TWN Info Service on Biodiversity and Traditional Knowledge (Feb14/02)
4 February 2014
Third World Network

WIPO: North-South differences on genetic resources instrument

Geneva, 4 February (Alexandra Bhattacharya) – The 26th session of the WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC) commenced on Monday, 3 February where the focus of discussion was on Genetic Resources.

The meeting at the WIPO headquarters in Geneva will be on 3-7 February.

The WIPO General Assembly in 2009 provided the mandate for text-based negotiations with the objective of reaching an agreement on a text(s) of an international legal instrument(s) which will ensure the effective protection of genetic resources (GR), traditional knowledge (TK) and traditional cultural expressions (TCE). This mandate was renewed twice in 2012 and 2013.

The first half of 3 February was devoted to a meeting of ambassadors and senior capital-based officials for “an interactive, open and frank exchange”. This was pursuant to paragraph (b) of the IGC’s mandate for the 2014/2015 biennium, with the purpose “to share views on key policy issues relating to the negotiations and to further inform/guide the process”. (The discussion for the rest of the week will be on the basis of document WIPO/GRTKF/IC/26/4 which is a “Consolidated Document Relating to Intellectual Property and Genetic Resources”.)

In the afternoon, Ambassador Wayne McCook (Jamaica) provided an overview of the high level segment held in the morning. (The verbatim report of the meeting will be included in the session’s report). The following questions were posed to the meeting:

“1. In respect of GR, TK and TCE
a. What is the policy issue that needs to be resolved as a priority and why?
b. What should be dealt with an International legal instrument and what could be left to deal with at the national level?
c. What suggestions are there for common ground on the issues that need to be resolved internationally?

2. Regarding the process as a whole, what new negotiating pathways and modalities might there be to make further progress?”

According to Ambassador McCook, some of the key views included:

• The general view among all participants was that the misappropriation of GR, TK and TCEs legitimately held by owners was not acceptable. There clearly needs to be a discussion on “legitimate holding”. No one expressed the view that misappropriation of these materials was acceptable.
• Delegations also expressed in numbers the view that the instrument being developed should be aimed at assisting in preventing the granting of erroneous or poor quality patents. The clearest references were made to the patent systems.
• Regarding ways that these concerns may be addressed, some delegations expressed the view that Databases would allow a means of checking if material should be denied treatment or patentability.
• Some expressed support for the disclosure approach: There was difference in view whether it should be mandatory and the conditions which should imposed. One way forward proposed was the experience of disclosure regimes in practice.
• In terms of relationships with other instruments there were significant differences. Some felt the current instrument should reinforce the CBD and the Nagoya Protocol. Other views were that the instrument should not interfere with them.
• On Subject Matter of the instrument: There were some interventions by delegations on the importance of defining the beneficiaries of the instrument.
• Balancing of Instruments: There was a need to balance interests between owners and holders including commercial and consumers of items. The integrity of the relationship between all three would need to be considered.
• Some mentioned the need for “respect, acknowledgement and attribution”.
• Some interventions related to exclusive rights and mutually agreed arrangements in terms of ABS regimes.
• There were interesting views with regard to the character of instrument: particularly whether it should be a framework type agreement with some elements left to national mechanisms, as opposed to a more in- depth instrument (which was preferred by others).
• Different character of the instrument: There were differences in opinion as to whether the instrument should be (legally) binding or non-binding.
• Process: Interest in new pathways was expressed but there was no clear expression of what it should be.
• It was also not clear whether parallel texts could be anticipated (in the negotiations this week).
• The need for high-level engagement was mentioned.
• There were calls for a roadmap on the way forward including suggestions that the IGC should be working towards a Diplomatic Conference (for concluding negotiations on a treaty).
• There were suggestions for a matrix/map of positions of key issues of difference/commons positions.
• It was not clear whether the three pillars (GR, TK and TCEs) would be kept together or separate.

According to observers who have been following the IGC process, the differences are between developing and developed countries, with the former opting for a legally binding instrument that includes mandatory disclosure requirements. (For more details on the contested provisions of the Consolidated Document please see: TWN Info Service dated 3 February 2014 tilted “WIPO negotiations on IP and Genetic Resources to resume amidst major differences”.)

The IGC plenary in the afternoon was suspended for the Panel Of Indigenous And Local Communities. The theme of the panel was “Intellectual Property and Genetic Resources: What is at Stake for Indigenous Peoples?” It included the participation of Professor James Anaya, the United Nations Special Rapporteur on the Rights of Indigenous Peoples.

The remaining four days of the IGC session will be on text-based negotiations on GR with a focus on considering options for a draft legal text. The Chair in particular urged for focus on the key normative issue which was the inclusion of a disclosure requirement. He called for the IGC to be " creative, focused and solution oriented".

The methodology used will be mixture of plenary and Room B expert group meetings (a WIPO procedure where after a plenary, an expert group consisting of a maximum of 6 experts per region meets, with live audio transmission to the plenary room). There will also be  “coordinated informal discussions” aided by the facilitator. The facilitators for the session, as in previous sessions, will be Ian Goss (Australia, and friend of the chair of the GRTKF process), Chandni Raina, (India), Emmanuel Sackey (ARIPO).

Day 2 (4 February) will commence with the expert group in Room B at 10 am.