WIPO Meeting On TK Protection Ends With No Agreement, Draft Texts Heading To Assembly

The last World Intellectual Property Organization meeting before the annual General Assembly in September ended today, meeting the same fate as many others this year. The committee addressing the protection of genetic resources and traditional knowledge could not agree on recommendations to be transmitted to the Assembly, leaving it to the full membership in September.

The main issue is if and when to convene a final high-level negotiation to formalise international instruments protecting those resources against misappropriation. Three draft texts were produced by previous sessions of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) over the past year.

Developing countries, such as those in the African Group and a group of like-minded developing countries, contend that the three texts are mature enough to proceed to a high-level negotiating meeting (diplomatic conference) at the end of 2015.

Group B developed countries oppose that view and instead support the view that much remains to be worked on and thus are proposing that a decision on the diplomatic conference be taken at the 2015 WIPO General Assembly, not this year.

Other more nuanced developing country groups, such as the Group of Latin American and Caribbean countries (GRULAC), China (its own region at WIPO), and the Asia and Pacific Group are asking for a diplomatic conference to be decided upon as soon as possible.

The 28th session of the IGC, held from 7-9 July, took stock of progress achieved this year and worked on “cross-cutting issues,” with instructions to harmonise language in the three texts if possible. The committee also was to formulate recommendations to the General Assembly, the annual meeting of member states.

The draft decisions [pdf] of the session were adopted without change and will be forwarded to the Assembly. On the morning of 9 July, Ian Goss of Australia, who chaired informal discussions on the recommendations, issued a document on the future work programme (IPW, WIPO, 9 July 2014). No agreement was found on the work programme or a recommendation on a diplomatic conference.

It was decided that countries would present their own versions of the work programme that they envisage in the form of statements, which would then be recorded in the report of the session, and that those statements would be sent to the Assembly for its consideration.

Regional Groups’ Wish Lists for Work Programme

Regional groups presented their proposed work programme for 2015, most of them expressing disappointment at the lack of agreement on recommendations.

Kenya for the African Group proposed a recommendation to convene a diplomatic conference in November 2015, with three meetings of the IGC and a possible inter-sessional meeting. The delegate remarked that the current mandate of the IGC had been established for the 2014-2015 biennium. Any decision taken would have to be confined to that mandate, he said.

The Asia and Pacific Group proposed [pdf] that “at least 18 days” be devoted to IGC sessions in 2015, with a three-day session for discussing cross-cutting issues and stock-taking. The group also recommended that an ambassador or senior officials meeting be organised during the three-day session, and that a decision on a diplomatic conference be taken as soon as possible.

Indonesia, for the like-minded developing countries, proposed the same work programme with an additional inter-sessional and cross-regional meeting before the General Assembly in 2015.

Paraguay for GRULAC also proposed three thematic sessions and one high-level segment in 2015.

Japan for the Group B developed countries said the group was unconvinced that a high-level senior officials meeting would be useful, that the issues should rather be solved through technical work by experts in the committee, and that the draft texts currently on the table require further work.

The United States submitted a proposed work programme on the first day of the session (IPW, WIPO, 7 July 2014).

IGC Chair Jamaican Ambassador Wayne McCook said the IGC had useful discussions during the three days of consultation. “I think that the fact that we have not reached an agreement on the future work programme needs to be put in context,” he said. Some delegations have indicated their intention to “engage constructively” with a view to having an outcome at the General Assembly, he said.

McCook urged that those delegations hold to their words so that “we do not once again become a millstone around the neck of the General Assembly.”

“It would not be wise for the delegations to be detained from the work of the General Assembly in consultations on the matter,” he added.

Development Agenda Recommendations Invoked Again

On the agenda of the 28th session was an item on the contribution of the IGC to the implementation of the Development Agenda recommendations. A number of developing countries remarked that the failure to successfully conclude the work of the IGC was a direct indication that the IGC did not satisfactorily implement the recommendations of the Development Agenda, in particular Recommendation 18.

Recommendation 18 reads: “To urge the IGC to accelerate the process on the protection of genetic resources, traditional knowledge and folklore, without prejudice to any outcome, including the possible development of an international instrument or instruments.”

The African Group, Iran, India, Indonesia, Nigeria, Brazil, China, South Africa, and Peru took the floor to underline the importance of the IGC negotiations, the necessity of taking into account the needs of developing countries and reaching agreement on legally binding instruments protecting these resources against misappropriation.

Further Work on Voluntary Fund

The delegations of Australia, Finland, New Zealand and Switzerland tabled a proposal at the end of the last session of the IGC in April to amend the rules of the Voluntary Fund allowing the participation of indigenous peoples and local communities so that funds from the WIPO core budget could be used to replenish the continually cash-strapped Voluntary Fund (IPW, WIPO, 8 July 2014).

This proposal [pdf] was discussed during the week to address some concerns about creating a precedent and the use of the WIPO core budget to fund a voluntarily-funded programme.

According to a Swiss delegate, an amended proposal will be submitted to the WIPO Program and Budget Committee (PBC), meeting in the first week of September.

The original version of the proposal suggested to move money from the WIPO budget into the fund, but that was contrary to the WIPO budgetary rules, the delegate told Intellectual Property Watch.

The new proposal would be that the PBC makes a decision about allocating funds for the purpose of the Voluntary Fund, decides on the amount, but that the money stays in the budget.

The WIPO secretariat would then be able to use the funds on some conditions. The first would be that the Voluntary Fund is in fact not sufficiently funded shortly before the meeting of the considered session of the IGC, she said. The second one is that the funds would be used solely to fund accredited indigenous peoples and local communities, designated by the Advisory Board at the session preceding the session considered, she explained.

This would not lead to a rise in the budget, she said. The PBC decision would be taken for one year, and it is envisaged that the funds set aside would cover four participants at each session of the IGC in 2015. The risk of precedent would be non-existent considering the particular nature of the IGC, which is not a permanent WIPO committee, and the fact that the Voluntary Fund is a stand-alone fund, she said.