TWN Info Service on Intellectual Property Issues (Oct17/01)
3 October 2017
Third World Network

WIPO: General Assembly to decide on the mandate of IGC
Published in SUNS #8544 dated 3 October 2017

Geneva, 2 Oct (K. M. Gopakumar) - Members of the World Intellectual Property Organization (WIPO) will decide on the mandate and work program of the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC).

The 57th Series of Meetings of the WIPO Assemblies is taking place from 2 to 11 October at the WIPO Headquarters in Geneva.

The IGC is currently negotiating three instruments with the objective of "reaching agreement on a text of international legal instruments on genetic resources (GR), traditional knowledge (TK) and traditional cultural expressions (TCE)."

[The General Assembly in 2009 provided the following mandate for the IGC: "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)."]

Since then the WIPO Assembly has renewed the mandate and work program three times. In 2015, the renewed mandate enabled six sessions of work (IGC 29-34).

The current Assembly is set to adopt a decision on the mandate and work program for the 2018-2019 biennium.

The IGC, in its report to the Assembly, "recommended that the WIPO General Assembly decide that the Committee should continue its work during the 2018-2019 biennium and that the Assembly decide on a mandate and a work program". (WO/GA/49/11) http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_49/wo_ga_49_11.pdf

There are two main contentious issues at play.

First, there is no consensus regarding the nature of the text currently under negotiation. Developing countries are fully in agreement on the legally binding nature of the three IGC texts currently under negotiation. Developed countries, on the other hand, have yet to support the idea of a treaty and promote the idea of soft law instruments like guidelines or model law.

Developing countries cite the 2009 original mandate to push for a legally binding instrument. The 2009 decision states: "... 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)".

The 2015 General Assembly decision 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)".

Therefore, it is very clear that the objective of the negotiation is to conclude a treaty or treaties.

The second issue is whether the General Assembly can decide to hold a diplomatic conference to adopt a treaty on either three or any one of the texts under current negotiation in the upcoming biennium. Developed countries follow a delaying approach, stating that any such decision would be possible only after achieving sufficient maturity of the three texts together.

Therefore, developed countries oppose the idea of early adoption of any of the texts, stating that any decision on a diplomatic conference can be taken on the three texts together.

Senegal, on behalf of the Africa Group, has submitted a proposal on the mandate and work program for the consideration of the General Assembly. (http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_49/wo_ga_49_17.pdf).

The Africa Group recognises the "different levels of maturity of the three texts relating to GRs, TK and TCEs".

It proposes a decision to "convene a Diplomatic Conference in the first quarter of 2019 to conclude and adopt a legally binding instrument that will ensure the effective and balanced protection of GRs, without prejudice to the Committee's work on TK and TCEs."

To expedite the negotiation, the Group proposes to establish an Expert Intersessional Working Group (EIWG) to focus on narrowing gaps in the consolidated text resulting from the 30th session of the IGC. Provision shall be made for the Secretariat, under Program 4, to organize meetings of the EIWG at the WIPO Headquarters in Geneva.

Further, the Africa Group proposes that, "In 2018, the Committee is requested to submit to the General Assembly, a report of its work on GRs up to that time, on an international legal instrument relating to intellectual property which will ensure the effective and balanced protection of GRs. The 2018 General Assembly will also take stock of the progress made on TK and TCEs and decide on whether or not to convene a Diplomatic Conference or to continue negotiations".

The European Union (EU) also submitted a proposal for the consideration of the Assembly (http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_49/wo_ga_49_18.pdf).

The EU proposal is silent on the legal nature of the text and on a decision for a diplomatic conference. It rejects the idea of different levels of progress in the three texts and a diplomatic conference only for the GR text.

It states: "The Committee will work to reach overall agreement on all aspects of the mandate on the basis that nothing is agreed until everything is agreed".

Further, it puts a precondition for the negotiation: "The primary focus of the Committee's work will be to reach a common understanding on the objectives of the Committee and the core issues such as the definitions, subject matter, objectives, beneficiaries, scope of protection/safeguarding and the relationship with the public domain, as well as the inter-linkages between the subject matters of GRs, TK and TCEs, which is an essential requirement for engaging in meaningful text-based negotiations".

This appears to be a move to delay progress in the text-based negotiations.

On GR, the EU proposal does not recognise the progress achieved in the text: "On GRs, the Committee will continue to work on the basis of the Consolidated Document Relating to Intellectual Property and Genetic Resources (WIPO/GRTKF/IC/34/4), having in mind the 2005 EU proposal for a formality disclosure requirement (WIPO/GRTKF/IC/8/11)".

The EU proposal also undermines the text-based negotiations on TK and TCE. It states: "On TK and TCEs, the Committee will further explore the currently available protection regimes, including existing intellectual property instruments on the protection of copyright and related rights, geographical indications and trade secrets, as well as other relevant national and international instruments, with the aim of identifying possible gaps in the protection available for TK and TCEs and the possibilities of filling those gaps by amending or improving the existing protection regimes."

Thus while agreeing on the extension of IGC's mandate and work program, the EU dilutes the mandate on legal instrument. Further the proposal is also silent on diplomatic conference.

During the general statement segment, Senegal, on behalf of the Africa Group, mentioned the need for a mandate for convening a diplomatic conference. Other developing country regional groups like Asia-Pacific Group and the Group of LatinĀ  American and Caribbean Countries (GRULAC) stressed the need for the speedy conclusion of the IGC negotiation.

The EU, in its general statement, stated the need for the continued work of the IGC to bridge the gap.

The US stated that there is no consensus on convening a diplomatic conference on IGC texts. Further, it stated that there should not be any decision on diplomatic conference without consensus.

The US also stated that it will not support any budget for funds for a diplomatic conference if the decision to convene the diplomat conference is adopted without consensus.

The President of the Assembly appointed Ian Goss to hold informal consultations with regional groups to findĀ  consensus on the mandate and work program on IGC.

In view of the divergence of positions, an observer remarked that, "Considerable time of the Assembly will be spent to reach a consensus on the mandate and work program of IGC."