*The author thanks Professor Marc Perlman (Brown University) for his comprehensive notes on the IGC deliberations.
The fourteenth session of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC), convened in Geneva from June 29, 2009 to July 3, 2009, collapsed at the 11th hour on Friday evening as the culmination of nine years of work over fourteen sessions resulted in the following language; “[t]he Committee did not reach a decision on this agenda item” on future work. The WIPO General Assembly (September 2009) will have to untangle the intractable Gordian knot regarding the future direction of the Committee.
At the heart of the discussion lay a proposal by the African Group which called for the IGC to submit a text to the 2011 General Assembly containing “a/(n) international legally binding instrument/instruments” to protect traditional cultural expressions (folklore), traditional knowledge and genetic resources. Inextricably linked to the legally binding instruments were the African Group’s demands for “text-based negotiations” with clear “timeframes” for the proposed program of work. This proposal garnered broad support among a group of developing countries including Malaysia, Thailand, Fiji, Bolivia, Brazil, Ecuador, Philippines, Sri Lanka, Cuba, Yemen India, Peru, Guatemala, China, Nepal and Azerbaijan. Indonesia, Iran and Pakistan co-sponsored the African Group proposal.
The European Union, South Korea and the United States could not accept the two principles of “text-based negotiations” and “internationally legally binding instruments”.
Australia, Canada and New Zealand accepted the idea of “text-based negotiations” but had reservations about “legally binding instruments” granting sui generis protection for genetic resources, traditional knowledge and folklore.
The mandate of the IGC runs out in December 2009, and the General Assembly decide its fate. Perhaps one way of reforming this inert Committee would be to create three separate committees, i.e. a Committee for each discrete topic. If copyrights, trademarks and patents were lumped into one Committee as WIPO, this unwieldy behemoth would stagnate. In the same manner, the General Assembly should seize the opportunity of the impasse reached at IGC reflect on what would be truly beneficial to indigenous and traditional communities and citizens of the world.
This narrative endeavors to tell the story of the 14th IGC’s contentious deliberations on genetic resources, traditional knowledge and folklore. As context to this proposal, it should be noted that at the WTO on July 19, 2008, an interesting constellation of over 110 WTO members including Albania, Brazil, China, Colombia, Ecuador, the European Communities, Iceland, India, Indonesia, the Kyrgyz Republic, Liechtenstein, the Former Yugoslav Republic of Macedonia, Pakistan, Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group (African, Caribbean and Pacific Group of States) and the African Group submitted a proposal to the WTO Trade Negotiations Committee (TN/C/W/52) calling for an amendment to the TRIPS Agreement to include mandatory disclosure of origin in patent applications; the language reads:
Members agree to amend the TRIPS Agreement to include a mandatory requirement for the disclosure of the country providing/source of genetic resources, and/or associated traditional knowledge for which a definition will be agreed, in patent applications. Patent applications will not be processed without completion of the disclosure requirement.
Embedded with this mandatory requirement of disclosure of origin was the European Communities’ ask of establishing a register for geographical indications and perhaps more ambitiously, the extension of geographical extensions from just wines and spirits to ALL products. Currently, only wines (i.e. Champagne, Pomerol) and spirits (i.e. Tequila) are granted additional protection under Article 23 of the TRIPS Agreement; the effect of proposal TN/C/W/52 would be to extend this protection to such goods as Italian mozzarella, French brie and Spanish pata negra, Ceylon tea, Idaho potatoes and basmati rice. The proposed language for the amendment of Article 23 of TRIPS states:
Members agree to the extension of the protection of Article 23 of the TRIPS Agreement to geographical indications for all products, including the extension of the Register.
Text based negotiations shall be undertaken, in Special Sessions of the TRIPS Council and as an integral part of the Single Undertaking, to amend the TRIPS Agreement in order to extend the protection of Article 23 of the TRIPS Agreement to geographical indications for all products as well as to apply to these the exceptions provided in Article 24 of the TRIPS Agreement mutatis mutandis.
The single undertaking referred to in the text is the entire corpus of stalled WTO negotiations that failed in July 2008; this proposal by the 110 plus group of WTO members including the African Group, Brazil, India, Switzerland and the EU will not come into fruition until the sticky items of agriculture and NAMA are resolved. The countries opposing the extension of Article 23 to all products include the United States, New Zealand, Australia, Argentina and Chile.
Mindful of Peter Drahos thoughts on ‘forum shifting’ and the dynamics of WTO, let us now fast forward to midsummer 2009 (June 29-July 3, 2009). Perhaps the best way to reflect the tenor of the discussions is to present the views of delegates in their own words.
WIPO Director-General Francis Gurry, commenced the IGC stating that the Committee needed to be inclusive. He noted that “high expectations of delegations for outcomes” given the rich material in the Committee’s nine years of work and stated that there was a palpable “sense of frustration among delegations on the lack of progress”. He highlighted the fact that the mandate of the IGC was up for renewal.
Under the stewardship of the Chair, Ambassador Rigoberto Gauto Vielman of Paraguay, it was agreed that the order of the agenda be reversed and future work be tackled at the onset on Monday. Despite the best intentions of the Committee events would prove that even five days of deliberations were not enough to resolve the schism existing between the African Group and its supporters and States that could not accept the future work of the Committee predicated upon legally binding instruments to protect traditional cultural expressions, folklore and genetic resources.
Senegal, coordinator of the African Group, kicked off the discussion by stating that the IGC could not use the current terms of reference guiding the committee which lead to the current impasse. For this reason, the African Group submitted a proposal prescribing that the Committee would undertake text based negotiations in 2010 and 2011 on genetic resources, traditional knowledge and traditional cultural expressions with a clearly defined work program and timeframe detailed in the Annex of the proposal including the holding of intersessional work sessions.
According to the proposal, 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 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 representative of Senegal closed his address by reiterating that “only the adoption of a legally binding instrument would guarantee effective protection of genetic resources, traditional knowledge and folklore.”
Sri Lanka, coordinator of the Asian Group, stated that the majority of the members of the Asian Group were of the view that the renewal of the IGC mandate should take into account a text based approach with clearly delineated timeframes whereas other members of the Asian Group (she was most likely referring to South Korea) expressed concern with this mode of work.
Germany, on behalf of Group B, called for the Committee to focus on “definitions and objectives which were necessary to advance the work of the IGC”. The delegate from Germany noted that genetic resources were assuming increasing economic importance in the fields of food, agriculture, biotechnology and public health. He stressed that all facets of the committee’s work (ie genetic resources, traditional knowledge and folklore) be treated on an equal footing; he ended by calling for the enhancement of work in genetic resources in the IGC.
Pakistan warned that the IGC served as a “great example of a committee that could negotiate for years without any sign of light”. Pakistan welcomed the African proposal with its emphasis on text-based negotiations and a clear timeframe”. Pakistan stressed that his delegation did not want to renew a “deaf and dumb mandate” but rather wanted a binding instrument. Pakistan noted that the Secretariat documents WIPO/GRTKF/IC/9/4 (Traditional Cultural Expressions) and WIPO/GRTKF/IC/9/5 (Traditional Knowledge) served as a good basis for work. Pakistan cautioned that for “WIPO to remain relevant it must address these issues or otherwise get out of the ring!”
The Republic of Korea noted its efforts to protect traditional knowledge by publishing information on traditional knowledge. The representative said that his delegation has questions and without clarification could not agree to text-based discussion. He noted that there is no clear distinction between genetic resources, traditional knowledge, folklore and the “existing IP system”. The Korean delegate raised concerns that protection extended to genetic resources, traditional knowledge and folklore (GRTKF) would erode the public domain; he raised the specter of the negative impacts of broad protection of GRTKF on “reducing resources for innovative activities”. The delegate of Korea stated that on a recent visit to an African country, his hosts complained that many African sculptures sold to tourists are made in Asian countries raising the question as to whether these Asian countries pay for manufacturing sculptures in the African mold. He then digressed into kimchi.
“Korea has kimchee, if a foreign company tries to patent a recipe we will try to invalidate it. But does that mean Korea owns kimchi? Do we have right to authorize its production by foreign companies? Could we get license fees from them? If so we would have to pay Japan for sushi, Italy for pizza. Perhaps we could have certificates of origin with proprietary rights. New rights will raise costs which will be born by the public consumers. Countries want to propertize their GRTKF without thinking of paying for the GRTKF of other countries.’
The delegate of Indonesia stated,
We support Sri Lanka. Inventions designs and trademarks have been protected while traditional knowledge and folklore have not been protected. They are vital to our traditional communities as well as developing countries as a whole. The interests of developing countries haven’t received adequate attention. The list of core issues and gap analysis shows we have enough resources to move ahead, now we need political will. We support the African Group proposal…We support a pragmatic approach, a text-based approach. We have brainstormed the definitions of GRTKF and it’s become traditional now.
The delegate of Brazil stressed that progress in the IGC was urgently needed. Brazil indicated its support of the African proposal. Brazil noted that discussions should be focused on the elements where “our work is ripe”. Brazil was of the view that traditional knowledge and folklore “are more mature than genetic resources. Our discussions on genetic resources must be in tandem with WTO and CBD” stressing that GRTKF were the “only tangible resources held by developing countries. IP laws protect products monopolized by developed countries. A binding agreement on GRTKF will improve the legitimacy of the IP system.”
The delegate of South Africa echoed its support of the African Group proposal made by Senegal noting that the absence of progress at IGC 13 showed a lack of political will and disregarded the development agenda. South Africa noted that the “current mandate is not enough to insure political will. Lack of support from some countries will reinforce status quo of misappropriation.”
On the second day, the delegation of Ecuador noted that at the national level, Ecuador protects genetic resources, traditional knowledge, folklore, biodiversity, medicinal practices, ritual & sacred holy places, plants, minerals & ecosystems. The delegate highlighted the need for need international protection & promotion of TK/TCE and indicated its support for the African proposal. Ecuador said, we “want a binding sui generis instrument” and supported a renewed mandate for the IGC.
The delegation of the United States stated,
We would like to share a few thoughts behind our position on the renewal of the mandate. Greater recognition and respect for creative contributions of indigenous peoples is important. WIPO has an important role in achieving that objective in cooperation with other forums, bearing in mind the special competence of WIPO. We hold that IGC has made progress in clarifying the issues of preservation, protection and promotion of GRTKF. Much work remains to be done at the international level including unfinished analytical work of current biennium. Accelerating substantive work of IGC holds most promise to arrive at consensus. No outcome (including international instrument[s]) should be excluded, but no outcome should be prejudged. The work of the IGC isn’t isolated from other WIPO programs and is constrained by the finances and resources of the organization as a whole. We thank the African Group for its proposal, and we are reviewing it. Over the next few days we want to learn more about it and about the financial and administrative implications from the Secretariat. We will ask the Secretariat to provide the data the IGC needs to make informed decisions about the proposals. The concrete proposals are important. The IGC has made progress on draft policy principles and objectives, which could become a possible statement by IGC articulating concerns and needs of indigenous peoples. As Gurry says, we must “recognize explicitly the contribution to human society of collectively maintained creativity, but much work remains to be done.” The ten issues can help us, but much work needs to be done. The IGC has started to make progress on identifying gaps and options to address them, but at IGC 13 we barely scratched the surface. Against these high expectations we share others’ frustrations with the slow rate of progress, but we would ask for a renewal of the mandate as long as it includes encouragement for IGC to conclude its deliberations on the 3 unfinished areas of this biennium. We should enrich WIPO’s work program on genetic resources to make sure all 3 topics are on an equal footing. We seek consensus on achievable outcomes.
The delegation of Singapore reiterated its support of the Asian Group statement made by Sri Lanka and welcomed the African proposal but raised concerns about text-based negotiations given the current lack of consensus. Singapore supported the renewal of the IGC mandate.
Malaysia supported the renewal of the IGC mandate, with a clear work plan and time frame; the delegation reiterated its commitment to participating in a Diplomatic Conference.
After the opening round of general statements, the discussions plunged into the stygian abyss of deviled details on Tuesday afternoon, June 30, 2009.
The delegate of Mexico stated that “views were converging”. She noted that Mexico agreed with the African Group’s (WIPO/GRTKF/IC/14) prescription of renewing the mandate of the IGC. Mexico noted that the ambiguity recommending the date of a Diplomatic Conference (perhaps in 2012) should be clarified. Mexico alluded to Brazil’s point of the “maturity” of the issues. The Mexican delegate suggested one working group dealing with the “mature” topics of traditional knowledge and folklore while the other working group would deal with genetic resources since it was a complex topic, taking into account the work of th Convention on Biological Diversity (CBD). With respect to the participation of experts at the inter-sessional meetings, Mexico stressed that the meetings must have a clear mandate and composition and requested that they be open to accredited observers according to UN policies. Regarding expert participation, Mexico noted the experts should be appointed by Member States and have legal and scientific expertise. In Mexico’s view, the inter-sessional meetings would only produce recommendations.
The US delegation requested detailed budget information on all GRTKF activities in the 2010-2011 biennium including personnel and non-personnel costs. The US also requested detailed budged information on on the “additional costs of the African proposal, especially the 6 proposed inter-sessionals” and the funding of developing country experts and indigenous groups.
Brazil responded in this manner,
Many delegations support the new mandate, but we have renewed for 9 years, and now we need a results-oriented mandate. The main element in the proposal is “legally binding.” It’s important we keep that. At some point we need to judge things. For nine years we haven’t been prejudging anything. Now we need the courage to step forward and see how positions have evolved. We agree with “legally binding.” We need to avoid the Socratic approach, delegations are not seeking agreement but are seeking wisdom, asking the reasons, scope and object of protection. But we aren’t philosophers, we are pragmatic people, we need to provide indigenous communities with a pragmatic response. At some point in our lives we need to start living even though after 2000 years we don’t know if the soul is immortal. But we need the courage to leave the room and go to work even though we can’t respond satisfactorily to the big questions. We need to take the hard decisions. With respect to the three subjects, traditional knowledge, folklore and genetic resources, our position is well-known. We need to address the more mature elements of folklore and traditional knowledge.
The delegate of India echoed the sentiments expressed by Brazil, South Africa and Indonesia. She stressed that,
[W]e are at a critical juncture. We need political will and commitment. We need clear goals and modalities and a timeframe. These will be negotiated (understandably). States need to define the contours. The African Group proposal is the only concrete proposal; we can’t just repeat the past 9 years. Issues have been raised about financial aspects. It is the Member States that determine budget and priorities of WIPO. I don’t see any reason why we can’t allocate some part of the resources to the work of the IGC. The timetable issue can also be resolved. I wonder if the many treaties WIPO currently administers would have seen the light of day if the same doubts expressed today were raised then.
Responding to Group B, Pakistan noted that if the Committee was not clear on principles and objectives, the IGC had wasted 7-8 years going in circles. He begged the question, “how many more years do we plan to waste? Till the cows come home”.
On the third day, the Republic of Korea declared,
We support the renewal of the mandate but we have concerns which we raise with the African Group: I see no merit in ‘legally binding.’ It is difficult to agree to bind when we don’t know the contents of the instrument. The binding effect is only on States that join the treaty, so why say it must be binding before we know the content? We prefer to discuss concept papers. Treaties are usually based on the common ground of domestic legislation. But in Korea we don’t protect GRTKF. We need to agree on the concept. We have ten items. The definition of traditional says knowledge belonging to indigenous people but we don’t know who the indigenous people are. In States where the knowledge is shared with non-indigenous people as well, will that knowledge also be protected? So let’s use concept papers to seek common ground. Otherwise it may take another 9 years.
Most of Wednesday’s work was spent drafting and re-drafting the African Group proposal beamed onto a screen although Chair Vielman was at pains to say “This is not a drafting exercise”. Blue brackets upon brackets were introduced in track changes format prompting the delegate of Canada to say “We are being blinded by the blue text”. It should be noted that screen was behind the dais where the Chair presided over the meeting so during the “non-drafting exercise” he could not see the screen. Many delegations called upon WIPO to fix this situation.
During this exercise of word-smithing, Sweden, on behalf of the EU (Sweden assumed the Presidency on July 1, 2009) requested that “text-based negotiations” one of the three elements underpinning the African Group proposal be deleted. It should be noted that “text-based negotiations” appears in the EC proposal to the WTO (co-sponsored with India, Pakistan, Brazil and the African Group among others) on extending geographical indications to all products.
Much of the drafting exercise resembled a match worthy of a Wimbledon final. Two key issues of contentions were 1) “text-based negotiations” and 2) “internationally legal binding instruments”. In addition to the EU, the United States also requested that these two elements be deleted from the African proposal. India, Indonesia and Brazil sought the retention of these core elements of the African proposal.
Brazil responded to the EU in this manner,
About the EU proposal, I remind Sweden that Brazil and the EU and African Group and 108 members of the WTO have a proposal on geographical indications and disclosure requirements for genetic resources. We should see how we can address the issue of GR to avoid duplication of work, to prevent the work here prejudicing the work in the WTO. I don’t see a need for one session per year dedicated to GR. Why this anxiety about addressing the issues on an equal footing? They will, they’re part of the same mandate. We need to be cautious dealing with GR since it may have implications for negotiations in other fora, issues dear to developing countries and developed countries. On the USA proposal, the IGC will undertake to work on 3 issues on non-discriminatory basis, I think it’s important to understand each others’ position. Will the US explain how they intend to discuss GR? Their position on GR is well known, at least in WTO they are in favor of a contract-based national approach, in the IGC can they go further and think about international solutions?
The formal session of day 3 ended at around 5:50 PM. After this period, the African Group consulted informally among its members and with other delegations on the plenary editing of its proposal by the assembled States.
The Chair commenced the day 4 by saying,
Thanks for your patience. Yesterday’s exercise was useful, it helped us identify clearly which are the most controversial issues. I asked the African Group to consult with other regional groups to seek solutions. I met the African Group to hear their report, and met other groups, but the key meeting was with the African Group a few minutes ago. Will the African Group comment on the situation and its consultations?
Senegal, on behalf of the African Group, declared,
We appreciate the useful discussions. We’d like to continue them in the same constructive spirit in the plenary. We appreciate your commitment to positive results. We consulted with member states of developed and developing world and with indigenous communities. We agreed on the following: The main elements of our proposal should be maintained, i.e. text-based negotiations on a timetable and one or more international legally binding instruments. This is the only way to guarantee effective protection of local and indigenous rights in developing & developed countries. The African Group received broad support from many countries, we thank them. We remind you of the DG’s commitment at GA 2008 in his acceptance speech, “The organization has undertaken a long process of discussion, the time has come to give concrete shape to the results of this process.” We appreciate this statement and hope it becomes a reality.
In the view of your blogger, the African Group intimated in inimitable diplomatic fashion that the blue text drafting session conducted during the plenary on Wednesday afternoon rendered violence to the three core demands of the African Group proposal namely 1) text based negotiations, 2) a timeframe and 3) one or more legally binding instruments.
Pakistan reiterated its support for the original African Group proposal. This was echoed by a many States ncluding Bolivia, Iran, India, Philippines, El Salvador, Peru, Thailand, Cuba, Yemen, Sri Lanka, India, Ecuador, Fiji and Brazil.
Brazil stated,
We support Senegal, the IGC needs to renew its mandate, text-based negotiations towards a legally-binding instrument and with a cost-effective approach, starting with the more mature topics (TCE & TK). Pakistan referred to the core elements as text-based & binding. I was here for the Broadcasting Treaty and the SPLT and I’ve never heard them refer to ‘legally binding’ because that was implicit. It did not make sense to have a political declaration on broadcasting or the SPLT. It’s surprising that when developing countries present their interests here they must make such efforts for their demands to be taken as seriously as the demands of the developed countries. Even for them to have to say ‘binding’ is an offense. As Pakistan says, this is a core element, the heart of negotiations. We believe consensus is emerging around the Africa proposal, hope will prevail over fear.
The delegate of Germany, responding passionately,
What happened to our text that we projected on the screen yesterday, that we invested much brain activity in? You entrusted the African Group with informal negotiations, we understood that when we resumed today we would be informed of the outcome of those consultations. I’ve listened to Ibou from Senegal and I appreciate what he said, but I haven’t heard the specificities I would need to assess the situation to know how the negotiations were carried out and with whom, and what was the outcome? Like El Salvador, Group B wasn’t approached by the African Group. I would appreciate, and the IGC would have a more informed perspective, if we had more information on these informal contacts.
I’m surprised Senegal refers to the minutes of this meeting, my friend from Angola showed me your statement that you have been consulting with developing, developed and indigenous peoples, and the outcome is that you hold to your original proposal. I find this blunt. As I’ve said, yesterday in a painful and strenuous exercise we changed the working method of this august body (as we continuously say) but the outcome is a two-sentence essence of this. I have to say I’m surprised and disappointed. Yesterday the African group opposed the Chair’s proposal for informal sessions since there’s the danger of lack of accountability and transparency. Now we’ve sacrificed 1.5 days of negotiation and interpretation time, we’re uncomfortable with such an answer. I appreciate Mohammed (Egypt)’s intervention, but he is a friend of informed decisions. To have an informed response we need information from the African Group. I don’t want to put anyone on the spot, it can be you or anyone from the African Group, on how those negotiations and contacts have been conducted and with whom. Who was considered a partner, and when, and what was the outcome? What were the arguments for and against? The member states, indigenous people and the public want to know what happened to this text from yesterday?
The delegate from India then took the floor:
I hope I can answer Udo’s (Germany) questions. Would it serve much purpose to be briefed on the informal discussion? The central elements of the African texts were amended yesterday, which required the round of reiterations today. The 3 core elements had to be restated and there was overwhelming support for them. I make a larger point: our organization administers 25 agreements on patents, copyrights, trademarks, industrial designs. Most of the IP in these areas is owned by our developed partners, if we had suggested it should only be “guidelines” on patent rights would they have accepted it? Today for the 1st time developing countries are asking for protection of their rights, it’s only a very small portion of the global IP rights. Non-binding wouldn’t be acceptable because it wouldn’t amount to any difference on the ground. We need to recognize the need for equity balance and justice, these are principles. The crisis shows the need for balance in equity, political rights. We can bring proportion equity and justice. I agree with Egypt, if countries have problems with these elements let them say what.
The delegate of Egypt riposted to Group B,
I still haven’t heard an answer to my question even though Senegal has ventured one. Now we are being told that Africa is side-tracking the work, that we don’t want to build consensus and want to end it for other reasons. This is an attempt to camouflage what the emerging consensus is.
We’re being called the ones blocking consensus, this strategy has been used before, but the consensus emerging is overwhelming. A binding instrument is the only way to protect, a declaration won’t do this. If we had multinationals in the room, would we be arguing about binding/non-binding? Is there a non-binding treaty at WIPO? Allowing corporations to make profits from those not protected in a legal regime. Will the minority explain to us why a binding instrument isn’t productive?
Nigeria buttressed the African position by noting,
Germany has the right to ask how the deliberations and consultations went, also he has the right not to get an answer. That’s the pattern of negotiations. You look for breakthroughs. When there is no meat in the soup … we didn’t elaborate on what we did because there were hiccups. So how do we go forward? Can the issues be resolved? If not it becomes a deadlock. But you can’t put the responsibility only on one group. The only thing that can create an opening is you taking the initiative.
The delegate of Canada expressed her country’s disappointment that,
[N]one of our views have been taken into account. We have shown flexibility this week; the African Group has not. The African Group should explain why we need a binding instrument.
The delegate of Zambia provide the following response to Canada.
Instead of those opposed to a binding agreement justifying their position, we are asked why we need a binding agreement. I come from a legal background. We want to create international law, legal rights that can be enforced in a judicial process. That’s the simplest way to put it. With a political declaration you can’t enforce your rights in a court of law, how do you get recompense? Some delegations question why we need a legally binding instrument but in other fora of the UN the same countries are calling for binding legal instruments. If I understand the African position, there are 3 core principles; on other issues there is room for negotiation, so I don’t understand why delegations say their concerns aren’t being taken into account.
The delegate of India stressed in her response to Canada that the African Group proposal enjoyed wide support among over 20 countries in Asia and the GRULAC regions. India asked the delegate of Canada if her question was just rhetorical. In the realm of patents, India wondered aloud if a mere political declaration be acceptable. The answer would be no. For this reason, India supported the African Group’s proposal for a legally binding instrument.
At this point France, Costa Rica and the Republic of Korea suggested informal consultations to resolve the deadlock on Thursday evening but this was not accepted by the membership.
The fifth day of discussions of the African Group text began with the Chair’s call to resolve the sticky issues such as text-based negotiations, timeframes and internationally, legally-binding instruments.
At 11:53 AM, Sweden, on behalf of the EU, asked the African Group to clarify what they meant by text based negotiations.
Senegal responded,
Time is short so I won’t return to issues that aren’t getting us anywhere. There is no confusion anymore, the Chair says we’re concentrating on ‘text-based negotiation’ and two delegations (EU and US) have made proposals for ‘outcome-oriented’. Only two! I haven’t come across this phrase before. Let’s leave this paragraph. You can go to those delegations and see if they can join the consensus. Now let’s discuss ‘legally-binding.’
Burundi entered the fray declaring,
We’re “marching on the spot,” a step forward, a step back. The African Group coordinator has shown the way to proceed and agreed by Asian and GRULAC delegations. They’re asking us questions instead of responding to our questions. We understand text-based and binding. Coming up with alternative expressions or question for Africa, these are time-wasting ploys. refusing without saying so. It makes me think the African Group proposal is still a good one, you should have a computer to follow what’s on the screen, we’ll lend you our laptop.
The last few minutes before Friday’s lunch period ended with the following intervention from Pakistan with a question posed to the Legal Counsel.
Pakistan: I ask the legal counsel, once we say we don’t know the outcome and the language of that text has to be in accordance with the outcome, the member states ‘may consider to evaluate’ versus ‘must do this’. There’s a big difference. If we start with non-binding the outcomes will be worlds apart. If we start with text for non-binding how can it become binding after negotiations for two years? Maybe lack of comprehension on my part. A text which is binding in the end may be non-binding but not the first scenario.
After the lunch break, the Legal Counsel of WIPO, Mr. Edward Kwakwa sagaciously clarified to the 14th IGC that an “legally binding instrument” was an “instrument that was legally binding”. A question was posed to Mr. Kwakwa on what constituted a international instrument; the Legal Counsel responded noting that an international instrument “could range from declaration, resolutions, convention, treaties, soft law, declaration”; whether the instrument was “binding depends on the language”.
Brazil remarked,
We join Pakistan, India, Sudan, Sri Lanka and other delegations in favor of a binding instrument. We need it for 2 reasons, we need to entitle indigenous and traditional communities with rights, that they can use to protect their intangible patrimony and sacred traditions and religion. WIPO has responded to other holders of knowledge, trademarks, patents with binding instruments: car makers, pharma, movie makers, copyright owners. Why are traditional and indigenous communities treated as second-class? I’ve been in Geneva for 3 years, invited to nice breakfasts at the Intercontinental and lunches at Perle du Lac; I’ve accepted invitations by pharma, movie makers, federations of authors, their interests are legitimate, they can argue in favor of their protection. The Indigenous communities haven’t invited me to the Intercontinental because they can’t afford it, they can’t hire lawyers to explain why they need protection, but if they had the money we would have books saying why they need protection and a treaty. They need rights to protect their intangible assets. Brazil supports binding instruments because we need to recognize indigenous and traditional rights. The 2nd reason is a sentiment because indigenous are being treated as 2nd-class. We have the Doha Declaration on Health (not binding), Development Agenda (not binding), developing countries interests are accommodated in non-legally binding manner. It’s enough, now developing countries should be treated on an equal footing. We’ve been here 9 years and I hear delegations say we haven’t answered all questions, we need to define indigenous community, what is a traditional community what’s the object and scope of protection and who the beneficiaries are, and only after that we can move forward, but this approach isn’t fair, we need to overcome that fear that something catastrophic will happen if we have a binding treaty. As Egypt said, negotiations can fail, countries may not ratify, if they ratify they will choose how to implement it internally, but interests of developing countries should receive same treatment as any other.
The delegate of India brought up the parallels of IP enforcement to the work program of the IGC,
I’ve been listening to the questions and doubts raised and their contradictory nature. We have protection of copyrights, patents, trademarks and I often hear it said this level of protection isn’t enough. When I look at the ongoing IP negotiations in WHO WCO, and ACTA, countries want greater protection and enforcement of the rights of patent and copyright holders. But here when we consider protecting the holders of TK, they aren’t willing to begin the exercise. A large majority of countries here want to start toward some kind of protection, and a binding instrument doesn’t mean an automatically binding one. If a majority of countries want to begin this exercise it’s regrettable for countries to prevent it. It takes a long time to negotiate a treaty but this hasn’t stopped treaties being negotiated forcefully.
At the end of the long, arduous evening on Friday, it was clear that the IGC was still deadlocked over future work. The Legal Counsel clarified that mandate of the IGC would end in December 2009. In September 2009, the General Assembly will take a decision on the mandate of the IGC starting in the 2010 biennium. As no decision was reached on future work, the ball is now in the court of the General Assembly. Game on, GA 2009.