October 21, 2008
The Director General of the World Intellectual Property Organization (WIPO), Mr. Francis Gurry, and the Chairman of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), Ambassador Rigoberto Gauto Vielman of Paraguay, said they would pursue efforts in the coming weeks to bridge differences among member states on the way to move international negotiations forward. The IGC wrapped up its 13th meeting late in the evening of October 17, 2008 after attempts to hammer out compromise texts on the future work program faltered. Despite intense negotiations, delegations were not able to agree on the working procedures required to deliver the concrete outcomes that many have called for from this Committee. The IGC’s mandate calls upon it to accelerate its work, and expectations remain strong that the Committee should produce a significant outcome by the time it is required to report back to the WIPO General Assembly in September 2009.
Mr Gurry described the outcome as disappointing, but suggested that ‘the failure to close a deal on Friday night was a measure of the political significance of what is on the table: potentially, a major normative shift in the intellectual property system.” He noted that there was increasing political will to find a substantive and credible basis for systematic recognition, within the law of intellectual property, of the rights of indigenous peoples and local communities. The Director General said “This process has come a long way, and effectively from a standing start, but each step from here on takes on greater significance and political weight.”
The Chairman of the IGC said that in spite of differences on how to advance its work, last week’s session saw increasing acceptance of the need for a process that would move forward decisively from exchanges of views and experiences to a focused, negotiation process. Ambassador Gauto Vielman said the time available for the 13th session, which met from October 13-17, 2008, was insufficient to bridge the differences. The Chairman indicated that he would pursue informal consultations with member states and observers, including representatives of indigenous and local communities taking part in the Committee's work, in the period leading up to the next IGC session. The program and budget adopted by WIPO member states foresees two full IGC sessions in 2009, and the Committee's current mandate runs through at least until the WIPO General Assembly in September 2009.
The Chairman said. “We had an excellent week of discussions where delegations showed a high level of engagement and I am personally surprised that at the end we could not agree,” adding “There is no doubt in anyone’s mind that the process needs to move forward in a meaningful way. The disagreements centered on the best manner to achieve this.” Ambassador Gauto Vielman noted “In close collaboration with the Director General, I will engage in informal consultations in the coming weeks to get the process back on track. There is a lot of good will and I have every intention of capitalizing on this.”
An African Group initiative (see document WIPO/GRTKF/IC/13/10
) called for intersessional procedures, including three expert groups charged with distilling key findings from the Committee’s extensive past work on the protection of traditional knowledge
and traditional cultural expressions
, and on the interplay between intellectual property and genetic resources
to provide more focused material for the Committee to review at its next session. However, a number of delegations signaled their unwillingness to accept various features of this plan, calling for all work to be held within the framework of formal Committee sessions and all working meetings to be fully‑open ended. Such counter‑proposals were seen by others as reducing the chances of the kind of focused, intensive work that is inevitably required to produce workable outcomes from a complex, technical multilateral process.
This was the second formal session of the IGC in 2008. In February, the IGC drew up proposals to analyze gaps in the international protection available for TK and TCEs. These gap analyses
were prepared through an open commentary process and were reviewed by the IGC this week. The gap analyses contrast the current international legal framework with specific examples of gaps in protection and practical considerations of how these gaps might best be addressed. The gap analyses are expected to help prioritize issues, identify substantive areas for the Committee to focus upon, and to guide the future work of the Committee towards the expected concrete results.
Effective participation of indigenous peoples and local communities remains of vital interest both in relation to the procedural and the substantive legal aspects of the Committee’s work. The Committee continued to build mechanisms that are exceptional for an intergovernmental process to ensure indigenous peoples and local communities have an effective voice. An Indigenous Caucus and a capacity building workshop for Indigenous delegations were convened prior to the Committee session, and throughout the session, Indigenous delegations were provided with interpretation services and other logistical support, funded by WIPO with the logistical support of DoCIP (the Indigenous Peoples’ Centre for Documentation, Research and Information).
The opening Committee session featured a panel discussion of indigenous representatives, chaired by Mr. Albert Deterville of the Indigenous People (Bethechilokono) of Saint Lucia Governing Council. The Committee accredited twelve additional observers, bringing to well over 200 the total number of observers specially accredited to the IGC, the majority representing indigenous peoples and local communities. The WIPO Voluntary Fund, established to support the participation of indigenous peoples and local communities in the Committee’s work, supported an increasing number of community representatives and saw a sharp rise in applications for future support. In spite of these mechanisms, indigenous representatives voiced concerns about the informal consultations between member states aimed at bridging differences between delegations over future work, and the closing session saw a strong statement from the Indigenous Caucus calling for a central role in such consultations in the future.
The IGC, which was established by the WIPO General Assembly in October 2000, is expected to progress towards a shared international understanding of how best to protect TK and TCEs against misappropriation and misuse. A key aim is to support the holders and custodians of TK and TCEs in exercising greater authority over how these vital elements of their cultural identity are used and disseminated, and to reinforce the legal aspects of respect and recognition. Many participants in the deliberations of the IGC have called for specific international legal instruments to achieve this. WIPO member states are yet to reach consensus on the exact format and status of the outcome of this work. But the IGC process has developed draft objectives and principles for the legal protection of TK and TCEs against misappropriation and misuse. These draft provisions are currently the subject of active, focused consultations in many countries, and as reported to the General Assembly, are already helping to catalyze dialogue and development of practical and legal measures at the community, national and regional levels. The work of the Committee is complemented by an active program of community‑based and national‑level capacity building, which was reviewed at a series of side events during the IGC session, and was the subject of a comprehensive Workshop on Building Community Capacity in December 2007
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