[A2k] TWN: Traditional Knowledge Committee ends with uncertainty over its future

[Sangeeta]

TWN IP INFO:

4th July 2009.

WIPO: Traditional Knowledge Committee ends with uncertainty over its future

Asmeret Asghedom (Geneva): The 14th session of the Intergovernmental
Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC)
that met last week to discuss the future of the IGC ended late Friday night=
,
deadlocked over its mandate and its future uncertain.

The IGC ended its meeting with agreement that on the future work =B3The IGC
did not reach agreement on this agenda item=B2. However informal consultati=
ons
among delegations may continue as members head for the WIPO General Assembl=
y
in September, sources say.

The 14th session was a critical meeting for the future of the IGC as its
2-year mandate ends this year.  For the IGC to continue, WIPO members have
to agree to renew its mandate and elements of the renewed mandate.

Failure to agree at the Committee level means that the contentious debate o=
n
the future of the IGC will emerge once again at the WIPO General Assembly
that meets in September and the Assembly will have the task of finding
consensus on IGC=B9s mandate.

The IGC was created in 2000 as a forum to address the issue of
misappropriation of Genetic Resources, Traditional Knowledge, Traditional
Cultural Expressions and Folklore (GRTKF) as a result of the IP system and
the protection of GRTKF. In September 2003, the General Assembly both
extended and substantially broadened IGC=B9s mandate. It was instructed to
among other things =B3accelerate its work=B2 and =B3focus on the internatio=
nal
dimension of intellectual property, GR, TK and folklore,=B2 excluding =B3no
outcome, including the possible development of an international instrument
or instruments in this field.=B2

However developing countries are frustrated with the lack of concrete
outcomes after 13 sessions of the Committee.

In an attempt to infuse momentum and expedite negotiations on the
development and adoption of an international legally binding instrument for
the protection of GRTKF, Africa Group had submitted a proposal titled
=B3Elements for the New Mandate=B2 before the start of the 14th session.

The proposal recommended text for IGC=B9s renewed mandate for 2010/2011 tha=
t
called for =B3text based negotiations=B2, establishing international legall=
y
binding instrument/s for GRTKF and that outlined a defined work program and
timeframes for its work in the 2010/2011 biennium including for
inter-sessional work sessions and a diplomatic conference.

The Africa Group proposal formed the basis for negotiations in the week-lon=
g
discussions. Although the proposal received enormous backing from developin=
g
countries and NGOs representing indigenous peoples present at the session,
developed countries preferred that the renewed mandate of the IGC contain a
less ambitious goal with softer language.

Among proposals that were vigorously contested and rejected by developing
countries were proposals by developed countries that proposed replacing
=B3text based negotiations=B2 with =B3outcome-oriented deliberations=B2; =
=B3legally
binding=B2 with language that states =B3without prejudice to any outcomes,
including the development of a legally binding instrument=B2 or even =B3leg=
ally
binding or non-legally binding=B2; and to replace =B3diplomatic conference=
=B2 with
=B3a high level meeting=B2.

On Wednesday, (following general statements in the IGC on the first 2 days
of the meeting) Africa Group=B9s proposal was considered in the plenary.
Although the Chair persistently proclaimed that it was not a drafting
exercise, delegations reviewed the proposal paragraph-by-paragraph and
proposed amendments (additions, deletions) to the original proposal.

The exercise revealed vividly the chasm between developing and developed
countries.
Particularly contentious were text of the Africa Group proposal that
recommended that the renewal of the IGC should contain the following
language:

=B3The Committee will undertake during the next budgetary biennium (2010/20=
11)
text based negotiations on genetic resources, traditional knowledge and
traditional expressions.=B2

=B3The Committee is requested to submit to the 2011 GA a text for an
internationally legally binding instrument/instruments on TCEs, TK and GR
and recommend a date for the Diplomatic Conference as agreed in its work
program=B2.

Australia recommended inserting after =B3text-based negotiations=B2, =B3wit=
hout
prejudice to the outcome, including a possible legally binding instrument o=
n
genetic resources, traditional knowledge and traditional expressions.=B2

New Zealand proposed deleting =B3text-based negotiations=B2 and replacing t=
he
phrase with =B3the development of text, without prejudice to any outcomes.=
=B2

The US and the EU sought to substitute =B3text based negotiations=B2 with
=B3outcome-oriented deliberations=B2.

US proposed deletion of the language =B3text based negotiations=B2 and repl=
acing
it with =B3outcome-oriented deliberations on genetic resources, traditional
knowledge and traditional cultural expressions, without prejudice to any
outcome and on the basis of the Committee=B9s prior work=B2.

Mexico also sought deletion of =B3text-based negotiations=B2.

In response, Brazil said that =B3outcome-oriented deliberations=B2 was a
non-committal expression. Novelty remained in the expression used in the
Africa Group proposal, it added.

Senegal and South Africa opposed to the proposed substitution by US and EU
said that they had never heard of that language in the context of their wor=
k
at the UN.

South Africa added that since the protection of GRTKF was included in their
national poverty strategy, it would not be acceptable to report back to
their ministers that they were to engage in =B3outcome-oriented
deliberations=B2.

EU also proposed replacing the paragraph in the Africa Group proposal on
submitting to 2011 a text for an internationally legally binding
instrument/s on GRTKF with a paragraph that states =B3The Committee is
requested that the result of its work should lead to an internationally
legally binding  or non-legally binding instrument/s on GRTKF=B2.

Mexico proposed alternative language that =B3The Committee is requested to
submit to the 2011 GA a text/s for an international instrument/instruments
on TCEs, TK and GR and to recommend a date for the Diplomatic Conference, i=
f
applicable=B2.

US also proposed alternative language that =B3The Committee is requested to
submit to the 2011 GA recommendations on content for an outcome or outcomes=
,
including the nature, format and status and how the Committee should
finalise its recommendations on TCEs, TK and GR and recommend a date for a
high-level meeting to be considered in its work program=B2.

In a separate proposal submitted by the EU on Thursday, it proposed: =B3No
outcome of the Committee=B9s work is excluded, including the possible
development of a legally-binding international instrument or instruments.=
=B2

Africa Group after some consultations on Thursday morning insisted on
retaining the key elements of its original proposal, that developed
countries attempted to dilute.

Many other developing countries agreed that the amendments suggested by
developed countries violated the spirit of the original proposal, and
championed the Africa Group proposal as =B3emerging consensus=B2 among a
majority of countries attending the IGC.

Pakistan said that it was not acceptable to leave all the options open, as
it would be difficult to begin negotiations. It said that the original text
of the African Group provides a clearer direction for IGC=B9s future work.

Pakistan also added that democratically the majority had decided the case.
If the IGC was not able to renew the mandate on the basis of establishing a=
n
international legally binding instrument due to a minority opinion then thi=
s
would be a misfortunate, it said.

Philippines said that an international legally binding instrument was
imperative to the IGCs work =B3because it is the only viable mechanism to g=
ive
justice to misappropriation of GR, which continues to happen worldwide.=B2

Brazil, India and Zimbabwe pointed out the disparity of international legal
treaties under WIPO and in other fora that provide legal protection to the
holders of patents, copyrights and trademarks but no such was afforded to
indigenous and traditional holders of GRTKF.

Brazil added that the IGC needed to entitle indigenous peoples with
protection over their sacred traditions and religions. It said indigenous
groups do not have the financial means to lobby internationally on a scale
parallel to private groups.

Zimbabwe said its delegation was beginning to question the credibility of
WIPO. It said that according to WIPO=B9s website, the goal is enforcement o=
f
IP rights and questioned whether the excluded protection of GRTKF. Since 80=
%
of the room was in favor of creating an internationally legally binding
instrument then as in any democracy, it was time for the minority to join
the majority, Zimbabwe added.

Angola warned about the political message the committee would be sending if
it did not agree on a mandate was that WIPO only protects some people and
leaves the rights of others unprotected, the delegate said.

Despite the convictions expressed by the majority, the 14th session
concluded late Friday night without a renewed mandate to present to the GA.
As the negotiations drew to an end some delegations expressed their deep
concerns with the indefinite results.

Senegal said that the Africa Group and aligned delegations feared that if
WIPO does not achieve appropriate protection of GRTKF the misappropriation
and abusive use of cultural & scientific heritage would perpetuate.

Mexico said that they deplore that the IGC 14 came to an unsuccessful end,
adding that their consultations at home with 72 indigenous peoples had made
progress and it would be sad to inform them of the collapse of this
conference.

Indonesia said that they felt WIPO was the appropriate forum for protecting
GRTKF, as it does patents and copyrights. Despite overwhelming support from
delegations, civil society and indigenous groups the IGC failed to provide
the protection to GRTKF due to marginal opposition.

Indonesia warned that this failure would perpetuate an imbalance and may
lead to the emergence of a new track that WIPO is unable and unwilling to
fulfill. =B3Indonesia is prepared to engage if such a new track will emerge=
,=B2
it added.