[Ecommerce] CPTech Summary of Proceedings at WIPO IGC (November 2004)

[Thiru Balasubramaniam]

The CPTech delegation to the Seventh Session of the WIPO
Intergovernmental Committee (IGC) on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore (GRTKF) was represented by
Thiru Balasubramaniam and Johanna Gibson. This IGC took place in Geneva
from November 1-5, 2004. The following summary attached below was
written by Johanna Gibson.

Two dominant themes emerged from the discussions at the IGC:


1) The international dimension- The African Group, the Andean Community
and indigenous groups such as Call of the Earth and the Saami Council
emphasized the need for an international instrument for the protection
of genetic resources and traditional knowledge. In particular, the
African Group reminded the Committee that the International Bureau was
requested to produce drafts of possible international instruments.

2) The contractual approach versus the patent approach- Several
delegations including the African Group, the Andean Group, Brazil, and
India rejected the contractual solution as a means to combat biopiracy
and misappropriation deeming this approach as ultimately inadequate and
possibly unjust given the imbalance in bargaining positions and lack of
international control over such agreements.


The ongoing emphasis and work on the contractual basis was largely
supported by developed countries, including the United States, and many
industry observers, drawing upon incentive arguments, mitigation of
risk, and protection of the market certainty. It should be noted that
the discussions on mandatory disclosure should be viewed in the light of
the recent submission by Brazil, India, Pakistan, Peru, Thailand and
Venezuela on September 21, 2004 to the WTO Council for TRIPS
(IP/C/W/429) on the "Elements of the Obligation to Disclose the Source
and Country of Origin of Biological Resource and/or Traditional
Knowledge Used in an Invention."



Thiru Balasubramaniam
Geneva Representative
Consumer Project on Technology


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World Intellectual Property Organization
Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore

Geneva, November 1 to 5, 2004

by Johanna Gibson

A substantial number of countries, predominantly developing countries,
affirmed the call for protection based upon a framework of an
international instrument or instruments, with the implementation of
appropriate policy and legal mechanisms at community, national, and
regional levels, based upon the international objectives and principles
set out in that instrument.

The African group, in particular, emphasised the international dimension
in the context of the new mandate of 2003, including the possible
development of international instruments to achieve international
standards of protection. Recalling the Sixth Session, the African group
reminded the Committee that the Secretariat was asked to produce drafts
of possible international instruments and stated, =93We wish to reaffirm
in this regard that discussing the draft policy and core principles is
not an end in itself, but should be a basis for further discussions on
legal status of protection and towards what should be internationally
binding instruments on GR and TK.=94 With respect to GR, Peru made the
following statement on behalf of the Andean Community: =93Only with an
international legally binding system and with the universal adoption of
the certificate of origin can we face up to the phenomenon of biopiracy
and due respect of national sovereignty of our peoples over GR.=94

Other members, including Syria, Colombia, Ecuador, Peru, and Bolivia
also supported this process towards an international system of
protection for GRTKF. Indeed, the current work of the Committee was
criticised by the delegation of Kenya, which stated, =93We note with
concern that the international dimension is diluted in such a matter
that the work of this committee becomes only to coordinate and
nationalize national laws.=94 As Algeria went on to state, =93Holders of TK
need to be able to have recourse to an international legal system of
protection of this knowledge, and not just to their national systems
which might be ineffective, because it depends on the means that the
national communities or indigenous communities do not necessarily have.=94

The importance of a binding international agreement was also supported
by indigenous groups (including Call of the Earth, the Saami Council,
which called for the recognition of customary laws and practices within
such a system, and FAIRA) and intergovernmental organizations (including
ARIPO).

Without such international standards at this stage, the protection of
traditional cultural expressions may be unclear. As the Kenya delegation
stated, =93Misappropriation of TCEs is one of the main challenges =96
sanctions, remedies, and enforcement need to be clear.=94 Morocco
identified diversity in TCEs, and argued that this diversity has
particular implications for the scope of protection: =93there are
different forms of cultural expressions, they are very diverse, and
therefore scope of protection should take into account this diversity.=94
The representative of ARIPO stated that it is imperative that
international standards be recognised in order =93to avoid free-riding,
misappropriation, and reduce impediments to innovation.=94

Similarly, the patent system was identified by the African group and
others as the important (and only) international system that may govern
the use of traditional knowledge and genetic resources at this present
time. As the representative of Ecuador stated:
It is not the contractual way that can solve problem of biopiracy,
misappropriation, or the problems of disclosure of source or
distribution of benefits. This approach is insufficient. It is
voluntary, private, and cannot solve problems of use and exploitation of
GR. We repeat the importance of dealing with this issue from viewpoint
of patents and taking into account all the progress that has been made
on this problem by CBD and FAO.

In this view of patent law as providing the only international legal
instrument at this time, several groups called for closer consideration
of the interaction between the patent system and principles of equitable
benefit sharing and prior informed consent. The lack of attention to
this relationship was criticized and questioned, given that many
countries, including the African group (which reiterated its rejection
of patents on life forms, supported by statements of the Third World
Network), have identified the underlying centrality of patent system.
Indonesia also recommended links between evidence of prior informed
consent and benefit sharing, and the validity of patents, as a way of
addressing the problem of misappropriation of genetic resources.
Similarly, Ecuador argued for the recognition of a close link between
genetic resources and patent law, and rejected a contractual basis for a
solution.

Indeed, several groups questioned the viability of a contractual
solution given the very absence of an international standard, other than
the patent system, described as a =93privatist approach=94 by Brazil. The
ongoing emphasis and work on the contractual basis was largely supported
by developed countries, including the United States, and many industry
observers, drawing upon incentive arguments, mitigation of risk, and
protection of the market certainty. In other words, incentive was linked
not to rewards for creativity or custodianship, but to investment and
ownership. For instance, the Biotechnology Industry Organization (BIO)
stated, =93We question whether use of patent system is most viable or
effective way of promoting goal of greater transparency and
accountability,=94 and rejected requirements of mandatory disclosure in
the patent system, arguing instead, =93We urge the International Bureau to
solicit comments on other methods for monitoring access and use of GR.=94

This approach was strongly rejected by a large number of delegations
from developing countries (including Brazil, the African group, India,
the Andean countries) as wasteful of resources, diverting attention from
more important work, and ultimately inadequate and possibly unjust given
the imbalance in bargaining positions and lack of international control
over such agreements. The contractual basis for protection against
misappropriation and biopiracy was similarly rejected by NGO observers,
including the Third World Network, which identified the lack of
international harmonization with respect to the commercialisation of
benefits arising from access to genetic resources through such
agreements, thus leaving the cross-border enforcement of agreements unclear=
.

Despite the centrality of the patent system, this is not a substitute
for an international instrument directed to genetic resources, TK, and
folklore. Several groups rejected the call for consistency with and
support for existing IP systems, which occurs throughout the documents
of the Seventh Session, arguing that this would seem to subordinate
protection to the existing intellectual property system of protection,
commodification, and commercialisation. Indeed, it was argued that the
problem of misappropriation suggests, to the contrary, that there is a
need to make the existing IP system supportive of the protection of TK.
As the African group argued, the most fundamental concern for devising a
regime of protection should be the expectations of TK-holders.

Similarly, the Call of the Earth argued, =93In addition to the
intergenerational nature of TK, collective ownership, permanent
innovation and the value per se that it represents for indigenous
peoples, regarding policy options and legal mechanisms, we have
reservations about directing the discussion through IPR, especially
through the patent system, because this system is incompatible with TK.=94
As the representative of the Call of the Earth explained, =93TK is
intergenerational in nature, subject to a constant process of
innovation, related to our culture, with value per se, closely linked to
lands. IP systems as they exist can=92t give respect to TK.=94

Brazil urged the Committee =93to approach protection of TK within the
broader framework of human rights and indigenous rights law, which we
believe transcends the realm of IP law. We do not think that efforts to
protect TK should necessarily be seen as an attempt to extend scope of
IP regime. Rights of our indigenous peoples over their TK are
un-renounceable, im-prescriptable, inalienable prior rights that precede
the advent of state law.=94 The statement of the delegation of Brazil
continued, =93The protection of TK cannot be subordinated in any way to
the existing IP regime =85 Indigenous and traditional communities often
constitute some of the most disenfranchised and impoverished members of
society whose rights have not been duly recognised,=94 and urged the
Committee =93to ensure the IP system is responsive to broader societal
concerns in all countries.=94

Related to these concerns, the representative of the Tulelip Tribe
supported calls for recognition of the relevance of =93higher laws=94 of
human rights, rather than confining the debate within intellectual
property regimes. Further, the representative of the Tulelip Tribe
raised questions about the viability of an approach based upon balance
and proportionality, arguing that this was an inappropriate application
of a civil society concept to indigenous communities already governed by
local customary laws with respect to access.

The categorization of the knowledge of traditional and indigenous groups
was also questioned. In reiterating the need for an international sui
generis system, the Andean community identified the important links
between TK, biopiracy, genetic resources, and community pride. In this
regard, the Andean community and others rejected the importance of
ongoing sharing of national experiences, and called for active
participation of indigenous communities in the development of an
appropriate and international mechanism. Call of the Earth in particular
recommended a more holistic approach to protection, where protection is
linked to the cultural identity of indigenous peoples and a flexible and
holistic approach is essential. As the delegation of Ecuador explained,
=93This relationship between TK and GR is essential to bear in mind, so
that we can determine any principle whatsoever or any objective
whatsoever, that might guide drawing up of any international standards.=94

Several delegations identified the holistic protection of GRTKF as
integral to the cultural identity of indigenous peoples. The Call of the
Earth made the following statement:

"Handling TCEs separately from TK is going to be inappropriate given the
way these exist in indigenous communities. This kind of isolated
treatment will not over the long-term ensure proper protection for TCEs
and TK. Dances and songs are not separated from traditional clothes,
production of cloths, handicrafts, traditional materials and production.
This is an artificial separation which undermines the holistic nature
where TK is intrinsic to expressions of culture. This separation is
damaging to our possibility of being creative and innovative in the
future, and also encourages abuse and misappropriation of both TK and
TCEs =96 because the community which produces them does not have the tools
to protect them."

Similar to the statements of the Saami Council, the Call of the Earth
called for greater and more systematic recognition of customary law:
Therefore, we appeal for this committee to consider integral models
which will be closer to the local models of administration used for
management of tradition.

Further, the delegation of Papua New Guinea stated, =93For indigenous
peoples in many situations, after everything has been taken away from
them, or because they have been left out of mainstream life, culture is
all they have left.=94 Further to this point, the representative of FAIRA
argued that the misappropriation of TCEs =93can actually be a denial of a
people of a cultural identity,=94 and suggested that this denial of
culture can amount to =93an exercise of genocide.=94