By Chidi Oguamanam, cross-posted from ABS Canada.
Pre-session Strategy Meetings
Experts and delegates gathered in Geneva for the 40th session of the WIPO IGC, which commenced on June 17 and ended on June 21. With a crowded agenda, the 40th session marks the last session for the 2018-2019 biennium. In preparation for this meeting, two countries, South Africa and Indonesia, each organized pre-IGC workshop and consultative meetings – in Pretoria, South Africa, and Montreux, Geneva, respectively – to prepare delegates and strategize for the 40th session. The TK (Traditional Knowledge) Division of the World Intellectual Property Organization also organized a two-day workshop for regional groups in Geneva as a build-up to the last round of negotiations for the biennium.
At the resumed negotiations, key items on the agenda included a) conclusion of ongoing negotiations on TK and TCEs (Traditional Cultural Expressions) texts for the biennium, b) preparation of a report on progress made over the biennium to be presented to the WIPO General Assembly, and c) agreement on a proposal for the next mandate of the committee – also to be presented to the General Assembly, which is scheduled for September 30 – October 9, 2019.
TK and TCEs Continued from IGC 39
The tiered and differentiated approach
With regard to item “a”, delegates started the exercise at the 39th session by conducting negotiations on the texts of the two documents on a side-by-side basis. This was in recognition that TK and TCEs share significant cross-cutting issues that require harmonization of the language of the two texts. The Chair of the IGC, Australia’s Ian Goss, isolated two issues for concurrent negotiation on the TK and TCEs texts at the 40th session. In a departure from tradition, he proposed some working text for the two issues.
The first issue is the scope of protection; the second is exceptions and limitations from protection. The scope of protection is at the core of both instruments. It deals with what types of and in which contexts, as well as the extent to which, protection can be accorded to TK and TCEs under the instruments. Both demandeurs and non-demandeurs agree that protection should accommodate both economic and moral rights of the holders/custodians of TK and TCEs and must incorporate rights and measures-based approaches. The major issue under this theme is what scope of protection should accrue to different categories of TK and TCEs. Specifically, the African Group, LMCs, and the Indigenous Caucus have identified sacred/secret TK and TCEs. They have noted that even though TK and TCEs may be sacred/secret, some of them have been diffused – some narrowly, others widely, often without the prior informed consent of the holders. Led by the United States and Japan, non-demandeurs seize on the often fluid nature of the diffusion of TK and TCEs to argue that they are in the public domain and, as such, could not be protected. For the demandeurs, however, the diffusion of TK and TCEs, whether narrowly or widely, does not mean they are in the public domain or that they are less sacred. Publicly available is not the same as public domain. As such, they argue that such TK/TCEs are deserving of protection with commensurate economic and moral rights, or other interests. This is the basis upon which the demandeurs’ interests have converged around the concept of tiered or differentiated approaches to the protection of TK and TCEs. Delegates therefore concentrated their negotiations on improving on the text of the tiered approach, inspired by Chair’s suggested draft, which was itself based on previous effort on the concept at the 39th session pursuant to the work of the March ad hoc technical expert group and debates at the plenary.
Exceptions and limitations – discretionary vs. enumerative or prescriptive approach
The next item for concurrent negotiation on the TK and TCE texts is the subject of exceptions and limitations from protection. Specifically, the debate revolved over the contexts and the category of ‘uses’ of TK and TCEs that could be justifiably exempted from protection. While non-demandeur countries, led by the United States, favour an open-ended enumerative list of exceptions, demandeurs prefer a concise clause that vests the right or discretion to exempt appropriate TK and TCEs from protection, pursuant to national laws and subject to free, prior, and informed consent of IPLCs (Indigenous Peoples and Local Communities) in ways that are respectful of their customary laws, protocols, and practices. In the view of non-demandeurs, however, TK and TCEs already protected by existing intellectual property laws (copyright, trademarks, etc.) should not be entitled to any further protection by any instrument arising from the IGC. Most importantly, the non-demandeurs support an enumerative or prescriptive list of exceptions, including in cases where TK and TCEs are used for learning, teaching, or research; for preservation, display in archives, libraries, museums, or “other cultural institutions”; or where literary, artistic, or other creative work is inspired, based on, or borrowed from TK and TCEs. Furthermore, they support exempting TK and TCEs from protection where such TK and TCEs are derived from sources outside of the IPLC and beneficiary categories.
The divergence in the approach of the non-demandeurs and demandeurs on the issue of exception and limitation echoes again the overarching conceptual divide between the two main blocs. While the non-demandeurs are inclined to approach the issue of exemptions and limitation from the traditional intellectual property framework, demandeurs take a sui generis approach that recognizes the uniqueness of TK and TCEs. Under that framework, the fact that TK and TCEs can be used to advance teaching, learning, and research, and may be displayed in libraries and museums, does not constitute automatic warrant for exemption from protection in those sites and contexts. The IPLCs and all demandeur blocs are of the view that there is need for strong ethical protocols and sensitivity to the operative legal traditions, customary practices, and protocols of IPLCs in the process of granting exemption from protection for any uses of TK and TCEs, even in the above contexts. The discretion to determine contexts for exempting uses of TK/TCEs from protection in those and other contexts should lie with IPLCs and pursued through national laws.
Stock Taking on Progress over the 2018-2019 Biennium
Chair’s Text on Genetic Resources
On item “b” – stock-taking and progress made over the biennium – the text on GRs (Genetic Resources) is the most advanced of the three. Yet the GR text is in flux. At the 36th session of the IGC, there was a clear and emerging consensus on the GR text across a broad spectrum of negotiating blocs and members states. However, the GR text was blocked by the United States (with the support of Japan and South Korea), a situation that resulted in the GR text of IGC 35 surviving as the authoritative, albeit residual, text on GRs. However, in order to save progress made on GR, the IGC Chair decided to generate an interventionary Chair’s Text on GR in exercise of his discretion. Having consulted widely across all negotiating blocs, he circulated a draft of the Chair’s Text on GRs, which was designed to balance all competing and outstanding positions on GR, save for the language on “trigger”. At the IGC 40, members expressed no objections to adoption of the Chair’s GR text as a working document without prejudice to the GR text of IGC 35. Consequently, as part of the progress made, “the Committee decided to transmit the Chair’s Text of a Draft International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Traditional Knowledge to the 2019 WIPO General Assembly, and to include it as a working document of the Committee as a Chair’s Text”. That text (grandfathered by the WIPO IGC 35 GR text), along with draft Rev 2 documents on TK and TCEs resulting from the 40th Session of the IGC, constitute the core of progress made on the negotiations to be transmitted to the 2019 WIPO General Assembly.
Proposal on the 2020-2021 Biennium Mandate
On item “c” – proposal on the next mandate of the IGC – the delegates were in agreement over a new mandate for the IGC for the next biennium of 2020-2021. However, while the demandeurs expressed the need to change the language of the new mandate to express a sense of urgency for the finalization or conclusion of negotiations and for moving closer to a diplomatic conference, non-demandeurs prefer a weaker mandate language consistent with previous mandates. That approach does not effectively reflect the progress made. The non-demandeurs prefer a narrative that demonstrates slow, if any, progress – one that magnifies or emphasizes gaps in the negotiation in a sense that puts the prospects of an early diplomatic conference out of reach. On the contrary, the demandeurs are convinced that progress has been made after nearly twenty years of negotiations, as evident in the GR text despite the attempt by America and its allies to scuttle it. In the view of the demandeurs, continuing negotiations without a commitment to a sense of urgency toward concluding them, as a strategy, serves the interest of non-demandeurs because it perpetuates the latter’s preference for the status in which TK, TCEs, and GRs continue to be exploited to the detriment of IPLCs. Overall, the thirst for moving the negotiations towards a concrete outcome is palpable for a majority of the negotiation blocs – including the African Group, Indigenous Caucus, LMCs, GRULAC, and APG – contrary to the disposition of the non-demandeur blocs (CEBS, EU, and GROUP B and associated country allies, notably the United States, Canada, Japan, and South Korea).
Work Program and Methodology
In addition to the language of the mandate, other critical issues for the delegates going into the 2020-2021 biennium are the work program and methodology for the biennium. The delegations differ with regard to their preferred methodology and work program. Specifically, the United States critiqued the use of the Contact Group of experts, which did prove useful in making meaningful and qualitative progress that fed into the broader IGC deliberation. Most demandeur countries express preference for a flexible work program that would allow the Chair discretion to reassesses progress and activate a working program or methodology that they may deem necessary. The range of options for a working method include an Intersessional Working Group (IWG), Ad Hoc Expert Group, Contact Group, and informal sessions. After hard negotiations, delegates settled for a text on a work program of six sessions complemented by Ad Hoc Expert Group(s). The latter is to address specific legal, policy, and technical issue(s) as may be identified by the Chair. The Group(s) will work during the sessions of the IGC. It does seem that while the official recommendation of an Ad Hoc Expert Group may foreclose the establishment of an IWG for the biennium, it does not foreclose the use of Contact Groups, which is at the Chair’s discretion.
Funding of Indigenous Participation at IGC
Finally, how to continuously fund indigenous participation at the IGC was another key issue at the IGC 40. Over the years, funding of Indigenous participation has been tied to the contributions of members states to the Voluntary Fund dedicated to that cause. However, experience shows that member states have been less than generous with contributing to the fund, a situation that has stifled consistent and effective participation of indigenous delegations. The Committee agreed to recommend the GA to “encourage Member States to consider contributing to the Fund and [to] invite Member States to consider other alternative funding arrangements.”
With regard to the same subject matter, the Committee invited the Indigenous Caucus to present its statement on funding. The statement was read by the Assembly of First Nations (AFN) Canada, on behalf of the Indigenous Caucus. In it, the Indigenous Caucus made a proposal for direct funding of Indigenous participation at the IGC from the budget of Program 4 of WIPO, pending the replenishing of the Voluntary Fund but without prejudice to continued funding under that program for developed and less developed countries’ attendance at WIPO and other activities in Geneva. Consequently, the Indigenous Caucus requested the deployment of additional financial resources to Program 4 in view of the request for funding.
 I.e. the degree of use or link which GR and associated TK would have with the resulting innovation in order to trigger disclosure of source or origin of the GR and aTK.