WIPO’s First Intersessional Working Group (IWG 1) concluded its five days of deliberations on Friday, 23 July 2010 substantially closer to its goal of establishing a sui generis legal regime for the protection of traditional cultural expressions/expressions of folklore. On Friday, the WIPO secretariat distributed a summary report of the first IWG (attached below). The 16th WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) gave the first IWG the mandate to ‘provide legal and technical advice and analysis, including, where appropriate, options and scenarios for consideration of the IGC’ including the outcomes, recommendations and texts relating to a working document containing draft provisions of an international legal instrument for the protection of folklore. IWG 1 worked on refining the objectives, principles and eleven substantive articles contained in WIPO/GRTKF/IC/17/4 PROV. – The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles. The IWG discussed the following substantive articles:
“subject matter of protection (Article 1); beneficiaries/management of rights (Articles 2 and 4); acts of misappropriation/exceptions and limitations/formalities (Articles 3, 5 and 7); term of protection/transitional measures (Articles 6 and 9); sanctions/remedies and exercise of rights (Article 8); relationship with IP protection and other forms of protection, preservation and promotion (Article 10); and, international and regional protection (Article 11)”.
Here below are key excerpts from the summary report.
6 After extensive and detailed deliberations in the plenary of IWG 1, six informal, open-ended drafting groups were established to further discuss exchange and consolidate the various views expressed in the plenary, and to propose streamlined text, including options, to the text on each cluster of issues. The work of the informal drafting groups was consolidated and presented to all the experts in the IWG plenary as the advice that the IWG was requested to provide to the IGC. On July 23, 2010, the consolidated drafts as prepared by the informal working groups were commented on by the experts in the IWG 1 plenary and some experts added new options. The drafting proposals, comments and additional options were noted and not adopted as such.
7 IWG 1 identified a recognized need to include definitions/a glossary of key terms in the text and recommends formally that, at its next session, the IGC request the Secretariat to prepare a glossary on the meanings of key terms in WIPO/GRTKF/IC/17/4 Prov. for consideration by the IGC. The IGC is invited to further consider whether or not this glossary could serve as a basis for an additional article including definitions of terms to be inserted within the text. This glossary should draw, as far as possible, from existing United Nations and other international instruments. The IGC is invited to consider whether such a glossary should also be prepared in respect of “traditional knowledge” (with reference to WIPO/GRTKF/IC/17/5 being prepared for the IGC’s 17th session), noting that at its 16th session, the IGC has already commissioned a glossary on intellectual property and genetic resources.
The IWG requested the International Bureau to prepare the following three documents including (WIPO/GRTKF/IWG/1/4) which would reflect “all comments and proposals made during IWG 1 on the objectives, general guiding principles and substantive articles” including drafting proposals made by experts from observers (i.e. KEI, International Publishers Association, Tulalip Tribes).
8 IWG 1 requested the Secretariat to prepare, for the next session of the IGC:(a) a document (WIPO/GRTKF/IWG/1/3) incorporating the draft articles prepared by the informal drafting groups, as well as the additional comments and options made by the IWG 1 plenary on July 23, 2010 as referred to in 6 above;
(b) a record of the deliberations of IWG 1 (WIPO/GRTKF/IWG/1/4), reflecting all comments and proposals made during IWG 1 on the objectives, general guiding principles and substantive articles. Comments and proposals made during IWG 1 would, as far as possible, be attributed to the experts, identified in their personal capacities, who made them. Drafting proposals made by experts from observers would be included as part of the commentary for consideration by Member States.
9 IWG 1 requested that this present document (WIPO/GRTKF/IWG/1/2), to which should be attached the List of Participants of IWG 1, as well as documents WIPO/GRTKF/IWG/3 and WIPO/GRTKF/IWG/4, be submitted for consideration by the IGC at its next session.
It remains to be seen whether the substantive progress made at IWG 1 in terms of streamlining text and preparing options for the December IGC’s consideration of an international legal instrument for the protection of folklore will translate into tangible progress at IWG 2 and IWG 3 where subject matter experts and diplomats will meet to consider options for the protection of traditional knowledge and genetic resources.