WIPO Committee Increases Pace of Talks on Traditional Knowledge
The 16th session of the World Intellectual Property Organisation (WIPO) Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC) witnessed agreement on the establishment of Inter-sessional Working Groups (IWGs). With this matter resolved, delegates hoped to accelerate the committee’s substantive work, which aims to produce a draft legal instrument by September of next year.
IGC Chairman, Ambassador Philip Richard Owade of Kenya, said that the Committee had “broken new ground” and that serious work lies ahead.
Last October, the IGC won a mandate from the WIPO General Assemblies to start text-based negotiations with the aim of creating a legal mechanism to prevent “the misappropriation and misuse” of traditional knowledge. However, substantive discussions came to a halt during the 15th session, last December, when delegates came to a deadlock over how to structure the sessions of the inter-sessional working groups. These IWGs are meant to “support and facilitate the negotiations of the IGC” and to “provide legal and technical advice and analysis.”
Two proposals on the structure of the IWGs were put forward during the IGC’s December session. Under the proposal made by the African Group, each of the three IWGs would focus solely on Traditional Knowledge (TK), Traditional Cultural Expressions (TCE) or Genetic Resources (GR). The Development Agenda Group (DAG), a new coalition of largely developing countries, agreed that “it would be more efficient if one meeting was devoted to one subject matter at a time.” The African Group proposal also called for the inter-sessional groups to be limited to 27 representatives and 10 experts including seven expert observers who are from or who represent indigenous and local communities.
A coalition of developed countries and Central European and Baltic States submitted a separate proposal. This one stated that “all three inter-sessional Working Groups will deal on an equal footing with TCEs, TK and GR” and noted that each working group should look in to all three issues at once. This proposal also suggested that the working groups be open to representatives from indigenous and local communities besides experts and member states, but did not specify a minimum number.
After intense informal negotiations, delegates reached a consensus on Friday, the last day of the meeting. It was decided that “all three subjects of the IGC shall be treated on an equal footing” and that each subject should be allocated an equal amount of time for discussion. Delegates agreed that the first IWG, to be held in July, will address TCEs. The topics of the second and third IWGs will be decided at the IGC’s next session.
A few definitions might be useful. Traditional Cultural Expression (TCE), according to WIPO, include music, art, designs, names, signs and symbols, performances, architecture etc., that are integral to the cultural and social identities of indigenous and local communities. Traditional Knowledge (TK) on the other hand, encompasses all of the beliefs, traditions and practices found in a certain community. Some examples of TK include traditional healing methods, traditional water systems and traditional farming methods. Genetic resources are genetic materials of plants, animals or micro-organisms which contain a valuable resource for future generations of humanity.
Friday’s compromise also included a guarantee that “participation in the IWGs shall be open to all member states and accredited observers” and that “each member state and accredited observer shall be represented by one technical expert.” The arrangement also includes “funding for each IWG to be provided by WIPO for one representative each from 71 developing countries and countries with economies in transition.”
The only issue that remained unresolved at the end of the week-long meeting was whether WIPO’s Voluntary Fund for Accredited Indigenous and Local Communities should be used to sponsor indigenous people’s participation in the IWGs. The Indigenous Caucus called for the IGC to amend the rules of the Voluntary Fund to achieve this goal; the group also called on the committee to “consider alternative funding mechanisms.”
Text-based talks continue
Over the course of the session, IGC delegates also engaged in text-based negotiations on substantive issues.
The first topic of discussion was a newly revised paper on “Objectives and Principles” for the protection of traditional cultural expressions.
Article 3 of this paper concerns “acts of misappropriation and misuse” of TCEs. On this point, the United States expressed concern regarding the exercise of IP rights over derivatives of TCEs. It suggested that the term “derivatives” be replaced by “adaptations” to reduce the impact of the stronger protection of TCEs on material available in the public domain. South Africa, however, said that removal of rights over derivatives would greatly affect the overall treatment and protection of TCEs. Delegates at the session asked the secretariat to undertake a study on the matter.
The IGC also discussed a revised “Objectives and Principles” paper on traditional knowledge. Article 3 of the TK instrument, which describes the general scope of subject matter, generated some debate. Spain on behalf of the EU said that the protection of TK should ensure “a balanced approach between the holder of TK and the users.” Spain also stressed “the need to facilitate access and dissemination of TK in order to ensure the dynamic and vibrant nature of the public domain.”
Norway also said that knowledge should be classed as being in the public domain when it is becoming well known outside the indigenous local community in which it originated. The representative from the Tulalip Tribes said that this theory meant that an unnecessary burden is put on holders of the knowledge; he did not agree that disclosure of the knowledge should lead to exhaustion of rights.
The last issue for discussion was the revised options paper on the protection of genetic resources. Text-based negotiations have not yet begun on this subject at the IGC, although discussions on genetic resources are underway in the Convention on Biological Diversity (CBD) and also within the context of the TRIPS Council at the WTO.
A representative from the CBD updated member states on the progress in negotiations toward an international regime on Access and Benefit Sharing (ABS). The ABS regime aims to allow sovereign states to determine access to natural resources within their jurisdiction while ensuring that parties take appropriate measures to share the benefits derived from their use. She said that negotiators are still trying to figure out how to ensure compliance with prior informed consent and mutually agreed terms during the ABS process.
The IGC’s discussions on GR could be kick-started by a joint submission Australia, Canada, New Zealand, Norway and the US that was made last week. The countries presented a proposal that lays out five “objectives and principles” for the GR discussions. Countries are expected to discuss the proposal at the next session of the IGC, which will be held from 6 to 10 December.
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