Bridges Trade BioRes • Volume 6 • Number 22 • 15th December 2006

WIPO’S IGC AGREES NEW PARALLEL TRACK PROCEDURE TO ADDRESS TK, FOLKLORE

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WIPO’S IGC AGREES NEW PARALLEL TRACK PROCEDURE TO ADDRESS TK, FOLKLORE

Recent discussions on traditional knowledge (TK) and folklore at the World Intellectual Property Organisation (WIPO) led to a new approach to work in this area. As members did not converge around a single track, they agreed on a two-track approach focusing on both draft provisions that potentially could be used to create a legally-binding instrument and a more general discussion on a list of key issues.

The tenth session of WIPO’s Intergovernmental Committee (IGC-10) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore took place from 30 November to 8 December in Geneva. The discussions took place based on two sets of draft provisions for the protection of traditional knowledge (WIPO/GRTKF/IC/10/5) and the protection of traditional cultural expressions (WIPO/GRTKF/IC/10/4). The WIPO secretariat had prepared these following a request by Venezuela, supported by a number of developing country members, based on previous discussions at IGC sessions and on several formal submissions by the Latin American, African and Asian Groups asking for the identification of elements for a sui generis system to protect TK. The IGC also considered a document outlining practical options to give an international dimension to this protection (WIPO/GRTKF/IC/10/6).

Draft legal text…

The two sets of draft provisions include objectives and some guiding and substantive principles for a potential future system for the protection of TK and folklore. They specify, among other, definitions, subject matter, titleholders, rights over TK and folklore, the content and duration of those rights, and administration and enforcement issues.

They were well received and had already benefited from comments by developing countries and some developed countries, such as Norway, in previous sessions of the IGC. A number of African countries had even called for a legally binding instrument to protect TK and folklore at the last WIPO General Assemblies in September 2006. Some other members such as the US, Japan, Canada and Switzerland — which oppose the creation of a new legal instrument on TK and folklore — have, however, expressed concerns over where the whole process is going and called for further discussion.

…vs a list of key issues

Prior to IGC-10 its Chair, Ambassador Gusti Puja of Indonesia, undertook a series of informal consultations on how to move the process forward. Based on these discussions, he prepared a list of issues linked to traditional knowledge and traditional cultural expressions for consideration at the IGC plenary. While the issues included in the list are similar to those already covered by the draft set of objectives and principles, various developing country members considered it would divert the focus of the IGC from the legal text to issues of more general nature and potentially dilute any outcome.

IGC-10 agrees on a two-track approach

During IGC-10, the Chair called informal consultations through regional groups on the way forward. These consultations led to a procedural solution under which discussions will commence on a number of key issues — such as definitions of TK and traditional cultural expressions, the form and scope of protection, and the nature of the beneficiaries — outlined in an annex to the compilation of decisions taken at the IGC session (they will also be posted on the WIPO website). Delegates and observers are invited to submit comments on the list before the end of March 2007, and the issues will be discussed at the next session of the IGC.

Meanwhile, the existing documents containing the draft provisions for the protection of TK and folklore, as well as the international dimension of this protection, remain on the table as well. The secretariat will collate comments made by delegations and observers on the draft provisions, and link them with comments on the related issues in the list of issues.

As such, there will be a merger of comments on both the draft set of provisions and the list of issues in a comparative document. Due to the fact that the list of issues is part of this new framework, members will have the opportunity before the end of March 2007 to make comments they consider appropriate on the draft provisions as well.

On the substantive front, the main controversial provisions and issues discussed during the tenth IGC session included 1) definitions, 2) scope, 3) role of databases, 4) issues related to shared knowledge among countries or regions, 5) links with the current intellectual property (IP) system and 6) the legal nature of the final outcome. According to a trade source, the provisions and issues will ultimately define what is to be protected and the legal effects of such protection. While developing countries have sought to provde precise comments on these provisions and issues, some developed countries, such as Japan and the US, would like to avoid creating new form of protection for TK holders or to generate any change to the current IP system.

Background

The IGC was established by the WIPO General Assembly in October 2000. Its original mandate was to discuss IP issues relevant to access to genetic resources and benefit-sharing, TK, and innovations, as well as traditional creativity and cultural expressions (expressions of folklore). This mandate was renewed in 2003, with a view to accelerating the work and focusing on the international dimension, without prejudice to other international processes. The process is open to all member states of WIPO. Other UN member states, intergovernmental organisations and accredited non-governmental organisations participate as observers. More than 180 NGOs have been accredited, including 93 NGOs especially accredited by the IGC, many of which represent the specific interests of indigenous communities and TK holders. In 2006, a voluntary fund for the participation of indigenous peoples was created to ensure the participation and engagement in the IGC discussions.

The next session of the IGC will be held in July 2007.

ICTSD reporting; "WIPO Committee Breaks Deadlock in Talks on Traditional Knowledge, Folklore," IP WATCH, 6 December 2006; "IGC Addresses Core Issues for the Protection of Traditional Knowledge and Traditional Cultural Expressions," WIPO PRESS RELEASE, 12 December 2006.