CBD WORKING GROUPS PONDER RELATIONSHIP WITH WIPO

The respective roles of the Convention of Biological Diversity (CBD) and the World Intellectual Property Organization (WIPO) in the conservation, sustainable use and sharing of benefits related to biological resources and traditional knowledge (TK), led to extensive discussions at both the CBD Working Groups on Access and Benefit-sharing (ABS) and on Article 8(j), which deals with protecting the knowledge of indigenous and local communities. In particular during debates in the ABS Working Group, many developing countries remained adamant that the CBD rather than WIPO should take the leading role in discussing ABS-related disclosure requirements.

ABS Working Group explores options for international regime

A large part of the discussions at the meeting of the ABS Working Group from 1 to 5 December in Montreal, Canada, focused on possible elements for an international ABS regime, as mandated by the World Summit on Sustainable Development Plan of Implementation adopted in September 2003 (see BRIDGES Trade BioRes, 5 September 2003). Following lengthy discussions, countries forwarded a heavily bracketed text to the CBD's seventh Conference of the Parties, to take place in February 2004 in Malaysia. One of the few recommendations that countries could agree on was that COP-7 should mandate the ABS Working Group to negotiate and elaborate the international regime.

Mirroring dynamics at WSSD, Mexico on behalf of the Like-minded Group of Megadiverse Countries (LMMC) would have liked to see negotiations on a legally binding instrument start as soon as possible. The EC, in contrast, took a more cautious approach, preferring to focus on implementing the Bonn Guidelines on access to genetic resources and benefit-sharing at the domestic level. Countries were also divided over whether the regime should cover the products and derivatives of genetic resources, as advocated by the LMMC.

The relationship to WIPO proved the most contentious point in discussions on measures to ensure compliance with prior informed consent (PIC) provisions on mutually agreed terms (MAT), such as requiring the declaration of origin of a genetic resource in patent application. The LMMC, along with many other developing countries, pushed for discussions on these issues to take place in the CBD context. They objected to strengthening the collaboration with WIPO due to concerns that their interests would not be adequately addressed in a forum dealing with intellectual property rights.

Switzerland -- supported Norway, the EC and Thailand -- is one of the advocates for discussing disclosure requirements in WIPO in the context of WIPO's Patent Cooperation Treaty (see BRIDGES Trade BioRes, 28 November 2003). The US, Japan, Canada and Australia, however, would prefer these discussions to take place in WIPO's Intergovernmental Committee (ICG) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

Article 8(j) Working Group focuses on TK

The question of how to avoid overlap with WIPO's work, and in particular with the ICG, also arose during discussions on possible elements of a sui generis system for the protection of TK during the meeting of the Article 8(j) Working Group from 8 to 12 December, also in Montreal. Overall, the meeting was described as constructive and solution-oriented, in particular compared to the ABS Working Group that took place just before. In the final recommendations regarding a possible sui generis system, the Working Group asks COP-7 to request the Working Group to, inter alia, make recommendations regarding the international ABS regime with a view to including sui generis systems and TK protection systems; assess the role of databases and registers in protecting TK; and explore the potential of existing forms of intellectual property rights to contribute to achieving Article 8(j) objectives. Only the references to international law in the preamble remained bracketed in this section.

Additional Resources

For daily coverage of the meetings, see IISD Linkages.

ENB, Vol 9, No 268, 8 December 2003; ENB, Vol. 9, No 273, 15 December 2003.