TWN Info Service on Intellectual Property Issues (March14/7)
24 March 2014
Third World Network

WIPO:  IGC resumes negotiations on protection of traditional knowledge and traditional cultural expressions

New Delhi, 24 March (K M Gopakumar) – International legal protection of traditional knowledge and traditional cultural expressions will be the subject of negotiations at the World Intellectual Property Organization (WIPO) from 24 March to 4 April.

The 27^th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) will take place at the WIPO headquarters in Geneva over the next two weeks. The IGC was mandated by the WIPO General Assembly in 2009 to conduct text-based negotiations to conclude an international legal instrument/s to protect genetic resources (GR), traditional knowledge (TK) and traditional cultural expressions (TCE). The objective of the mandate is to reach a level of maturity in the text to hold a diplomatic conference to conclude a treaty for the protection of GR, TK and TCE.

(A Diplomatic Conference is convened to conclude the negotiations of a treaty.)

This mandate was extended twice in 2012 and 2013 in light of lack of consensus on whether there is adequate progress to hold the diplomatic conference. (http://www.twnside.org.sg/title2/biotk/2013/biotk131001.htm)

The WIPO General Assembly in 2013 mandated three sessions of the IGC in 2014 prior to the 52^nd session of the Assembly in 2014.  According to the General Assembly decision the first meeting (the 26^th IGC session) would focus on GR and this took place on 3-7 February 2014. (http://www.twnside.org.sg/title2/intellectual_property/info.service/2014/ip140208.htm)

The focus of the second meeting in April 2014 (27^th IGC session) will be on both TK and TCE.  The third meeting in July (28^th IGC session) is to focus on cross-cutting issues. This session is also to take stock of the progress and to make a recommendation to the 2014 General Assembly.

The current IGC 27 will focus on heavily bracketed draft articles on TK and TCE along with cross-cutting issues related to the protection of TK and TCE. The Chair of the IGC has prepared a non-paper on four cross-cutting issues: (1) the meaning of “traditional”;  (2) the beneficiaries of protection, in particular, the role of states or “national entities”;  (3) the nature of the rights, including the meanings of “misappropriation” and “misuse”; and (4) the treatment of “publicly available and/or widely diffused” TK and TCEs.

According to the Chair “the cross-cutting discussion at IGC 27 might also facilitate a more direct and interactive comparison between the two texts, so that, for example, the IGC might agree that a provision, wording or language in the TK text should be copied across from the TCE text, and vice versa”.

The first week (24-28 March) is dedicated to the discussions on TK and the second week (31 March -4 April) is to focus on TCE.

Apart from the draft articles on TK (WIPO/GRTKF/IC/27/4) and cross-cutting issues (WIPO/GRTKF/IC/27/INF/10) IGC 27 will also discuss the following documents in the first week:

• Joint Recommendation on Genetic Resources and Associated Traditional Knowledge (WIPO/GRTKF/IC/27/6) proposed by Canada, Japan, Norway, the Republic of Korea and the US,
• Joint Recommendation on the Use of Databases for the Defensive Protection of Genetic Resources and Traditional Knowledge Associated with Genetic Resources (WIPO/GRTKF/IC/27/7) proposed by Canada, Japan, the Republic of Korea and the US,
• Proposal for the Terms of Reference for the Study by the WIPO Secretariat on Measures Related to the Avoidance of the Erroneous Grant of Patents and Compliance with Existing Access and Benefit-Sharing Systems (WIPO/GRTKF/IC/27/8) proposed Canada, Japan, Norway, the Republic of Korea, the Russian Federation and the US,
• Glossary of Key Terms Related to Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions  (WIPO/GRTKF/IC/27/INF/7), 
• Resources available on the WIPO Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources Website  (WIPO/GRTKF/IC/27/INF/8) and Report of Indigenous Expert Workshop on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions  (WIPO/GRTKF/IC/27/INF/9). 

In the second week the IGC will discuss the following documents on TCE:

• The Protection of Traditional Cultural Expressions: Draft Articles (WIPO/GRTKF/IC/27/5),
• Glossary of Key Terms Related to Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO/GRTKF/IC/27/INF/7), 
• Resources available on the WIPO Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources Website  (WIPO/GRTKF/IC/27/INF/8),
• Report of Indigenous Expert Workshop on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO/GRTKF/IC/27/INF/9),
• Traditional Knowledge and Traditional Cultural Expressions: Certain Suggested Cross-Cutting Issues (WIPO/GRTKF/IC/27/INF/10).

Even though the WIPO Assembly mandate is to conclude an international legal instrument, there is no consensus regarding the legal nature of the instrument/s on TK and TCE.  Developing countries demand a treaty for the protection of TK and TCE while developed countries are yet to commit to a legally binding treaty. The WIPO General Assembly decision is to take the final call on the nature of the instrument by deciding on convening a diplomatic conference.

The Assembly in September 2014 is expected to take a decision on whether to hold a diplomatic conference or not. The Assembly can also decide to hold additional meetings after taking into account budgetary considerations.

As of now both draft articles on TK and TCE are heavily bracketed.

Developed countries are employing a dual tactic of diluting the provisions of the instrument and also delaying the diplomatic conference.  According to an observer, developed countries, especially the United States, are unlikely to be party to a treaty/treaties which protect GR and associated TK, TK and TCE. The aim of the US is to minimize the legal obligations for the protection of TK and TCE, while at the same time delay progress in the negotiation.

The draft articles for the protection of TK (WIPO/GRTKF/IC/27/4) are in the text submitted to the 2013 General Assembly, which is the version that came out of the 24^th session of IGC in April 2013. (http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_27/wipo_grtkf_ic_27_4.pdf)

The draft articles contain policy objectives, general guiding principles and 12 articles dealing with subject matter of protection (Article 1), beneficiaries of protection (Article 2), scope of protection (Article 3), sanctions, remedies and exercise of rights/application (Article 4), disclosure requirement (Article 4 BIS), administration of rights (Article 5), application of collective rights (Article 5 BIS), exceptions and limitations (Article 6), term of protection (Article 7), formalities (Article 8), transitional measures (Article 9), consistency with the general legal framework (Article 10), national treatment and other means of recognizing foreign rights and interests (Article 11), and trans-boundary cooperation (Article 12).  The text is heavily bracketed include the words “of rights” in the heading of Article 5.

Lack of consensus persist over crucial articles such as the subject matter of protection, beneficiaries of protection, scope of protection, sanctions, remedies and exercise of rights /application, disclosure requirement, administration of rights, and the application of collective rights.

Meanwhile joint proposals by developed countries have been introduced to delay the progress in negotiations. The 3 Joint Recommendations are listed above: WIPO/GRTKF/IC/27/6, WIPO/GRTKF/IC/27/7, and WIPO/GRTKF/IC/27/8.

The draft article on TCE is the draft text as at the close of the 25^th session of the IGC in July 2013. (http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_27/wipo_grtkf_ic_27_5.pdf)

The draft article on TCE includes objectives, principles and 12 articles viz. subject matter of protection (Article1) , beneficiaries of protection (Article 2), scope of protection (Article 3) , administration of rights/interests (Article 4), exceptions and limitations (Article 5), term of protection (Article 6), formalities (Article 7), sanctions, remedies and exercise of rights /interests (Article 8), transitional measures (Article 9), consistency  with the general legal framework (Article10), national treatment and other means of recognizing foreign rights and interests (Article 11), and trans-boundary cooperation ( Article12). This text is also heavily bracketed.