After Hiatus, WIPO IGC Resumes with Intense Debate over Genetic Resources, Disclosure
The 29th session of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) got underway from 15-19 February with a new chair, Ian Goss from Australia, allocated the difficult task of bridging diverging views on the protection of genetic resources.
Central to the negotiations are attempts to prevent misappropriations or ”biopiracy” of genetic resources and associated traditional knowledge, including patents over research and development (R&D) for using such materials for pharmaceuticals, agricultural innovations, crop protection, biotechnologies, cosmetics, and other industries.
The IGC process has intensified following the 2010 agreement of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity.(See Bridges Weekly, 3 November 2010) The committee has also been working on consolidated documents formally since that year.
Back in action
The IGC has been on hiatus since the 2014 WIPO General Assembly, when delegates could not agree on the new mandate and work plan for the next biennium. This hiatus was spurred by earlier disagreement over whether the text-based negotiations had advanced sufficiently to hold a diplomatic conference in the year(s) immediately following. (See Bridges Weekly, 2 October 2014)
At the time, several countries including Canada, Japan, South Korea, and the EU, had expressed concern that the three “consolidated documents” on genetic resources, traditional knowledge, and traditional cultural expressions were heavily bracketed and not sufficiently advanced to move to a diplomatic conference, while also questioning the scope of the IGC’s mandate to actually develop legal texts.
Many developing, “like-minded” countries and the African Group had called for a diplomatic conference so that the consolidated documents could be negotiated into binding international legal texts. Some commentators have singled out the African Group for their intransigence towards renewing the mandate without moving to a “dip-con” as the cause of the hiatus.
After a year to regroup, WIPO members agreed to renew the IGC’s mandate during the UN agency’s 2015 General Assembly, specifying that the committee should continue its work in the 2016/17 biennium“with a focus on narrowing existing gaps, with open and full engagement, including text-based negotiations, with the objective of reaching an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to intellectual property which will ensure the balanced and effective protection of genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs).” (See Bridges Weekly, 8 October 2015)
The new IGC work plan has set out to have two meetings on each thematic area, starting with two on genetic resources, followed by expert seminars. Such a process, the Chair said, would encourage an “evidence-based approach.”
Disclosure of origin requirement?
Last week’s meeting on genetic resources tackled some big questions on a potential disclosure of origin patent requirement; whether it should just be the “source” or also the origin; if associated traditional knowledge would be covered; and whether it should be mandatory (Article 4 of the consolidated document).
Countries could not agree over the inclusion of Nagoya Protocol relevant information on prior informed consent and mutually agreed terms for access to genetic resources and benefit sharing. The US, EU, and others opposed its inclusion in a disclosure requirement, noting that not all countries had ratified the protocol and that it is not the role of the intellectual property (IP) and patent system to ensure compliance with other laws.
Consequences of non-compliance with disclosure were discussed, with delegates clashing over whether patent revocation should be included as a post-grant option. Several countries highlighted that patent revocation should be a last option in non-compliance situations, with the Namibian delegate using the analogy: “In Namibia it is not unusual for cows to be stolen. You would not shoot your own cow; you would take the cow stealer for prosecution.” This reiterates the point that the maintenance of patent rights may enhance the opportunities for benefit-sharing if the genetic resource provider and user can reach a mutual agreement on terms.
Namibia also put forward a new proposal on limitations and exceptions to disclosure, with support from South Africa and other developing countries. They suggested that the long list of limitations and exceptions such as derivatives, commodities, and traditional knowledge in the public domain could be replaced by limitations and exceptions when it is overwhelmingly “in the public interest.”
The US, Canada, Japan, and South Korea also re-introduced a previous joint submission on databases, which has been tabled several times before. When negotiations on the consolidated text turned to databases on Wednesday, 17 February, it seemed clear that the authors of the joint submission were quite isolated in arguing that databases are a sufficient measure, with many African and Latin American countries, as well as Asian member states such as India and Indonesia, saying they should just be complementary to a mandatory disclosure of origin requirement.
The Tulalip Tribes also questioned whether the US had consulted with Indigenous peoples about their use, raising issues such as “what is the status of knowledge in databases,” “who has access,” and “who bears the costs” if knowledge is collected and entered into databases. The US responded that their consultations were “ongoing.”
Questions over process
After the facilitators prepared a revision to the consolidated document for discussion on 18 February, the plenary then digressed into repeated questions over process and concerns that the text was not narrowing.
Specifically, the Brazilian delegate expressed frustration over the inclusion of additional text, while several African countries reiterated concerns over the US’ request to insert the term “unauthorised access/use” into the like-minded and African Group preferred definition of “misappropriation,” instead of the US’ preferred definition.
The tension in the room was evident as the Namibian delegate then suggested the term “biopiracy” could equally be added next to the more polite term misappropriation. The facilitator’s revised text also included a change that each party “shall” rather than “should” require disclosure of origin, given the many countries asking for mandatory disclosure. The US and some Group B countries could not accept this change towards mandatory disclosure, but Australia appeared more amenable to finding compromises on disclosure throughout the week.
When the Chair returned on Friday morning he was forced to revert to the original text of the consolidated document, with the only revision having consensus being the deletion of Article 2 on scope of the instrument – largely because it is sufficiently explained in Article 1 on subject matter.
The Chair noted that while there had been some ideas and movement on text, there was still no agreement on many items, leaving a long indicative list of outstanding issues to be resolved at the next session. He reiterated the need for delegations to provide evidence and national experiences to improve the understanding of the IGC and to explain their respective positions.
Indigenous experts were present in smaller than usual numbers, because the voluntary fund for Indigenous Peoples and Local Communities (IPLCs) has been depleted. Goss therefore appealed to delegations to replenish the fund so that IPLC representatives can continue attending, given that much of the thematic discussion focuses on their knowledge and cultural expressions. Only the US made a comment that they were applying for at least US$10,000 to support this.
Unclear road ahead
With considerable frustration and many tired delegates, the session closed with participants thanking the “unstinting efforts” of the Chair, facilitators, and Secretariat. Nigeria, representing the African Group, noted that the achievement of just an indicative list of outstanding issues “after 16 years was a problem.”
“How do we move forward at this stage? Do we keep moving in circles? We will get dizzy!” commented the Indian delegate.
The IGC process is slated to continue with genetic resource expert seminars on 26-27 May, followed by the 30th IGC plenary session on genetic resources from 30 May to 3 June.