[Ip-health] (FromGeneva) WIPO stalemate: No agreement reached on genetic resources, traditional knowledge and folklore

[Thiru Balasubramaniam]

http://www.keionline.org/blogs/2009/07/08/igc-stalemate/

WIPO stalemate: No agreement reached on genetic resources, traditional
knowledge and folklore
By thiru, on July 8th, 2009

*The author thanks Professor Marc Perlman (Brown University) for his
comprehensive notes on the IGC deliberations.

The fourteenth session of the WIPO Intergovernmental Committee on
Genetic Resources, Traditional Knowledge and Folklore (IGC), convened
in Geneva from June 29, 2009 to July 3, 2009, collapsed at the 11th
hour on Friday evening as the culmination of nine years of work over
fourteen sessions resulted in the following language; =93[t]he Committee
did not reach a decision on this agenda item=94 on future work. The WIPO
General Assembly (September 2009) will have to untangle the
intractable Gordian knot regarding the future direction of the
Committee.

At the heart of the discussion lay a proposal by the African Group
which called for the IGC to submit a text to the 2011 General Assembly
containing =93a/(n) international legally binding instrument/
instruments=94 to protect traditional cultural expressions (folklore),
traditional knowledge and genetic resources. Inextricably linked to
the legally binding instruments were the African Group=92s demands for
=93text-based negotiations=94 with clear =93timeframes=94 for the proposed
program of work. This proposal garnered broad support among a group of
developing countries including Malaysia, Thailand, Fiji, Bolivia,
Brazil, Ecuador, Philippines, Sri Lanka, Cuba, Yemen India, Peru,
Guatemala, China, Nepal and Azerbaijan. Indonesia, Iran and Pakistan
co-sponsored the African Group proposal.

The European Union, South Korea and the United States could not accept
the two principles of =93text-based negotiations=94 and =93internationally
legally binding instruments=94.

Australia, Canada and New Zealand accepted the idea of =93text-based
negotiations=94 but had reservations about =93legally binding instruments=
=94
granting sui generis protection for genetic resources, traditional
knowledge and folklore.

The mandate of the IGC runs out in December 2009, and the General
Assembly decide its fate. Perhaps one way of reforming this inert
Committee would be to create three separate committees, i.e. a
Committee for each discrete topic. If copyrights, trademarks and
patents were lumped into one Committee as WIPO, this unwieldy behemoth
would stagnate. In the same manner, the General Assembly should seize
the opportunity of the impasse reached at IGC reflect on what would be
truly beneficial to indigenous and traditional communities and
citizens of the world.

This narrative endeavors to tell the story of the 14th IGC=92s
contentious deliberations on genetic resources, traditional knowledge
and folklore. As context to this proposal, it should be noted that at
the WTO on July 19, 2008, an interesting constellation of over 110 WTO
members including Albania, Brazil, China, Colombia, Ecuador, the
European Communities, Iceland, India, Indonesia, the Kyrgyz Republic,
Liechtenstein, the Former Yugoslav Republic of Macedonia, Pakistan,
Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group
(African, Caribbean and Pacific Group of States) and the African Group
submitted a proposal to the WTO Trade Negotiations Committee (TN/C/W/
52) calling for an amendment to the TRIPS Agreement to include
mandatory disclosure of origin in patent applications; the language
reads:

     Members agree to amend the TRIPS Agreement to include a mandatory
requirement for the disclosure of the country providing/source of
genetic resources, and/or associated traditional knowledge for which a
definition will be agreed, in patent applications. Patent applications
will not be processed without completion of the disclosure requirement.

Embedded with this mandatory requirement of disclosure of origin was
the European Communities=92 ask of establishing a register for
geographical indications and perhaps more ambitiously, the extension
of geographical extensions from just wines and spirits to ALL
products. Currently, only wines (i.e. Champagne, Pomerol) and spirits
(Tequila) are granted additional protection under Article 23 of the
TRIPS Agreement; the effect of proposal TN/C/W/52 would be to extend
this protection to such goods as Italian mozzarella, French brie and
Spanish pata negra, Ceylon tea, Idaho potatoes and basmati rice. The
proposed language for the amendment of Article 23 of TRIPS states:

     Members agree to the extension of the protection of Article 23 of
the TRIPS Agreement to geographical indications for all products,
including the extension of the Register.

     Text based negotiations shall be undertaken, in Special Sessions
of the TRIPS Council and as an integral part of the Single
Undertaking, to amend the TRIPS Agreement in order to extend the
protection of Article 23 of the TRIPS Agreement to geographical
indications for all products as well as to apply to these the
exceptions provided in Article 24 of the TRIPS Agreement mutatis
mutandis.

The single undertaking referred to in the text is the entire corpus of
stalled WTO negotiations that failed in July 2008; this proposal by
the 110 plus group of WTO members including the African Group, Brazil,
India, Switzerland and the EU will not come into fruition until the
sticky items of agriculture and NAMA are resolved. The countries
opposing the extension of Article 23 to all products include the
United States, New Zealand, Australia, Argentina and Chile.

Mindful of Peter Drahos thoughts on =91forum shifting=92 and the dynamics
of WTO, let us now fast forward to midsummer 2009 (June 29-July 3,
2009). Perhaps the best way to reflect the tenor of the discussions is
to present the views of delegates in their own words.

WIPO Director-General Francis Gurry, commenced the IGC stating that
the Committee needed to be inclusive. He noted that =93high expectations
of delegations for outcomes=94 given the rich material in the
Committee=92s nine years of work and stated that there was a palpable
=93sense of frustration among delegations on the lack of progress=94. He
highlighted the fact that the mandate of the IGC was up for renewal.

Under the stewardship of the Chair, Ambassador Riboberto Gauto Vielman
of Paraguay, it was agreed that the order of the agenda be reversed
and future work be tackled at the onset on Monday. Despite the best
intentions of the Committee events would prove that even five days of
deliberations were not enough to resolve the schism existing between
the African Group and its supporters and States that could not accept
the future work of the Committee predicated upon legally binding
instruments to protect traditional cultural expressions, folklore and
genetic resources.

Senegal, coordinator of the African Group, kicked off the discussion
by stating that the IGC could not use the current terms of reference
guiding the committee which lead to the current impasse. For this
reason, the African Group submitted a proposal prescribing that the
Committee would undertake text based negotiations in 2010 and 2011 on
genetic resources, traditional knowledge and traditional cultural
expressions with a clearly defined work program and timeframe detailed
in the Annex of the proposal including the holding of intersessional
work sessions.

According to the proposal, the

     focus of its work, without prejudice to the work pursued in other
fora, will build on the existing work carried out by the Committee and
use WIPO documents WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5 and WIPO/GRTKF/
IC/11/8A (TCE, TK, and GR) which is to constitute the basis of the
Committees=92 work on text based negotiations.

     The 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.

The representative of Senegal closed his address by reiterating that
=93only the adoption of a legally binding instrument would guarantee
effective protection of genetic resources, traditional knowledge and
folklore.=94

Sri Lanka, coordinator of the Asian Group, stated that the majority of
the members of the Asian Group were of the view that the renewal of
the IGC mandate should take into account a text based approach with
clearly delineated timeframes whereas other members of the Asian Group
(she was most likely referring to South Korea) expressed concern with
this mode of work.

Germany, on behalf of Group B, called for the Committee to focus on
=93definitions and objectives which were necessary to advance the work
of the IGC=94. The delegate from Germany noted that genetic resources
were assuming increasing economic importance in the fields of food,
agriculture, biotechnology and public health. He stressed that all
facets of the committee=92s work (ie genetic resources, traditional
knowledge and folklore) be treated on an equal footing; he ended by
calling for the enhancement of work in genetic resources in the IGC.

Pakistan warned that the IGC served as a =93great example of a committee
that could negotiate for years without any sign of light=94. Pakistan
welcomed the African proposal with its emphasis on text-based
negotiations and a clear timeframe=94. Pakistan stressed that his
delegation did not want to renew a =93deaf and dumb mandate=94 but rather
wanted a binding instrument. Pakistan noted that the Secretariat
documents WIPO/GRTKF/IC/9/4 (Traditional Cultural Expressions) and
WIPO/GRTKF/IC/9/5 (Traditional Knowledge) served as a good basis for
work. Pakistan cautioned that for =93WIPO to remain relevant it must
address these issues or otherwise get out of the ring!=94

The Republic of Korea noted its efforts to protect traditional
knowledge by publishing information on traditional knowledge. The
representative said that his delegation has questions and without
clarification could not agree to text-based discussion. He noted that
there is no clear distinction between genetic resources, traditional
knowledge, folklore and the =93existing IP system=94. The Korean delegate
raised concerns that protection extended to genetic resources,
traditional knowledge and folklore (GRTKF) would erode the public
domain; he raised the specter of the negative impacts of broad
protection of GRTKF on =93reducing resources for innovative activities=94.
The delegate of Korea stated that on a recent visit to an African
country, his hosts complained that many African sculptures sold to
tourists are made in Asian countries raising the question as to
whether these Asian countries pay for manufacturing sculptures in the
African mold. He then digressed into kimchi.

     =93Korea has kimchee, if a foreign company tries to patent a recipe
we will try to invalidate it. But does that mean Korea owns kimchi? Do
we have right to authorize its production by foreign companies? Could
we get license fees from them? If so we would have to pay Japan for
sushi, Italy for pizza. Perhaps we could have certificates of origin
with proprietary rights. New rights will raise costs which will be
born by the public consumers. Countries want to propertize their GRTKF
without thinking of paying for the GRTKF of other countries.=92

The delegate of Indonesia stated,

     We support Sri Lanka. Inventions designs and trademarks have been
protected while traditional knowledge and folklore have not been
protected. They are vital to our traditional communities as well as
developing countries as a whole. The interests of developing countries
haven=92t received adequate attention. The list of core issues and gap
analysis shows we have enough resources to move ahead, now we need
political will. We support the African Group proposal=85We support a
pragmatic approach, a text-based approach. We have brainstormed the
definitions of GRTKF and it=92s become traditional now.

The delegate of Brazil stressed that progress in the IGC was urgently
needed. Brazil indicated its support of the African proposal. Brazil
noted that discussions should be focused on the elements where =93our
work is ripe=94. Brazil was of the view that traditional knowledge and
folklore =93are more mature than genetic resources. Our discussions on
genetic resources must be in tandem with WTO and CBD=94 stressing that
GRTKF were the =93only tangible resources held by developing countries.
IP laws protect products monopolized by developed countries. A binding
agreement on GRTKF will improve the legitimacy of the IP system.=94

The delegate of South Africa echoed its support of the African Group
proposal made by Senegal noting that the absence of progress at IGC 13
showed a lack of political will and disregarded the development
agenda. South Africa noted that the =93current mandate is not enough to
insure political will. Lack of support from some countries will
reinforce status quo of misappropriation.=94

On the second day, the delegation of Ecuador noted that at the
national level, Ecuador protects genetic resources, traditional
knowledge, folklore, biodiversity, medicinal practices, ritual &
sacred holy places, plants, minerals & ecosystems. The delegate
highlighted the need for need international protection & promotion of
TK/TCE and indicated its support for the African proposal. Ecuador
said, we =93want a binding sui generis instrument=94 and supported a
renewed mandate for the IGC.

The delegation of the United States stated,

     We would like to share a few thoughts behind our position on the
renewal of the mandate. Greater recognition and respect for creative
contributions of indigenous peoples is important. WIPO has an
important role in achieving that objective in cooperation with other
forums, bearing in mind the special competence of WIPO. We hold that
IGC has made progress in clarifying the issues of preservation,
protection and promotion of GRTKF. Much work remains to be done at the
international level including unfinished analytical work of current
biennium. Accelerating substantive work of IGC holds most promise to
arrive at consensus. No outcome (including international
instrument[s]) should be excluded, but no outcome should be prejudged.
The work of the IGC isn=92t isolated from other WIPO programs and is
constrained by the finances and resources of the organization as a
whole. We thank the African Group for its proposal, and we are
reviewing it. Over the next few days we want to learn more about it
and about the financial and administrative implications from the
Secretariat. We will ask the Secretariat to provide the data the IGC
needs to make informed decisions about the proposals. The concrete
proposals are important. The IGC has made progress on draft policy
principles and objectives, which could become a possible statement by
IGC articulating concerns and needs of indigenous peoples. As Gurry
says, we must =93recognize explicitly the contribution to human society
of collectively maintained creativity, but much work remains to be
done.=94 The ten issues can help us, but much work needs to be done. The
IGC has started to make progress on identifying gaps and options to
address them, but at IGC 13 we barely scratched the surface. Against
these high expectations we share others=92 frustrations with the slow
rate of progress, but we would ask for a renewal of the mandate as
long as it includes encouragement for IGC to conclude its
deliberations on the 3 unfinished areas of this biennium. We should
enrich WIPO=92s work program on genetic resources to make sure all 3
topics are on an equal footing. We seek consensus on achievable
outcomes.

The delegation of Singapore reiterated its support of the Asian Group
statement made by Sri Lanka and welcomed the African proposal but
raised concerns about text-based negotiations given the current lack
of consensus. Singapore supported the renewal of the IGC mandate.

Malaysia supported the renewal of the IGC mandate, with a clear work
plan and time frame; the delegation reiterated its commitment to
participating in a Diplomatic Conference.

After the opening round of general statements, the discussions plunged
into the stygian abyss of deviled details on Tuesday afternoon, June
30, 2009.

The delegate of Mexico stated that =93views were converging=94. She noted
that Mexico agreed with the African Group=92s (WIPO/GRTKF/IC/14)
prescription of renewing the mandate of the IGC. Mexico noted that the
ambiguity recommending the date of a Diplomatic Conference (perhaps in
2012) should be clarified. Mexico alluded to Brazil=92s point of the
=93maturity=94 of the issues. The Mexican delegate suggested one working
group dealing with the =93mature=94 topics of traditional knowledge and
folklore while the other working group would deal with genetic
resources since it was a complex topic, taking into account the work
of th Convention on Biological Diversity (CBD). With respect to the
participation of experts at the inter-sessional meetings, Mexico
stressed that the meetings must have a clear mandate and composition
and requested that they be open to accredited observers according to
UN policies. Regarding expert participation, Mexico noted the experts
should be appointed by Member States and have legal and scientific
expertise. In Mexico=92s view, the inter-sessional meetings would only
produce recommendations.

The US delegation requested detailed budget information on all GRTKF
activities in the 2010-2011 biennium including personnel and non-
personnel costs. The US also requested detailed budged information on
on the =93additional costs of the African proposal, especially the 6
proposed inter-sessionals=94 and the funding of developing country
experts and indigenous groups.

Brazil responded in this manner,

     Many delegations support the new mandate, but we have renewed for
9 years, and now we need a results-oriented mandate. The main element
in the proposal is =93legally binding.=94 It=92s important we keep that. At
some point we need to judge things. For nine years we haven=92t been
prejudging anything. Now we need the courage to step forward and see
how positions have evolved. We agree with =93legally binding.=94 We need
to avoid the Socratic approach, delegations are not seeking agreement
but are seeking wisdom, asking the reasons, scope and object of
protection. But we aren=92t philosophers, we are pragmatic people, we
need to provide indigenous communities with a pragmatic response. At
some point in our lives we need to start living even though after 2000
years we don=92t know if the soul is immortal. But we need the courage
to leave the room and go to work even though we can=92t respond
satisfactorily to the big questions. We need to take the hard
decisions. With respect to the three subjects, traditional knowledge,
folklore and genetic resources, our position is well-known. We need to
address the more mature elements of folklore and traditional knowledge.

The delegate of India echoed the sentiments expressed by Brazil, South
Africa and Indonesia. She stressed that,

     [W]e are at a critical juncture. We need political will and
commitment. We need clear goals and modalities and a timeframe. These
will be negotiated (understandably). States need to define the
contours. The African Group proposal is the only concrete proposal; we
can=92t just repeat the past 9 years. Issues have been raised about
financial aspects. It is the Member States that determine budget and
priorities of WIPO. I don=92t see any reason why we can=92t allocate some
part of the resources to the work of the IGC. The timetable issue can
also be resolved. I wonder if the many treaties WIPO currently
administers would have seen the light of day if the same doubts
expressed today were raised then.

Responding to Group B, Pakistan noted that if the Committee was not
clear on principles and objectives, the IGC had wasted 7-8 years going
in circles. He begged the question, =93how many more years do we plan to
waste? Till the cows come home=94.

On the third day, the Republic of Korea declared,

     We support the renewal of the mandate but we have concerns which
we raise with the African Group: I see no merit in =91legally binding.=92
It is difficult to agree to bind when we don=92t know the contents of
the instrument. The binding effect is only on States that join the
treaty, so why say it must be binding before we know the content? We
prefer to discuss concept papers. Treaties are usually based on the
common ground of domestic legislation. But in Korea we don=92t protect
GRTKF. We need to agree on the concept. We have ten items. The
definition of traditional says knowledge belonging to indigenous
people but we don=92t know who the indigenous people are. In States
where the knowledge is shared with non-indigenous people as well, will
that knowledge also be protected? So let=92s use concept papers to seek
common ground. Otherwise it may take another 9 years.

Most of Wednesday=92s work was spent drafting and re-drafting the
African Group proposal beamed onto a screen although Chair Vielman was
at pains to say =93This is not a drafting exercise=94. Blue brackets upon
brackets were introduced in track changes format prompting the
delegate of Canada to say =93We are being blinded by the blue text=94. It
should be noted that screen was behind the dais where the Chair
presided over the meeting so during the =93non-drafting exercise=94 he
could not see the screen. Many delegations called upon WIPO to fix
this situation.

During this exercise of word-smithing, Sweden, on behalf of the EU
(Sweden assumed the Presidency on July 1, 2009) requested that =93text-
based negotiations=94 one of the three elements underpinning the African
Group proposal be deleted. It should be noted that =93text-based
negotiations=94 appears in the EC proposal to the WTO (co-sponsored with
India, Pakistan, Brazil and the African Group among others) on
extending geographical indications to all products.

Much of the drafting exercise resembled a match worthy of a Wimbledon
final. Two key issues of contentions were 1) =93text-based negotiations=94
and 2) =93internationally legal binding instruments=94. In addition to the
EU, the United States also requested that these two elements be
deleted from the African proposal. India, Indonesia and Brazil sought
the retention of these core elements of the African proposal.

Brazil responded to the EU in this manner,

     About the EU proposal, I remind Sweden that Brazil and the EU and
African Group and 108 members of the WTO have a proposal on
geographical indications and disclosure requirements for genetic
resources. We should see how we can address the issue of GR to avoid
duplication of work, to prevent the work here prejudicing the work in
the WTO. I don=92t see a need for one session per year dedicated to GR.
Why this anxiety about addressing the issues on an equal footing? They
will, they=92re part of the same mandate. We need to be cautious dealing
with GR since it may have implications for negotiations in other fora,
issues dear to developing countries and developed countries. On the
USA proposal, the IGC will undertake to work on 3 issues on non-
discriminatory basis, I think it=92s important to understand each
others=92 position. Will the US explain how they intend to discuss GR?
Their position on GR is well known, at least in WTO they are in favor
of a contract-based national approach, in the IGC can they go further
and think about international solutions?

The formal session of day 3 ended at around 5:50 PM. After this
period, the African Group consulted informally among its members and
with other delegations on the plenary editing of its proposal by the
assembled States.

The Chair commenced the day 4 by saying,

     Thanks for your patience. Yesterday=92s exercise was useful, it
helped us identify clearly which are the most controversial issues. I
asked the African Group to consult with other regional groups to seek
solutions. I met the African Group to hear their report, and met other
groups, but the key meeting was with the African Group a few minutes
ago. Will the African Group comment on the situation and its
consultations?

Senegal, on behalf of the African Group, declared,

     We appreciate the useful discussions. We=92d like to continue them
in the same constructive spirit in the plenary. We appreciate your
commitment to positive results. We consulted with member states of
developed and developing world and with indigenous communities. We
agreed on the following: The main elements of our proposal should be
maintained, i.e. text-based negotiations on a timetable and one or
more international legally binding instruments. This is the only way
to guarantee effective protection of local and indigenous rights in
developing & developed countries. The African Group received broad
support from many countries, we thank them. We remind you of the DG=92s
commitment at GA 2008 in his acceptance speech, =93The organization has
undertaken a long process of discussion, the time has come to give
concrete shape to the results of this process.=94 We appreciate this
statement and hope it becomes a reality.

In the view of your blogger, the African Group intimated in inimitable
diplomatic fashion that the blue text drafting session conducted
during the plenary on Wednesday afternoon rendered violence to the
three core demands of the African Group proposal namely 1) text based
negotiations, 2) a timeframe and 3) one or more legally binding
instruments.

Pakistan reiterated its support for the original African Group
proposal. This was echoed by a many States ncluding Bolivia, Iran,
India, Philippines, El Salvador, Peru, Thailand, Cuba, Yemen, Sri
Lanka, India, Ecuador, Fiji and Brazil.

Brazil stated,

     We support Senegal, the IGC needs to renew its mandate, text-
based negotiations towards a legally-binding instrument and with a
cost-effective approach, starting with the more mature topics (TCE &
TK). Pakistan referred to the core elements as text-based & binding. I
was here for the Broadcasting Treaty and the SPLT and I=92ve never heard
them refer to =91legally binding=92 because that was implicit. It did not
make sense to have a political declaration on broadcasting or the
SPLT. It=92s surprising that when developing countries present their
interests here they must make such efforts for their demands to be
taken as seriously as the demands of the developed countries. Even for
them to have to say =91binding=92 is an offense. As Pakistan says, this is
a core element, the heart of negotiations. We believe consensus is
emerging around the Africa proposal, hope will prevail over fear.

The delegate of Germany, responding passionately,

     What happened to our text that we projected on the screen
yesterday, that we invested much brain activity in? You entrusted the
African Group with informal negotiations, we understood that when we
resumed today we would be informed of the outcome of those
consultations. I=92ve listened to Ibou from Senegal and I appreciate
what he said, but I haven=92t heard the specificities I would need to
assess the situation to know how the negotiations were carried out and
with whom, and what was the outcome? Like El Salvador, Group B wasn=92t
approached by the African Group. I would appreciate, and the IGC would
have a more informed perspective, if we had more information on these
informal contacts.

     I=92m surprised Senegal refers to the minutes of this meeting, my
friend from Angola showed me your statement that you have been
consulting with developing, developed and indigenous peoples, and the
outcome is that you hold to your original proposal. I find this blunt.
As I=92ve said, yesterday in a painful and strenuous exercise we changed
the working method of this august body (as we continuously say) but
the outcome is a two-sentence essence of this. I have to say I=92m
surprised and disappointed. Yesterday the African group opposed the
Chair=92s proposal for informal sessions since there=92s the danger of
lack of accountability and transparency. Now we=92ve sacrificed 1.5 days
of negotiation and interpretation time, we=92re uncomfortable with such
an answer. I appreciate Mohammed (Egypt)=92s intervention, but he is a
friend of informed decisions. To have an informed response we need
information from the African Group. I don=92t want to put anyone on the
spot, it can be you or anyone from the African Group, on how those
negotiations and contacts have been conducted and with whom. Who was
considered a partner, and when, and what was the outcome? What were
the arguments for and against? The member states, indigenous people
and the public want to know what happened to this text from yesterday?

The delegate from India then took the floor:

     I hope I can answer Udo=92s (Germany) questions. Would it serve
much purpose to be briefed on the informal discussion? The central
elements of the African texts were amended yesterday, which required
the round of reiterations today. The 3 core elements had to be
restated and there was overwhelming support for them. I make a larger
point: our organization administers 25 agreements on patents,
copyrights, trademarks, industrial designs. Most of the IP in these
areas is owned by our developed partners, if we had suggested it
should only be =93guidelines=94 on patent rights would they have accepted
it? Today for the 1st time developing countries are asking for
protection of their rights, it=92s only a very small portion of the
global IP rights. Non-binding wouldn=92t be acceptable because it
wouldn=92t amount to any difference on the ground. We need to recognize
the need for equity balance and justice, these are principles. The
crisis shows the need for balance in equity, political rights. We can
bring proportion equity and justice. I agree with Egypt, if countries
have problems with these elements let them say what.

The delegate of Egypt riposted to Group B,

     I still haven=92t heard an answer to my question even though
Senegal has ventured one. Now we are being told that Africa is side-
tracking the work, that we don=92t want to build consensus and want to
end it for other reasons. This is an attempt to camouflage what the
emerging consensus is.

     We=92re being called the ones blocking consensus, this strategy has
been used before, but the consensus emerging is overwhelming. A
binding instrument is the only way to protect, a declaration won=92t do
this. If we had multinationals in the room, would we be arguing about
binding/non-binding? Is there a non-binding treaty at WIPO? Allowing
corporations to make profits from those not protected in a legal
regime. Will the minority explain to us why a binding instrument isn=92t
productive?

Nigeria buttressed the African position by noting,

     Germany has the right to ask how the deliberations and
consultations went, also he has the right not to get an answer. That=92s
the pattern of negotiations. You look for breakthroughs. When there is
no meat in the soup =85 we didn=92t elaborate on what we did because there
were hiccups. So how do we go forward? Can the issues be resolved? If
not it becomes a deadlock. But you can=92t put the responsibility only
on one group. The only thing that can create an opening is you taking
the initiative.

The delegate of Canada expressed her country=92s disappointment that,

     [N]one of our views have been taken into account. We have shown
flexibility this week; the African Group has not. The African Group
should explain why we need a binding instrument.

The delegate of Zambia provide the following response to Canada.

     Instead of those opposed to a binding agreement justifying their
position, we are asked why we need a binding agreement. I come from a
legal background. We want to create international law, legal rights
that can be enforced in a judicial process. That=92s the simplest way to
put it. With a political declaration you can=92t enforce your rights in
a court of law, how do you get recompense? Some delegations question
why we need a legally binding instrument but in other fora of the UN
the same countries are calling for binding legal instruments. If I
understand the African position, there are 3 core principles; on other
issues there is room for negotiation, so I don=92t understand why
delegations say their concerns aren=92t being taken into account.

The delegate of India stressed in her response to Canada that the
African Group proposal enjoyed wide support among over 20 countries in
Asia and the GRULAC regions. India asked the delegate of Canada if her
question was just rhetorical. In the realm of patents, India wondered
aloud if a mere political declaration be acceptable. The answer would
be no. For this reason, India supported the African Group=92s proposal
for a legally binding instrument.

At this point France, Costa Rica and the Republic of Korea suggested
informal consultations to resolve the deadlock on Thursday evening but
this was not accepted by the membership.

The fifth day of discussions of the African Group text began with the
Chair=92s call to resolve the sticky issues such as text-based
negotiations, timeframes and internationally, legally-binding
instruments.

At 11:53 AM, Sweden, on behalf of the EU, asked the African Group to
clarify what they meant by text based negotiations.

Senegal responded,

     Time is short so I won=92t return to issues that aren=92t getting us
anywhere. There is no confusion anymore, the Chair says we=92re
concentrating on =91text-based negotiation=92 and two delegations (EU and
US) have made proposals for =91outcome-oriented=92. Only two! I haven=92t
come across this phrase before. Let=92s leave this paragraph. You can go
to those delegations and see if they can join the consensus. Now let=92s
discuss =91legally-binding.=92

Burundi entered the fray declaring,

     We=92re =93marching on the spot,=94 a step forward, a step back. The
African Group coordinator has shown the way to proceed and agreed by
Asian and GRULAC delegations. They=92re asking us questions instead of
responding to our questions. We understand text-based and binding.
Coming up with alternative expressions or question for Africa, these
are time-wasting ploys. refusing without saying so. It makes me think
the African Group proposal is still a good one, you should have a
computer to follow what=92s on the screen, we=92ll lend you our laptop.

The last few minutes before Friday=92s lunch period ended with the
following intervention from Pakistan with a question posed to the
Legal Counsel.

     Pakistan: I ask the legal counsel, once we say we don=92t know the
outcome and the language of that text has to be in accordance with the
outcome, the member states =91may consider to evaluate=92 versus =91must do
this=92. There=92s a big difference. If we start with non-binding the
outcomes will be worlds apart. If we start with text for non-binding
how can it become binding after negotiations for two years? Maybe lack
of comprehension on my part. A text which is binding in the end may be
non-binding but not the first scenario.

After the lunch break, the Legal Counsel of WIPO, Mr. Edward Kwakwa
sagaciously clarified to the 14th IGC that an =93legally binding
instrument=94 was an =93instrument that was legally binding=94. A question
was posed to Mr. Kwakwa on what constituted a international
instrument; the Legal Counsel responded noting that an international
instrument =93could range from declaration, resolutions, convention,
treaties, soft law, declaration=94; whether the instrument was =93binding
depends on the language=94.

Brazil remarked,

     We join Pakistan, India, Sudan, Sri Lanka and other delegations
in favor of a binding instrument. We need it for 2 reasons, we need to
entitle indigenous and traditional communities with rights, that they
can use to protect their intangible patrimony and sacred traditions
and religion. WIPO has responded to other holders of knowledge,
trademarks, patents with binding instruments: car makers, pharma,
movie makers, copyright owners. Why are traditional and indigenous
communities treated as second-class? I=92ve been in Geneva for 3 years,
invited to nice breakfasts at the Intercontinental and lunches at
Perle du Lac; I=92ve accepted invitations by pharma, movie makers,
federations of authors, their interests are legitimate, they can argue
in favor of their protection. The Indigenous communities haven=92t
invited me to the Intercontinental because they can=92t afford it, they
can=92t hire lawyers to explain why they need protection, but if they
had the money we would have books saying why they need protection and
a treaty. They need rights to protect their intangible assets. Brazil
supports binding instruments because we need to recognize indigenous
and traditional rights. The 2nd reason is a sentiment because
indigenous are being treated as 2nd-class. We have the Doha
Declaration on Health (not binding), Development Agenda (not binding),
developing countries interests are accommodated in non-legally binding
manner. It=92s enough, now developing countries should be treated on an
equal footing. We=92ve been here 9 years and I hear delegations say we
haven=92t answered all questions, we need to define indigenous
community, what is a traditional community what=92s the object and scope
of protection and who the beneficiaries are, and only after that we
can move forward, but this approach isn=92t fair, we need to overcome
that fear that something catastrophic will happen if we have a binding
treaty. As Egypt said, negotiations can fail, countries may not
ratify, if they ratify they will choose how to implement it
internally, but interests of developing countries should receive same
treatment as any other.

The delegate of India brought up the parallels of IP enforcement to
the work program of the IGC,

     I=92ve been listening to the questions and doubts raised and their
contradictory nature. We have protection of copyrights, patents,
trademarks and I often hear it said this level of protection isn=92t
enough. When I look at the ongoing IP negotiations in WHO WCO, and
ACTA, countries want greater protection and enforcement of the rights
of patent and copyright holders. But here when we consider protecting
the holders of TK, they aren=92t willing to begin the exercise. A large
majority of countries here want to start toward some kind of
protection, and a binding instrument doesn=92t mean an automatically
binding one. If a majority of countries want to begin this exercise
it=92s regrettable for countries to prevent it. It takes a long time to
negotiate a treaty but this hasn=92t stopped treaties being negotiated
forcefully.

At the end of the long, arduous evening on Friday, it was clear that
the IGC was still deadlocked over future work. The Legal Counsel
clarified that mandate of the IGC would end in December 2009. In
September 2009, the General Assembly will take a decision on the
mandate of the IGC starting in the 2010 biennium. As no decision was
reached on future work, the ball is now in the court of the General
Assembly. Game on, GA 2009.

------------------------------------------------------------


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997