TWN Info Service on Biodiversity and Traditional Knowledge (Sept23/03)
11 September 2023
Third World Network

WIPO: Negotiation text on IP, genetic resources and associated traditional knowledge adopted with minor changes

Geneva, 11 September (K M Gopakumar) – The Special Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) adopted the negotiating text of an international legal instrument for the upcoming Diplomatic Conference.

The IGC Bureau’s text, with minor changes, has been adopted for negotiating the international instrument relating to intellectual property, genetic resources (GR) and traditional knowledge (TK) associated with genetic resources (international instrument).

The Diplomatic Conference is expected to take place during the first half of 2024. The venue is to be finalised in the coming days.

The Special Session of the IGC took place on 4 – 8 September at the World Intellectual Property Organization (WIPO) headquarters in Geneva. The Special Session was convened under a WIPO General Assembly decision to close the gaps in the negotiating text. Paragraph (d) of the General Assembly decision mandated “a special session for five days in the second half of 2023, preceding the Preparatory Committee, to further close any existing gaps to a sufficient level. It is understood that the Preparatory Committee will invite Observer Delegations and Observers”.

The Special Session considered the preamble and Articles 1 to 9. The rest of the Articles will be discussed by the Preparatory Committee, which will meet 11-13 September at the WIPO headquarters.

The Special Session on 8^th September decided to adopt the revised draft international legal instrument called Rev 2 to forward to the Preparatory Committee. The Chair of IGC produced the Rev 2 after concluding discussions in the Ad-hoc contact groups

The Chair of the IGC had produced a revised draft text (Rev 1) and based on the discussion in the ad hoc contact group Rev 2 was presented in the plenary for adoption, and then to be forwarded to the Preparatory Committee whereby the draft text will be included in the Basic Proposal for the Diplomatic Conference.

Though there were many textual proposals to the Rev1 draft only those proposals that are agreed to were incorporated in the Rev.2 draft. Therefore, only minor changes were made to the basic document for the negotiating text because the WIPO General Assembly decision only allows agreed changes to the initial version of the basic document. The decision reads: “The Preparatory Committee shall incorporate in the Basic Proposal such further agreements of the IGC as are reached pursuant to paragraph (d)” i.e., the Special Session.

Rev.1 carried out only changes which can be termed as editorial in nature. (See earlier report: Widespread discontent on revised draft text on genetic resources and associated traditional knowledge).   

There are only three changes in the Rev 2 draft compared to Rev 1 since substantive proposals from Member States, especially developing countries, remain contested (see: IGC special session to discuss draft text on legal instrument on IP and genetic resources amidst biopiracy legitimisation concerns.)

First, Paragraph 1 and 2 of Article 7 (Information Systems) were changed as follows (see bold and strikeout):

“Article 7.1 Contracting Parties may establish information systems (such as databases) of genetic resources and traditional knowledge associated with genetic resources, in consultation, where applicable, with Indigenous Peoples and local communities and other relevant stakeholders, taking into account their national circumstances.

7.2 Contracting Parties should, The information systems, with appropriate safeguards, developed in consultation, where applicable, with indigenous Peoples and local communities and other stake holders should make such information systems be accessible to Offices for the purposes of search and examination of patent applications. Such access to the information systems may be subject to authorization, where applicable, by the Contracting Parties establishing the information systems”.

Second, the following footnote to Article 8 dealing with relationship with other international agreements was deleted:

Agreed Statement to Article 8: “The Contracting Parties request the Assembly of the International Patent Cooperation Union to consider the need for amendments to the Regulations under the PCT and/or the Administrative Instructions thereunder with a view towards providing an opportunity for applicants who file an international application under the PCT designating a PCT Contracting State which, under its applicable national law, requires the disclosure of GRs and Associated TK, to comply with any formality requirements related to such disclosure requirement either upon filing of the international application, with effect for all such Contracting States, or subsequently, upon entry into the national phase before an Office of any such Contracting State”.

Article 8 states: “This instrument shall be implemented in a mutually supportive manner with other international agreements relevant to this instrument”.

Without the footnote Article 8 is very general and open to interpretation. In other words, the removal of the footnote removes any reference to the original purpose of the international instrument i.e., facilitating the effective implementation of access and benefit sharing through disclosure requirements.

Third, since the reference to Patent Cooperation Treaty (PCT) is removed from the footnote the definition of PCT is also removed form Article 1, which contains the list of terms.

Thus it is clear that the Diplomatic Conference will witness hectic negotiations on the substantive provisions. +