WIPO IP And Genetic Resources Committee Makes Progress Despite Block At End

It seemed last week that after years of mainly fruitless discussions at the World Intellectual Property Organization committee seeking ways to protect genetic resources, progress was achieved and some agreement was within reach. However, on the last day, the United States, supported by Japan, rose against the consensus on a draft text, provoking the ire of developing countries, and general disappointment.

The 36th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) took place from 25-29 June.

The week’s efforts and good will will not be lost, IGC Chair Ian Goss said, supported by many countries, as he added that he would prepare a chair’s text for the 40th session of the IGC (June 2019). The IGC is in the midst of a two-year mandate ending in autumn 2019.

Meanwhile, the decisions of the session and the committee chair noted that the IGC Voluntary Fund is now depleted, which will deprive indigenous peoples the ability to participate in the committee proceedings, which would be seen as undermining its credibility and denying it their contributions. The IGC decision called upon WIPO members and “all interested public and private entities” to contribute to the Fund.

According to the IGC mandate [pdf] agreed at the last annual WIPO General Assembly in October, during the 40th IGC session a stocktaking exercise will allow the committee to make a recommendation to the 2019 WIPO General Assembly for it to decide whether to convene a diplomatic conference to finalise a legally binding instrument.

Document “Rev2” Appears to Move Ahead, as Annex

The final decision document for the week is now available here [pdf].

On 29 June (the final day), the drafting team composed of two facilitators and a friend of the chair working behind closed doors produced a second revision [pdf] – called Rev2 – of the original Consolidated Document [pdf] Relating to Intellectual Property and Genetic Resources. A first revision of the document was produced on 27 June (IPW, WIPO, 28 June 2018).

The IGC’s hope was to agree on transmitting Rev2 to IGC 40. The draft decisions [pdf] of the week’s session were issued and the LMCs group asked the decision be edited to reflect that the majority of the member states were in a position of consensus on Rev2. Developing countries said the draft decision did not reflect the week’s discussion on Rev2, and proposed language to state that.

Anticipating disagreement and further delay, the chair offered a compromise proposal that stated (as read out in the closing minutes): “The committee developed on the basis of [consolidated proposals document 36/4] a further text [Rev2]. However, the member states were unable to reach consensus on [Rev2] and the committee decided to transmit” the Rev2 text in the annex to 36/4 to the 40^th session of the IGC.

Final Day Discussion

A number of countries taking the floor complimented the methodology of the week, which relied on several modes of discussions to bridge gaps. Prior to the session, and Ad Hoc Expert Group was convened, then at the beginning of the week, core issues were discussed in closed contact groups, which fed the work of the drafting group, and closed informal discussion completed the negotiation process.

This methodology, according to most, allowed the emergence of a “package approach.” The approach was seeking to satisfy both those who think that the instrument and mandatory disclosure of source should only relate to patents, and those who think that other IP rights should also be included, such as trademarks and geographical indications. The package approach takes a patent-only focus, and to balance this, included a commitment to review a potential treaty within four years of its entry into force to introduce other IP rights, such as trademarks or geographical indications. This package approach was considered as a breakthrough by many countries, and the IGC chair.

The Rev2 text was not entirely satisfying, some said, such as Lithuania on behalf of the Central European and Baltic States group, Morocco for the African Group, China (its own regional group at WIPO), the European Union, and the Like-Minded Countries group (consisting of almost all of WIPO’s developing countries), but there was consensus to transfer the text to IGC 40.

The United States, however, did not join the consensus and said Rev2 is not an acceptable basis for the IGC’s future work. Rev2, the US delegate said, was missing “many textual contributions” made by the US delegation during the week. Despite the US participation in informal consultations and in a contact group (three contact groups were established to look at particular issues this week), the delegate said, the US contributions were not included or not included in the context the US suggested. Rev2 “is not an accurate neither a full reflection of the IGC discussions which took place this week,” the US delegate said.

The delegate then criticised the work methodology for the week and remarked that the discussions were based on “non-inclusive” contact groups, as not all delegations could participate in the three groups simultaneously.

Furthermore, the IGC strayed from customary WIPO working methods “where all member state views and contributions are taken into account in a negotiation process,” the US said.

Japan supported the US statement, and said there is no need to expand the subject matter of the potential instrument to other IP rights than patents. Japan also said that the binding nature of Article 5, providing a commitment to review the instrument in Rev2 to expand to other IP rights, was not agreed by all member states.

Later, a source told Intellectual Property Watch that a concern of the United States and others is that for them, the disclosure proposals are actually aimed at weakening the patent system (not strengthening it) and at a transfer of wealth from developed to developing countries, as it would allow patents to be challenged. “We are trying to prevent them from harming patents,” the source said.

Developing Countries Cry Foul but Remain Committed

After the US statement and a failed effort by the chair to find a compromise with the United States, Indonesia took the floor on behalf of the Group of Like-Minded Countries (LMCs).

The group took the view that the committee engaged in trying to bridge gaps, move forward and make progress in a process that started 18 years ago.

“Unfortunately, there are also engagements with the intention to delay, or to widen gaps, or even to block progress,” it said.

The LMCs comprise the majority of the three largest WIPO groups, namely members from the African Group, the Asia and Pacific Group, and the Group of Latin American and Caribbean countries, he said. Only a few countries from those regions are not in the LMC group, such as Argentina, Chile, Mexico, Singapore, and South Korea, according to sources. (Separately, it was announced that Ecuador will now take over the chair of the GRULAC group for six months.)

Nothing stops the LMCs from building their own national and plurilateral regimes that protect genetic resources and traditional knowledge associated with genetic resources, the LMC group said. Although disappointed with the result of the week, the delegate said, significant gains were achieved during the session through compromises which took the members of the group “far, far away from our traditional positions.”

“This unexpected turn of events [the US objection] did not widen the gap between us,” the delegate said, “instead it strengthens our unity in our commitment.”

The LMC statement was supported by countries such as Ecuador, South Africa, India, and Brazil. Egypt challenged the consensus principle which allows one member state to block a decision.

“It would seem here that there really is a deliberate will to undermine our effort,” the Egyptian delegate said solemnly. Countries refrained from singling out the United States by name in the plenary, perhaps from diplomatic protocol.

Goss explained that the consolidated document from which the discussions started last week will be forwarded to IGC 40, and said that Rev2 would be in the report of the week’s meeting. It was also agreed to be included in the consolidated document annex, as shown in the final decision document above.

“We cannot lose the momentum” of the week’s work, Goss said, adding that he would produce a chair’s text, with explanatory notes, analysing issues and the rationale he is taking. There has been “a leap of faith” this week, he said, “and I don’t want to lose that.” The chair’s explanatory text is expected sometime before the next IGC meeting, sources said.

Rev2 Main Changes from Rev1

Rev2 was drafted following comments made to Rev1 in plenary meeting, and during informal consultations on 28 and 29 June.

In Article 1 (definitions), the distinction between definitions of terms used in the operative articles and “other terms,” such as biotechnology or derivative, no longer exists, making it a single list of definitions.

Rev2, like its preceding versions, has a set of alternatives Article 2 to 7, accommodating the wish for some member states that there is no mandatory disclosure requirement.

In Article 4.1 (disclosure requirement), the mention of the need to conduct due diligence if the country of origin of the GR is not known, has been added.

An alternative to Article 4.3 on access and benefit-sharing (ABS) and prior informed consent (PIC) stating that no obligation shall be placed regarding compliance with ABS and PIC requirements was reinstated. The drafting group indicated that the issue of ABS and PIC requires a lot more work.

Article 5, which is part of the compromise (package) approach (applicability to other areas of intellectual property) was fleshed out and includes a commitment to “a binding review of the applicability of the disclosure requirement … to other areas of intellectual property and emerging technologies.”

The article also states that the review should be carried out with the full and effective participation of indigenous peoples and local communities, and that the review shall be without prejudice to ongoing work in other fora.

William New contributed to this report.

 

Image Credits: Catherine Saez