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TWN Info Service on Biodiversity and Traditional Knowledge (Oct17/04)
23 October 2017
Third World Network


WIPO: Diluted mandate for genetic resource/traditional knowledge work; postponed decisions on design law treaty and External Offices

Geneva, 23 December, (TWN) – The WIPO General Assembly (GA) has extended the mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

However, the GA decided to postpone the decision on the diplomatic conference on a Design Law Treaty (DLT) and the locations of new WIPO External Offices.

These decisions were adopted on the final day of the 57th Series of Meetings of WIPO Assemblies held on 2-11 October. The GA adopted its decisions on past midnight of the final day. Informal consultations to reach consensus on the DLT, IGC and External Offices issues delayed the closing of the Assembly. The chair had to “stop the clock” to overcome the midnight deadline to conclude the Assembly.

(It is a UN practice to “stop the clock” when negotiations are protracted and the official closing time is to be breached.)

Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)

While there was consensus to extend the work of the IGC, the GA still had to decide on the mandate and the work program of the Committee. A series of informal consultations resulted in the decision.

According to the decision, the IGC is to expedite its work in the 2018-19 biennium “with the objective of reaching an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to intellectual property which will ensure the balanced and effective protection of generic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs).”

The IGC would meet six times during the 2018-19 biennium. Out of the three sessions prior to the 2018 GA, two sessions would focus on GR (February/March and May/June 2018), and one session would focus on TK and TCEs (September 2018). After the 2018 GA there will be three more sessions (November/December 2018, March/April 2019 and June/July 2019). These will focus on TK and TCEs.

However, the June/July 2019 session of the IGC would also carry out stocktaking of all the three texts, and to decide whether to convene a diplomatic conference for formal negotiations. The decision in Paragraph (e) states: “The General Assembly 2019 will take stock of progress made, and based on the maturity of the texts, including levels of agreement on objectives, scope and nature of the instrument(s), decide on whether to convene a diplomatic conference and /or continue negotiations”.

Unlike the 2015 GA decision, the 2017 decision has many factors that need to be taken into consideration, including the nature of the text. The words “scope and nature of the instrument(s)” clearly convey that a diplomatic conference needs to be convened only when it is agreed that the instrument is a legally binding instrument (treaty). This means there is no certainty with regard to the nature of the instrument in this draft text.

The relevant paragraph of the 2015 GA decisions reads: “The General Assembly in 2017 will take stock of progress made, and decide on whether to convene a diplomatic conference or continue negotiations. It will consider the need for additional meetings, taking account of the budgetary process”. Thus the words “consider the need for additional meetings” are a clear dilution of the mandate compared to the 2015 text.

The GA decision also gives the authority to the IGC to establish ad hoc experts group(s) to address a specific legal, policy or technical issue. The 36th IGC session envisages an expert-drafting group.

External Offices

The real reason for the delay in closing the GA session was the lack of consensus on the geographical distribution of new WIPO External Offices (EOs).

In 2015 the General Assembly adopted a Guiding Principle Regarding WIPO External Offices that provides the following rationale for EOs: (i) Collaboration with the national intellectual property (IP) office to support and advance WIPO’s program delivery; (ii) Enhancement of innovation and creativity, including by promoting effective use of IP services; (iii) Raising awareness, understanding and respect for IP; (iv) The delivery of customer services to users of global IP services, including treaties and conventions administered by WIPO; (v) Assistance for using IP as a tool for promoting development and transfer of technology; (vi) The provision of policy and technical support to national IP offices to increase the use of IP; (vii) If approved by the Program and Budget Committee, WIPO may explore the possibility for an EO’s delivery of other activities which are beneficial to WIPO Member States.

During the concluding plenary of the recent GA, there was still no consensus on the draft decision EO text. The rejection of the draft text proposed by the Assembly president led to a situation where Colombia lost the opportunity to host an EO for now.

The 2015 GA had decided to open three new EOs during the 2016-17 biennium of WIPO’s work.  In 2016 the GA decided to open two EOs in Algeria and Nigeria, members of Africa Group. The Group of Latin American and Caribbean Countries (GRULAC) unanimously proposed Colombia for the third office and the proposal enjoyed wide consensus among Member States. Neither Colombia nor any other Member State from GRULAC submitted their interest to host EOs during the 2018-19 biennium, to ensure a decision for Colombia to host the third office. A lack of consensus last week would have resulted in GRULAC Member States losing the opportunity to host EOs even in the next biennium (2018-19).

The informal consultation among the ambassadors of El Salvador, Iran and India resulted in a consensus text, which carry forward the third EO from the 2016-17-biennum to the 2018-19 biennium.

The decision reads: “The WIPO General Assembly decided that the 2018 General Assembly will consider opening up to four WIPO External Offices for 2018/2019, including in Colombia”.

During the closing plenary Ambassador Janis Karklins of Latvia, who was facilitating the informal consultations, presented the draft decision, which was circulated earlier. The text reads:

“Having examined documents A/56/15 and A/57/8;

Having taken into account the 2015 WIPO General Assembly decisions, including the Guiding principles (document A/55/13), and the outcome of the 2016 WIPO General Assembly (A/56/16),

Having taken note of the Chair’s Statement (A/56/17);

The General Assembly decided:

1) to open a WIPO External Office in Colombia in the 2016/17 biennium;

2) to continue consultations in an open, inclusive and transparent manner, under the auspices of the Chair of the WIPO General Assembly, on the opening of External Offices in the 2018/19 biennium, taking into account the 2015 WIPO General Assembly decisions, particularly the Guiding Principles, with the aim of reaching a consensual decision during the 2018 WIPO General Assembly on the opening of three external offices.”

In response to the text, the Asia Pacific Group stated that most of its members were not in a position to accept the text because it does not reflect views and proposals made by Member States during the formal or informal sessions.  The Central European and Baltic States supported the draft decision but stressed the need for following the guiding principles that include the need for giving priority to regions that do not have EOs. GRULAC reminded the meeting that of the urgency for member States to take a decision especially on Paragraph 1 of the text, which grants an EO to Colombia in the 2016-17 biennium.  Group B (developed countries) supported the draft decision.

India supported Paragraph 1 of the draft decision and stated that there is a need to elaborate on a clear roadmap to arrive at a decision in 2018.  India proposed that in the absence of consensus Member States should take a decision on the location of EOs through a secret ballot vote.

Romania, another claimant for an EO supported the draft decision. Oman and Qatar accepted the draft decision too.

South Korea rejected the draft decision and reminded the plenary about the joint proposal of South Korea, Turkey and United Arab Emirates as a way to move forward. Iran also rejected the draft decision.

At this stage, Chile, supporting the draft decision, proposed that since many Member States demanded a clear methodology to move forward but there was no time to decide on the methodology, a minor change could be made to Paragraph 2 to add that negotiations will begin by defining the methodology.

Taking into account Chile’s suggestion the President of the Assembly proposed an amendment to add “allocation methodology” after the word “consultations” in Paragraph 2. It reads:

“ … 2) to continue consultations on allocation methodologies  in an open, inclusive and transparent manner, under the auspices of the Chair of the WIPO General Assembly, on the opening of External Offices in the 2018/19 biennium, taking into account the 2015 WIPO General Assembly decisions, particularly the Guiding Principles, with the aim of reaching a consensual decision during the 2018 WIPO General Assembly on the opening of three external offices.”

Iran stated that it could not accept the text. 

The Chair then proposed the following text:

“… 1) General Assembly decided to open a WIPO External Office in Colombia in 2016/17 biennium    

2)  Member States did not reach consensus on other issues.”

Iran requested for 10 minutes of informal consultation. After the informal consultation Iran stated that it was not in a position to support the text. While expressing sympathy for the establishment of an EO in Colombia, it also stated that it goes against the spirit of the approach.  Iran stressed that there is a need to continue the consultation process in an inclusive and transparent manner to come up with a perusal that enjoys the support of everyone.

After hearing Iran the President proposed the following text: 

“ Having examined document 57/8 Member States did not reach consensus.”

At this stage El Salvador on behalf of GRULAC made a lengthy statement explaining the consequences of no decision on EOs, i.e. the region would lose an opportunity to have an EO in the current biennium (2016-17) as well as in the next biennium (2018-19).  Further, it said that the GRULAC region is paying a price for being constructive and pragmatic.

The President decided to try one more time to arrive at a consensus and requested the ambassadors of El Salvador, Iran and India as well as other heads of delegation to consult and come up with a solution. This informal consultation, which went on for one and half-hours, resulted in the following text:

“The WIPO General Assembly decided that the 2018 General Assembly will consider opening four WIPO External Offices for 2018/2019, including in Colombia.”

In the resumed plenary Group B asked for time to consult among its Group Members to give consent to the text. Then Group B proposed the word “up to” after the word opening. This was finally adopted as the decision.

Design Law Treaty (DLT)

In the absence of consensus the Assembly decided to postpone the decision on whether to convene a diplomatic conference on DLT to 2018. The GA decision reads:“The WIPO General Assembly decided that, at its next session in 2018, it will continue considering the convening of a diplomatic conference on the Design Law Treaty, to take place at the end of the first half of 2019”.

The lack of consensus is mainly on the issue of incorporation of the disclosure requirement in the DLT Treaty, a contentious issue at the GA. The African Group proposed the incorporation of the disclosure requirement as a separate article in the treaty. The European Union and Central Europe and Baltic States (CEBS) oppose any inclusion of such a provision in the text. According to the African Group, any decision to convene the diplomatic conference can be taken only after the incorporation of the text on disclosure and technical assistance. Brazil, Russia, India, China and South Africa (BRICS) supported the African Group stating that the group supports a decision on diplomatic conference only after resolving the outstanding issues.

The informal consultations produced the last version of the draft text on disclosure requirement at 6 pm on 11 the October. This draft text contained text for Article 1Bis (General principles),
Article 3 (application) and Rule 2 (related to details concerning applications). The crucial element of the disclosure requirement is contained in a footnote to Article 3 (1)(ix).

Article 3.1 reads:

“[Contents of Application: Fee] (a) A Contracting Party may require that an application contain some, or all, of the following indications or elements:

[..]

(ix) an indication of any prior application or registration, or other information, of which the applicant is aware, that could have an effect of the eligibility for registration of the industrial design: …”

The footnote reads: “Other information may include, and is not limited to, disclosure of traditional knowledge and traditional cultural expressions incorporated/utilized in the industrial design, subject to national, regional or international obligations.”

The agreed statement to Article 3 reads: “The term ‘other information’ shall include disclosures of traditional knowledge and traditional cultural expressions and related information as required by national, regional and international obligations. It is further understood that national laws requiring such disclosures are not inconsistent with this treaty.”

Thus the disclosure requirement in the draft text is not a stand-alone article but a footnote and an agreed statement.

According to the statement of the GA President, Member States at the informal consultations were ready go have a consensus; however it eluded them when it was close to the plenary. The President stated in the plenary that considerable time had been spent in the GA to discuss the issue and several drafts of text were tabled during the informal consultations. The last version of the text was introduced and suddenly the consensus evaporated. Further, he said that Member States started discussing the alternative text tabled by the African Group. However, consensus was lacking on the alternative text. 

A delegate told Third World Network that the placement of the disclosure requirement text in a footnote instead of a standalone article resulted in the failure of the informal consultations. Another delegate said that the lack of consensus was due to the EU’s attempts to dilute the IGC mandate (a separate decision discussed below where disclosure requirement is also contentious).+

 


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