Shaky start for WIPO meet on IPRs, Genetic Resources

by Chakravarthi Raghavan

Geneva, 3 May 2001 - The first session of the WIPO sponsored Intergovernmental Committee on Intellectual Property (IP), Genetic Resources (Grs), Traditional Knowledge (TK) and Folklore has gotten off to a shaky start, after a day and half spent in agreeing on co-chairs, and the United States insisting the IGC could discuss ‘benefit-sharing’ of genetic resources, but not Prior Informed Consent (PIC)

The Committee lost an initial day of work, because of objections to naming Canadian Ambassador Sergio Marchi as the chairman, and ultimately compromised by electing two Co-Chairman, Marchi and the Singapore Ambassador, Chuk Mun See.

On the first item on its agenda about Intellectual Property and Genetic Resources, the United States made clear that while the IGC could cosider and discuss benefit sharing, it would not agree to discussion of the cocnept of Prior Informed Consent in terms of access to genetic resources and intellectual property rights.

The group of industrialized countries had proposed the Canadian ambassador, Mr.  Sergio Marchi to chair the IGC, but this was opposed by the Group of Latin American and Caribbean (GRULAC) countries.

While the opposition is related to the ‘personality’ of Mr. Marchi, and the disputes at the WTO between Brazil and Canada (involving aircraft export subsidies), where Mr. Marchi, a former Canadian Minister, hasbeen unable to shed that complex and has used some harsh words and language - often used in the cut and thrust of Parliamentary debates in the Anglo-Saxon world, particularly from Treasiury benches, but not normal in multilateral diplomatic fora - against Brazil and its Ambassador, Mr. Celso Amorim, also a former Foreign Minister of his country.

But the opposition is also related to Canada’s role (as a member of what came to be called by NGOs pejoratively as the ‘Miami gang’) in the negotiations for a bio-safety protocol to the UN Convention on Bio-Diversity (CBD).

Canada was part of the US-led “Miami Group” which had resisted attempts to negotiate a bio-safety protocol to the UN CBD, and the issues of Prior Informed Consent that had arisen there.

The other members of the Miami Group were Australia, Chile, Argentina and Uruguay.

The United States is not a member of the CBD, but only an observer there, but has used the five members of the CBD in the Miami Group to hold up and weaken considerably the bio-safety protocol which,though Europe and the Group of 77

claimed after its conclusion as a major achievement has probably in fact enabled the US to resist the outcomes there through the WTO processes, remits, and its dispute settlement system.

The bio-safety protocol was opened up for signature in May this year at the headquarters of the UN Environment Programme, under whose auspices the CBD, and the bio-safety protocol have been negotiated.

Canada, which hosted and chaired that Montreal meeting to conclude the ‘Cartegena protocol’ to the CBD, has not signed that protocol and has made clear (at the meetings of the UN Environment Programme), it has no intention to do so.  However, Chile and Argentina, who were part of the Miami Group have signed the CBD, which will come into force 90 days after 50 countries have lodged their ratification papers.

The CBD has provisions relating to access to genetic resources and rights of benefit sharing in any benefits of R&D and intellectual property rights and commercial benefits that might accrue, as a result of access to genetic resources and the traditional knowledge of communities associated with it.

The CBD enables a country having bio-diversity and providing access to it to foreign enterprises, including pharmaceutical firms or others to enter into benefit sharing arrangements on the commercial benefits accruing from such genetic resources, and sharing it with the host country, and/or local communities that may have collective rights or have the knowledge on the use of these genetic resources for traditional medicine.

Often Northern universities, many prestigious ones (who have all now moved to commercialise through patents etc their research activities, whose knowledge was freely shared and left in public domain), or professors and academics, and national parks and others undertaking ‘exploratory work’ to identify flora and fauna or collect specimens for their own parks, but often fronting for transnational pharmaceutical enterprises, with whom they have parallel accords to share in the patenting and commercialisation, have engaged in ‘bio-piracy’.

This is a term, originally used by NGOs, but now in common currency, having come into vogue to characterise foreign individuals and institutions and corporations who go into a country, without disclosing their real purpose, and locate and ‘take away’ genetic resources and specimens without consent or knowledge of the host country. Often these entities gain access to and knowledge of use through local indigenous trbes and communities who are not fully aware of the commercial benefits or what they are signing away, and with whome the foreign entities enter into agreements,

Attempts in the WTO’s Council on Trade-Related Intellectual Property Rights to focus on these questions, and particularly to require that those seeking to protect intellectual property based on genetic resources should be asked to identify the source, and the patenting authorities in any country to make this a condition before entertaining requests for IPRs, have been strenuously opposed by the US.

The UNEP and CBD have not been able to deal in depth with these issues. Attempts in UNCTAD to discuss these in open fora have been blocked by the US.

The WIPO sponsored meetings are the result of a decision of the WIPO bodies last year, where this issue was brought up, and an intergovernmental committee was set up to gointo the relationship between IPRs, Genetic Resources and Traditional Knowledge.

A crucial issue in relation to benefit-sharing is the question of Prior Informed Consent of the local communities or individuals having the rights over the resource and the knowledge to use it.

On the PIC issues, the industrialized world, promotig the interests of their corporations have always tried to ensure that they are not forced to disclose all the relevant information to the other side before consent is obtained - but have sought to adopt the commercial doctrine of ‘buyer beware’ principle.

The IGC is due to end its first session Thursday. – SUNS 4888

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