[Ip-health] TWN Info:Genetic resources, traditional knowledge and folklore mandate extended

Sangeeta Shashikant sangeeta at twnetwork.org
Thu Oct 3 01:07:52 PDT 2013

Title : TWN IP Info: WIPO ­ Genetic resources, traditional knowledge and
folklore mandate extended
Date : 03 October 2013

TWN Info Service on Intellectual Property Issues (Oct13/03)
3 October 2013
Third World Network

WIPO: Genetic resources, traditional knowledge and folklore mandate

Geneva, 2 Oct (K. M. Gopakumar) ­ The World Intellectual Property
Organization (WIPO) will continue to work on genetic resources,
traditional knowledge and folklore amidst divergent views among developing
and developed countries.

WIPO¹s General Assembly that is meeting in Geneva from 23 September to 2
October mandated the Intergovernmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore (IGC) to work
for two more years, i.e. the 2014 -15 biennium, in a decision made on 30
September.  The divergent views of the Member States on the nature of the
document to be produced, the maturity of the text etc. came out in the
open during their interventions.

[This is the second extension of the mandate of IGC for a text-based
negotiation for   an international legal instrument. The first mandate was
given in 2010 for two years. In 2012 the General Assembly extended the
mandate for one year. ]

The new mandate also authorizes the IGC to hold three sessions in 2014.
The IGC is to submit to the 2014 General Assembly the text(s) of the
international legal instruments that will ensure the legal protection of
genetic resources (GR), traditional knowledge (TK) and traditional
cultural expressions (TCE).  The Fifty Second session of the Assembly in
2014 will take stock and consider the progress made on the text(s) and
decide on convening a Diplomatic Conference. It will also consider the
need for additional meetings.

(A Diplomatic Conference is the United Nations procedure to negotiate a

The proposed three meetings will cover both thematic and cross cutting
issues.  The first meeting (the 26th IGC session) will focus on GR and
will be held in February 2014. The focus of the second meeting in April
2014 (27th IGC session) will be on both TK and TCE.  The third meeting in
July (28th IGC session) will focus on cross cutting issues. This session
is also to take stock of the progress and to make a recommendation to the
2014 General Assembly.

At the beginning of the first meeting in February a meeting of
Ambassadors/senior capital-based officials meeting will be held  ³to share
views on key policy issues relating to the negotiation, to further
inform/guide the process².  The IGC may decide to hold further such
meetings during the sessions in April and July.

The focus of the IGC sessions is to build on the existing work carried out
by the Committee and use all WIPO working documents including
WIPO/GRTKF/IC/25/5 (Consolidated document relating to intellectual
property and GR), WIPO/GRTKF/IC/25/6 (draft Articles on the protection of
TK), WIPO/GRTKF/IC/25/7 (draft Articles on the protection of TCE) for the
text-based negotiations.

The WIPO General Assembly decision on the IGC further ³take note of the
possibility for members of the IGC to request studies or to provide
examples to inform the discussion of objectives and principles, and each
proposed article, including examples of protectable subject matter and
subject that is not intended to be protected, and examples of domestic
legislation². The decision also states that, ³examples and studies are not
to delay progress or establish any preconditions to the text based

In addition, the General Assembly requested the International Bureau to
continue to assist the IGC by providing Member States with necessary
expertise and funding for the participation of experts from developing
countries and least developed countries.

The European Union (EU) conveyed its objection to an international treaty.
It stated that, ³we would like to reiterate our understanding that any
international instrument or instruments to be created should be
non-binding, flexible, and sufficiently clear.  In this respect, we would
like to remind Members that no decision has been reached on the nature of
the instruments to be adopted. Once the IGC achieves solid, clear and
consolidated texts, will it be able to decide on the nature of the
contemplated instruments².

Further, the EU also hinted at delaying the process by extending it for
one more year at the next General Assembly. It stated that it ³looks
forward to establishing a reasonable and pragmatic work program for the
next two years, bearing in mind the financial implications and costs of
having extra meetings and also our goal of making strides towards more
efficient management of meetings².

According to the EU, ³there remain issues of fundamental importance to be
resolved in all texts before we reach a fully stabilized form. Many
differences of opinion and understanding still need to be bridged².

Poland on behalf of Central European and Baltic States said that the
nature of the document is still to be determined.

Australia stated that it shares the concerns on the potential burden on IP
and business, the unintended consequences of creating uncertainties in the
IP system and limiting access to GR and associated TK. According to
Australia this may impede innovation and achievement of economic benefit.
Further, Australia stated that it will not allow any outcome which
compromises the above concerns.

The United States of America (US) stated that it observed the divergent
and conflicting views among Member States. This is reflected in the
heavily bracketed text on TK and TCE. According to the US, only after
reaching agreement on the principles and objective can other issues in the
text be considered. Therefore, stated the US, the text of the IGC is not
ripe for a diplomatic conference. It added that the commitment of the
diplomatic conference would prejudge the outcome of negotiations.

Switzerland stressed the importance of process and stated that it
³continues to uphold the principles of inclusiveness and transparency. It
is also important that the principle of multilateralism governing the
organization is respected in the IGC and the IGC is the forum for
negotiation and decision².

Trinidad and Tobago on behalf of the Group of Latin American and Caribbean
countries (GRULAC) stated its position against the ³the possibility for
members of the IGC to request studies or to provide examples to inform the
discussion².  However, it stated that in the spirit of compromise GRULAC
accepted this as part of the IGC mandate with the clear understanding that
examples and studies should not prejudice the negotiation.

GRULAC expressed happiness over the convening of the Ambassador/senior
level officers meeting during the 26th session of the IGC. However, it
stated that such meetings should not rehash the expert positions.

Algeria on behalf of the Africa Group said that Africa with its rich
biological diversity and well-known TK and TCE believes that the
conclusion of the work of the IGC would lead to an increase in the
development of its population.

The Africa Group believes that the last three sessions of the IGC achieved
progress in the three texts. It said that there are four contentious
issues viz. subject matter of protection, beneficiary of protection,
exception and limitations. Further the Group said that the time has come
to take a holistic and political approaches to resolve these issues.

It also stated that the WIPO General assembly should send a strong message
to the international community with regard to its commitment to conclude
the work of the IGC.

India said that it assigns great importance to the work of the IGC to
develop an internationally legally binding instrument for the protection
of GR, TK and TCE.

It also noted that the transboundary protection of knowledge and resources
remains a challenge and this gap remains unaddressed. According to India
this normative gap can be filled through developing an internationally
legally binding text in the three subject areas viz. GR, TK and TCE.

India also stated that the work of the IGC in the last year has achieved
substantial progress in developing the text of an international legal
instrument in GR, TK and TCE  and these texts reached a fair level of

South Africa said that, ³Only legally binding instrument(s) can create
certainty for a win-win outcome to the benefit of all our citizenry².
According to South Africa ³the texts presented to the General Assembly
hitherto contain mature texts that constitute the basic proposals for
negotiations in the special sessions and subsequently the Diplomatic
Conference.  With the overwhelming consensus among the majority of Member
States and indigenous communities, the need to conclude this process is
now more urgent than at any time².

South Africa stated that, ³In recent years, intellectual property has
proved to be hugely popular and yet it is an increasingly complex subject.
South Africa attaches great importance to indigenous knowledge systems.
Since our Cabinet adopted an IKS (indigenous knowledge systems) policy in
2004, the South African government has invested huge amounts of money in
developing instruments for the appropriate protection and exploitation of
IKS. Some of the measures taken include the process of amending all our IP
laws to include provisions for the protection of IKS.²

It expressed ³great concern that after thirteen years of deliberations in
the IGC, there is still no agreement in sight and this reflects poorly on
WIPO's normative initiatives. The failure to reach finality on the
instrument(s) is not due to lack of progress on substantive matters but
more to the lack of political will to acknowledge misuse, misappropriation
and to provide legal remedies for such acts².

South Africa reaffirmed ³the importance of reaching an agreement on an
international instrument(s) for the effective protection of GRTKF (genetic
resources, traditional knowledge and folklore), which will be a historical
turning point as it will also be the first time that the IP system will
advance the developmental work for Africa and other developing countries.
Overall, this can only benefit all Member States as it will enhance the
trust and confidence in the IP system².

South Africa stated that any ³failure to reach agreement on an
instrument(s) to effectively protect GRTKF will be tantamount to denying
developing countries their basic fundamental rights and the implementation
of principles of justice regarding misappropriation and misuse and to
provide legal remedies for such acts².

Indonesia stressed the ³need to conclude a legally binding document(s) on
the protection of GRTKF. We believe that hard work should be done to
implement the work schedule as stipulated in the recommendation decision
on IGC ­ GRTKF².

It emphasized ³the need for IGC to finalize the text agreement in order to
enable the next WIPO General Assembly deciding to convene the diplomatic

In response to the General Assembly decision of 30 September that allows
the Member States to request the IGC for examples and studies, Indonesia
reiterated that, ³samples and studies should by no means delay progress or
establish any preconditions to the text-based negotiations¹.

Egypt also stressed that the calling for studies and examples should not
be an obstacle for the negotiations.+

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