WIPO Members Round Up IGC Work Programme with Talks on Traditional Cultural Expressions

22 June 2017

Members of the World Intellectual Property Organization’s (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) have now completed their work programme for the 2016/2017 biennium, approving updated draft articles in their negotiations on traditional cultural expressions (TCEs) last week.

The annual WIPO Assemblies, scheduled for October 2017, will address the renewal of the Committee’s mandate, among other topics. The IGC has been tasked with developing an international legal instrument(s) to ensure the balanced protection of traditional knowledge, genetic resources, and TCEs, based on an evidence-centred approach through the sharing of national experiences and initiatives.

The WIPO IGC was established 17 years ago, with formal talks towards developing such an instrument(s) kicking off in 2009. (See Bridges Weekly, 9 March 2017)

The task involves balancing a complex set of concerns, such as protecting biodiversity; responding to concerns by indigenous communities over exploitation and misappropriation; and ensuring that the benefits derived from such resources are shared more equitably.

Delegations at last week’s 34th IGC session sought to build consensus on the nature of a potential instrument on TCEs, including policy objectives, subject matter and scope of protection, beneficiaries, as well as exceptions and limitations to its coverage.

TCEs are artistic expressions that are inherited through generations and comprise part of the cultural and social identity of a traditional community. Examples can range from dances, rituals, and sports to artistic expressions, handicrafts, music, poetry, and other narratives.

Seminar on Intellectual Property and Traditional Cultural Expressions preceded the meeting from 8-9 June. 

Draft articles updated

The draft articles were revised to better reflect member positions and were issued by the facilitators, Margo Bagley from Mozambique and Ema Hao’uli from New Zealand, on 15 June. An updated version was finally approved by the Committee at the session’s conclusion.

Article 1 on policy objectives added a fourth alternative, similar to Alternative 3 but dealing in terms of preventing “misappropriation, misuse, or offensive use of traditional cultural expressions” as opposed to the more positive phrasing, supporting “the appropriate use and protection of traditional cultural expressions.”

In addition, Alternative 3 specifies that the objective deals “within the intellectual property system, in accordance with national law,” whereas Alternative 4 does not include such a stipulation.

Article 4, on the subject of the beneficiaries of the instrument, also took on a fourth alternative, seeking to be more specific in terms of what constitutes “other beneficiaries,” aside from indigenous peoples and local communities.

Alternative 2 of Article 5, which deals with scope of protection, was dropped in the revised version of the text following the addition of Alternative 3 in IGC 33, which caused the Group of Like-Minded Countries to shift their favour, according to IP Watch.

Alternative 1 of Article 6 on the administration of rights/interests was extended to include the paragraph originally present in the Alternative 2, specifying that the identity of any competent authority designated to administer the rights/interests provided for by the instrument must be transmitted to the International Bureau of WIPO. The two alternatives now differ only in the role of the beneficiaries, whether they must be kept “in close consultation” or whether “explicit consent” must be granted on their behalf.

A new alternative was inserted, now Alternative 3, into Article 7, proposing that exceptions and limitations may be adopted in special cases, provided that they do not “unreasonably prejudice the legitimate interests of beneficiaries, taking account of the legitimate interest of third parties.”

Furthermore, Alternative 2 gained two new paragraphs, allowing member states to provide for exceptions and limitations beyond those illustrated in paragraph 2 – including in cases of learning, teaching, and research; preservation in cultural institutions; and the creation of creative works inspired by TCEs. Certain member states reportedly expressed concern that this clause may allow too much leeway in what can be characterised as an exception, according to IP Watch.

Alternative 2 now also includes a paragraph allowing for the provision of exceptions and limitations where protected TCEs are “incidentally” used in another work, or where the user had no reasonable grounds to know that the TCE is protected.

What was previously Article 16 on non-derogation, intended to ensure that the instrument is not “construed as diminishing or extinguishing the rights” of indigenous peoples, has now been subsumed under Article 12 on the relationship with other international agreements. Two additional paragraphs were added, aimed at upholding the rights enshrined in the UN Declaration on the Rights of Indigenous Peoples.

The revised text also incorporates an alternative proposed by the US, supported by the EU according to IP Watch, stipulating the elimination of Article 8 (terms of protection/safeguarding), Article 9 (formalities), Article 10 (sanctions, remedies and exercise of rights/interests), Article 11 (transitional measures) and Article 13 (national treatment). 

What’s ahead

In addition, the Committee took stock of progress to date in the draft texts and provided recommendations on its future work to the UN agency’s General Assembly, scheduled for later this year. The precise details of the Committee’s work programme for the 2018/2019 biennium remain to be determined by the Assembly.

“Noting the progress made, the Committee considered that more work needs to be done,” the decisions released at the close of the session state. “The Committee recommended that the WIPO General Assembly decide that the Committee should continue its work during the 2018-2019 biennium and that the Assembly decide on a mandate and a work programme.”

A draft written report, detailing the decisions and the interventions made to the Committee, will be prepared and distributed by August 2017 and will be submitted for adoption at the next IGC session.

This October, the WIPO Assemblies will decide on whether to convene a diplomatic conference, the body’s highest level meeting, or continue negotiations.

A call for the conversion of the IGC into a standing WIPO Committee has been put forth by the African Group, according to IP Watch. Other members still doubt the necessity of a binding legal instrument(s), and suggest that existing intellectual property mechanisms could already be effective in protecting TCEs.

ICTSD reporting; “WIPO TK Committee Agrees To Continue Work, But Real Outcome Depends On October Assembly,” IP-WATCH, 19 June 2017; “Revised Articles Protecting Folklore Head To WIPO General Assembly, For Better Or Worse,” IP-WATCH, 19 June 2017; “WIPO Seminar Looks At Protection Of Folklore,” IP-WATCH, 12 June 2017; “WIPO Members Consider Future Of Committee On Traditional Knowledge, Folklore,” IP-WATCH, 12 June 2017.

This article first appeared in Bridges Weekly, 22 June 2017.

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