Service on Health Issues (Oct17/03)
WIPO: Draft texts on IGC dilute the mandate
Geneva, 11 October (K M Gopakumar) – The draft decision text on the mandate and work program of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) dilutes the existing mandate given by the General Assembly of the World Intellectual Property Organization (WIPO) in 2009 and 2015.
Para (e) of the latest draft text circulated on at 11 am on 11 October states:
“In 2018, the Committee is requested to provide to the General Assembly a factual report of its work up to that time with recommendations, and in 2019, submit to the General Assembly the results of its work in accordance with the objective reflected in paragraph (a). The General Assembly in 2019 will take stock of progress made, and based on the maturity of the texts, including levels of agreement on objectives, scope and nature of the instrument(s), decide on whether to convene a diplomatic conference and/or continue negotiations.”
This means that the General Assembly needs to consider the following matters to take a decision on a diplomatic conference: the progress made in the 6 sessions of the IGC in 2018-19, the maturity of the texts, including levels of agreement on objectives and the scope and nature of the instrument(s). The words “scope and nature of the instrument(s)” clearly convey that a diplomatic conference needs to be convened only when the instrument is a legally binding instrument (treaty). This means there is no certainty with regard to the nature of the instrument in this draft text.
This is in contrast with the existing mandate of IGC, which was adopted by the General Assembly in 2015. Para (f) of the 2015 IGC mandate reads:
“In 2016 the Committee is requested to provide, for information only, a factual report to the General Assembly on its work up to that time, and in 2017, to submit to the General Assembly the results of its work on an international legal instrument(s) relating to intellectual property which will ensure the balanced and effective protection of GRs, TK and TCEs. The General Assembly in 2017 will take stock of progress made, and decide on whether to convene a diplomatic conference or continue negotiations. It will consider the need for additional meetings, taking account of the budgetary proceeds”. (Emphasis added.)
According to the 2015 decision, the WIPO General Assembly can take a decision on a diplomatic conference, and there is no doubt on the legal nature of the instrument even though paragraph (a) of the 2015 uses the words “with the objective of reaching an agreement on an international legal instrument(s)”. However, the decision on diplomatic conference clears doubts about the legal nature of the text.
Paragraph (a) of the 2015 IGC mandate reads:
The Committee will, during the next budgetary biennium 2016/2017, continue to expedite its work, 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).
This is a dilution of the 2009 IGC mandate; the terms which do not qualify the objective of the negotiation i.e. text-based negotiations with the objective of reaching agreement on a text of an international legal instrument. The 2009 decision reads:
The 2009 General Assembly decision states: “The committee will during the next budgetary biennium (2010/2011) and without prejudice to the work pursued in other fora, continue its work and undertake text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection of GRs (genetic resources), TK (traditional knowledge) and TCEs (traditional cultural expressions).”
The other qualification added in 2015 was on the legal instrument, which is to ensure the balanced and effective protection. It reads: “with the objective of reaching an agreement on an international legal instrument(s) relating to intellectual property which will ensure the balanced and effective protection”.
Under the proposed text there is no guarantee that the work of the committee would essentially lead to an international legal instrument. In the absence of a clear mandate, developed countries, including the European Union, can object to the adoption of a treaty.
As earlier reported by TWN, even though there is a consensus among Member States to renew the work of the IGC for the upcoming biennium 2018-19, there is no consensus on the mandate or the work program during this period. Prior to the starting of informal consultations, various Member States submitted three proposals on mandate and work program.
Senegal on behalf of the Africa Group, proposed a decision to convene a diplomatic conference on the draft text on genetic resources and the setting up of an expert group for intersessional session to expedite the work.
The proposal by the EU attempts to dilute the mandate of the negotiation without mentioning the objective of the text-based negotiation to arrive at a consensus on an international legal instrument. (Further details of both proposals are available here: http://www.twn.my/title2/intellectual_property/info.service/2017/ip171001.htm)
The joint proposal of the US and Japan, which the Committee’s work in the 2018/2019 biennium will build on the existing work carried out by the Committee with a primary focus on reaching a common understanding on core issues such as the definitions, subject matter, objectives, beneficiaries, scope of protection, safeguarding and the relationship with the public domain.
The IGC will then consider convening a diplomatic conference only after agreement on definitions, objectives, beneficiaries and scope, as well as the nature of the instrument, has been achieved” (http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_49/wo_ga_49_19.pdf).
A developing country delegate told TWN the text is clearly dilutes the existing mandate of IGC. The new draft text would be discussed at the informal meeting in the evening.+