TWN Info Service on Intellectual Property Issues (Sept23/03)
7 September 2023
Third World Network

WIPO: Widespread discontent on revised draft text on genetic resources and associated traditional knowledge

Geneva, 7 September (K M Gopakumar) – There is widespread discontent among Member States on the draft international legal instrument relating to intellectual property, genetic resources (GR) and traditional knowledge (TK) associated with genetic resources.

The special session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) of the World Intellectual Property Organization (WIPO) is taking place from 4 to 8 September in Geneva.

The Chair had produced the revised draft of the draft international legal instrument (Rev 1 text) after finishing the first reading.

Since the decision of the WIPO Assembly in July 2022 to convene the Diplomatic Conference to conclude the international legal instrument on GR and TK the IGC special session is the first formal occasion to discuss the draft.

[There were three regional informal meetings and one inter-regional meeting to discuss the draft international legal instrument.]

The Chair has produced the Rev 1 text after two days of article-by-article plenary discussion. Prior to the release of the Rev 1 text the Chair reminded Member Stages of the General Assembly decision and stated that only those proposals from Member States which enjoy agreement find a place in the revised draft text.

The WIPO General Assembly Decision on the Diplomatic Conference states: “… agreed that document WIPO/GRTKF/IC/43/5, the Chair’s text of a Draft International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources will constitute the substantive articles of the Basic Proposal for the Diplomatic Conference. The Preparatory Committee shall in-corporate in the Basic Proposal such further agreements of the IGC as are reached pursuant to paragraph (d) above, with the understanding that any Member State and the Special Delegation of the European Union may make proposals at the Diplomatic Conference.”

The Rev1 text shows only cosmetic changes to the preamble and 4 draft articles viz Articles 2, 3, 6 and 7. These changes are as follows.

Preamble

Two abbreviations viz GR and TK were removed from the first paragraph in the preamble, and it now reads:

“Desiring the promotion of the efficacy, transparency and quality of the patent system in relation to genetic resources (GRs) and traditional knowledge associated with genetic resources(Associated TK)”.

The second paragraph of the preamble removed the same abbreviations and used the expanded version as follows:

“Emphasizing the importance of patent offices having access to appropriate information on genetic resources (GRs) and Associated TK traditional knowledge associated with genetic resources to prevent patents from being granted erroneously for inventions that are not novel or inventive with regard to GRs and Associated TK”.

Paragraph 7 of the permeable is modified as follows:

“Recognizing and reaffirming Acknowledging the rights of Indigenous Peoples and local communities, including as set forth in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), …”

Article 2: List of Terms

There are three changes in this Article. First, the chapeau is modified by replacing words in the draft text (“The terms defined below shall apply to this instrument, unless expressly stated otherwise”), with the following: “For the purposes of the instrument”.

Secondly, on the definition of genetic resources the abbreviation GR is replaced with “genetic resources”.

Thirdly, “indigenous peoples and local communities” are included in the definition of “source of genetic resources”. Further the abbreviation GR is replaced with “genetic resources”. The amended definition reads as follows:

“Source of Genetic Resources” refers to any source from which the applicant has obtained the GRs, such as a research centre, gene bank, Indigenous Peoples and local communities, the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), or any other ex situ collection or depository of genetic resources GRs”

Article 6: Sanctions and Remedies

The phrase “adequate dispute mechanism” in Article 6.5 is replaced with “alternative dispute resolution”.  The proposed text now reads:

“Without prejudice to non-compliance as a result of a fraudulent intention as addressed under Article 6.4, Contracting Parties shall put in place alternative dequate dispute resolution mechanisms that allow all parties concerned to reach timely and mutually satisfactory solutions, in accordance with national law”.

Article 7: Information Systems

Para 1 of this Article now specifically mentions “Indigenous Peoples and local communities” instead of including this in the broad term of “relevant stake holders” for the consultation to be conducted by a Party if it decides to establish information systems such as a database of GR and associated TK. The amended Article 7.1 reads:

“Contracting Parties may establish information systems (such as databases) of GRs and Associated TK, in consultation with Indigenous peoples and local communities and other relevant stakeholders, taking into account their national circumstances”.

Apart from the above-mentioned changes there are a few editorial changes in the explanatory note. Most of these changes are to remove the first-person references made by then Chair of the IGC in the Chair’s text, which later became the basic document for the diplomatic conference. For instance, sentences containing “In my view” are accordingly changed throughout the explanations.

Many delegates expressed disappointment while speaking to TWN on the Rev 1 text, saying that the text failed to capture the rich discussions in the plenary. A delegate following the IGC  process for the last 23 years stated that the text is thoroughly disappointing and there is nothing in the basic document for countries that already have a disclosure regime.

The Rev 1 text will be discussed in contact groups with an objective of producing the Rev 2 text. The discussions in the contact groups are to be kept confidential and participants are requested not to communicate to the public, whether live or at any future time, the content or nature of the discussions.

In light of the plenary discussion, it is unlikely to expect major changes in the draft text in Rev 2 on contentious issues like definitions, disclosure provisions, remedies and sanctions etc.

Further, the General Assembly discussion insisted on consensus to make changes in the basic document, which is originally the Chair’s text prepared in 2019. The General Assembly Decision states: “The Preparatory Committee shall in-corporate in the Basic Proposal such further agreements of the IGC as are reached pursuant to paragraph (d) above, with the understanding that any Member State and the Special Delegation of the European Union may make proposals at the Diplomatic Conference”. +