Bridges Trade BioRes • Volume 5 • Number 18 • 14th October 2005

WIPO TO CONTINUE WORK ON GENETIC RESOURCES, TK

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WIPO TO CONTINUE WORK ON GENETIC RESOURCES, TK

The World Intellectual Property Organisation (WIPO) General Assembly (GA) at its 26 September to 5 October meeting decided to extend the mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) for another two years, renewing their 2003 directions to the IGC to accelerate its work, particularly with a focus on the international dimension. Also of particular interest to developing countries was the GA’s decision to establish a "Provisional Committee" to continue discussions on how to mainstream the ‘development agenda’ into all of WIPO’s activities (see BRIDGES Weekly, 5 October 2005 for further details on this agenda item).

Also important is the establishment of a Voluntary Fund for Indigenous and Local Communities to directly facilitate and support the participation of representatives from these communities in the work of the IGC. Beneficiaries of the Fund will be members of indigenous or local communities, or other representatives of customary holders or custodians of TK or folklore to be selected from already accredited IGC observers. The fund will provide for travel and living expenses, and will be reliant upon voluntary contributions.

Separately, member states also agreed to transmit a WIPO study on the relationship between disclosure requirements within the IP system, GRs and associated TK to the Conference of the Parties (COP) of the Convention on Biological Diversity (CBD) (WO/GA/32/8). The study has responded to an invitation by the CBD COP to review operational mechanisms and policy matters on the cross-cutting issue and will be considered at the next COP to be held in Curitiba, Brazil in March 2006. The United Nations Conference on Trade and Development (UNCTAD) is also preparing a draft document on the relationship between the disclosure issue and developments for an access and benefit-sharing regime for the Ad Hoc Working Group on Access and Benefit Sharing meeting of the CBD in January-February 2006 in Granada, Spain.

Member states also agreed on a work plan for talks on the draft Substantive Patent Law Treaty (SPLT). Delegations focused particular attention on how developing country concerns would be reflected in the discussions, especially with regards to the incorporation of a disclosure mechanism to ensure protection of genetic resources and TK, as well as other public interest flexibilities. This is also discussed in the WIPO submission to the CBD COP.

Mixed views on IGC’s role

A diverse array of opinions has been expressed on the work of the IGC to date. On the positive side, a number of delegates have commented upon the role of the IGC for asserting the importance of traditional knowledge (TK) and folklore (or traditional cultural expressions ), for asserting the need for respect of such traditional innovations and expressions, and for the dissemination of useful information to policy makers about particularly national sui generis systems and mechanisms for the protection of TK, genetic resources and folklore. They also pointed to the fact that the IGC enabled an amendment to the Patent Cooperation Treaty (PCT) minimum documentation lists examined by national patent offices. Literature on TK has come to be included in the list which is reviewed by patent offices before submission of a preliminary search report on a decision, in an attempt to highlight aspects of previously disclosed TK as prior art and thus to reduce improper utilization of such knowledge. Previously the list only contained scientific literature.

On the other hand, some developing country members have been critical of the sheer volume of materials produced by WIPO without making substantive progress on international mechanisms for TK, genetic resources and folklore. Whilst their assistance with national systems is important, it is noted by many developing country members that it cannot stop the misappropriation and potential patenting of genetic resources, TK and folklore in other countries. For this it has been suggested that an international mechanism is required, most likely as part of an existing treaty, but possibly as a separate sui generis system outside the intellectual property regime. There is thus concern that without substantive progress on such international protections the role of the IGC is becoming, or has already become too academic.

On a strategic note, it has also been suggested that having the forum at WIPO has made progress in other fora problematic. For example some feel that certain developed countries have delayed progress on finding a solution to the ‘disclosure issue’ (of source and/or country of origin of genetic resources and associated TK) in the WTO’s Council for Trade-related Intellectual Property Rights (TRIPS), with those countries able to shift onus of the matter to WIPO as the appropriate forum to deal with such matters. Developing countries would like to see progress in the TRIPS Council on the matter because it has the backing of the WTO dispute settlement mechanism, whereas the WIPO agreements have less enforceable measures. Developing countries are anticipated to make a substantial push for a disclosure requirement under the TRIPS Agreement at the Hong Kong Ministerial meeting.

Additional Resources

Documents of the meeting are available at http://www.wipo.int/meetings/en/details.jsp?meeting_id=8906.

For further information on the IGC, see http://www.wipo.int/tk/en/.

ICTSD Reporting; "Protecting Traditional Knowledge, Genetic Resources and Folklore: The Way Forward," IDDRI, Forthcoming; "Invitation to WIPO from the Conference of the Parties if the Convention on Biological Diversity," WIPO, 24 August 2005, "WIPO Assemblies Conclude," WIPO, 5 October 2005.