its objection to an international treaty. It stated that, “we would like to reiterate our understanding that any international instrument or instruments to be created should be non-binding, flexible, and sufficiently clear.  In this respect, we would like to remind Members that no decision has been reached on the nature of the instruments to be adopted. Once the IGC achieves solid, clear and consolidated texts, will it be able to decide on the nature of the contemplated instruments”.

Further, the EU also hinted at delaying the process by extending it for one more year at the next General Assembly. It stated that it “looks forward to establishing a reasonable and pragmatic work program for the next two years, bearing in mind the financial implications and costs of having extra meetings and also our goal of making strides towards more efficient management of meetings”.

According to the EU, “there remain issues of fundamental importance to be resolved in all texts before we reach a fully stabilized form. Many differences of opinion and understanding still need to be bridged”.

Poland on behalf of Central European and Baltic States said that the nature of the document is still to be determined.

Australia stated that it shares the concerns on the potential burden on IP and business, the unintended consequences of creating uncertainties in the IP system and limiting access to GR and associated TK. According to Australia this may impede innovation and achievement of economic benefit. Further, Australia stated that it will not allow any outcome which compromises the above concerns.

The United States of America (US) stated that it observed the divergent and conflicting views among Member States. This is reflected in the heavily bracketed text on TK and TCE. According to the US, only after reaching agreement on the principles and objective can other issues in the text be considered. Therefore, stated the US, the text of the IGC is not ripe for a diplomatic conference. It added that the commitment of the diplomatic conference would prejudge the outcome of negotiations.

Switzerland stressed the importance of process and stated that it “continues to uphold the principles of inclusiveness and transparency. It is also important that the principle of multilateralism governing the organization is respected in the IGC and the IGC is the forum for negotiation and decision”.

Trinidad and Tobago on behalf of the Group of Latin American and Caribbean countries (GRULAC) stated its position against the “the possibility for members of the IGC to request studies or to provide examples to inform the discussion”.  However, it stated that in the spirit of compromise GRULAC accepted this as part of the IGC mandate with the clear understanding that examples and studies should not prejudice the negotiation.

GRULAC expressed happiness over the convening of the Ambassador/senior level officers meeting during the 26th session of the IGC. However, it stated that such meetings should not rehash the expert positions.

Algeria on behalf of the Africa Group said that Africa with its rich biological diversity and well-known TK and TCE believes that the conclusion of the work of the IGC would lead to an increase in the development of its population.

The Africa Group believes that the last three sessions of the IGC achieved progress in the three texts. It said that there are four contentious issues viz. subject matter of protection, beneficiary of protection, exception and limitations. Further the Group said that the time has come to take a holistic and political approaches to resolve these issues.

It also stated that the WIPO General assembly should send a strong message to the international community with regard to its commitment to conclude the work of the IGC.

India said that it assigns great importance to the work of the IGC to develop an internationally legally binding instrument for the protection of GR, TK and TCE.

It also noted that the transboundary protection of knowledge and resources remains a challenge and this gap remains unaddressed. According to India this normative gap can be filled through developing an internationally legally binding text in the three subject areas viz. GR, TK and TCE.

India also stated that the work of the IGC in the last year has achieved substantial progress in developing the text of an international legal instrument in GR, TK and TCE  and these texts reached a fair level of maturity.

South Africa said that, “Only legally binding instrument(s) can create certainty for a win-win outcome to the benefit of all our citizenry”. According to South Africa “the texts presented to the General Assembly hitherto contain mature texts that constitute the basic proposals for negotiations in the special sessions and subsequently the Diplomatic Conference.  With the overwhelming consensus among the majority of Member States and indigenous communities, the need to conclude this process is now more urgent than at any time”.

South Africa stated that, “In recent years, intellectual property has proved to be hugely popular and yet it is an increasingly complex subject. South Africa attaches great importance to indigenous knowledge systems. Since our Cabinet adopted an IKS (indigenous knowledge systems) policy in 2004, the South African government has invested huge amounts of money in developing instruments for the appropriate protection and exploitation of IKS. Some of the measures taken include the process of amending all our IP laws to include provisions for the protection of IKS.”

It expressed “great concern that after thirteen years of deliberations in the IGC, there is still no agreement in sight and this reflects poorly on WIPO's normative initiatives. The failure to reach finality on the instrument(s) is not due to lack of progress on substantive matters but more to the lack of political will to acknowledge misuse, misappropriation and to provide legal remedies for such acts”.

South Africa reaffirmed “the importance of reaching an agreement on an international instrument(s) for the effective protection of GRTKF (genetic resources, traditional knowledge and folklore), which will be a historical turning point as it will also be the first time that the IP system will advance the developmental work for Africa and other developing countries. Overall, this can only benefit all Member States as it will enhance the trust and confidence in the IP system”.

South Africa stated that any “failure to reach agreement on an instrument(s) to effectively protect GRTKF will be tantamount to denying developing countries their basic fundamental rights and the implementation of principles of justice regarding misappropriation and misuse and to provide legal remedies for such acts”.

Indonesia stressed the “need to conclude a legally binding document(s) on the protection of GRTKF. We believe that hard work should be done to implement the work schedule as stipulated in the recommendation decision on IGC – GRTKF”.

It emphasized “the need for IGC to finalize the text agreement in order to enable the next WIPO General Assembly deciding to convene the diplomatic conference”.

In response to the General Assembly decision of 30 September that allows the Member States to request the IGC for examples and studies, Indonesia reiterated that, “samples and studies should by no means delay progress or establish any preconditions to the text-based negotiations’.

Egypt also stressed that the calling for studies and examples should not be an obstacle for the negotiations