WIPO Committee on Traditional Knowledge Fails to Agree on Course of Future Work
Despite intense negotiations that carried on late into Friday evening, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) failed to agree on modalities for future work. Initially, countries seemed willing to work out an intersessional mechanism to facilitate progress on a range of issues on which they have had long standing disagreements. However, and notwithstanding the close involvement of WIPO's new Director General Francis Gurry, strong differences among member states resulted in a deadlock.
The lack of outcome fostered a sense of frustration among many delegates who were eager to see progress at the level of the IGC's working methods in view of the limited advancement in its substantive work after thirteen sessions.
Gurry expressed his disappointment at the outcome, but suggested that "the failure to close a deal on Friday night was a measure of the political significance of what is on the table: potentially, a major normative shift in the intellectual property system." He noted that there was increasing political will to find a substantive and credible basis for systematic recognition, within the law of intellectual property, of the rights of indigenous peoples and local communities.
Ambassador Rigoberto Gauto, the new committee chair from Paraguay, said efforts would be continued in the coming weeks to try to overcome differences among member states.
Competing proposals on the way forward
During the first few days in the full plenary meetings, most members restated their well known positions on the issues at hand. While all agreed on the importance of protecting traditional knowledge and folklore/traditional cultural expressions (TCEs) as well as addressing the misappropriation of genetic resources, views diverged on the best ways to achieve this. Most developing countries favoured international legally binding measures, while developed countries emphasised the need for further analysis and expressed a preference for non-binding measures, in particular at the national level. Many countries also commented on the gap analyses, prepared by the Secretariat, which contrast the current international legal framework with specific examples of gaps in protection and practical considerations of how these gaps might best be addressed.
But the plenary session rapidly gave way to numerous informal meetings, led by the Chair, with heads of regional groups, which made efforts to find a way to move forward.
Consultations centred on competing proposals one submitted by the African Group at the start of the session, which was later revised, and another one by France on behalf of the European Union.
The revised African proposal outlined the work to be carried out by three taskforce groups on TCEs, traditional knowledge and genetic resources. It suggested that the task force groups on TCEs and traditional knowledge should address the definitions and subject matter of protection, exceptions and limitations and duration, prior informed consent and moral/economic rights to knowledge, beneficiaries, and sui generis options for protection.
The African proposal further suggested that the taskforce group on genetic resources should examine the development of disclosure requirements and alternative proposals for dealing with the relationship between IP and genetic resources as requested by the Convention on Biological Diversity. The genetic resources group would also tackle the development of guidelines and procedures for dealing effectively with the intellectual property aspects of access and benefit sharing arrangements. The African proposal stressed that the work of this taskforce group must be carried out "without prejudice to work in other international fora."
The three taskforce groups would provide legal and technical advice including, where appropriate, "options and scenarios for the consideration of the Committee" on all of these issues without prejudice to the outcome.
The African proposal specified the number of experts or observers to be included in each taskforce group: i.e 27 experts to be nominated by member governments, 10 by observers of which 7 were to be from indigenous and local communities.
The proposal by the African group was supported by several other developing countries, including the Asian group, the Least-Developed Country (LDC) group and several Central and Latin American countries, as they called for small intersessional expert group meetings.
On the other hand the submission by France, made on behalf of the EU, proposed that three informal working groups be incorporated into the next IGC sessions, as opposed to the suggestion by the African Group of meeting prior to the IGC. The proposal suggested that these working group meetings should be held during the first three days of the next IGC, leaving the plenary to meet on the two final days. According to the proposal, these three groups would be open to all members, but would not have decision-making power merely reporting to the IGC plenary. They would initially on definitions, beneficiaries, and objectives for TKs and TCEs, as well as disclosure of origin for genetic resources. The submission also introduced the idea of an internet portal for electronic correspondence on these issues, and the establishment of a consultative group to advise the chair. This is unlike the revised African text proposals which call for working group meetings to be held prior to the next IGC session.
Several developed countries expressed concern about the financial implications of additional meetings. Some members viewed such protests as furtive means of opposing intersessional work.
The chair then advanced his own text, proposing one morning for general business during the upcoming 2009 IGC plenary, to be followed by three and a half days of expert working groups open to all members would that would run in parallel and would be chaired by individuals with expertise in the relevant subject matter. The groups would be expected to report to the plenary on 13 March 2009 for their work to be noted by the Committee.
In regard to the possibility of concurrent meetings, some delegates fear that some small countries may not have the capacity to source experts to attend the simultaneous sessions. Furthermore, some expressed doubt as to whether it would be possible to ensure substantive work from the expert groups without duplicating efforts made in previous IGC meetings.
As the meeting was drawing to a close, a final attempt was made to propose the following compromise: the next meeting of the IGC should be replaced with an "Extraordinary Expert Session of the Committee." That session would allow three consecutive meetings of the working groups, running for two days each; the chair would determine the composition of the groups following consultation with the committee. According to the text, the meeting would be attended by several experts determined according to an equitable formula that would take into account the number of countries in each regional group. All other interested member states and accredited observers to the committee would be allowed to attend the meeting as observers. But several members were not keen on having a regular meeting of the IGC replaced.
Members of the African Group were particularly disheartened by the outcome in view of the efforts and proposals they had made. An African group delegate complained about the lack of "flexibility" shown by developed countries which "in reality opposed any effective intersessional mechanism which would inject momentum in the work of the IGC and contribute to progress in substantive discussions." He pointed that the open-ended nature of the working groups suggested in some proposals "would considerably reduce their effectiveness and would replicate the IGC format which had shown its limits."
But a developed country delegate argued that, while they supported efforts to accelerate the work of the Committee, they believed that any modalities reached should not prejudice the outcome of its deliberations either in form or in substance.
Brazil, for its part, was supportive of the African group proposal and of an effective intersessional mechanism to accelerate the work of the IGC, a Brazilian delegate said. In consultations, he mentioned that his country had stressed the importance it attached to the careful drafting of the terms of reference of the expert working group on genetic resources so as to ensure that its work is without prejudice to the progress achieved in other fora on this matter and more particularly at the WTO. In July, more than one hundred countries, Brazil among them, submitted draft modalities (TN/C/W/52) on the key parameters for negotiating final draft legal texts with respect to a number TRIPS issues including disclosure of origin of genetic resources in patent applications.
Despite this setback, many are still hopeful that a successful agreement may be reached through the continuation of informal consultations before it reconvenes in March 2009. The committee has two more meetings to fulfil in its remaining mandate (2008-2009).
ICTSD reporting. "WIPO Poised To Move To Talks On Potential Traditional Knowledge "Treaty," IP-Watch, October 17, 2008; "WIPO Committee On Traditional Knowledge And Folklore Running In Place," IP-Watch, 16 October 2008,