TWN Info Service on Biodiversity and Traditional Knowledge (Oct15/03)
14 October 2015
Third World Network

WIPO:  Hectic negotiations to renew the mandate of IGC

Geneva, 14 October (K M Gopakumar and Mirza Alas) – Hectic negotiations are on to renew the mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) for text-based negotiations.

This committee under the World Intellectual Property Organization (WIPO) was established in 2000 as a discussion forum; in 2009 the WIPO General Assembly provided the mandate for text-based negotiations for an international legal instrument(s). Its future has been debated at the 55th General Assemblies of WIPO (5 – 14 October) with a decision to be adopted today, the final day.

The second ambassadors’ level meeting to resolve the roadblockswas called on 13 October (Tuesday) evening by the Chair of the WIPO General Assembly Ambassador Gabriel Duque of Colombia.  Even though the meeting discussed several issues most of the discussions were focussed on the renewal of the IGC mandate for text-based negotiations. The other issues that came up in the meeting were:  Program and budget and financing of the Lisbon Union (on appellations of origin and geographical indications); decision related to the Standing Committee on Copyright and related Rights; decision related to the demand to convene a diplomatic conference on a Design Law Treaty; and opening of external offices of WIPO.

This first ambassadorial level meeting took place on 12October (Monday).

Meanwhile the IGC facilitator Mr. Ian Goss has circulated the fourth version of the draft decision text. Third World Network (TWN) learned that an informal consultation on this fourth version would be held today (Wednesday, 14 October) around 11.30 am.

TWN also learned that the new text proposes to continuetoexpeditethe work of the IGC,“with a focus on narrowing existing gaps, with openandfull engagement, including text-based negotiations, with the objective of reaching an agreement on an international legal instrument(s) relating to intellectual property which will ensure the balanced and effective protection of genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs)”.

Unlike the initial mandate for text-based negotiations in 2009 the new proposal does not provide an exclusive mandate for text-based negotiations. Instead, the mandate is now qualified and requires a focus on narrowing existing gaps. Further, an observer pointed out that the word ‘balanced’ was not in the original mandate.

The 2009 decision reads: “The committee will during the next budgetary biennium (2010/2011) and without prejudice to the work pursued in other fora, continue its work and undertake text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection of GRs (genetic resources), TK (traditional knowledge) and TCEs (traditional cultural expressions)”.

There are six session of the IGC scheduled for the 2016-17 biennium and the 20th WIPO General Assembly in 2017 is to take stock of progress made, and decide on whether to convene a diplomatic conference to conclude negotiations or continue negotiations.                                                                                        

According to the proposal, the IGC is to focus on unresolved issues such as definition of misappropriation, beneficiaries, subject matter, objectives, and what TK/TCE subject matter is entitled to protection at an international level, including consideration of exceptions and limitations and the relationship with the public domain.

The facilitator’s draft decision proposes as the basis of IGC’s work during 2016-17 allWIPOworking documents,including WIPO/GRTKF/IC/28/4, WIPO/GRTKF/IC/28/5andWIPO/GRTKF/IC/28/6.  However, it also allows other contributions from Member States in the form of studies, examples of national experiences, examples of protectable subject matter and subject matter that is not intended to be protected; and outputs of any expert panel(s) established by the Committee and IGC-related seminars and workshops. The text also states that examples, studies, seminars or workshops are not to delay progress or establish any preconditions for the negotiations.

The Committee may also consider the conversion of the Committee into a Standing Committee and, if so agreed, make a recommendation in this regard to the General Assembly in 2016 or 2017.

Since Monday developing countries have been asking Group B (comprising several developed countries), the European Union and Central European and Baltic States to state the reasons for their objection to the renewal of the IGC mandate for text-based negotiations. Many developing country delegates told TWN that WIPO Member States that belong to these groups constitute a minority of WIPO membership and they have failed to give a convincing answer.

Often these groups assert that the text in its current form contains many brackets and progress is very slow, therefore there is no need to renew the mandate for text-based negotiations. A developing country delegate told TWN that the existence of brackets is the most pressing need to continue the negotiation with an objective of finding consensus.

TWN also learned that many developing country delegates spoke at the Ambassador level meeting last evening pointing out that refusal to renew the IGC mandate for text-based negotiation by a minority of WIPO membership would undermine the multilateral nature of WIPO.

However, an informed source disclosed that the EU and CEBS are using the renewal of IGC mandate to pressurise the African Group to withdraw its proposal of disclosure of origin requirement in the draft Design Law Treaty (DLT). In November 2014 at the 32nd session of the Standing Committee on Trademark, Industrial Designs and Geographical Indications the African Group had proposed the following paragraphs as Article 3 bis to the DLT:

Article 3 bis

Mandatory Disclosure of Traditional Knowledge or Traditional Cultural Expression

(1)  [Contracting Parties shall require all applicants to disclose whether any traditional knowledge or traditional cultural expression has been used to develop the design and the source thereof. Contracting Parties shall not process applications until full disclosure is made by applicants.]

(2)  [Where an applicant discloses that its application for the grant of an industrial design is based on traditional knowledge and traditional cultural expression, the contracting party shall request further information pertaining to prior informed consent and fair and equitable benefit sharing.

(3) [Where an applicant makes a wrongful disclosure, Contracting Parties shall provide for the revocation of the industrial design where the design has been registered, or the dismissal of the application where registration is pending …

The EU and CEBS are said to be attempting to use the IGC mandate renewal issue to remove the abovementioned provisions from the draft DLT.+