TWN Info Service on Biodiversity and Traditional Knowledge (Apr14/03)
3 April 2014
Third World Network

WIPO: Attempts to shift from “protection” to “safeguarding folklore criticised

Geneva, 3 April (Alexandra Bhattacharya) – Differences have sharpened in ongoing negotiations on the protection of traditional cultural expressions at the World Intellectual Property Organization (WIPO).

The 27th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) is meeting from 24 March to 4 April. The first week focused on traditional knowledge and this week is on traditional cultural expressions (TCEs). The IGC is mandated to submit to the WIPO General Assembly the text(s) of the international legal instrument(s) that will ensure the legal protection of genetic resources, traditional knowledge and TCEs.

Two key issues of divergence are whether “nations” should be beneficiaries of the international instrument for the protection of TCEs, and the scope of the protection.  The European Union and the United States of America suggested changing the title of Article 1 from “Subject Matter of Protection” to "Subject Matter of Safeguarding”. This was seen by a number developing countries, notably South Africa and Nigeria, as a step backwards. South Africa stressed that the mandate of the IGC is clearly to negotiate a legal international instrument for the effective protection of TCEs, rejecting the introduction of “safeguarding”. Nigeria expressed further concern about the push of the discussion into the copyright regime and the attempt to draw parallels as such. It stressed that, “we did not come here with the understanding to negotiate an appendix to the Berne Convention”.

The document on “The Protection of Traditional Cultural Expressions: Draft Articles” (WIPO/GRTKF/IC/27/5) was revised after inputs from the informal expert group meetings over the week. The Rev.1 document was circulated at 1 pm on Tuesday, 1 April. 

The IGC Chair is Ambassador Wayne McCook (Jamaica), and he also chairs when negotiations go into the informal expert group mode. Textual revision, as in the last two negotiation text on genetic resources and traditional knowledge (TK), is undertaken by  the facilitators, Ian Goss (Australia), Margo Bagley (Mozambique), Nicolas Lesieur (Canada) Justin Sobion (Trinidad and Tobago), and Tom Suchanandan (South Africa).

During the plenary in the afternoon of 1 April there was a broad discussion of the revised text, a number of developing countries expressed some frustration about both the substance and the procedure of the discussion.The Rev.1 text after the plenary interventions is now heavily bracketed, particularly by the EU and the US. The expert group has since entered into more detailed discussions on the text.

The plenary commenced with Amb. McCook announcing that Amb. Walid Mahmoud Abdelnasserof Egypt would make an intervention on the importance of the notion of “nations” in the context of the instrument being negotiated.

Amb. Abdelnasser stated that he was elaborating on this matter, in order to build “mutual understanding” of the issue. He said that the concept of “nations” was imperative. He stressed that he respected that there were cases where there was the co-existence of incoming cultures and this led to the creation of the term “indigenous peoples”. He said, however, in cases of countries that have millennia of unbroken history, it was important to bear in mind that the notion of indigenous populations were not there and it was not relevant in Egypt's context.

He noted that in Egypt, TCEs and TK were a “nation wide process” and even if the TK and TCE originated in a specific part of a country, it was developed further through interactions and could not be said to be geographically confined. He emphasized that throughout history, “there has been this mobility”.

Amb. Abdelnasser further explained that the word “folk traditions” was used to explain both TCEs and TK and the notion of “indigenous” was not relevant.

He also recalled that initially, Egypt had insisted on the inclusion of the term “state” and that now it could not go below the inclusion of the term “nations”. He also reiterated that Egypt had TK and TCEs which were not confined to a particular place or population. There had always been social mobility and simply the idea of “one people”.

The Chair also noted that there was a need to understand the “linkage between knowledge and the people” and how this could be best reflected in the context of the instrument being negotiated.

The EU made an intervention, in which it stated that the synchronization of the TK and TCE texts should be done with transparency in the textual changes. It reiterated its previous request that any text transposed from the TK text be shown as a “separate bracketed text”. It therefore, asked for the Rev.1 text to be presented in track changes.

The Chair stated that the Rev.1 text with track changes would be provided on request. He gave delegations a further hour to review the text.

Results of “informal informals”

Ian Goss (Australia), “Friend of the Chair” and a facilitator, informed the plenary on the result of the “informal informal” consultations which had taken place in order to advance in key areas of divergence.

The first issue of discussion, he said, was that of the inclusion of “nations” as beneficiaries. He referred to the inclusion of a footnote (10) in Rev.1 which was proposed by Indonesia on behalf of the Like Minded Countries (LMC) Group which reads:

“A [Member State]/Contracting Party] may act, for the interests of an indigenous or local community, as a beneficiary with regard to traditional cultural expressions that exclusively exist which that  [Member State]'s/Contracting Party's] territory, provided that the constitution or national law of that [Member State]/Contracting Party] so requires.”

Mr. Gross added that the intervention by Egypt on the subject showed that there was a need to bridge the gap between the states as a cultural identity and its custodian role.

The other issue discussed in the “informal informals” was that of sacred and secret TCEs. He added that there was some understanding that secret meant not disclosed or transmitted outside the community, whereas sacred was linked to a spiritual context.

A concern which was raised in relation to sacred TCEs was that the term was reflected in a vast range of communities, such as religious communities, and thus may be outside the scope of the discussion.

He added that the discussion had also referred to trade secrets and the need for legal certainty in relation to economic rights. Other issues touched upon were whether there should be any formalities for the protection of TCEs as well as the importance of public education and awareness.

Discussion of Rev.1 "The Protection of Traditional Knowledge: Draft Articles"

Mr. Goss then proceeded to describe the key changes in the text, as found in the Rev.1 document. He said that the new text had attempted to take into account all positions and had been merged and adjusted for clarity. He added that there had been consensus during the expert group meetings that a similar approach to the scope of protection should be used as in the TK text.

Some of the key changes in the text included:

  • Most of the original “objectives “ had been retained.
  • The language of “principles” was aspirational and placed in a preamble prior to the objectives.
  • There was a new “Use of Terms” section which included the definition of TCE. The previous footnotes had been retained.
  • Article 1 (Subject Matter of Protection) now follows the model adopted in the TK text which imbeds criteria for protection and also includes the concepts of “dynamic and evolving”.
  • Article 2 (Beneficiaries of Protection) also follows an approach similar to the TK text and now incorporates a footnote on Member State/Contracting Party being a beneficiary.
  • Article 3 (Scope of Protection) has significantly changed and now includes graduated rights based on the different levels of diffusion of the TCE (sacred/secret/publicly available).
  • Article 4 (Administration of Rights/Interests): Para. 5.1 from the TK text has been included with regard to “competent national authority”. Awareness raising elements have been moved to the new section on Capacity Building and Awareness Raising.
  • Article 5 (Exceptions and Limitations) has also followed the approach used in the TK text with regard to general/specific exceptions and the attempt to link them to different types of TCEs.
  • Article 6 (Term of Protection): Options 1 and 2 are retained. Option 1 (relating to indefinite protection) is found in both the TK and TCE text. Option 2 relates to limited protection and is only found in the TCE text.
  • Article 7 (Formalities): The issue of whether or no to have formalities for the protection of TCEs remains.
  • Article 8 (Sanctions, Remedies and Exercise of Rights/Interests) includes language on dispute settlement from the TK text. 
  • Article 9 (Transitional Measures): no substantive changes in this provision.
  • Article 10 now titled “Relationship with [other] International Agreements” includes the Indigenous Caucus’ intervention on non-diminishing rights that was supported by Bolivia and Australia at the plenary on 31 March. In particular, para. 10.2 states “Nothing in this instrument may be construed as diminishing or extinguishing the rights that indigenous [peoples] or local communities have now or may acquire in the future.”
  • Article 11 (National Treatment) and Article 12 (Trans-Boundary Cooperation): there are no substantive changes in the provisions.
  • Article 13 (Capacity Building and Awareness Raising) is a new article based on the proposal from the Indigenous Caucus supported by Thailand and Australia at the 31 March plenary.

Kenya, on behalf of the African Group said that the text was a “good basis for work”. It stated that the   goal of the cross cutting exercise which took place during the first day of the IGC session was to ensure coherence in both the TK and TCEs texts in order to ensure similar treatment. It stated that this goal had been achieved.

Paraguay said that the progress on the text was timely and based on cross cutting issues dealt with in the framework of TK.

The EU said that it had little time to consider the “synchronization” of the two texts (TK and TCEs) and questioned the merits of “synchronization across the board”. It added that the specificities of the texts could not be “over stated”. It further said that the synchronization should ensure the consistency of terms and not the  “wholesale merger” of the two texts.

It also said that it would like the title of Article 1 (Subject Matter of Protection) be bracketed with the inclusion of “Safeguarding” instead of “Protection”. Similarly Article 2 “Beneficiaries of Protection” should be changed to “Beneficiaries of Safeguarding.” It also expressed its “on going” concerns about nations as beneficiaries. 

The Chair confirmed that the transcript of the discussion held on the first day of the TCE discussion (31 March) showed that the mandate of “synchronization” of the two texts had never been proposed.  He reiterated that, “we are not embarking on the merging of texts”.

The USA in sharing its preliminary observations on the Rev.1 text said that it would like the title of Article 1 (Subject Matter of Protection) to be put into brackets.  It also asked for brackets around the words “of protection” in Article 2 (Beneficiaries of Protection). It further called for Article 3 (Scope of Protection) to be changed to “Criteria of Eligibility of Protection”.

It noted the existence of “new elements” in the text in the area of sacred and secret TCEs and asked for these to bracketed.

The USA said that Article 8 (Sanctions, Remedies and Exercise of Rights/Interests) had not been discussed in a long time and should be in brackets. With respect to Article 10 (Relationship with [other] International Agreements) it said that the inclusion of  the term “mutually supportive” in 10.1 was less rigorous and somewhat vague. It also asked for the bracketing of Articles 11, 12 and 13, stating that these Articles had not been sufficiently discussed.

Switzerland also raised concerns with respect to Article 2 and the inclusion of nations as beneficiaries. It stated that if rights were given to States then there was the possibility of “misuse”. It further explained that it did not foresee States creating, maintaining and transmitting TK, noting that it did not see how such an approach could work in practice.

Canada, with respect to Article 2, said that it was “good basis for discussion”. It stated that the new footnote on nations should be carefully examined to ensure that it was not a free pass to deny protection. With respect to Article 3 it said that a “measures based approached” would be best. It also added that providing measures for the creation of TCEs was beyond the scope of the instrument.

Canada further noted that the current text was silent on the issue of innocent infringement. It said that the non-diminishment principle as currently found in Article 10 was better placed in the introduction so as not to create a “hierarchy” between international agreements.

The UK said that it had a preference for having the language in Rev.1 cross referenced with the TK text to ensure that it was clear about where it came from.

Sweden stated that it had an interest in the meaning of public domain and would like it to be inserted in the Use of Terms.

Oman said that the current Article 13 (Capacity Building and Awareness Raising) should be separated into two different articles (one on capacity building and another on awareness building). It also reiterated the importance of an instrument which meets “needs of all Member States” adding that “nations” should be included as beneficiaries in Article 2.

China also expressed its preference for nations to be included as beneficiaries.

Egypt stated that progress had been advanced and that Article 2 on Beneficiaries should be “streamlined.” It stated that it would share further ideas in the expert group meeting.

Tulalip Tribes, on behalf of the Indigenous Forum, said that there was a “congenial and constructive” atmosphere and it hoped that it would continue with good will and good faith. It said there was a need to understand the full meaning of the legal effects of the proposals introduced. In particular, there was need to understand the limitations and the strength of the protections being offered.

It added that TCEs were not simply a form of intellectual property but “are a form of our cultural heritage”. It further expressed concerns regarding issues of fair use, public domain, common heritage and innocent infringement. It also stated that “when we talk about balance there is a need to talk about proportionality as well”.

South Africa underlined that the mandate of the IGC clearly indicated to negotiate a legal international instrument for the effective protection of TCEs. It stated that the discussion in the IGC should be around the scope of the mandate and issues outside its scope such as “safeguarding” should not be introduced. It said that it was clear that the mandate was not to develop an instrument to safeguard TCEs but for their protection.

It then referred to the “tactic of introducing words from other protocols” such as safeguarding and fair use. It noted that, “we should not impose expectations of other conventions on this process”. It highlighted that we have been made aware that concepts such as prior informed consent (PIC) in the context of the Nagoya Protocol cannot be brought in and therefore “there has to be a fairness of expectation”.

(Developed countries do not agree with developing countries that had wanted to include text on consistence with the Nagoya Protocol on access and benefit sharing that was concluded under the Convention on Biological Diversity.)

Lastly, South Africa referred to “procedural issues” stating that when the integrity of the Chair is always brought up, the Chair as head of the process needs the same respect and the same decorum of conduct as anyone else.

Uruguay, on behalf of the Group of Latin American and Caribbean Countries (GRULAC), said that the text was a good basis for discussion and the appropriate framework for making further progress. It highlighted the need to ensure that ideas were not repeated in Articles.

Thailand queried if some of the interventions had been made “in the spirit of April Fool's day” (referring to the fact that the discussion of Rev. 1 was on 1 April).  It stated Rev.1 of the text was a good basis for further discussion and supported the notion of “nations” as a beneficiary.

Thailand also stated that the footnote on nations should be inserted as a separate paragraph of its own. It also said the use of the word “safeguarding” as proposed by the EU did not provide for legal intellectual property protection.

El Salvador stressed that it could not support a term of protection of less than 50 years. It also welcomed the inclusion of Article 13 (Capacity Building and Awareness Raising) and for it to be included in the TCE text.

Nigeria stated strongly that it was “very concerned about some of the things we have been hearing.” It firstly referred to the question of “synchronization” which had been brought up. It stated that the Chair had not mentioned synchronization and was simply looking for “coherence” between the two texts. It stated that the cross cutting sessions were in order not to merge the two texts but to ensure consistency. There was a need to be clear that when cross cutting issues “cut across” the two texts (TK and TCEs), there was a need for coherence.

It also expressed concern about the push of the discussion into copyright. It stressed that, “we did not come here with the understanding to negotiate an appendix to the Berne Convention”.  It stated that it was clear that there was a mandate of text-based negotiations for legal instrument(s) for TCE. It added that similarities for protection did exist with the copyright system, but this did not mean that protection should be replaced or subsumed by the copyright system.

On the concept of “public domain” Nigeria said it did not think it was necessary to worry about the definition of this concept. It added that there was no international instrument which defined the public domain, and it was left to individual Member States to decide, pointing that this was the right approach.

Nigeria also added that, “by having provisions which state that Members States can keep doing what they are doing now with no change is not the fulfillment of the mandate.

The IGC then moved to the informal “expert group” mode where more detailed submissions on the Rev.1 document were presented. The second revision of the TCE text, which will be transmitted to the 2014 WIPO General Assembly is expected at the end of the week.