WIPO members renew mandate for agreement on protecting genetic resources

Issue No. 231/232 (Nov/Dec 2009)

Developing countries have also been pursuing the fight to stem biopiracy in other fora besides the Convention on Biodiversity (CBD). One such body is the World Intellectual Property Organisation (WIPO). Sangeeta Shashikant reports.

THE member states of the World Intellectual Property Organisation (WIPO) on 1 October reached agreement on a renewed and strengthened mandate for the Intergovernmental Committee (IGC) on Genetic Resources, Traditional Knowledge and Folklore, which would now undertake text-based negotiations on an international legal instrument aimed at protecting these resources.

The agreement came just before the close of the 22 September-1 October annual WIPO General Assembly, following several days of intensive discussions among regional groupings and like-minded countries, as well as intensive negotiations between developing countries on one hand, and Group B (composed of developed countries) on the other.

Developing countries persevered in obtaining a renewed mandate for the IGC that would begin text-based negotiations for an international legally-binding instrument, with clear time-frames identified for the work of the IGC. (For the text of the decision on the mandate, see box on p.27.)

Group B had argued that agreeing to text-based negotiations and an international legally-binding instrument was premature, and instead attempted to satisfy developing countries with a political declaration or a recommendation on the issue.

Prior to the adoption of the decision, Germany, on behalf of Group B, and Sweden, on behalf of the EU, said that according to what was agreed during the informal consultations, members could introduce further documents during the IGC sessions. (This clarification was sought by Group B since the decision refers only to three specific documents.)

Pakistan sought clarification that the understanding was that the IGC would in the coming days undertake text-based negotiations, so the nature of the text would be in the form of a legal text, to which the Secretariat replied 'Yes'.

Significant improvement

The renewed mandate is a significant improvement from the previous mandate of the IGC that states that 'its new work will focus in particular on a consideration of the international dimension of those questions without prejudice to the work pursued in other fora and no outcome of its work is excluded including the possible development of an international instrument or instruments'.

The previous mandate reduced the IGC to a 'talk-shop' for the last 13 sessions with little to show in terms of concrete outcomes due to resistance from developed countries to any text-based negotiations.

According to several developing-country delegates, it is hoped that the new mandate, which contains an explicit mandate to undertake 'text-based negotiations', 'with the objective of reaching agreement on a text of an international legal instrument (or instruments)', and with clear time-frames for a work programme, will result in a draft treaty by the 2011 General Assembly, to enable the Assembly to recommend the convening of a Diplomatic Conference. (A Diplomatic Conference is a high-level meeting of WIPO member states convened to finalise negotiations on a new treaty.)

The new mandate is a compromise between the African Group, other developing countries that are keen to see an international legally-binding instrument for the protection of genetic resources, traditional knowledge and folklore, and Group B.

The African Group had submitted a proposal at the last session of the IGC in July 2009, for a mandate for text-based negotiations to develop a text for an international legally-binding instrument/instruments to protect genetic resources, traditional knowledge and folklore, with clearly defined time-frames, including the holding of inter-sessional work sessions. While the proposal received strong support from developing countries, Group B was not agreeable; thus the 14th session of the IGC ended with members deadlocked on the mandate.

On the night of 28 September, when the IGC mandate was taken up for discussion at the General Assembly, besides the proposals of the African Group, there were three other proposals for consideration from Australia, the US and the EU. The differences among the proposals pertained to the nature of the mandate to be given to the IGC, rather than the renewal of the mandate per se.

The EU proposed the renewal of the mandate to continue the work and also undertake 'outcome-oriented deliberations', which seemed focused on 'a declaration on the value of traditional knowledge, traditional cultural expressions and genetic resources and their protection against misappropriation to be adopted by the General Assembly'.

The US proposed 'focusing on the uncompleted work under its previous mandate' and also mentioned 'outcome-oriented deliberations'.

Both the US and EU proposals made no mention of text-based negotiations or an international legally-binding instrument, and reproduced the 2007 General Assembly mandate, i.e. 'that no outcome of its work is excluded, including the possible development of an international instrument or instruments'.

The Australian proposal, while it did not reject the idea of a legally-binding instrument, left open the options on outcomes. The proposal stated that the IGC will undertake 'text-based negotiations, without prejudice to the outcome, including a possible legally-binding instrument'.

Noting the deep divisions, the Chair of the General Assembly, Ambassador Alberto Dumont of Argentina, initiated informal consultations and encouraged group meetings to find a way out. The Chair even emerged with draft texts based on his consultations. One version of the Chair's text stated: 'The Committee will, during the next budgetary biennium (2010/2011) and without prejudice to the work pursued in other fora, continue its work and undertake text-based negotiations with the objective of reaching agreement on a text of an international instrument (or instruments) (which would ensure the effective protection of) GRs, TK and TCEs).'

One concern over the Chair's text was that the term 'international instrument' was open-ended in that it included declarations, guidelines etc.

Differing positions

Polarisation on the nature of the mandate became clear during the formal discussions on 28 and 29 September.

Ecuador, on behalf of GRULAC (the group of Latin American and Caribbean countries), said that the Latin American and Caribbean region possessed great wealth of cultural and artistic traditions that have existed for thousands of years, and stressed that expanding the benefits of the intellectual property (IP) system to developing countries is one of the core objectives of WIPO's Development Agenda.

Senegal, on behalf of the African Group, said that it supported a legally-binding instrument for three reasons. Firstly, the importance of protecting genetic resources, traditional knowledge and folklore (GRTKF) was already reflected in certain existing international instruments.

Secondly, IP tools currently available do not make it possible to ensure protection of cultural and economic values inherent to GRTKF. Thirdly, there is an urgent need to bring an end to the misuse, illicit use and misappropriation of GRTKF. To achieve this, the IGC should conduct text-based negotiations, adopt a work programme with a clear timetable and inter-sessional meetings. The IGC would then submit to the General Assembly one or several drafts of an international binding instrument and recommend a Diplomatic Conference.

Tunisia, on behalf of the Arab countries, said that GRTKF was their heritage that was linked to economic and social development, and that was why the Arab states were very concerned that the IGC had not brought practical results and not managed to draw up international legally-binding instruments. It welcomed the proposal by the African Group.

Serbia, on behalf of the Central European and Baltic states, expressed readiness to support the future work of the IGC on the substantive issues on an outcome-oriented basis.

Sweden, on behalf of the EU, suggested a renewed mandate that provided double thrusts, i.e. preparation of a WIPO declaration on the value of GRTKF and protection against misappropriation and refinement of work flow for the IGC. It said that an IGC declaration had value for three reasons: (i) it could be achieved quickly; (ii) it could be broadly accepted by all members; and (iii) it would reaffirm WIPO's leading role on the issues.

The second aspect of the EU proposal was for an enhanced IGC mandate. It said that it wished to build on the assumption that no outcome was excluded, as it was improper and premature to limit to one possible outcome. The aim of the proposal by the EU was to find a solution that was acceptable to everyone, Sweden added.

The US said that the IGC should work towards consensus in the next two years on the draft objectives and principles, the definitions and the possible gaps in the international framework for the protection of GRTKF. Reaching consensus on the draft policies and principles, in the view of the US, was an important first step that could lead to an international instrument, such as a declaration or recommendation. It also said that any renewed IGC mandate should include benchmarks for achieving these goals, along with reporting requirements to the General Assembly.

It expressed the view that the IGC mandate should not contain commitments to start text-based negotiations without first reaching agreement on the content, nature, format and status of the text and that the IGC mandate should not prejudge any international outcome.

The IGC mandate should not contain commitments for a work programme that exceeds available WIPO resources for the IGC. With an agreed work plan in advance, the IGC should be able to make substantial progress in two one-week sessions per year, as is the norm for other WIPO committees, the US added.

It further added that work on several difficult subjects has been underway for many years - indeed decades - and continues in WIPO, such as the rights of audio-visual performers, substantive patent law harmonisation and the rights of broadcasters. 'We should, therefore, temper expectations as we carefully examine such difficult issues as those under consideration in the IGC.'

Brazil, on behalf of the IBSA countries (India, Brazil and South Africa), said they shared the understandable frustration of developing countries, especially the African Group, over the difficulty in defining a new mandate for the IGC. It added that the IGC had been working for almost a decade now and that a good deal of progress had been made on concepts and modalities on the issues under consideration; thus, it saw no reason as to why the work of the IGC could not be brought to the next level of text-based negotiations.

It cautioned that the lack of progress had the potential of causing a lot of damage. It added that while members refrained from taking decisions at the IGC, traditional knowledge and genetic resources continued to be misappropriated at an alarming rate and one could not therefore escape the sentiment that this matter was not being taken seriously by WIPO.

Brazil expressed hope that the General Assembly would give the IGC a new and vigorous mandate in line with the proposal by the African Group.

Indonesia said that it was 'not only home to over 300 ethnic groups speaking around 700 languages, but also ranks first in the world for species richness of mammals, fourth for birds, fifth for amphibians, seventh for flowering plants'.

'In our waters lives a prehistoric fish named coelacanth whose age is 400 million years and [was] thought to be extinct 65 million years ago,' said Indonesia. 'There are almost 1 million species of plants and animals [which] remain unknown to science. Almost 40 million people are directly dependent on biodiversity for subsistence. And we face the challenges of misuse, misappropriation, and outright piracy without any available legal remedies and protection,' Indonesia added.

The absence of an international legally-binding regime to protect these valuable resources would perpetuate the current imbalances of the global intellectual property system that serve the interests of some while ignoring the legitimate rights and interests of others, mostly those of the developing nations, Indonesia said.

Indonesia said it was greatly concerned that after nine years of deliberations within the context of WIPO, there was no agreement in sight with regard to GRTKF and that this was not due to lack of substantive materials but more to the lack of political will to acknowledge misuse, misappropriation and piracy and to provide legal remedies for such acts.

The mandate of the IGC needed to be 'renewed and not recycled', Indonesia said, adding that it would not subscribe to a mere political declaration, as the reality in the global IP system dictates that violation of IP rights be settled on a legal basis, not on a political declaration.

Indonesia also made clear that it was willing to seek other avenues if the IGC and WIPO did not have the political will to complete an instrument capable of providing legal protection to GRTKF.

Egypt said that the IGC was a historic opportunity to find balance in the international IP system. There were deficiencies in the IP system because the system was incapable of providing effective protection for a great part of human creation, it added, referring to GRTKF.

It further said that the IGC was set up for a comprehensive global framework for the protection of GRTKF and to guarantee an equitable sharing of benefits. However, thus far, the IGC had proven more of a talk-shop where positions were restated without any tangible progress towards the evolution of agreed language.

Egypt said that a stage had been reached where an important decision needed to be made on where the IGC should go. It asked whether there was political will to cater for the interests of the vast majority of member states.

It further added that the entire Uruguay Round of multilateral trade negotiations which had included the elaboration of the state-of-the-art international instrument on the protection of IP rights negotiated and adopted outside of WIPO, among other major international legally-binding agreements, had lasted eight years. The IGC, dealing with only a subset of rights, was nowhere after a decade of discussions. It said that the issue would not make progress in the absence of political will from the minority of member states that were yet to show any flexibility.

Burundi, supporting the African Group proposal, said that developing countries wished to see a fair distribution of wealth arising from GRTKF.

The Philippines welcomed the opportunity to constructively engage with other delegations to arrive at a consensus on a legally-binding instrument, text-based negotiations, and clearly-defined work programme, not only to promote and protect the interests of IP rights-holders, but also to ensure that IP rights provide a vehicle to achieve sustainable development and preserve for future generations the national patrimony.

Pakistan said that the IGC was exemplary in exposing the weaknesses of multilateralism. It told us why the UN or in this case WIPO was criticised as a talk-shop.

Pakistan said that it was seriously concerned over the continued impasse, adding that this may have repercussions on the normative initiative in the organisation. It stressed that the IGC needed to come to grips with issues of disclosure of origin, benefit sharing, prior informed consent and defensive protection.

On all these issues, while WIPO was deadlocked, other organisations were moving forward. If  these issues remained unaddressed, WIPO, the lead UN agency on IP, would soon find itself marginalised in the IP norm-setting arena, Pakistan added. 

Sangeeta Shashikant is a researcher with the Third World Network. This article is reproduced from the South-North Development Monitor (SUNS, No. 6785, 5 October 2009), which is published by TWN.

*Third World Resurgence No. 231/232, November-December 2009, pp 25-28