Oct 2, 2009

Traditional Knowledge: Impasse at WIPO continues

The impasse on the renewal of Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at WIPO continues. As K M Gopakumar reports from Geneva the reason for the impasse is quite obvious. Those of us who have followed the international negotiations know how the developed countries dilly-dally when it comes to providing a little policy space to the developing countries. The issue of traditional knowledge, folklore and intellectual property is no exception.

While the debate continues, I just want to bring to your notice of an effort made in India by the civil society groups to frame a legal mechanism to protect, conserve and ensure a legally binding beneficiary mechanism by way of which the traditional communities, which have acted as a saviour of traditional knowledge, receive not only a signicant proportion of the benefits flowing from its commercialisation but also receive adequate support to protect and conserve that knowledge. I will share with you the details in the days to come.

Meanwhile, here is the report from K M Gopakumar. He brings us the latest from the WIPO Assembly that concluded in Geneva yesterday.

Geneva : Impasse on the future mandate of Intergovernmental Committee on Intellectual Property and Genetic Resources , Traditional Knowledge and Folklore (IGC) continues even on the last day of WIPO General Assembly.
The reason for the impasse is the unwillingness of the developed countries to agree to negotiate a legally binding international instrument to protect the Genetic Resources, Traditional Knowledge and Traditional Cultural Expression and Expressions of Folklore.(GRTKF). The WIPO general assembly established the IGC with the following mandate. “The Intergovernmental Committee would constitute a forum in which discussions could proceed among Member States on the three primary themes which they identified during the consultations: intellectual property issues that arise in the context of (i) access to genetic resources and benefit sharing; (ii) protection of traditional knowledge, whether or not associated with those resources; and (iii) the protection of expressions of folklore. However, the discussion in IGC did not result in substantial progress other than developing a set of principles on the protection of traditional knowledge (TK) and traditional cultural expressions (TCE). 2 years ago the General Assembly the document renewed the mandate of IGC stating that the IGC will “continue its work for the next budgetary biennium on questions included in its previous mandate” and 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. However, the discussion reached nowhere near to the development of international instrument. In fact the 14th Session of the IGC failed to reach consensus on its future work or mandate.

The General Assembly is suppose to find a solution and renew the IGC mandate with clear work program in order to elevate its status from being a mere talk shop. On Monday night at 8pm when the IGC mandate was taken up for discussion there were four proposals on the table from two countries and two regional groups viz. Australia, USA, European Commission (EC) and African Group. The divergences are clearly on the nature of mandate to be given to be given to the IGC rather than on the renewal of mandate per se.

The African Group’s proposal that was originally tabled on the occasion of the 14th session of IGC clearly proposes that IGC should undertake text-based negotiations on GRTKF. Further it proposes that IGC should submit the text, that emerges from the negotiations i.e. an internationally biding instrument/instruments on GRTKF for the consideration of the General Assembly in 2011 to recommend a date for a diplomatic conference.

The EU proposes the renewal of the mandate to continue the work and also undertake outcome-oriented deliberations. According to the EU proposal the outcome oriented deliberation is mainly “to prepare 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”. Thus it clearly rejects the African proposal for a legally binding international instrument. The US proposal even rejects the idea of a Declaration and wants the committee to continue uncompleted work of under its previous mandate. However, both the US and EC proposals reproduce the 2008 General Assembly mandate i.e. 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 Australian proposal follows the middle path and does not reject the idea of legally binding instrument. However it makes a qualification by stating that IGC will undertake a “text based negotiations, without prejudice to the outcome , including a possible legally binding instrument”.

During the formal discussions in the form of General statements on Monday and Tuesday the polarization on the nature of mandate became clear. All developing countries rallied behind the African proposal for a mandate to negotiate a legally binding international instrument within clear timeframes. Developed countries and former socialist countries support the EC proposal. Recognizing the deep divisions on the issue Chairperson initiated informal consultations and encouraged group meetings to find out a solution. In the last two days including this morning, the Chairperson has produced two draft text based on his consultations with various member sates and group leaders. According to the latest text “"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). The part in bold is still in brackets.

It is clear that the Chair’s text is not proposing a text based negotiation for legally binding instrument but the proposal is limited to an international instrument which would ensure effective protection on GR, TK, TCE. According to one developing country delegate there is no clarity on the word international instrument .The word international instrument also includes declarations, guidelines etc and therefore it does not substitute legally binding international instrument. Another Developing country delegate pointed out that the word effective protection does not necessarily means the enforcement of the protection.

Developing countries want further strengthening of the language, which clearly spell out the mandate to launch a negotiation for a legally binding international instrument for the protection of GR, TK and TCE (GRTKF). Efforts are still on to find a solution, which ensures justice to developing countries.

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