On 15-19 March, the World Intellectual Property Organisation (WIPO)'s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) convened for its first meeting since its mandate was extended for another two years at the WIPO Assemblies in October last year (see BRIDGES Trade BioRes, 3 October 2003). The Committee initiated work on establishing core principles and policy options to prevent the misappropriation of traditional knowledge (TK) and folklore. Differences, however, arose regarding the appropriate body to deal with questions related to disclosure requirements for genetic resources, TK and folklore.

Identifying key principles for protecting TK and folklore

In what was described as one of the most concrete outcomes of the IGC meeting, delegates agreed to accelerate the substantive work on protecting TK and folklore, to be carried out along two tracks. In the short term, the Committee will identify policy objectives and core principles for the protection of TK and folklore, which will provide the conceptual framework for future discussions. In the medium term, the Committee will compile specific policy options and legal elements as well as a brief analysis of their practical implications. This work is expected to provide the foundations for policy-making at both the domestic and international levels, including a possible international instrument for the protection of TK and folklore. While no timeline has been set, concrete outcomes are expected within the current IGC mandate, which runs until the end of 2005. The first draft will be prepared for the next IGC meeting in November.

The initiative will draw, inter alia, on a 15 March submission by Egypt on behalf of the African Group, which was widely welcomed at the IGC meeting as a suitable framework for the Committee's work. The submission outlines objectives, principles and elements of an international instrument (or instruments) on intellectual property in relation to genetic resources and the protection of TK and folklore. One observer noted that while the African (and to a lesser extent the Asian) countries were still pushing for a legally-binding international instrument, some countries in the Latin American and the Caribbean Group (GRULAC), in particular the signatories of the US-Central American Free Trade Agreement (CAFTA), appeared to be reluctant to move towards such an instrument. However, another source pointed out that while countries might differ on the means for providing positive protection at the international level, there appears to be growing acceptance of the usefulness of such protection, marking a shift from the more cautious positions in the early days of the IGC's work.

Differing views on assessing disclosure requirements

Many developing countries, including Brazil and the African Group, questioned whether the IGC was the appropriate body within WIPO to respond to the invitation by the Convention on Biological Diversity (CBD) to assess the interrelation of access to genetic resources and disclosure requirements in intellectual property applications. The countries expressed concerns that hosting the discussions in the IGC would not necessarily ensure that the Committee's work flowed into other discussions at WIPO. Other relevant bodies include the Patent Cooperation Treaty, where Switzerland has submitted a related proposal (BRIDGES Trade BioRes, 28 November 2003) or the Substantive Patent Law Treaty, where several developing countries have raised biodiversity-related issues (see BRIDGES Trade BioRes, 11 December 2002). The discussions at the IGC mirrored similar debates at the CBD's Conference of the Parties (COP) in February, where several developing countries had opposed specific references to the IGC in the COP Decisions (see BRIDGES Trade BioRes, 20 February 2004).

Several delegations also felt that the WTO Council for Trade-related Aspects of Intellectual Property Rights (TRIPs) would serve as a more appropriate forum for the discussions. They expressed concern that a debate in the IGC would distract from or pre-empt a decision by the TRIPs Council on a proposal by a group of developing countries, calling for disclosure requirements and evidence of prior informed consent and benefit sharing related to genetic resources and TK in patent applications (see BRIDGES Trade BioRes, 19 March 2004). One observer, however, noted that rather than providing an alternative forum, the IGC's work could be used to provide the substantive basis for further discussions in the TRIPs Council.

Given the lack of consensus on how to proceed with the CBD's request, the Committee decided to forward the issue to the General Assembly for consideration.

Enhancing civil society participation

Several observers noted an increased participation of non-governmental organisations in the IGC. In particular with regard to indigenous and local communities, discussions broadened from focusing primarily on funding concerns to more substantive debates on how to ensure their effective participation. The Committee agreed on several practical steps in this regard, including the establishment of an informal consultative forum for indigenous and local representatives in advance of IGC sessions. They also welcomed the establishment of a website for submissions by accredited observers, as mandated by the last IGC meeting.

ICTSD reporting.