[Ip-health] WIPO - North-South Differences on Genetic Resources Instrument

alexandra bhattacharya alexandra.bhattacharya at gmail.com
Tue Feb 4 01:17:34 PST 2014

*Title :* TWN IP Info: WIPO - North-South differences on genetic resources
*Date :* 04 February 2014


TWN Info Service on Intellectual Property Issues (Feb14/03)
4 February 2014
Third World Network

*WIPO: North-South differences on genetic resources instrument*

Geneva, 4 February (Alexandra Bhattacharya) - The 26th session of the WIPO
Intergovernmental Committee on Intellectual Property, Genetic Resources,
Traditional Knowledge and Folklore (IGC) commenced on Monday, 3 February
where the focus of discussion was on Genetic Resources.

The meeting at the WIPO headquarters in Geneva will be on 3-7 February.

The WIPO General Assembly in 2009 provided the mandate for text-based
negotiations with the objective of reaching an agreement on a text(s) of an
international legal instrument(s) which will ensure the effective
protection of genetic resources (GR), traditional knowledge (TK) and
traditional cultural expressions (TCE). This mandate was renewed twice in
2012 and 2013.

The first half of 3 February was devoted to a meeting of ambassadors and
senior capital-based officials for "an interactive, open and frank
exchange". This was pursuant to paragraph (b) of the IGC's mandate for the
2014/2015 biennium, with the purpose "to share views on key policy issues
relating to the negotiations and to further inform/guide the process". (The
discussion for the rest of the week will be on the basis of document
WIPO/GRTKF/IC/26/4 which is a "Consolidated Document Relating to
Intellectual Property and Genetic Resources".)

In the afternoon, Ambassador Wayne McCook (Jamaica) provided an overview of
the high level segment held in the morning. (The verbatim report of the
meeting will be included in the session's report). The following questions
were posed to the meeting:

*"1. In respect of GR, TK and TCEa. What is the policy issue that needs to
be resolved as a priority and why?b. What should be dealt with an
International legal instrument and what could be left to deal with at the
national level?c. What suggestions are there for common ground on the
issues that need to be resolved internationally?*

*2. Regarding the process as a whole, what new negotiating pathways and
modalities might there be to make further progress?"*

According to Ambassador McCook, some of the key views included:

   - The general view among all participants was that the misappropriation
   of GR, TK and TCEs legitimately held by owners was not acceptable. There
   clearly needs to be a discussion on "legitimate holding". No one expressed
   the view that misappropriation of these materials was acceptable.
   - Delegations also expressed in numbers the view that the instrument
   being developed should be aimed at assisting in preventing the granting of
   erroneous or poor quality patents. The clearest references were made to the
   patent systems.
   - Regarding ways that these concerns may be addressed, some delegations
   expressed the view that Databases would allow a means of checking if
   material should be denied treatment or patentability.
   - Some expressed support for the disclosure approach: There was
   difference in view whether it should be mandatory and the conditions which
   should imposed. One way forward proposed was the experience of disclosure
   regimes in practice.
   - In terms of relationships with other instruments there were
   significant differences. Some felt the current instrument should reinforce
   the CBD and the Nagoya Protocol. Other views were that the instrument
   should not interfere with them.
   - On Subject Matter of the instrument: There were some interventions by
   delegations on the importance of defining the beneficiaries of the
   - Balancing of Instruments: There was a need to balance interests
   between owners and holders including commercial and consumers of items. The
   integrity of the relationship between all three would need to be considered.
   - Some mentioned the need for "respect, acknowledgement and attribution".
   - Some interventions related to exclusive rights and mutually agreed
   arrangements in terms of ABS regimes.
   - There were interesting views with regard to the character of
   instrument: particularly whether it should be a framework type agreement
   with some elements left to national mechanisms, as opposed to a more in-
   depth instrument (which was preferred by others).
   - Different character of the instrument: There were differences in
   opinion as to whether the instrument should be (legally) binding or
   - Process: Interest in new pathways was expressed but there was no clear
   expression of what it should be.
   - It was also not clear whether parallel texts could be anticipated (in
   the negotiations this week).
   - The need for high-level engagement was mentioned.
   - There were calls for a roadmap on the way forward including
   suggestions that the IGC should be working towards a Diplomatic Conference
   (for concluding negotiations on a treaty).
   - There were suggestions for a matrix/map of positions of key issues of
   difference/commons positions.
   - It was not clear whether the three pillars (GR, TK and TCEs) would be
   kept together or separate.

According to observers who have been following the IGC process, the
differences are between developing and developed countries, with the former
opting for a legally binding instrument that includes mandatory disclosure
requirements. (For more details on the contested provisions of the
Consolidated Document please see: TWN Info Service dated 3 February 2014
tilted "WIPO negotiations on IP and Genetic Resources to resume amidst
major differences".)

The IGC plenary in the afternoon was suspended for the Panel Of Indigenous
And Local Communities. The theme of the panel was "Intellectual Property
and Genetic Resources: What is at Stake for Indigenous Peoples?" It
included the participation of Professor James Anaya, the United Nations
Special Rapporteur on the Rights of Indigenous Peoples.

The remaining four days of the IGC session will be on text-based
negotiations on GR with a focus on considering options for a draft legal
text. The Chair in particular urged for focus on the key normative issue
which was the inclusion of a disclosure requirement. He called for the IGC
to be " creative, focused and solution oriented".

The methodology used will be mixture of plenary and Room B expert group
meetings (a WIPO procedure where after a plenary, an expert group
consisting of a maximum of 6 experts per region meets, with live audio
transmission to the plenary room). There will also be  "coordinated
informal discussions" aided by the facilitator. The facilitators for the
session, as in previous sessions, will be Ian Goss (Australia, and friend
of the chair of the GRTKF process), Chandni Raina, (India), Emmanuel Sackey

Day 2 (4 February) will commence with the expert group in Room B at 10 am.+

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