TWN Info Service on Intellectual Property Issues (July 09/01)
1 July 2009
Third World Network

Africa Group proposes time frames for binding Traditional knowledge instrument

Asmeret Asghedom (Geneva): Developing countries meeting at the 14th session of the Intergovernmental Committee on Genetic Resources, Traditional Knowledge, Traditional Cultural Expressions and Folklore (IGC) that began on Monday showed enthusiastic support for Africa Group’s proposal that recommends the renewal of IGC’s mandate and calls for text based negotiations, the establishment of a defined work program and timeframes including for inter-sessional work sessions and a diplomatic conference to expedite work on the development and adoption of an international legally binding instrument for the protection of genetic resources, traditional knowledge, traditional cultural expressions and folklore (GRTKF).

The IGC has been discussing the possibility of an instrument for the protection of GRTKF for the last 13 sessions but has little to show in terms of concrete outcomes due to resistance of developed countries to any text-based negotiations.

Frustration of developing countries was plainly visible during the general statements made at the start of the meeting.

The 14th session that is meeting from 29th June - 3rd July marks the end of the IGC’s current mandate, and the IGC must decide how to move forward with the issue in particular whether to recommend to the General Assembly for a renewed mandate and if so what would be the elements of the renewed mandate.

The Africa Group proposal entitled ‘Elements for the New Mandate’ provides recommended text for the Committee’s renewed mandate as follows:

‘Bearing in mind the Development Agenda recommendations, agreed to recommend to the WIPO General Assembly that the mandate of the Committee be renewed as follows, namely that:

‘The Committee will undertake during the next budgetary biennium (2010/2011) text-based negotiations on genetic resources, traditional knowledge and traditional cultural expressions.’

‘It will adopt, as set out in the Annex, a clearly defined work program and timeframe, including the holding of intersessional work sessions. 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’ work on text based negotiations.’

[The Annex lists the work programme and timeframes for 6 intersessional sessions that will take place between 2010 and 2011, with a diplomatic conference in 2012. It proposes that the intersessional sessions will look at the following issues in turn: Definitions and object of protection (1st Intersessional); beneficiaries (2nd Inter-sessional), prior informed consent, moral and economic rights (3rd inter-sessional); Exceptions, Limitations and Durations (4th intersessional); Sui generis options for protection (5th intersessional); other outstanding issues (6th intersessional).]

‘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 General Assembly would further request the International Bureau to continue to assist the Committee by providing Member States with necessary expertise, funding of the participation of experts from developing countries and LDCs.’

Many developing countries vocalized strong support for the Africa Group proposal and favored including elements of the Africa Group proposal in the renewed mandate of the IGC.

Many developing countries favored a renewed mandate that explicitly directs the IGC to begin text-based negotiations with the aim to establish an international legally binding instrument within the next two years.

However Group B (comprised of developed countries) showed ambivalence toward the Africa proposal in particular for moving toward text-based negotiations.

While Group B were not opposed to renewing IGC’s mandate, they insisted that solutions should be national based rather have an international dimension, with some developed expressing preference for a non-binding agreement.

Several developing countries concertedly expressed their disappointment and frustrations with IGC’s inability to generate tangible outcomes over the last 13 sessions since its establishment in 2000 in the first 2 days of the 14th session

India said that the IGC had produced over 15 documents and reviewed different options for the protection of GRTKF. Despite the extensive work, the IGC had still not come up with effective modalities to protect GRTKF internationally. As a result, there are more than 2,000 cases of misappropriation each year in Indian medicines alone, India said.

Nigeria echoed India’s concerns and stated that reviewing definitions, objectives and principles are useful only if they are building blocks, but if they are ends to themselves then the discussions become meaningless.
Egypt said the IGC has proven to be more of a ‘talk shop’ instead of results-oriented.

Several other developing countries took a similar tone.

Thailand described IGC’s progress as being limited and at a standstill while Iran, Pakistan, Nigeria, Ghana, Zambia and Zimbabwe all passionately expressed their frustrations with the continuous impasse that the delegations often times found themselves in at the end of the sessions.

Zimbabwe attributed the impasse to a lack of political will. It called for not only a renewal of the mandate, but also a renewed commitment from all negotiating delegations. Zimbabwe asserted that traditional knowledge deserves the same international legal protection awarded to business interests and intellectual property rights.  It is hypocrisy that some countries support international instruments for the protection of some IP areas, but do not wish to extend that same protection to traditional knowledge (TK) and folklore, Zimbabwe added.

Brazil said that although the TRIPS Agreement requires international IP protection, the protection is monopolized by developed countries. It pointed out that international legal protection for GRTKF would help to legitimize IP since it would provide protection for persons in developing countries. The lack of international legal interest in this area is disproportional to the extensive piracy of indigenous peoples’ knowledge that take place by companies as this knowledge is not legally documented.

Bolivia pointed out that in their country alone there are over 30 indigenous groups with cultural practices that have evolved and existed for thousands of years. These groups have accumulated knowledge about how to use and manage their resources. Maintaining their right to use these resources should be priority, Bolivia said. To ensure adequate protection, Bolivia advocated for developing sue generis protection of tradition knowledge.

Indonesia said that they had gone to many workshops and meetings, explaining and identifying common definitions, principles and objectives. The Indonesian delegate joked that they had built so much abundant knowledge on the topics that it was becoming ‘traditional.’ As result, it is time to move toward text-based negotiations, Indonesia said.