[A2k] WIPO IGCGRTKF June 29-July 3: Days 3 & 4

[Perlman, Marc]

Wednesday set the tone of the discussion on future work, which was to focus=
 mainly on the format of future negotiations and the nature of the desired =
result.  The African Group proposal called for =93text-based negotiations=
=94 according to a timetable that included intersessional meetings of exper=
t working groups, leading up to a =93legally-binding instrument or instrume=
nts.=94  (There was one lone attempt to suggest that difficulties of defini=
tion [e.g. of =91traditional knowledge=92 or =91indigenous=92] made concept=
 papers more appropriate than draft treaties at this stage, but it fell on =
deaf ears.)

There was a brief debate on the need for a binding instrument, during which=
 the idea was declared both innocuous and premature, and for the identical =
reason: treaties bind only states that accede to them (so why be afraid of =
a binding instrument?); but treaties bind only states that accede to them (=
so why decide that the instrument must be binding before we know what will =
be in it?).

But the discussion quickly turned to procedural matters.  The Chair had ann=
ounced on Monday that the work of this IGC would be done in plenary as much=
 as possible, but he proposed working on the African Group proposal in info=
rmal groups.  However, several delegations asked that they continue in plen=
ary, and that the proposal be projected on a screen where it could be edite=
d in front of all.  This was done, though the Chair insisted that this woul=
d not be a drafting exercise.  They would simply compile all suggested addi=
tions, deletions, and changes.

There were some structural edits suggested, but the most contentious change=
s centered on =93text-based,=94 =93legally binding,=94 the intersessional w=
ork, and the relative roles of GR, TK, and TCE. Some delegations wished to =
replace =93text-based=94 with =93outcome-oriented deliberations.=94  Instea=
d of =93legally binding,=94 some delegations suggested =93without prejudice=
 to any outcomes, including the development of a legally binding instrument=
,=94 or even =93legally binding or non-legally binding.=94  Instead of =93d=
iplomatic conference,=94 some proposed =93a high-level meeting.=94

Some delegations replaced the intersessional work with three IGC meetings, =
focussed respectively on GR, TK, and TCEs.  There was also a suggestion tha=
t the three topics should be considered =93on an equal footing.=94

These edits were vigorously contested in the plenary.  Defending the retent=
ion of =93text-based,=94 delegations argued that =93text-based=94 is standa=
rd UN language, and that it doesn=92t prejudge the outcome.  Questioning =
=93text-based,=94 it was suggested, is a destructive quibble intended only =
to buy time.

Against the =93equal footing=94 clause, it was argued that work on GR at th=
e IGC might prejudice or overlap with work at the WTO, where a proposal had=
 been advanced on Geographical Indications and disclosure requirements for =
patents.

At the end of the day, the Chair asked the African Group to submit a new do=
cument taking these proposals into account.  After a brief consultation, th=
e African Group replied that they would spend Thursday morning working with=
 their partners and would rejoin the plenary at 3:00pm, at which point they=
 might or might not have a new proposal.

In the event, the Thursday plenary convened an hour late.  The African Grou=
p announced that they were maintaining the key elements of their original p=
roposal: text-based negotiations, on a timetable, leading to one or more in=
ternational legally binding instruments.  They quoted from the Director Gen=
eral=92s acceptance speech to the 2008 General Assembly, to the effect that=
 the time had come for concrete results.

The response from the other delegations was a chorus of affirmation punctua=
ted by some notes of foreboding.  Some delegations complained that the Afri=
can Group had not consulted with them, and wanted to hear a report on the c=
onsultations that had occurred.  There was surprise that the amended text f=
rom Wednesday seemed to have disappeared; delegations felt their concerns w=
eren=92t being taken into account.  They asked the African Group to meet wi=
th the delegations that hadn=92t been consulted.

The champions of the African Group proposal replied that many of Wednesday=
=92s suggested amendments had not been in the spirit of the original propos=
al; that the African Group had not sought informal consultations with any s=
tates, but simply met with those member states who sought them out; and the=
y were not going to reveal the identity of those states.

Further, they portrayed the African Group proposal as the basis for an =93e=
merging consensus.=94  They suggested there was a double standard at work: =
Why should those demanding a binding instrument be forced to justify this d=
emand?  Would a non-binding treaty on patents be acceptable to the develope=
d world?  WIPO=92s task is to protect rights-holders, not to sermonize on m=
orals.  The burden is on those who would question the need for a binding in=
strument to justify themselves.

Only one delegation seemed to seek middle ground, arguing that the experts =
of the intersessional working groups could be asked to decide the nature of=
 the eventual instrument.  This, too, fell on deaf ears.

Then the discussion again turned procedural.  The Chair reminded the gather=
ing that they must produce a consensus text.  Some champions of the African=
 Group proposal took offense at the implication that they were blocking con=
sensus, or even trying to make the negotiations fail.  No, they said, this =
accusation is a ploy to distract attention away from the emerging consensus=
.  In any event, it=92s wrong to blame only one group if consensus can=92t =
be found.

There were then calls for the Chair to take the initiative again.  But whil=
e some asked for informal consultations, others still preferred the plenary=
, because there the international community could see how overwhelming was =
the support for the African Group proposal, and could see who was blocking =
consensus. It quickly became clear, though, that negotiations would continu=
e informally, and the only question was how small a group would be convened=
 (with delegations arguing for larger or smaller groups).

The result of the informal negotiations, which were limited to procedural m=
atters, was that the IGC would return to the on-screen editing technique of=
 Wednesday=92s plenary.  But the Chair again reminded the delegates that in=
 the end this process would not be sufficient, and sooner or later they wou=
ld have to resume small-group negotiations to seek the flexibility and trad=
e-offs available there.

Respectfully submitted,

Marc Perlman
Associate Professor of Music
Brown University