Procedural Sparring Slows WIPO Traditional Cultural Expressions Talks
Negotiations at the World Intellectual Property Organization (WIPO) on a legal instrument intended to protect traditional cultural expressions (TCEs) saw little progress last week, with the first days of the meeting being plagued with disagreements among members over the agenda. Ultimately, the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC) will forward a draft text with some areas of convergence to WIPO’s General Assembly, though substantial differences remain on several issues.
The IGC’s mandate was renewed at last year’s WIPO General Assembly, with countries setting the goal of engaging in text-based negotiations to reach agreement on an international legal instrument(s) for the effective protection of genetic resources, traditional knowledge, and traditional cultural expressions. (See Bridges Weekly, 28 July 2011)
With this goal in mind, the two previous meetings of the IGC of this year saw members focus first on genetic resources and then on traditional knowledge, with mixed results. (See Bridges Weekly, 22 February 2012 and 25 April 2012, respectively)
False start for Committee
In his opening remarks, WIPO Director General Francis Gurry stressed the importance of infusing the IGC with the same “extremely constructive and positive atmosphere between delegates” that led to the conclusion of a treaty on the protection of audiovisual performers last month. (See Bridges Weekly 27 June 2012) However, discussions on substance were ultimately delayed due to debates over the adoption of the meeting’s agenda.
An initial disagreement over whether to include an agenda item regarding IGC “future work” nearly prompted the committee to hold a vote on the matter - which is unusual at WIPO. While developed countries argued in favour of the agenda item, the African Group stressed that discussions on future work were instead the purview of the General Assembly.
Ultimately a vote was avoided, and an agreement was reached that the wording of the agenda item would instead read “expressions of views on future matters concerning the IGC.”
“We are embarking in the third IGC on the wrong footing,” IGC Chair Ambassador Wayne McCook of Jamaica told delegates, expressing his regret for “such protracted discussions on procedural matters.”
“We are not here in our interest, but in the interest of our peoples, some of which are living in dire poverty. We are paid to come here in order to advance the common good,” he added.
Countries at odds over scope of protection
The scope of protection of the potential instrument - which McCook called “the central element of the draft text” - proved to be a particularly divisive issue during the discussions. Many developed countries supported a formulation that would allow members to determine in their national law what measures to take against misuse and misappropriation of TCEs.
“We support simplification and simplicity,” the EU delegate said. “This instrument should make recommendations and not impose legal obligations.”
Developing countries, however, found themselves at odds with the developed country proposal, with El Salvador calling it “weak and inadequate.” India, for its part, stressed the importance of setting “minimum standards for contracting parties.” A representative of the indigenous people group Saami Council noted that it “strongly oppose[d] options that would leave national authorities free to determine the scope of protection,” noting that this would make the instrument “meaningless.”
Exceptions and limitations still up in the air
Discussions on exceptions and limitations were also controversial. While developed countries supported more exceptions and limitations, particularly for works falling under existing copyright and trademark law, developing countries instead called for alternatives that would ensure greater protection for TCEs.
Countries also butted heads over a proposed exception for derived works that are inspired or borrowed from TCEs. In a report on key issues pending from his term, former IGC Chair Ambassador Philip Richard Owade of Kenya stated that the exception “raises a number of significant questions because it can potentially allow TCEs to be used by contemporary creators to create original works and claim copyright over those works.”
Likewise, India said that this provision “seems an attempt to completely undermine the protection granted to TCEs.” The US, meanwhile, supported all options granting “the fundamental principle of freedom of speech and expression.”
Subject matter, beneficiaries inch forward
The meeting saw progress on the definition of TCEs and the subject matter of protection, with the document now encompassing phonetic or verbal expressions, musical or sound expressions, expressions by action such as dances, plays, or ceremonies, and tangible expressions.
Members also managed to narrow down the text regarding beneficiaries of protection to one option which now includes, in brackets, indigenous “peoples,” “local communities,” and beneficiaries “as determined by national law or by treaty.” This formulation eliminated references to “families,” “individuals,” and “nations,” which had previously provoked controversy among WIPO members.
However, significant divides persisted on how to further describe the subject matter of protection, with developed countries siding for “a simple, straightforward formulation giving members the necessary flexibility” to define it in their respective national laws.
Developed countries also argued that TCEs should be “distinctive” or “unique” products of the cultural and social identity of the beneficiaries of protection, while developing countries said that protection should be granted to TCEs “associated with” the beneficiaries of protection.
Indigenous Peoples participation
The IGC also discussed a proposal by the Indigenous Peoples Caucus - a coalition of select indigenous peoples groups - to enhance indigenous peoples’ participation in the committee. The proposal asks the IGC to create a new category of participation for indigenous peoples, giving them the right to submit proposals, amendments, and motions, as well as the right to vote.
However, no decision was taken on the issue as the proposal did not receive much support.
“We are greatly disappointed that the IGC has not taken substantive and concrete steps to ensure the full… participation of Indigenous Peoples in WIPO processes that affect us,” a representative of the Caucus said as the session came to a close.
The WIPO General Assembly will meet in October, at which point it is expected to examine the IGC’s mandate and future work, including whether to convene a diplomatic conference.
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