TWN Info Service on Intellectual Property Issues (Jul14/05)
24 July 2014
Third World Network

WIPO: Call for Diplomatic Conference on genetic resources, TK and folklore
Published in SUNS #7843 dated 14 July 2014

Geneva, 11 Jul (Alexandra Bhattacharya) -- Developing countries have urged the convening of a Diplomatic Conference in 2015 for an international legal instrument(s), which would ensure the effective protection of genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs).

This call by developing countries came at the 28th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

However, the "maturity" of the texts was disputed by a number of Group B countries (group of developed countries) and no consensus was reached with respect to the IGC's future work plan or a recommendation on the Diplomatic Conference to the 2014 WIPO General Assembly (GA).

The WIPO General Assembly, which will meet in September 2014, will now be tasked with resolving these issues. The 28th session of the WIPO IGC took place in Geneva from 7 to 9 July 2014.

[The lack of a decision is a sign of the times in WIPO, with the WIPO Standing Committee on Copyright and Related Rights meeting last week (30 June to 4 July) also being unable to reach agreement on the conclusions of the meeting and thus unable to forward recommendations to the WIPO GA.]

Developing countries, led by the Like-Minded Group (represented by Indonesia) and the African Group (represented by Kenya), stated that the current texts under consideration were sufficiently mature for a Diplomatic Conference to be convened in 2015.

However, Group B was of the opinion that significant differences still persisted in the texts and thus, not sufficiently developed for such a conference in 2015.

Further, differences were evident with respect to the elements of the future work programme of the IGC, such as the number of days to be devoted to the sessions, ambassadorial and senior level meetings and the "cross-cutting" issues to be discussed during the sessions.

The 28th session of the IGC is the third and last of the IGC meetings slated for 2014 as per the 2013 GA mandate. The 28th session was mandated to be a "Cross-cutting session/Stocktaking session" on all the three texts and was also expected to make recommendations to the General Assembly.

The IGC decision on the agenda item "Cross Cutting Review on Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions and taking stock of progress made and making a recommendation to the General Assembly" states that: "Regarding the requirement to take stock of progress made and make a recommendation to the General Assembly, the Committee decided that statements made on this matter during the final discussion in the 28th session under this agenda item on Wednesday, July 9th, 2014 be recorded in the report of the Committee and those statements be transmitted to the WIPO General Assembly taking place from September, 22 to 30, 2014 for its consideration, and be included in the usual report of the session."

FOCUS ON PROTECTION FOR GRs, TK and TCEs

The IGC was mandated by the WIPO General Assembly in 2009 to conduct text-based negotiations to conclude an international legal instrument/s to protect GR, TK and TCE. The objective of the mandate was to reach a level of maturity in the text to hold a Diplomatic Conference to conclude a treaty for the protection of GR, TK and TCE.

This mandate was extended twice in 2012 and 2013 in light of a lack of consensus on whether there is adequate progress to hold the Conference.
(http://www.twn.my/title2/biotk/2013/biotk131001.htm)

The WIPO GA in 2013 mandated three sessions of the IGC in 2014 prior to the 52nd session of the Assembly in 2014. According to the GA decision, the first meeting (the 26th IGC session) focused on GR and this took place on 3-7 February 2014.
(http://www.twn.my/title2/intellectual_property/info.service/2014/ip140208.htm).

The focus of the second meeting in April 2014 (27th IGC session) was on both TK and TCE.
(http://www.twn.my/title2/intellectual_property/info.service/2014/ip140401.htm)

In the "text-based" discussions, differences in positions between developed and developing countries persist not only with respect to the final nature of the instrument(s) but also in relation to its substantive elements.

Some Group B member states, most notably the United States, have expressed opposition to a "legally binding" instrument.

Developing countries, on the other hand, have stood adamant on their call for a legally binding instrument(s) to protect GR, TK and TCEs.

A key substantive issue arising in the text, particularly in the GR text (WIPO/GRTKF/IC/28/4) has been the inclusion of a disclosure requirement in patent application, which would help to identify and prevent bio-piracy and misappropriation.

The US continues to strongly oppose a disclosure requirement and major aspects of the US position have been supported by Canada, and Japan.

The European Union in recent sessions has stated that it is more or less "flexible" with respect to the disclosure requirement; however, it would prefer a minimal procedural approach with weak enforcement measures.

Developing countries, on the other hand, are calling for more robust requirements and sanctions on violations that include revocation of patents.

Parallel to these text-based negotiations, a number of Group B countries have proposed Joint Recommendations and a proposal for a study, which are seen by developing countries as delaying the progress on the text-based discussion.

These submitted proposals include:

1. Joint Recommendation on Genetic Resources and Associated Traditional Knowledge (WIPO/GRTKF/IC/27/6) proposed by Canada, Japan, Norway, the Republic of Korea and the US.

2. Joint Recommendation on the Use of Databases for the Defensive Protection of Genetic Resources and Traditional Knowledge Associated with Genetic Resources (WIPO/GRTKF/IC/27/7) proposed by Canada, Japan, the Republic of Korea and the US.

3. Proposal for the Terms of Reference for the Study by the WIPO Secretariat on Measures Related to the Avoidance of the Erroneous Grant of Patents and Compliance with Existing Access and Benefit-Sharing Systems (WIPO/GRTKF/IC/27/8) proposed by Canada, Japan, Norway, the Republic of Korea, the Russian Federation and the US.

STOCKTAKING SHOWS DIVERGENCE OF VIEWS ON PROGRESS

One of the key objectives of the 28th session of the IGC was to take stock of the progress made on all the three texts (WIPO/GRTKF/IC/28/4; WIPO/GRTKF/IC/28/5 and WIPO/GRTKF/IC/28/6) under consideration.

Despite informal consultations led by the Friend of the Chair (Mr. Ian Goss, Australia), member states failed to reach agreement on a concrete recommendation to the 2014 General Assembly.

[There were hopes that the already heavily burdened 2014 GA would not have to deal with an extra negotiating item during its session.]

Member states were asked to lay out their specific proposals on a work programme during their interventions which would be forwarded to the GA for its consideration.

Kenya, on behalf of the African Group, stated that "substantial progress has been made in all the three texts to enable this committee to make a recommendation to the General Assembly in September 2014 to convene a Diplomatic Conference in 2015."

It added that the Group had remained constructive both in the plenary and informal consultations and was committed to concluding its work as per the GA mandate.

Kenya also noted that the GA mandate called for the finalisation of the text(s) of international legal instrument(s) within the biennium. It was of the opinion that the mandate of the IGC is not an open mandate but a closed one, which required renewal every biennium.

In this regard, Kenya said that the current mandate would end in August 2015, before the next General Assembly in September 2015, and therefore "we cannot take a decision beyond the mandate we have".

It was for this reason that the African Group was of the firm view that any decision the IGC would take had to be confined within the ambit of the current mandate.

The African Group was also of the view that the texts were mature and recommended that the WIPO General Assembly convene a Diplomatic Conference in November 2015 and provide for three sessions, and a possible fourth inter-sessional meeting, to further refine the text in advance of the Conference.

Bangladesh, on behalf of the Asia-Pacific Group, recommended that the WIPO General Assembly decide to convene a Diplomatic Conference as soon as possible after taking stock of the progress made.

With respect to the specific work programme, it proposed "at least 18 days for the sessions of IGC in 2015. If there is a back-to-back session of 10 days, then the Group recommended 3 sessions of IGC, the first being of 10 days on TK and TCE combined."

It also proposed for the second session to be on GR for 5 days and the third one for discussing the cross-cutting issues and for stocktaking for the duration of 3 days. It further proposed an Ambassadors'/Senior Officials' meeting during the last session of 3 days of the IGC.

Indonesia, on behalf of the Like-Minded Group, expressed dismay that the "IGC had not met our expectations".

It recommended that the WIPO GA decide to convene a Diplomatic Conference for 2015. It suggested convening 3 sessions of the IGC for text-based negotiations with one 10-day back-to-back session for TK and TCEs.

It also called for the sessions to focus on cross-cutting issues, such as the scope of protection, exceptions and limitations and the disclosure requirement.

Indonesia also proposed a senior officers' and ambassadorial-level meeting, an inter-sessional and cross-regional meeting before the WIPO GA in 2015 and requested the WIPO GA to allocate sufficient funding for the implementation of the work program for 2015.

Paraguay, on behalf of GRULAC (Group of Latin American and the Caribbean Countries), proposed 4 sessions of the IGC for 2015 (3 thematic sessions with one high-level segment).

Japan, on behalf of Group B, said the texts required further work and it was committed to "future constructive work". It said that it was not convinced by the need for ambassadorial-level meetings and that work should be done by the experts in the Committee.

It also said that the mandate of the IGC "was an open mandate" and that the IGC could make a recommendation or decision on the convening of a Diplomatic Conference "when it is appropriate".

The Czech Republic, on behalf of CEBS (Central Europe and Baltic States Group), stated that it "reserved the right to submit proposals leading up to and during the proceedings of the GA".

The European Union called for 15 days of meetings in 2015. It called for the 29th session of the IGC to focus on 8 days of TK and TCEs with no discussion of cross-cutting issues.

For IGC 30, it proposed 4 days on the discussion on GRs. It also called for 2 days on cross-cutting issues and 1 day on stocktaking. It was not in support of a high-level officials' meeting.

The US, in a written proposal submitted to the plenary, stated that "the IGC is requested to submit to the 2015 General Assembly the text(s) related to the protection of the GRs, TK and TCEs resulting from such further work, as well as recommendations as to whether the objectives, principles, and text are sufficiently defined so as to schedule a Diplomatic Conference and the need for further work. The 2015 General Assembly, will based upon such recommendation of the IGC, decide on convening any Diplomatic Conference and any additional meetings, taking account of the budgetary process."

It called for a work programme for the IGC in 2015, which would include 3 sessions totalling 9 days with no ambassadorial-level meetings.

According to the proposed US work programme, the WIPO GA would in 2015 "decide on convening any diplomatic conference and make any appropriate recommendations, based upon the recommendation from IGC 31. If the IGC 31 fails to make a recommendation, the IGC will continue to meet in the next biennium with the same frequency as other WIPO committees, with an agenda to be decided on a meeting-by-meeting basis."

CROSS-CUTTING ISSUES DISCUSSED

Another key objective of the 28th session of the IGC was to discuss "cross-cutting issues" pertaining to all the three negotiating texts. In order to expedite the discussion, the informal expert group level format was used which consisted of the regional coordinators with a number of national experts. As per the IGC rules, these deliberations would not be reported.

However, the Chair (Ambassador Wayne McCook of Jamaica) announced that the six "cross-cutting" issues which the experts would be discussing included: (i) The disclosure mechanism; (ii) The differentiated approach in the scope of protection; (iii) Objectives and Principles; (iv) Public availability and public domain; (v) Non diminishment; (vi) Capacity building and awareness building.

There was no direct engagement with the texts during the cross-cutting session but rather the discussion focused on brainstorming and theoretical considerations of the issues and articulation of positions.

The decision by the IGC states that "The Committee took note of and discussed the cross-cutting elements of the texts contained in the annexes to documents WIPO/GRTKF/IC/28/4; WIPO/GRTKF/IC/28/5 and WIPO/GRTKF /IC/28/6, and confirmed that these texts developed during the 26th and 27th sessions of the Committee respectively, be transmitted to the WIPO General Assembly taking place in September, 2014, in accordance with the Committee's mandate for 2014-2015 and the work program for 2014, as contained in document WO/GA/43/22."

[Prior to the session, the Chair circulated an informal "issues paper" which reflected the Chair's views on some of the possible cross-cutting issues which could be considered in this context. The paper stated that the cross-cutting review might result in agreed adjustments or modifications arising on cross-cutting issues in the texts to be transmitted to the WIPO GA taking place in September 2014. The cross-cutting issues identified by the Chair included: (i) policy objectives; (ii) definitions/use of terms; (iii) criteria for eligibility; (iv) beneficiaries; (v) scope; (vi) databases and information systems; (vii) sanctions, remedies and exercise of rights; (viii) disclosure requirement; (ix) exceptions and limitations; (x) term of protection/rights; (xi) formalities; (xii) transitional measures; (xiii) relationship with other agreements and non diminishment; (xiv) national treatment; (xv) trans- boundary cooperation; (xvi) capacity building; and (xvii) structure of text and headings of articles. The Chair's issues paper is available in full here: http://www.wipo.int/export/sites/www/tk/en/igc/pdf/igc_28_issues.pdf]

OTHER AGENDA ITEMS

Aside from the items pertaining to the negotiations, the three-day session also tackled two key issues: (i) Participation of Indigenous and Local Communities: Voluntary Fund; and (ii) Contribution of the Intergovernmental Committee on Intellectual Property and GR, TK and Folklore (IGC) to the Implementation of the Respective Development Agenda Recommendations.

For a number of sessions, the Chair had been urging member states to contribute to the Voluntary Fund which provides for financial assistance for the participation of Indigenous and Local Communities and which currently consisted of only about 823 Swiss francs.

In order to make headway on alternative means of funding, Switzerland, Australia, New Zealand and Finland submitted a proposal in the previous session (27) of the IGC to allow for funding to be used from the core WIPO Budget. This proposal was supported in principle by a number of countries including Peru and Chile; however, the US had raised some concerns regarding setting a "precedent" for other WIPO Committees to use the core WIPO budget to fund voluntarily funded projects.

The 28th session of the IGC adopted the following decision on this matter: "The Committee took note of the proposal reflected in document WIPO/GRTKF/IC/28/3 and of the information provided during the session by the proponents of the said document on the consultations they held with delegations. The Committee also took note of the intention of the proponents to submit a proposal comprising detailed modalities in this regard for the consideration of the Program and Budget Committee at its next session."

With respect to Contribution of the Intergovernmental Committee on Intellectual Property and GR, TK and Folklore (IGC) to the Implementation of the Respective Development Agenda Recommendations, the IGC decided that "all statements made on this item would be recorded in the report of the Committee and they would also be transmitted to the WIPO General Assembly taking place from September 22 to 30, 2014, in line with the decision taken by the 2010 WIPO General Assembly related to the Development Agenda Coordination Mechanism".

During the discussion on these agenda items, developing countries including the African Group, Iran and Brazil called for the IGC to implement Development Agenda Recommendation 18 and to convene a Diplomatic Conference for GR, TK and TCEs.

[DA Recommendation 18 states: "To urge the IGC to accelerate the process on the protection of genetic resources, traditional knowledge and folklore, without prejudice to any outcome, including the possible development of an international instrument or instruments."]