TWN Info Service on Intellectual Property Issues (July09/02)
4 July 2009
Third World Network

WIPO: Traditional Knowledge Committee ends with uncertainty over its future
 
Asmeret Asghedom (Geneva): The 14th session of the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) that met last week to discuss the future of the IGC ended late Friday night, deadlocked over its mandate and its future uncertain.

The IGC ended its meeting with agreement that on the future work ³The IGC did not reach agreement on this agenda item². However informal consultations among delegations may continue as members head for the WIPO General Assembly in September, sources say.

The 14th session was a critical meeting for the future of the IGC as its 2-year mandate ends this year. For the IGC to continue, WIPO members have to agree to renew its mandate and elements of the renewed mandate.

Failure to agree at the Committee level means that the contentious debate on the future of the IGC will emerge once again at the WIPO General Assembly that meets in September and the Assembly will have the task of finding consensus on IGC¹s mandate.

The IGC was created in 2000 as a forum to address the issue of misappropriation of Genetic Resources, Traditional Knowledge, Traditional Cultural Expressions and Folklore (GRTKF) as a result of the IP system and the protection of GRTKF. In September 2003, the General Assembly both extended and substantially broadened IGC¹s mandate. It was instructed to among other things ³accelerate its work² and ³focus on the international dimension of intellectual property, GR, TK and folklore,² excluding ³no outcome, including the possible development of an international instrument or instruments in this field.²

However developing countries are frustrated with the lack of concrete outcomes after 13 sessions of the Committee.

In an attempt to infuse momentum and expedite negotiations on the development and adoption of an international legally binding instrument for the protection of GRTKF, Africa Group had submitted a proposal titled ³Elements for the New Mandate² before the start of the 14th session.

The proposal recommended text for IGC¹s renewed mandate for 2010/2011 that called for ³text based negotiations², establishing international legally binding instrument/s for GRTKF and that outlined a defined work program and timeframes for its work in the 2010/2011 biennium including for inter-sessional work sessions and a diplomatic conference.

The Africa Group proposal formed the basis for negotiations in the week-long discussions. Although the proposal received enormous backing from developing countries and NGOs representing indigenous peoples present at the session, developed countries preferred that the renewed mandate of the IGC contain a less ambitious goal with softer language.

Among proposals that were vigorously contested and rejected by developing countries were proposals by developed countries that proposed replacing ³text based negotiations² with ³outcome-oriented deliberations²; ³legally binding² with language that states ³without prejudice to any outcomes, including the development of a legally binding instrument² or even ³legally binding or non-legally binding²; and to replace ³diplomatic conference² with ³a high level meeting².

On Wednesday, (following general statements in the IGC on the first 2 days of the meeting) Africa Group¹s proposal was considered in the plenary. Although the Chair persistently proclaimed that it was not a drafting exercise, delegations reviewed the proposal paragraph-by-paragraph and proposed amendments (additions, deletions) to the original proposal.

The exercise revealed vividly the chasm between developing and developed countries. Particularly contentious were text of the Africa Group proposal that recommended that the renewal of the IGC should contain the following language:

³The Committee will undertake during the next budgetary biennium (2010/2011) text based negotiations on genetic resources, traditional knowledge and traditional expressions.²

³The Committee is requested to submit to the 2011 GA a text for an internationally legally binding instrument/instruments on TCEs, TK and GR and recommend a date for the Diplomatic Conference as agreed in its work program².

Australia recommended inserting after ³text-based negotiations², ³without prejudice to the outcome, including a possible legally binding instrument on genetic resources, traditional knowledge and traditional expressions.²

New Zealand proposed deleting ³text-based negotiations² and replacing the phrase with ³the development of text, without prejudice to any outcomes.²

The US and the EU sought to substitute ³text based negotiations² with ³outcome-oriented deliberations².

US proposed deletion of the language ³text based negotiations² and replacing it with ³outcome-oriented deliberations on genetic resources, traditional knowledge and traditional cultural expressions, without prejudice to any outcome and on the basis of the Committee¹s prior work².

Mexico also sought deletion of ³text-based negotiations².

In response, Brazil said that ³outcome-oriented deliberations² was a non-committal expression. Novelty remained in the expression used in the Africa Group proposal, it added.

Senegal and South Africa opposed to the proposed substitution by US and EU said that they had never heard of that language in the context of their work at the UN.

South Africa added that since the protection of GRTKF was included in their national poverty strategy, it would not be acceptable to report back to their ministers that they were to engage in ³outcome-oriented deliberations².

EU also proposed replacing the paragraph in the Africa Group proposal on submitting to 2011 a text for an internationally legally binding instrument/s on GRTKF with a paragraph that states ³The Committee is requested that the result of its work should lead to an internationally legally binding or non-legally binding instrument/s on GRTKF².

Mexico proposed alternative language that ³The Committee is requested to submit to the 2011 GA a text/s for an international instrument/instruments on TCEs, TK and GR and to recommend a date for the Diplomatic Conference, if applicable².

US also proposed alternative language that ³The Committee is requested to submit to the 2011 GA recommendations on content for an outcome or outcomes, including the nature, format and status and how the Committee should finalise its recommendations on TCEs, TK and GR and recommend a date for a high-level meeting to be considered in its work program².

In a separate proposal submitted by the EU on Thursday, it proposed: ³No outcome of the Committee¹s work is excluded, including the possible development of a legally-binding international instrument or instruments.²

Africa Group after some consultations on Thursday morning insisted on retaining the key elements of its original proposal, that developed countries attempted to dilute.

Many other developing countries agreed that the amendments suggested by developed countries violated the spirit of the original proposal, and championed the Africa Group proposal as ³emerging consensus² among a majority of countries attending the IGC.

Pakistan said that it was not acceptable to leave all the options open, as it would be difficult to begin negotiations. It said that the original text of the African Group provides a clearer direction for IGC¹s future work.

Pakistan also added that democratically the majority had decided the case. If the IGC was not able to renew the mandate on the basis of establishing an international legally binding instrument due to a minority opinion then this would be a misfortunate, it said.

Philippines said that an international legally binding instrument was imperative to the IGCs work ³because it is the only viable mechanism to give justice to misappropriation of GR, which continues to happen worldwide.²

Brazil, India and Zimbabwe pointed out the disparity of international legal treaties under WIPO and in other fora that provide legal protection to the holders of patents, copyrights and trademarks but no such was afforded to indigenous and traditional holders of GRTKF.

Brazil added that the IGC needed to entitle indigenous peoples with protection over their sacred traditions and religions. It said indigenous groups do not have the financial means to lobby internationally on a scale parallel to private groups.

Zimbabwe said its delegation was beginning to question the credibility of WIPO. It said that according to WIPO¹s website, the goal is enforcement of IP rights and questioned whether the excluded protection of GRTKF. Since 80% of the room was in favor of creating an internationally legally binding instrument then as in any democracy, it was time for the minority to join the majority, Zimbabwe added.

Angola warned about the political message the committee would be sending if it did not agree on a mandate was that WIPO only protects some people and leaves the rights of others unprotected, the delegate said.

Despite the convictions expressed by the majority, the 14th session concluded late Friday night without a renewed mandate to present to the GA. As the negotiations drew to an end some delegations expressed their deep concerns with the indefinite results.

Senegal said that the Africa Group and aligned delegations feared that if WIPO does not achieve appropriate protection of GRTKF the misappropriation and abusive use of cultural & scientific heritage would perpetuate.

Mexico said that they deplore that the IGC 14 came to an unsuccessful end, adding that their consultations at home with 72 indigenous peoples had made progress and it would be sad to inform them of the collapse of this conference.

Indonesia said that they felt WIPO was the appropriate forum for protecting GRTKF, as it does patents and copyrights. Despite overwhelming support from delegations, civil society and indigenous groups the IGC failed to provide the protection to GRTKF due to marginal opposition.

Indonesia warned that this failure would perpetuate an imbalance and may lead to the emergence of a new track that WIPO is unable and unwilling to fulfill. ³Indonesia is prepared to engage if such a new track will emerge,² it added.