Bridges Trade BioRes • Volume 1 • Number 3 • 20th December 2001

WIPO Committee: Countries Divided Over Need For New Legal Norms To Protect TK

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WIPO Committee: Countries Divided Over Need For New Legal Norms To Protect TK

Substantive discussion at the second meeting of the WIPO [World Intellectual Property Organization] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore on 10 - 14 December in Geneva focused mainly on two subjects: operational principles for contractual agreements concerning access to genetic resources and benefit-sharing; and traditional knowledge as prior art. Due to time constraints, deliberations on folklore were brief. The topic of operational definitions appeared in the draft agenda but was completely omitted.

The WIPO Secretariat had prepared several documents including two on the above-mentioned subjects, which formed the basis of most of the discussions. On the whole, the deliberations were fairly technical in nature and were less politicised than those covering the same issues tend to be in other international forums. While there was little in the way of a debate and the atmosphere was non-confrontational throughout, there was a clear division between those countries that favour the creation of new legal norms (mainly from Latin America and the Africa Group) and those that do not, including the US and Canada. The latter group of countries considers that solutions should be sought within existing legal frameworks and, while willing to contemplate additional obligations, would prefer these to be non-binding. Industry representatives also shared the call for non-binding obligations.

Several countries pointed out that any agreed model contractual provisions should be consistent with both the Convention on Biological Diversity and the new FAO Treaty on Plant Genetic Resources for Food and Agriculture.

The issue of representation of indigenous peoples and local communities came up throughout the meeting. While a few organisations representing these communities attended the meeting, such as the Indigenous Peoples Biodiversity Network, the Inuit Circumpolar Conference and the Saami Council, and one important developing country (Brazil) had a well-known indigenous person on its delegation, the Committee supported the proposal made by the EC that WIPO and its member states should consider creating a fund to ensure greater participation by indigenous peoples and local communities in future Committee meetings.The Committee also agreed that WIPO should continue its work to establish model intellectual property rights (IPR) clauses for contractual agreements regulating access to genetic resources and benefit sharing, possibly including the development of a database of such clauses to help guide negotiations. Approval was also given to continuation of WIPO’s work on the IPR aspects of documenting public domain traditional knowledge, the aim of which is to ensure that patent examiners are able to prevent cases where patents whose claims extend to traditional knowledge are improperly awarded.

Towards the end of the meeting, several developing countries proposed, without objections from other participating countries, that WIPO should produce a document providing elements for model sui generis protection for traditional knowledge.

The Committee is scheduled to meet for the third time in June 2001.

Background

The protection of traditional knowledge is being discussed in the WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPs) and was explicitly listed for examination by the Council in the Doha Ministerial Declaration (see BRIDGES Trade BioRes, 22 November 2001). Many developing countries, such as India, Brazil and the Africa Group, would like to see the TRIPs Agreement and in particular Article 27.3(b) (patentability of life forms) broadened to include issues such as disclosure requirements for the origin of genetic resources and associated traditional knowledge, benefit-sharing arrangements and prior informed consent. Most developed countries, however, oppose such a broadening of scope, arguing that these issues should not be discussed at the WTO, but in other relevant forums, such as WIPO.

Additional Resources

The official documents on the second WIPO Intergovernmental Committee can be downloaded from the WIPO website. WIPO Press Release PR/2001/231: "IGC advances work on new global intellectual property issues".

ICTSD Internal Files.