TWN Info Service on Intellectual Property Issues (Oct15/13)
16 October 2015
Third World Network

WIPO: IGC’s negotiation mandate renewed after intense negotiations

Geneva, 16 October (K M Gopakumar and Mirza Alas) – The General Assembly of the World Intellectual Property Organisation (WIPO) finally renewed the negotiating mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in the early morning of 15 October.

The 55th Session of the Assemblies of WIPO Member States was to end on midnight of 14 October, however given the disagreements on key areas the discussions carried on until 5.20 am the following day. The General Assembly commenced on 5 October at the WIPO headquarters in Geneva. 

Since there was no consensus on the future of the IGC, the Diplomatic Conference on the Design Law Treaty, opening of external offices of WIPO, and future work of the Standing Committee on Copyright and Related Rights the Chair reconvened the plenary session at 11.50 pm to จfreezeจ the time to facilitate further informal consultations.

[As per the decision schedule the General Assembly was to conclude on 14 October midnight. Since there was no sign of reaching consensus before the deadline the only option was to freeze time, a negotiations concept to fictionally stopping the clock at a particular time until the decision is taken prior to the deadline.]

The General Assembly decision on the IGC renews the Committee’s mandate for text-based negotiations and schedules 6 rounds of negotiations during the 2016-17 biennium, dedicating two rounds each on Genetic Resources (GR), Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE) .

Even though there was consensus reached on the renewal of the text-based negotiations mandate prior to midnight there was no consensus with regard to the number of meetings. The informal consultations Facilitator’s 4th version of the draft decision proposed, for the working plan, to convene 6 meetings of IGC during the 2016-17 biennium.  The European Union and Central European and Baltic States (CEBS) tried to reduce the number of meetings to four instead of 6 as well as the number of days for each meeting.

Ian Goss was the Facilitator for the informal consultations.

It was the CEBS Group that insisted on linking the IGC mandate with the decision on the Design Law Treaty (DLT) and this resulted in the unprecedented delay of the conclusion of the General Assembly. The EU and CEBS Group wanted the African Group to drop the language on disclosure requirement from the draft DLT and the decision on a diplomatic conference. When the IGC negotiations were finally approximating an agreement on the renewal of the IGC mandate for text-based negotiations the EU introduced a draft decision with compromise language on the DLT and reached a consensus with the African Group. However, the CEBS was not part of this agreement on DLT. It was only during the reconvened plenary at 4 am that a solution was found based on the earlier text agreed between the EU and Africa.

During the plenary the EU requested the Chair for four minutes of informal consultation while the Chair was about to gavel a decision of no consensus on the DLT. After informal consultations the EU coordinator to everybody’s surprise, without disclosing that there was an agreed text between the EU and African Group, requested the Chair to give the floor to the Facilitator of the DLT.

The Facilitator read out the facilitator’s text once again. This text had been rejected by the African Group during the informal consultations. In plenary Nigeria, the African Group’s coordinator, expressed her surprise that the Facilitator was reading a text they had already moved away from and asked the EU to read the text they had agreed on and had been proposed by them.

The South African delegate at this stage revealed that he acted as messenger between the two groups (EU and African Group) and conveyed the willingness of the African Group to the EU proposal and never heard back from EU regarding a withdrawal of its proposal.  The EU requested time to consult with the CEBS Group and then took the floor and read a modified version of the text it had given the African Group.

The African Group then read the original proposal so that all the participants in the plenary could bear witness to the changes that were happening without their consent. After an exchange of statements from CEBS, the EU and the African Group the latter requested the Chair for a four-minute break for the African Group consultations. In the absence of any consensus after the stipulated time the Chair of the Assembly took up the IGC issue for the consideration of the plenary.

The conduct of the EU, i.e. instead of reading out the original text, gave the floor to the Facilitator and subsequently read out the amended text agreed between the EU and CEBS without consulting with the African Group is viewed as a tactic to harvest from confusion in the early morning hours. A senior developing country diplomat commented that it was a “below the belt hitting” tactic. Another developing country delegate told Third World Network that it was a clear example of cheating and undermining good faith.

The CEBS Group at this stage linked the IGC decision with the DLT decision and objected to the number of days dedicated to IGC negotiations, citing that all other normative agenda of WIPO, under various standing committees, gets only 10 days in a year and IGC will be getting 15 days in the first biennium and 17 days in the second biennium. The Facilitator’s text had proposed seven days of IGC negotiations dedicating 5 days for TCE and two days for stocktaking.  CEBS refused to accept the explanation offered by India, Nigeria and Brazil regarding the rationale of 32 days dedicated for IGC negotiations. According to these countries the IGC negotiations are focussing on three interrelated issues and do not fall under the standing committee practices.

Therefore, the plenary was suspended for 5 minutes again at the request of India to find a solution. The ensuing informal consultations resulted in a compromise. As a result, the number of IGC meetings was reduced from 32 days to 30 days i.e. the last session of the IGC negotiations is shortened to 5 days from the original proposal of 7 days.  In exchange, the African Group agreed to two changes in the DLT text.

First, the timing of the diplomatic conference on the DLT is changed from 2017 to “at the end of the first half of 2017”.  The original text stated: “to convene a diplomatic conference for the adoption of a Design Law Treaty in 2017 … ”

Secondly, the original text stated that to convene the diplomatic conference, “… only if the issue of technical assistance and disclosure have been discussed and agreed upon during the 34th and 35th session of the SCT (Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications)”. 

As part of the compromise the word “agreed” was replaced with the word “completed”.  However, the exact effect of the amendment brought by the change of word is not clear.  According to the original text the diplomatic conference can be convened only after discussing and agreeing on provisions related to technical assistance and disclosure. The ordinary meaning of the word “complete” includes finished, ended, concluded, completed, finalised, achieved, discharged, settled etc.  Therefore convening a diplomatic conference only if issues of technical assistance and disclosure have been discussed and “completed” arguably has the same meaning of the original text.

The Chair gavelled decisions on the DLT and IGC together in a symbolic recognition of the linkage between DLT and IGC. According to an observer the insistence of CEBS Group on the considering the IGC and DLT as a package deal in a way gave an opportunity to developing countries to treat both issues as a package in the coming days.

The final decision contains 8 paragraphs. The important paragraphs are reproduced below:

Para (a): The Committee will, during the next budgetary biennium 2016/2017, continue to expedite its work, with a focus on narrowing existing gaps, with open and full 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).

Para (b): The Committee’s work in the 2016/2017 biennium will build o the existing work carried out, by the committee with primary focus on reaching a common understanding on core issues, including definition of misappropriation, beneficiaries, subject matter, objectives and what TK/TCEs subject matter is entitled to protection at an international level, including consideration of exceptions and limitations and the relationship with the public domain.

Para (d): The Committee will use all WIPO working documents, including WIPO/GRTKF/IC/28/4, WIPO/GRKTF/IC/28/5 and WIPO/GRKTF/IC/28/5 and WIPO/GRKTF/IC/28/6, as well as any other contributions of member states, using an evidence based approach, including studies and examples of national experiences, including domestic legislation and 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 conducted  under Program 4. However, examples, studies, seminars or workshops are not to delay progress or establish preconditions for the negotiations.

According to Para (c) “the work program will make provision for 6 sessions of the Committee in 2016/2017, including thematic, cross cutting and stake holding sessions”.  Further “the committee may decide to establish an expert panel(s) and hold further Ambassadorial/Senior Capital–Based Officials meetings during future Committee sessions”.  The work program sets out for six 5-day sessions between February/March 2016 and September 2017.

As per Para (f), in 2016 the Committee is requested “to provide, for information only, a factual report to the General Assembly on its work up to that time, and in 2017, to submit to the General Assembly the results of its work on an international legal instrument(s) relating to intellectual property which will ensure the balanced and effective protection of GRs, TK and TCEs. 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 proceeds”.

The IGC is also expected to consider the conversion of the Committee into a Standing Committee and can make recommendation to the General Assembly of 2016 or 2017.

Unlike the original mandate, the current IGC mandate is exclusively for text-based negotiations without any qualifications. According to the 2009 General Assembly mandate:

“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)”.

However, the new mandate states that, “The Committee will, during the next budgetary biennium 2016/2017, continue to expedite its work, with a focus on narrowing existing gaps, with open and full engagement, including text-based negotiations, with the objective of reaching an agreement on an international legal instrument(s)”.

This may give an opportunity to argue that the mandate of the IGC is solely on text-based negotiations.

In addition, Para (a) also states “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).”  The word “balanced” in a way puts a precondition for negotiation. In other words the word prejudges the outcome of the negotiations. This was not part of the original mandate.

TWN learned that even though many developing countries flagged these concerns, they nevertheless agreed to the Facilitator’s proposed Para (a) in order to check the EU’s proposals on the last day of the General Assembly to dilute the IGC mandate.+