17th May 2011

Bridges Trade BioRes | “Disclosure of Origin” Source of Contention in WIPO Negotiations

Discuss this itemShare your views with other visitors, and read what they have to say

Intergovernmental negotiations on protecting traditional knowledge, traditional cultural expressions (TCEs), and genetic resources from misappropriation hit a roadblock last week, when talks at the World Intellectual Property Organisation were marred by considerable disagreement over the negotiating process and the participation of indigenous peoples.

Discussions in the 9-13 May session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) also saw sharp disagreement over whether inventors should be required, when applying for a patent, to disclose the use of any genetic resources.

The IGC’s penultimate meeting before WIPO’s annual General Assembly in September was meant to move ahead with text-based negotiations on an “international legal instrument (or instruments)” to protect traditional knowledge and TCEs, as well as to speed up talks on genetic resources, where divisions over the aim and objectives of an agreement have prevented members from producing a draft negotiation text. WIPO members had agreed to launch the text-based negotiations at their General Assembly in 2009, following difficult negotiations in which developed countries pushed back against calls by several Latin American and Asian nations for negotiations on a treaty (see Bridges Weekly, 7 October 2009). This autumn’s assembly was to determine whether to proceed to a “diplomatic conference” to adopt any agreements.

Genetic resources: split over mandatory disclosure

From the outset, the talks on genetic resources have witnessed disagreement over a key potential objective of an international legal instrument: mandatory requirements in patent applications for the disclosure of origin of any genetic resources used in an invention. Developing countries have sought the introduction of such requirements, arguing that it is necessary to prevent biopiracy.

In March of this year, experts discussed options for intellectual property and genetic resources on the basis of three clusters: A) defensive protection, B) disclosure requirements, C) options in mutually agreed terms.

Last Thursday, members clashed over disclosure once again. South Africa, speaking on behalf of the African Group and supported by Brazil, made clear that they were “not prepared to discuss cluster A and C if it did not come with a strong disclosure proposal.” India later backed this assertion, arguing that “mandatory disclosure is a must - everything else can follow.”

The US expressed great “concern and sadness” about the debate, underlining that in their view the objective was not a “mandatory disclosure requirement up front” but rules ensuring that the “system does not grant erroneous patents.”

“If an exclusive focus on mandatory disclosure is what some countries are proposing, then maybe we should take a break,” the US delegate said.

This prompted angry responses from several countries. “If we cannot agree that a mandatory disclosure requirement [...] is necessary for ensuring fair benefit sharing, then maybe we should take a break,” said the delegate from Namibia.

Australia and New Zealand received a similar reaction when they suggested further studies on national disclosure systems.

The African Group and Zimbabwe countered that there was no need for further studies and South Africa argued that the necessity of disclosure requirements had been “proven.”

Zimbabwe added that talks in the IGC were “about preventing misappropriation.” Preventing patents from being granted erroneously was the work of WIPO Standing Committee on Patents. “In the [Nagoya Protocol] negotiations you objected to discussing disclosure there. Now we are at WIPO - and you cannot object to it again.”

Disagreement over the role of the “Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization,” which parties to the Convention on Biological Diversity adopted last October, affected last week’s talks. While developing countries expressed hope that the agreement on the protocol would speed up talks at WIPO (in particular on issues such as definitions and scope), a number of developed countries object to any direct reference to the Nagoya Protocol in favour of a more narrow substantive scope at WIPO. This is particularly true for the definition of genetic resources, which lies at the heart of the misappropriation discussion.

Indigenous peoples: No collaboration, no consent

Thursday’s talks were also marked by anger from indigenous peoples’ groups, after proposals they made with backing from Venezuela and others were deleted from a working document during a Tuesday night meeting of an informal drafting group that had only been supposed to “clean text.”

Under the protection of “simplifying text,” indigenous peoples have been made mere observers, one representative said.

“Our continued presence in IGC-18 in no way can be taken to say that Indigenous Peoples have collaborated in the drafting of these documents in this session,” indigenous peoples’ representatives said in a joint statement. “Nor can our observation of this process be inferred as giving any consent to the results of any process in which Indigenous Peoples have not been actively involved.”

Venezuela, Bolivia and Guatemala likewise criticised the process, noting that limited numbers of delegates made it impossible for developing countries to participate in all meetings. It was therefore unacceptable, they argued, that countries present would simply delete text proposed by others.

Traditional Knowledge - The whos, whats and hows

The main focus of discussions on traditional knowledge, which are proceeding based on a draft text that still contains multiple options for most of the articles for the potential future agreement, rested on who “holds” traditional knowledge.

The discussion was coloured by different national experiences and concepts. Barbados, supported by other small island states and India, asked for “nations” to be added to the list of “holders,” explaining that their traditional knowledge was held by the whole nation which did not qualify as either “local community” or “indigenous peoples.”

Iran, on the other hand, suggested including individuals and families, although it noted that the state should be a “place holder” where the original holder could not be identified.

The protection of “secret knowledge” was also disputed by several states articulating concern over guaranteeing the protection of something that is unknown.

Finally, in the context of patent applications, the United States suggested protecting “independent discovery” of what might be traditional knowledge to some communities.

The current text continues to provide for various alternative options for most provisions.

Way ahead

As the genetic resources negotiations continue to lag behind, the question is now whether members split the process and move ahead with TCEs and potentially traditional knowledge or continue with the three parallel tracks. Sri Lanka and the African Group requested more effort - reflected in time allocation - on genetic resources on this regard.

In July, the IGC will meet one last time before WIPO’s General Assembly. It remains charged with submitting a draft text to WIPO’s top decision-making forum, which will then decide on convening a diplomatic conference. It remains to be decided whether any instrument - or instruments - produced would be legally binding agreements or simple declarations, although most countries favour the former option.

ICTSD Reporting.

More Bridges Trade Biores headlines

More ICTSD highlights