“Turning Point” At WIPO Pulls Traditional Knowledge Debate Out At Eleventh Hour

After a year of stalled deliberations on the issue of protecting traditional knowledge, genetic resources, and traditional cultural expressions, delegates at the World Intellectual Property Organization General Assemblies on 1 October found a compromise text that gives the committee its strongest mandate yet.

The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) “is alive,” General Assemblies Vice-Chair Mohamed Abderraouf Bdioui Raouf of Tunisia said afterward. The committee had come to the end of its two-year mandate and, despite devoting most of the last two sessions to future work, had not yet been able to agree on a new mandate. It had been meeting continuously on these issues for about a decade.

The new IGC agreement, available here [pdf] is to undertake text-based negotiations that will eventually become an “international legal instrument (or instruments)” to “ensure the effective protection of” traditional knowledge, genetic resources and traditional cultural expressions (folklore). It also lists three texts – containing language in the format of a possible draft instrument – that will form the basis of those negotiations, though it does not limit negotiations to just those texts (detailed below). It also says there will be three inter-sessional working groups during the next biennium to accelerate the work.

Opinions differed on whether the “instrument” negotiations will result in a treaty, with governments wanting strong protection saying the language indicates a treaty, and a developed country delegate saying a treaty was one of several possible outcomes. Director General Francis Gurry told Intellectual Property Watch that he did not want to interpret the text.

Still, the result achieved “is certainly a success” said the delegate of Senegal on behalf of the African Group, which had been one of the leading voices in the IGC debate. The delegate added, “Consensus has implicit that one is not satisfied with everything but one accepts everything.”

The African Group and supporters (the Group of Latin American and Caribbean States and most of the Asian Group) had sought an agreement to pursue a “legally-binding” international instrument.

A separate African delegate told Intellectual Property Watch that “legal instrument” is open to interpretation, and that it is “up to member states if they take this process seriously or not.”

Germany on behalf of the Group B developed countries took “the rare occasion to align” with the statements of the African Group, GRULAC, and the Asian Group during the plenary session, and the United States hailed a “tangible yet flexible outcome.”

The new “concrete, tangible” mandate as well as breakthroughs on a new programme and budget for the organisation represent a “turning point” at WIPO, Bdioui told Intellectual Property Watch.

“Now we start the real reconstruction and reform of WIPO,” he added, referring to the new set of priorities Gurry laid out for organisation when he took office last year (IPW, WIPO, 28 October 2008). Tunisia acted as chair during many of the difficult traditional knowledge debates, when Chair Ambassador Alberto Dumont of Argentina was engaged at a parallel UN meeting. Also contributing as vice-chair was Yesim Baykal of Turkey.

Consensus at the Eleventh Hour

On the final day of the 22 September – 1 October General Assemblies, member states were still scrambling to find a consensus text, building off a chair’s text [pdf] released 30 September (IPW, WIPO, 30 September).

Key areas of disagreement were on the binding nature of an eventual instrument and on the texts to be used as basis for negotiations. The chair’s goal of “reaching agreement on a text of an international instrument (or instruments)” had the phrase, “which would ensure the effective protection of” genetic resources, traditional knowledge and traditional cultural expressions, added to it on 1 October in the morning. Later, the African Group suggested the language “ensure the effective international legal protection.” The final text described an “international legal instrument.”

The original 30 September chair’s text had listed three specific, previously drafted documents as a basis for negotiations “as well as any other text which states may wish to propose.” The three documents can be seen as draft instrument texts, a source told Intellectual Property Watch. The documents contain objectives and principles for the protection of traditional cultural expressions and folklore [pdf] and of traditional knowledge [pdf] and both contain annexes as well as a list of “substantive issues on genetic resources” [pdf].

One supporter of the African Group told Intellectual Property Watch the attention to three documents is because the IGC needs to focus its discussions so members do not get distracted with too much information.

The morning 1 October document removed all reference to specific texts. The final draft replaces the three texts as focus, but has a provision that any documents can be added to discussion, which is something the Group B had highlighted as important. A developed country delegate told Intellectual Property Watch this is because there are other documents – including one that lists all possible outcomes for what a “legal instrument” could be – that they would like to include in the work.

Earlier IGC Issues

A member of the group of “like-minded countries” supporting the African proposal for text-based negotiations towards a binding international instrument told Intellectual Property Watch there were concerns about the fact that most of the negotiations were happening informally.

After the chair’s text was circulated on 1 October, the delegate said, the plenary should have been reconvened so that at least regional group positions could be expressed on record before going back to informal talks.

Other Assemblies Successes

While the IGC was the most difficult negotiation, other key decisions were made during the assemblies. Assemblies documents are available here and here.

On the Program and Budget Committee, the assemblies approved a document that earmarks special funding for the organisation’s Development Agenda (IPW, WIPO, 22 September 2009), and which contains new promises that might help speed translation services into languages other than English and French during WIPO meetings.

Spain, supported by Chile, Costa Rica, Uruguay and later Panama and others called for Spanish language translations to have budgetary allocation. This was not a matter of asking for more funding they said, but to ensure the effective use of existing funding. Russia, Venezuela, Yemen, and Tunisia also asked for faster translation – into Arabic and Russian, too. Angola, Portugal, and Sao Tome asked about Portuguese translation, though this is not an official UN language.

South Africa asked during the PBC discussions that next year Development Agenda funds be better integrated into the overall budget. They have been found in the “unallocated” accounts this year, which some see as insecure.

On the Committee on Development and Intellectual Property (CDIP), the assemblies took note of a report of last year’s work and added text urging member states “to endeavour to reach an agreement on a coordination mechanism for monitoring, assessing and reporting on the implementation of recommendations and report to the General Assembly at its 2010 session.”

This coordination mechanism is intended to ensure effective implementation as the Development Agenda is mainstreamed throughout WIPO. There are competing proposals on coordination for the next CDIP meeting in November. The issue breaks out on the line of how much influence the CDIP has over the activities of other WIPO committees.

On the Standing Committee on Copyright and Related Rights, the assemblies took note of the committee’s work. But statements from member states indicate that work on a treaty for the visually impaired and work on the rights of broadcasters will be key in upcoming work.

Ecuador on behalf of GRULAC supported a “treaty to enable access to copyrighted material for the visually impaired and persons with reading disabilities” saying this would “in no way” undermine the work of the SCCR. And the delegation of India supported an earlier call from Brazil, Ecuador and Paraguay for an internationally binding instrument for the visually impaired.

Meanwhile, the United States said it was “necessary to update the rights of broadcasters” and said a diplomatic conference on the topic could not be held until the SCCR agreed on which owners have rights and the scope of those rights. Iran said a treaty on broadcasters should concentrate on rights of traditional broadcasters and should take care not to restrict access to knowledge.

The Advisory Committee on Enforcement will have an agenda item concerning the Global Congress on Combating Counterfeiting and Piracy, which WIPO cosponsors with a customs group and a police agency.

On the Standing Committee on the Law of Patents the members took note of the report of the committee, which has plans for several studies to be discussed at the next SCP.

The Standing Committee on Information Technology approved a proposal from its last session that the group be replaced by two bodies during the next biennium: the Committee on WIPO Standards and the Committee on Global IP Infrastructure. The former will work on standards related to IP information, and the latter would work on other infrastructure matters not dealing with IP information.