WIPO Ctte Advances Draft Text on Genetic Resources Amid Controversy

22 February 2012

Members at a World Intellectual Property Organization (WIPO) meeting dedicated to genetic resources agreed this week to work on a single text for a future instrument. However, it was not all smooth sailing as major disagreements between countries and a walk-out by an indigenous peoples group threatened to derail the talks.

"A text [on genetic resources] will not to be adopted or agreed upon at this stage," meeting Chair Wayne McCook of Jamaica reassured participants, adding that this is only the beginning of the drafting process.

The 20th session of the WIPO Intergovermental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC) was held from 14-22 February in Geneva, Switzerland.

The Committee was created in 2000 amid concerns by biodiversity-rich countries and indigenous peoples regarding the misappropriation of their genetic resources and associated traditional knowledge.

The previous session of the IGC, held in July of last year, saw a renewal of the committee's mandate, setting the ambitious goal of engaging in text-based negotiations to reach agreement on an international legal instrument(s) for the effective protection of genetic resources, traditional knowledge, and traditional cultural expressions.

In addition, the IGC was asked to submit texts to the WIPO General Assembly this year that will consider progress made and decide on whether to convene a Diplomatic Conference (See Bridges Weekly 28 July 2011).

This past week's session focused solely on genetic resources, an area in the IGC's work that has not witnessed the same progress as the two other areas, namely traditional knowledge and traditional cultural expressions.

Single document as a basis for discussions

At the outset of the session, a group of three facilitators was asked to assemble all country and group proposals and interventions on GRs in order to have one document as a basis for discussions.

On 17 February, facilitator Ian Goss of Australia presented a document prepared "without prejudice" to existing proposals in order to "present one single document in a coherent way identifying commonalities in texts and proposals." This consolidated document then proceeded to form the basis for the work throughout the rest of the week.

Debates over negotiating text

The week's deliberations were marked by strong differences over the scope of protection under a GR instrument.

For one, developed countries such as the EU and the United States proposed that any time "intellectual property rights" are mentioned in the document the terminology be changed to "patents."

Some developing countries, however, felt this was a backtracking from the original text proposals on the table. Speaking to Bridges, the delegation of Bolivia reiterated its position that the term "intellectual property rights" must be kept, since "this provides a wider scope of protection and includes other kinds of protection - such as geographical indications - that either directly or indirectly have to do with GRs."

Mandatory disclosure requirement subject of disagreement

Developed and developing countries also found themselves at odds on the issue of a mandatory requirement in patent applications disclosing the origin of genetic resources and associated traditional knowledge. According to proponents, such a measure would prevent erroneous patents from being granted and ensure that adequate access and benefit sharing provisions are in place.

Japan and the United States were staunchly opposed to such a measure, citing the lack of evidence on the matter and the potential burden it may cause for inventors and patent examiners. Meanwhile, some developing countries - such as South Africa and Namibia - felt that a call for studies on these issues was "only meant to delay the process."

Both Japan and the United States submitted a new proposal with Norway and Korea for a joint recommendation that proposes the creation of databases regarding genetic resources and  associated traditional knowledge, instead of a mandatory disclosure requirement. The recommendation would act as a non-binding instrument if adopted. It was not included in the facilitator's consolidated document.

However, the proposal was met with resistance by many developing countries. "We believe that a non-binding instrument would not ensure the effective protection of genetic resources," said the delegate from the Philippines during the plenary.

It was ultimately agreed to discuss the proposal further at the next IGC, as several countries indicated that they not had enough time to review it in detail.

Controversy over indigenous participation

Yesterday, the International Indigenous Forum - comprised of various indigenous peoples organisations - expressed frustration over the lack of inclusion of their proposals in the negotiating texts. A handful of indigenous representatives staged a walk-out from the IGC, which they argued "has systematically ignored our rights, as Indigenous Peoples and as Nations with internationally recognised collective rights."

"We withdraw our active participation in the work developed by this Committee until the States change the rules of procedure to permit our full and equitable participation at all levels of the IGC," the Indigenous Forum added in a statement.

"I express regret at the withdrawal of the Indigenous Forum," Chair McCook said, adding that no changes have been decided upon in this session on the rules of procedure, and in particular regarding indigenous participation.

"We remain open to the Indigenous Forum participation in line of rules of procedure," he added.

After consultations with the Chair, the Forum released a statement in which they decided to reconsider their announced withdrawal. They said that they would continue to work with the IGC under the condition that their participation be more inclusive.

In their statement, the Forum also proposed the creation of a specific category "Indigenous Peoples," set apart from other observer organisations.

The next session of the IGC is scheduled for 16-20 April 2012 and will focus on traditional knowledge.

ICTSD reporting. "WIPO Members Work Through Differences In Genetic Resources Document," IP WATCH, 19 February 2012.

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