TWN Info Service on Biodiversity and Traditional Knowledge (Apr14/02)
02 April 2014
Third World Network

WIPO: Negotiations resume on traditional cultural expressions
Published in SUNS #7776 dated 2 April 2014

Geneva, 1 Apr (Alexandra Bhattacharya) -- Governments have resumed negotiations on the protection of traditional cultural expressions at the World Intellectual Property Organisation amidst considerable differences.

The second week of the 27th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) commenced on 31 March.

It will focus on the furthering of a text for the effective protection of traditional cultural expressions (TCEs).

The basis for discussion will be the document on "The Protection of Traditional Cultural Expressions: Draft Articles" (WIPO/GRTKF/IC/27/5) where considerable divergence exists, reflected by alternative options and brackets in place for almost all the 12 draft articles.

As with the text on genetic resources (GR) and traditional knowledge (TK), the TCE text as it will stand at the end of the week (4 April) will be transmitted to the 2014 WIPO General Assemblies for consideration.

[The IGC is mandated to submit to the General Assembly the text(s) of the international legal instrument(s) that will ensure the legal protection of GR, TK and TCEs.

[The text on genetic resources from the 26th session on 3-7 February, and the traditional knowledge text from last week at the current 27th session, both of which are heavily bracketed, will be transmitted to the WIPO General Assembly, which "will take stock of and consider the text(s), progress made and decide on convening a Diplomatic Conference, and will consider the need for additional meetings, taking account of the budgetary process". A Diplomatic Conference is the formal procedure for concluding a treaty.]

In opening the TCE discussion in the plenary on 31 March, the IGC Chair Ambassador Wayne McCook (Jamaica) stated that the initial focus would be on moving forward on issues of a "cross-cutting" nature pertaining to TCEs.

The basis for the discussion, as with TK, would be the Chair's non-paper on cross-cutting issues which had highlighted the topics of (i) meaning of "traditional"; (ii) the beneficiaries of protection, in particular the role of states or "national entities"; (iii) the nature of the rights, including the meanings of "misappropriation" and "misuse"; and (iv) the treatment of publicly available and/or widely diffused TCEs.

The Chair stated that the IGC now had the benefit of the TK discussions which had also extensively tackled cross-cutting issues and had advanced on key concepts.

He said that a way forward would be to ascertain what could be transposed (directly or with adjustments) with respect to cross-cutting issues from the TK text, bearing in mind that there may be slight differences between TK and TCEs.

He added that some issues that still needed to be resolved included the term "traditional" and also how to establish a nexus between the nation and the TK and TCE to be protected.

Kenya, on behalf of the African Group, said that there were many areas in common between the TK and TCE texts and a way forward would be to try and synchronize the two texts based on last week's discussion. This view was also supported by New Zealand.

Kenya added that the facilitators should take into account key issues and concepts which were developed in the revised TK text whilst taking into account differences in the Articles.

Egypt stated that in some national experiences, it was difficult to distinguish between GR, TK and TCEs, noting that what was valid for TK could also, on way of another, be expressed for TCEs.

The European Union stated that any "synchronization of texts" should be done in a transparent manner.

It said that it would not want to risk progress by the merging of the texts. It added that a number of different contents of TCEs were already protected through copyright.

It pointed out further that the Chair's non-paper had also noted that TCEs had received considerable protection, for example, Article 15.4 of the Berne Convention 1967; Tunis Model Law on Copyright 1976; and WIPO- UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Forms of Prejudicial Action 1982.

The EU added that there was, however, no such parallel protection for TK.

Indonesia stated that the biggest breakthrough during last week's discussion on TK was on the scope of protection. It said that the same approach could also be applied to TCEs according to their specific nature.

Canada said that with regard to "beneficiaries", there was a need to introduce nuances and for a more "detailed approach" with regard to the nature of rights.

The Tulalip Tribes, on behalf of the Indigenous Forum, made the proposal to include in the discussion on cross- cutting issues the following: awareness-raising and capacity-building.

It stated that these important elements were missing from the existing documents, adding that it was "more cost effective to prevent harms than to cure them".

It said that there was a need to ensure that indigenous peoples were involved throughout the awareness-raising and capacity-building process and in the creation of "culturally appropriate and effective materials".

It also called on WIPO Member States to take into account Articles 21 (on awareness-raising) and 22 (on capacity) of the Nagoya Protocol on access and benefit sharing which deal with these issues.

The proposal by the Indigenous Caucus was supported by Thailand and Australia and thus officially accepted for consideration.

The Indigenous Caucus also proposed the inclusion of a preambular provision in the TCE text on the non-diminishment of rights.

It proposed wording along the lines of "Nothing in this instrument will be seen as diminishing the rights of indigenous peoples they have now or may be acquired in the future".

Bolivia and Australia supported the inclusion of this principle of non-diminishment.

Iran called for the expeditious solution of existing divergences, particularly noting that the economic and moral interests of beneficiaries should be safeguarded with the inclusion of prior informed consent.

Bolivia said issues such as administration of rights, beneficiaries and scope of protection would greatly benefit from the discussion on TK (of last week).

Australia also agreed that issues such as subject matter, beneficiaries and scope of protection would be "condensed and combined".

The United States said that there was a wide range of cultural productions (language, games, mythology, dance, music) and there was a need to focus on these in "a laser-like beam".

It also stated its preference for inter-related but separate texts. It also alluded to an "inter-related but distinct" knowledge system.

The US referred to a bamboo flute which contained elements of GR (the bamboo), TK (the flute) and TCEs (the melody and performance).

It stated that with regard to the scope of protection, there was considerable overlap with TK whereas more differences were foreseen in areas such as exceptions and limitations, complementary measures and disclosure.

Venezuela stated that there was a need to focus on "indigenous peoples" as a key cross-cutting issue.

The Chair noted that the issue of "indigenous peoples" and how it would be addressed in the text was one of the original cross-cutting issues.

A number of Member States (notably the EU) had expressed their reservations with respect to the usage of the term "peoples", noting the indivisibility of peoples' principles in a number of EU Member States' constitutions.

After initial comments on cross-cutting issues in the plenary, the IGC moved into informal "expert group" mode where Member States undertook an "article by article" discussion on the draft text.

The first revision of the TCE text is expected at lunchtime on 1 April.

An initial review of the text was undertaken in the expert group, which is also chaired by Ambassador McCook.

The discussion particularly focused on the following Articles:

* Article 1: Subject Matter of Protection.

* Article 2: Beneficiaries of Protection.

* Article 3: Scope of Protection.

* Article 4: Administration of Rights/Interest.

* Article 5: Exceptions and Limitations.

* Article 8: Sanctions, Remedies and Exercise of Rights/interests.