Info Service on Biodiversity and Traditional Knowledge (Mar14/01)
Call for “red lines” on genetic resources, traditional knowledge and
Geneva, 26 Mar (Alexandra Bhattacharya*) - The negotiations on an international legal instrument to protect genetic resources, traditional knowledge (TK) and traditional cultural expressions resumed with a rocky start on Monday, 24 March.
The World Intellectual Property Organisation (WIPO)'s Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting here for its 27th session from 24 March to 4 April.
It is mandated to conduct text-based negotiations to conclude an international legal instrument(s) to protect genetic resources (GR), traditional knowledge (TK) and traditional cultural expressions (TCEs). The focus of this session is on TK and TCEs.
The IGC Chair, Ambassador Wayne McCook (Jamaica), adjourned the session on Monday, after an impassioned plea to Member States to ascertain "what we can and cannot do", particularly as to whether they could agree to a "legally binding" instrument or not.
This came after Sweden's statement in the late afternoon that any instrument should be "non-binding, flexible and sufficiently clear."
This led to the Chair's plea where he also said that if "we do not have the latitude to negotiate with a full quiver", then there was no point in negotiating.
The Chair stated that this was the second time that he had heard a Member State saying that the instrument was "non-binding". On the other hand, some others had said the outcome of the instrument should not be prejudged.
He reiterated that if "non-binding" was a red line for some Member States, then "let's call a spade a spade."
He called on the IGC representatives to gain instructions from their capitals as to the nature of the instrument(s) which were being negotiated. He adjourned the session to applause from the plenary.
As mandated by the 2013 WIPO General Assembly in October 2013, this two-week session of the IGC will focus its work on TK and TCEs, and include consideration of cross-cutting issues pertaining to these two clusters.
The first two days were to be devoted to the discussion of the cross-cutting TK and TCE issues, which due to the similarities between the TK and TCE draft articles, will be discussed in parallel.
In the morning's opening session, WIPO Director-General Francis Gurry said that the fact that this was the 27th session of the IGC was significant and was evidence to the length of the process. He encouraged Member States to donate to the Voluntary Fund which provides resources for the participation of indigenous peoples in the IGC.
He noted the "extraordinary" amount of work which had gone into the entire process of the IGC and encouraged members to "exercise some patience", as it was an extremely complex process. He also underlined the need to listen to other delegations, "if we will achieve an outcome."
Ambassador McCook as IGC Chair also issued a strong call for the Voluntary Fund to be replenished. He further encouraged members to make progress, adding that "if you don't finish the race, it's almost like you never ran".
The Chair laid down the methodology which will be deployed during the two-week session. It would consist of simultaneous plenary and expert group meetings on both TK and TCEs which the Chair hoped would be based on the principles of transparency and openness.
The expert group meeting would be held in an informal setting with a maximum of seven experts from each regional group. He also encouraged members to engage with observers and for observers to engage with Member States, noting that "this is a negotiation and only through discussion can agreement be reached".
The Chair also informed the plenary that an informal meeting was held in Bali on 11-12 March which had provided "useful and frank conversations" and had focused on cross-cutting issues.
[According to the Chair's summary on the Consultative Meeting on the Work of the IGC, which was held in Bali on 11-12 March, the meeting was chaired by Ambassador McCook himself and attended by over 25 Member States including Brazil, China, Kenya, and the European Union. The meeting discussed three main topics: (i) cross-cutting issues of TK and TCE; (ii) outstanding issues on TK; and (iii) outstanding issues on TCE.
[The meeting also identified some of the main cross-cutting issues as being: subject matter of protection; extent of rights and its relationship with misappropriation; beneficiaries; publicly available TK/widely diffused TK; and limitations and exceptions.]
DIVERGENCE ON KEY CONCEPTS IN "CROSS-CUTTING ISSUES" DISCUSSION
In preparation for the two-day discussion on cross-cutting issues, the Chair had circulated a non-paper which is not intended to serve as a working document but which has suggested certain cross-cutting issues.
The non-paper, as way of background, notes that "quite a number of member states have adopted special ("sui generis") national legislation or measures for the protection of TCEs, and some, but not many, have adopted special national legislation for the protection of TK".
The Chair's non-paper further notes that "a few regional organisations have adopted or are developing regional instruments. However, these national and regional instruments are diverse and their implementation are varied."
In any event, national and even regional protection of TK and TCEs does not seem to be enough to ensure their effective protection, especially as they are often exploited in jurisdictions other than from where they originate, it stated.
Therefore, there is a call for an international instrument to provide for the effective protection of TCEs and TK "as such" (positive and/or defensive protection) as well as for the protection of community interests in respect of contemporary versions of TCEs and of TK-based innovations (defensive protection).
The Chair suggests the following (non-exhaustive list of) cross-cutting issues to be discussed:
(1) the meaning of "traditional";
(2) the beneficiaries of protection, in particular, the role of states or "national entities";
(3) the nature of the rights, including the meanings of "misappropriation" and "misuse";
(4) the treatment of publicly available and/or widely diffused TK and TCEs.
He stated, in his summary of the non-paper, that these are issues "that remain unresolved, and impede further progress in the text-based negotiations of the IGC" and that "it will be difficult to advance on the drafting of the TK and/or TCEs draft articles without resolving, or at least reaching greater clarity on, these fundamental cross-cutting issues" (WIPO/GRTKF/IC/27/INF/10).
Ambassador John O. Kakonge of Kenya, on behalf of the African Group, stated that the Group's goal was unchanged, which was to agree on text(s) of an international legal instrument to ensure protection of TK & TCE that have sustained communities around the world.
He said that the Group was pleased with the progress in the last IGC session (on genetic resources) and hoped that the "same spirit and efficiency will be replicated in this session".
He stated, "We're concerned not to move backwards but as close as possible to our main goal", adding that the discussion of cross-cutting issues will create coherence in similar concepts in the TK and TCE texts.
Ambassador Kakonge said that a good starting point for the discussion could be the Chair's summary of the Bali meeting which was held on 11-12 March 2014 and the four elements found in the recently circulated Chair's Non-Paper.
He added that while the two lists overlap, there are important elements in each list that could formulate a comprehensive list.
Ambassador Triyono Wibowo of Indonesia, on behalf of the Like-Minded Group of Countries (LMC), stated that it was important to take into account the Consultative Meeting in Bali, including important issues such as subject matter, beneficiaries, scope and limitations and exceptions.
He said that regarding the nature of rights over TK and TCEs, there was dynamic interaction on establishing the level of rights depending on the character of their use. And this could be a useful tool.
Ambassador Wibowo stated that regarding subject matter, the LMC believed that broad and inclusive definition of TK/TCE was preferable, acknowledging that it should provide clarity. In this respect, a non-exhaustive list could be used.
He further stated that protection granted should extend to widely diffused TK/TCE, adding that the criteria of eligibility should be removed from the subject matter.
On beneficiaries, the LMC believed that the State was essential especially when a specific TK or TCE could not be assigned to a specific community that generated them. In this context, the State should act as a beneficiary and administrator. On scope, there were converging views emphasising the economic and moral interests of the beneficiaries.
Ambassador Wibowo added that safeguards should take into account the nature of the rights protected and the level of diffusion of the TK/TCEs.
He reiterated the Group's firm position to convene a Diplomatic Conference in 2015 (to conclude the negotiations of a treaty).
Japan, on behalf of Group B (of developed countries), agreed with the LMC that the instrument should be "flexible in implementation and sufficiently clear".
It underlined that protection "should not have adverse effects on innovation and creativity", adding that it welcomed the cross-cutting segment, and noting that the issues were different subjects which should be dealt with on an equal footing but it was "useful to look at overlapping elements".
Japan stated that the treatment of widely diffused TK and TCEs was critical in order to avoid adverse effects on innovation and creativity. It added that at the high-level meeting held during the last session (IGC 26), it had shared the feeling that the IGC has made progress but the reality is that there were diverse and conflicting views due to the lack of understanding on goals and guiding principles.
Pakistan stated that "the global intellectual property (IP) system dated back to the Industrial Revolution, but the human intellect existed much before". It added that although developing countries have made less progress, it didn't mean they were less worthy of protection.
The Czech Republic, on behalf of the CEBS Group (Central European and Baltic States), said that the Group had yet to digest the Chair's Non-Paper in its entirely. It stated that the key concern of the Group was the proposed binding legal character of the instrument.
It stated that there was a need to first find agreement on key issues such as policy objectives and goals. The Group was of the opinion that the (TK and TCE) texts should remain separate.
Canada stated that a key question was to ascertain "what do we all want to prevent?" It said that part of the answer could be found in approaches that don't collide head-on with IP. For example, countries may have laws addressing false or misleading indications.
The EU said that "we have demonstrated our engagement and flexibility". It also reiterated the need to be guided by "solid evidence" and that currently, there was an absence of evidence of the effect of protection on stakeholders. It added that this was a reason why the IGC had been unable to establish common objectives.
Iran said it associated itself with the views of the LMC. It stated that although the characteristics of TK and TCEs varied greatly, the knowledge component of TCEs lead to similar means for their protection.
Iran said that enforcement procedures must also be available, also referring to robust enforcement including compensation. It added that as found in the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), the mechanisms could be left to each Member State. It also reiterated the need to "preserve space for countries".
Trinidad and Tobago stated that there was an overlap between TK and TCEs and in this context, it did not exclude the possibility of consolidating the two texts. It stated its support for a non-exhaustive illustrative list on subject matter. It also reiterated its support for a Diplomatic Conference to be convened in 2015.
It urged Member States to draw inspiration from the Beijing and Marrakech Treaties (respectively on audiovisual performances, and on facilitation of access to published works for the blind, visually impaired and otherwise print disabled).
Peru said the definition of TK and TCEs should not be confined to what was "old" but should rather focus on the "inter-generational" value. It also did not support any merging of texts because of the specific nature of TK and TCE.
The United States stated that TK and TCEs were distinctly different subject matter whereby TK was a type of knowledge and TCEs were creative expressions. It added that when discussing options for protection, some of the elements overlapped, including the meaning of "traditional", "beneficiaries" and the "nature of the rights".
The US also made a specific observation that " traditional" meant inter-generational. It was also of the opinion that beneficiaries of the instrument should be indigenous people and local communities. It stated that rewarding holders would help incentivise the creation of new knowledge and provide incentives as those provided to creators and inventors.
It also stated that widely diffused TK/TCEs did not lend themselves to protection by exclusive rights and their origin could be hard to trace, noting the example of jeans.
China said that despite the efforts of previous sessions, the basic articles still contained divergent views and "we are far from one or several international instruments". It noted the importance of taking into account not only the interests of the users but also the creators.
Japan said that recognition should be given to the progress made so far; nevertheless, there was no common ground on fundamental issues. It stated that the depth of understanding was still insufficient for an international instrument to be formed.
It urged the IGC to go back to discussion of fundamental issues in order to reach a shared understanding and to ascertain a common denominator.
It stated that confining TK and TCE to a narrow scope might be a good place to start. It added that drawing on the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), it was necessary to devote attention to cases where only indigenous people were beneficiaries in order to gain a better understanding of subject matter and scope of protection. It added that protection was determined by context.
The representative of the Tulalip Tribes of Washington said that based on the interventions made by Canada and the US, it felt the need to focus on the issue of public domain. It stated that there was a need for more information regarding the actual threat to the public domain through the protection of TK and TCEs.
It questioned further, "What potential for creativity and innovation if they are protected?" It stated that "like the EU we want evidence".
The representative stated that the damage stemming from the lack of protection was clear. It agreed with the LMC Group that limitations and exceptions should not compromise the scope of protection and there was not a need to start with broad categorical exclusions of rights.
It further noted that there was a broad spectrum of TK and TCEs and in that context perhaps a spectrum of rights and exceptions was appropriate to each. It stated that it was open to further discussing this notion.
INDIGENOUS PANEL DISCUSSES ARTICLE 31 OF THE UNDRIP
The indigenous panel, which is now customary of the IGC sessions, was held during the first day of this session on 24 March. The topic was IP, TK and TCEs: Indigenous Peoples' "right to maintain, control, protect and develop their intellectual property under Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples".
The keynote speaker was Mr. Pavel Sulyandziga, President of the Batani Fund and member of the United Nations Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises (Moscow, Russia).
He said that any document which would be drawn up under the auspices of WIPO and affects indigenous peoples' rights should be based on existing national and international legislation. He added that "solutions are possible if all sides want to engage in compromises."
He also pointed out that often, indigenous peoples have difficulty in expressing their positions and may not have the full information about their rights.
Mrs. Edith Bastidas, Legal Advisor of the Entidad Promotora de Salud Indigena MALLAMAS (Narino, Colombia) pointed out that one could not speak of each indigenous right separately and that knowledge was "holistic".
She underlined that any instrument which recognised the rights of indigenous peoples needed to have the active participation of the peoples themselves.
Referring specifically to the discussion on cross-cutting issues, Mrs. Bastidas said that definitions of TK, for example, would be placing limitations, as this kind of understanding ignores that indigenous peoples' knowledge was dynamic and constantly changing.
In referring to the concept of public domain, she said that it was not appropriate to exclude knowledge in the public domain from the scope of the instrument, as "we don't know how the knowledge got into the public domain and if this was done legally".
Mr. Preston Hardison, Policy Analyst for the Tulalip Tribes of Washington, said that Article 31 of the UNDRIP should form the "baseline and minimum standards" of any discussion. He also expressed concern that "customary law" had disappeared from the draft text.
He was also of the opinion that instead of applying a "balancing test" in the text, it was more appropriate to use the "principle of proportionality in order to get at the ‘power differential' which exists."
(* With contributions from Dr. Marc Perlman.)