TWN Info Service on Intellectual Property Issues (Apr14/07)
9 April 2014
Third World Network

WIPO: Protection of traditional cultural expressions text further developed
Published in SUNS #7781 dated 9 April 2014

Geneva, 8 Apr (Alexandra Bhattacharya) -- The draft text for a treaty on the protection of traditional cultural expressions (TCEs) has evolved further.

The end of the 27th session of the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC) saw the transmission of a treaty text to the 2014 World Intellectual Property Organisation (WIPO) General Assembly for decision-making.

The latest round of negotiations on TCEs was held at the WIPO headquarters in Geneva from 31 March to 4 April.

During the previous week (24-28 March), the IGC also made some headway with the text for the protection of traditional knowledge (TK) which will also be transmitted to the 2014 WIPO General Assembly.

Similarly, the text on genetic resources (GRs) from the 26th IGC session held on 3-7 February, will be transmitted to the WIPO General Assembly for a decision on convening a Diplomatic Conference, a formal procedure to conclude a treaty.

The Fifty-Fourth Series of Meetings of the WIPO Assemblies on 22-30 September 2014 will now "take stock of and consider the text(s), progress made and decide on convening a Diplomatic Conference, and will consider the need for additional meetings, taking account of the budgetary process".

The result of the week-long discussions on TCEs is a more streamlined text; however, as seen in the text for the protection of GRs and TK, brackets and alternative provisions still remain.

Ian Goss (Australia), Friend of the Chair and one of the facilitators who prepared the texts, noted that the Nagoya Protocol had 3,000 brackets at its commencement whereas there were 1,500 brackets in the current TCE text.

(The Nagoya Protocol on access and benefit sharing was concluded under the Convention on Biological Diversity in December 2010.)

The heavily bracketed text is very much a reflection of key divergences which persist, not only with regard to the substantive nature of the provisions but also as to the final nature of the instrument(s).

Many developed countries remain opposed in varying degrees to a legally binding international agreement.

The first revision (Rev. 1) of the text on the "Protection of Traditional Cultural Expressions: Draft Articles" was circulated at the plenary meeting in the afternoon of 1 April 2014.

The revised text was prepared by the five facilitators - Ian Goss (Australia), Margo Bagley (Mozambique), Nicolas Lesieur (Canada), Justin Sobion (Trinidad and Tobago), and Tom Suchanandan (South Africa).

They sought to incorporate comments made during "informal" expert group meetings held during the week that were chaired by the IGC Chair, Ambassador Wayne McCook (Jamaica). This was consistent with the procedure followed for the discussion on both GRs and TK.

KEY CHANGES INTRODUCED IN THE REV. 2 TEXT

After another round of discussion, a Rev. 2 version was circulated late on 3 April. The key changes in the Rev. 2 TCE text include the following:

* The [Principles/Preamble] include two new provisions (paragraphs 9 and 10).

Paragraph 9 states: "[Acknowledging/to acknowledge] that protection of TCEs should contribute toward the promotion of innovation and to the transfer and dissemination of knowledge to the mutual advantage of holders and users of traditional cultural expressions and in a manner conducive to social and economic welfare and to a balance of rights and obligations."

Paragraph 10 states: "[Recognition/to recognize] the value of a vibrant public domain and the body of knowledge that is available for all to use, and which is essential for creativity and innovation, and the need to protect, preserve and to enhance the public domain."

* The Use of Terms section now includes definitions for both Public Domain and ["Use"]/["Utilization"].

* Article 1: The title has been changed from "Subject Matter of Protection" to [Eligible]/[Eligibility Criteria for] Subject Matter of [Protection]/[Safeguarding].

The six subparagraphs remain (with textual changes). There was no consensus on the inclusion of a time period in sub-paragraph (d) which currently states: "[that have been used for a term as been determined by each [Member State]/[Contracting Party][but not less than 50 years]."

* Article 2: The title has been changed from "Beneficiaries of Protection" to Beneficiaries of [Protection]/ [Safeguarding]. The revised language includes new, bracketed language with respect to nations as beneficiaries:

Article 2.2 states that: "[Notwithstanding Paragraph 1, [a Member State]/Contracting Party] may act, for the interests of an indigenous or local community, as a beneficiary with regard to traditional expressions that [exclusively] exist within that [Member State's]/[Contracting Party's] territory, provided that the constitution or national law of that [Member State's]/[Contracting Party's] so requires]."

This language is based on the language proposed by Indonesia and previously featured as a footnote in Rev. 1.

* Article 3: The title has been changed from "Scope of Protection" to "[Criteria for Eligibility] Scope of [Protection]/[Safeguarding]".

Article 3 now includes three different "tiers" for protection and alternative paragraphs for "[sacred], [secret] or [otherwise known only] [closely held]" TCEs (Article 3.1). Article 3.2 addresses TCEs "still [held], [maintained], used [and][or] developed by indigenous [peoples] or local communities, and is/are publicly available [but nether widely known, [sacred], nor [secret]]."

The alternative paragraphs in 3.1 and 3.2 are along the lines of a "measures based approach" instead of a "rights based approach" which refer to "enter into an agreement with the beneficiaries to establish terms of use of the [subject matter]/[traditional cultural expressions]/[protected traditional expressions] with prior informed consent or approval and involvement]."

* There is now an "Alternative [Article 3] Scope of [Protection]/[Safeguarding]" which includes the notions of safeguarding the economic and moral interests of beneficiaries concerning their TCEs.

* All references to "Articles" have been changed to "instrument". This has been done in order to make the text "more flexible."

(According to observers of the IGC, this reflects the positions of the developed countries that do not want a legally binding treaty.)

* No substantive change in "[Article 4] Administration of Rights/[Interests]."

* Article 5 [Exceptions and Limitations]: Article 5.1 relates to general exceptions and an alternative has been introduced based on the original TCE text for the session which is heavily based on the three-step test of the Berne Convention (which also appears in the TRIPS Agreement).

[The three-step test was first established in relation to the exclusive right of reproduction under Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works in 1967. Article 9(2) states that: "It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."]

* Article 6: The title has been changed from "Term of Protection" to "Term of [Protection]/[Safeguarding]." An additional option is included (as Option 2) which states that: "[Member States]/[Contracting Parties] shall protect the subject matter identified in this [instrument] as long as said subject matter continues to meet the requirements of protection specified in this [instrument]."

* Article 7 Formalities: A new sub-paragraph is included in Article 7.2 which states that: "Notwithstanding Paragraph 1, a [Member State]/Contracting Party] may not subject the protection of secret traditional cultural expressions to any formality".

* Article 8 [Sanctions, Remedies and exercise of [Rights]/[Interests] has introduced the concept of the "innocent infringer".

* There are no significant changes in "[Article 9] [Transitional Measures]" and "[Article 10] [Relationship with [other] International Agreements."

* Article 11 [National Treatment] has been substantially changed into a more "concise" paragraph which states that: "Each [Member State]/ [Contracting Party][should]/[shall] accord to beneficiaries that are nationals of other [Member States]/[Contracting Parties] treatment no less favourable than that it accords to beneficiaries that are its own nationals with regard to the protection provided for under this [instrument]." The entire Article is bracketed.

* Article 12 [Trans boundary Cooperation] does not have any significant changes.

* Article 13 [Capacity Building and Awareness Raising]: Facilitator Goss stated that there was consensus that this article should contain "a degree of flexibility" and does not include "listing" of activities.

REACTIONS TO REV. 2 TEXT: CALL FOR MORE BRACKETS

Member States were then requested to point out any "obvious errors and omissions" and thereafter the text, as corrected, would be transmitted to the WIPO General Assembly.

The European Union (EU), in its intervention, requested a number of terms and provisions in Rev. 2 of the text to remain bracketed.

It requested for the definition of TCEs as currently found in the Use of Terms section to be imported to the Chapeau of Article 1 [Eligible]/[Eligibility Criteria for] Subject Matter of [Protection]/[Safeguarding]. It also requested the definition of "publicly available" as used in the TK text to be included.

Additionally, with respect to Article 1, the EU said that the subparagraphs (a) to (f) in Article 1 were "cumulative" and as such should be joined by "and". It also stated that "safeguarding" as found in Article 3 should become a separate article and should be a stand-alone option.

The EU requested for Article 8.4 to be bracketed. Article 8.4 states that: "[Member States]/[Contracting Parties] [should/shall], where a third party has misleadingly or unfairly acquired intellectual property rights over traditional cultural expressions without the prior informed consent of the beneficiaries, provide for the revocation of such intellectual property rights."

The EU also called on Article 13 which deals with capacity-building and public awareness to be bracketed, stating that it did not have sufficient time to consider it.

El Salvador noted the need to ensure that Article 13 of the Rev. 2 text took into account the textual proposals of the Indigenous Caucus.

Indonesia, on behalf of the Like-Minded Group of Countries (LMC), stated that the last two paragraphs of the Principles/Preamble had not been sufficiently discussed and should be bracketed.

(The last paragraph 10 refers to the "need to protect, preserve and enhance the public domain" but the concept of "public domain" and "publicly available" are contentious in the IGC process.)

It also requested that the definition of TCEs should be placed before that of "public domain", as it was the main subject matter of the text.

With respect to Article 1, Indonesia said that the elements should be as alternatives and not "cumulative". It also added that "safeguarding" as found in Article 2 should be bracketed and this should be done throughout the text.

It emphasised that good progress had been made with Article 3, which deals with the scope of protection and which has now adapted to an extent the tiered approach used in the TK text.

Indonesia stressed that this should remain the main approach. It added that criteria of eligibility should only remain within the text on scope of protection and not anywhere else.

Indonesia further stated that there was a need to revisit Article 5, noting that the inclusion of ‘public domain' did not accurately reflect what the nature of exceptions and limitations should be.

Iran supported the statement made by Indonesia on behalf of the LMC Group. It stated that the definition of TCEs should be broad enough to include all TCEs. It also stated that the sub-paragraphs in Article 1 should not be "cumulative".

It also expressed preference for a rights-based approach to the text rather than one based on measures. It also emphasised that the tiered approach in Article 3 was "reasonable and flexible".

It further said that exceptions and limitations should be defined according to this approach.

Iran underlined that the basis of the work was the creation of an effective legal framework for the protection of TCEs in the context of the intellectual property (IP) system. As such, IP was distinct from the concept of safeguarding.

Copyright Agency Limited, on behalf of the Indigenous Caucus, said that textual developments with regard to beneficiaries should include consideration of ILO Convention Article 169 and the UN Declaration on the Rights of Indigenous Peoples.

It also reiterated that there should be no exceptions and limitations to our TCEs. It said, however, that this did not mean it was against working cooperatively with researchers and museums and to share TCEs with the wider public, as long as there was free prior informed consent and participation of the indigenous people and local communities.

Kenya, on behalf of the African Group, said that the text was a "major milestone" in the text-based negotiations on TCEs.

It stated that paragraph 10 of "Principles/Preamble" dealing with the recognition of a "vibrant public domain" should be bracketed.

Paraguay said that Paragraph 8.4 dealing with revocation would mean the cancelling of a right to property which included IP.

It stated that this was fine as long it was done by a resolution at the highest level and should be done pursuant to national constitutions.

Japan, on behalf of Group B (developed countries), stated that the Group needed more time to study the "tiered" approach in Article 3 dealing with scope of protection. It was also in favour of using the formalities requirement in the protection of TCEs.

Oman said there was still the need to talk about "nations" in the context of the text. It stated that Article 13 on capacity-building and awareness-raising should be divided into two separate articles (one on capacity-building and the other on awareness-building).

The US said that Article 1 was "cumulative" and it did not agree with the approach of adding "or" between subparagraphs.

With respect to Article 13, it stated that it was useful to retain a list of options under which capacity-building could take place.

India stated that it was pleased that Rev. 2 of the text captured the approach of the TK text. It specifically noted that the approach used in Article 3 on the scope of protection which was based on the characterisation of TCEs and their use was a "viable solution".

It also noted that it had preference for Article 1 to be "standalone". It added that exceptions and limitations should not dilute the rights afforded.

Brazil stated that this was the first time that the "tiered" approach in the context of the scope of protection of the TCEs had been discussed and this had led to some progress.

NEW PROPOSAL TO REPLENISH THE VOLUNTARY FUND

Switzerland, New Zealand, Australia and Finland submitted a proposal WIPO/GRTKF/IC /27/9 for the consideration of the IGC, to recommend to the WIPO General Assembly in September 2014 to amend the Rules of the Fund in order to enable contributions to be drawn from the regular budget of WIPO to replenish the Fund, as a subsidiary way to provide the necessary financial means to the Fund.

(The full text of the proposal can be accessed here: http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_27/wipo_grtkf_ic_27_9.pdf)

[The WIPO Voluntary Fund facilitates the participation of indigenous peoples and local communities in the work of the IGC. Accredited observers who are representatives of this constituency may apply for financial support for participation in IGC sessions and meetings of the Intersessional Working Groups.

[The rules of the Voluntary Fund are adopted by the WIPO General Assembly. Specifically, Article 6(a) states that: "Fund resources will come exclusively from voluntary contributions by governments, NGOs and other private or public entities, and specifically shall not be drawn from the regular WIPO budget".

[It was announced during the start of the IGC session that the Voluntary Fund was in dire need of replenishment. The amount available in the account of the Fund was 823.10 Swiss francs on February 27, 2014.]

Switzerland, in introducing its proposal, stated that the "complexity and prolonged nature of the IGC" had made it difficult for potential donors to keep up the funding at a sufficient level. The present proposal would only amend the procedural rules of the fund, if the WIPO General Assembly would so decide.

It called for a more detailed discussion during the next session of the IGC in order for a positive recommendation to be submitted to the 2014 General Assembly.

Preliminary support for the proposal was expressed by the Copyright Agency Limited, on behalf of the Indigenous Caucus, Thailand, and the Republic of Korea, on behalf of the Asia-Pacific Group.

Kenya, on behalf of the African Group, Chile, and South Africa stated that they would need more time to study the proposal and would be ready to discuss it during the next IGC session.

The next session of the IGC (and the last session prior to the 2014 WIPO General Assembly) will be held from 7 to 9 July and is expected to focus on cross-cutting issues and stocktaking.

Significantly, the session will take stock of the progress made and make a recommendation to the WIPO Assembly on the convening of a Diplomatic Conference.