World Intellectual Property Organization

IGC 27 Update: Negotiators Advance on Texts for Protection of TK and TCEs

WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) concluded a two-week long session on April 4, 2014. The session addressed the themes of traditional knowledge (TK) and traditional cultural expressions (TCEs), and incorporated a consideration of cross-cutting TK/TCE issues.

At the close of the session, the Committee decided that the textual revisions made to the draft articles on the protection of TK and on the protection of TCEs, respectively, be transmitted to the September 2014 session of the WIPO General Assembly, subject to any agreed modifications on cross-cutting issues the IGC may make at its July 2014 session.

Delegates from over 100 countries attended the 27th session of the IGC. More IGC photos on Flickr.

A cooperative spirit characterized the session, and delegations were in general satisfied with the progress made.

Ambassador Wayne McCook of Jamaica chaired the Session, while Ms. Alexandra Grazioli of Switzerland, Ms. Ahlem Sara Charikhi of Algeria, and Mr. Abdulkadir Jailani of Indonesia served as the Session’s Vice-chairs.

Structure

In accordance with the 2014 work program of the IGC PDF, IGC schedule for 2014, the session commenced with a one day consideration of cross-cutting TK/TCE issues, which was followed by a four-day discussion on TK (March 24 to 28, 2014). The following week (March 31 to 4, 2014), delegates similarly began with a one day consideration of cross-cutting TK/TCE issues before addressing the theme of TCEs in the remaining 4 days.

Consideration of cross-cutting issues

The discussions on cross-cutting TK/TCE issues were, as the Chair noted, aimed at identifying and exploring policy issues that are common to both the TK and TCE draft articles.

In preparation for the session, the Chair had circulated an information document identifying four cross-cutting TK/TCE issues which he suggested as points of departure for the discussions. These four cross-cutting issues were:

  • The meaning of “traditional”
  • The beneficiaries of protection, in particular, the role of states or “national entities”
  • The nature of the rights, including the meanings of “misappropriation” and “misuse”
  • The treatment of publicly available and/or widely diffused TK and TCEs.

Delegations, in the course of the discussions, addressed these issues as well as other cross-cutting issues which they identified.

The Chair also made available a more extensive non-paper PDF, Non-paper on cross-cutting TK/TCE issues as a complement to the information document.

Negotiations

The cross-cutting discussions, as well as substantive negotiations on TK and TCEs, were carried out in plenary and within an informal expert group, established by the IGC. The expert group comprised around 45 experts, with up to seven experts per region nominated by the Member States, as well as two indigenous experts nominated by indigenous peoples participating in the session. Other delegates were able to sit in on the work of the expert group as observers without speaking rights, with indigenous peoples also able to nominate two additional participants without speaking rights. All other participants were able to follow the expert group’s deliberations via audio and video feed in adjoining rooms.

The plenary requested Mr. Nicolas Lesieur (Canada), Ms. Margo Bagley (Mozambique) and Mr. Justin Sobion (Trinidad and Tobago) to act as facilitators for the entire session and tasked them to prepare the further drafts of the respective texts based on the discussions of the plenary (including cross-cutting discussions) and the work of the expert group. Mr. Tom Suchanandan (South Africa) was requested to serve as an additional facilitator for the second week of the negotiations.

Mr. Ian Goss (Australia) assisted the facilitators in his role as the “Friend of the Chair”.

Informal informals

To further assist delegations in arriving at compromise solutions on more complex areas of the negotiations, the Chair successfully made use of “informal informals” – informal open-ended discussions involving key delegations on contentious issues. These were convened and facilitated by Mr. Goss in his capacity as the “Friend of the Chair”.

Work schedule

The plenary, on Monday afternoon, March 24, commenced its discussions on cross-cutting issues. This cross-cutting discussion was continued on Tuesday, March 25, albeit in an expert group formation. An open-ended “informal informal” was led by the Friend of the Chair on Tuesday afternoon to address some cross-cutting issues arising from the expert group. The expert group was reconvened on Wednesday morning, March 26, to consider the results of the “informal informal” and commence discussions on the TK text.

On Thursday morning, March 27, a first revision of the TK text (Rev. 1) was presented by the facilitators to the plenary for review. The plenary offered comments on the Rev. 1. The expert group resumed work on Thursday morning, immediately after the plenary, with the aim of further developing the Rev. 1, and concluded its discussions on the Rev. 1 on Friday morning.

The facilitators thereafter, on Friday afternoon, issued a second revision of the text (Rev. 2) which was reviewed by the plenary on Friday afternoon for factual errors and omissions. The ‘cleaned up’ Rev. 2 document was made available to delegations on Monday morning, March 31, to assist with the second round of cross-cutting discussions.

The streamlined Rev. 2 of the TK text covers issues such as:

  • A preamble/introduction
  • Policy objectives
  • Use of terms
  • Subject matter of protection
  • Beneficiaries of protection
  • Criteria for and scope of protection
  • Complementary measures
  • Sanctions and remedies
  • Disclosure requirement
  • Administration of rights
  • Exceptions and limitations
  • Term of protection
  • Formalities
  • Transitional measures
  • Relationship with other international agreements
  • National treatment
  • Transboundary cooperation

On Monday, March 31, delegates again engaged in a brief discussion of cross-cutting TK/TCE issues before proceeding to an initial review of the TCE text. The Friend of the Chair led a series of open-ended informal informals on Tuesday morning, April 1, and a first revision (Rev. 1) of the TCE text was issued by the facilitators on Tuesday afternoon and reviewed by the plenary.

The expert group was thereafter reconvened on Wednesday morning, April 2, to continue to develop the TCE text. It concluded its work on Rev. 1 on Thursday afternoon, April 3, after a series of informal informals had again been conducted by the Friend of the Chair on Thursday morning.A second revision (Rev. 2) to the TCE text was made available by the facilitators on Friday morning, April 4.

The plenary reviewed the Rev. 2 on Friday morning for factual errors and omissions and decided that the ‘cleaned up’ Rev. 2 versions of the TK and TCE texts, be transmitted to the WIPO General Assembly, subject to any modifications on cross-cutting issues arising at the July 2014 session of the IGC. Other comments comprising new textual proposals and other substantive comments with respect to either of the two texts will be reflected in the report of the session.

In accordance with the IGC’s mandate PDF, Mandate of the IGC and work program for 2014, the WIPO General Assembly will, with a view to finalising the text(s) within the biennium, inter alia take stock of progress made and decide on convening a Diplomatic Conference.

The streamlined Rev. 2 of the TCE text covers issues such as:

  • Principles/preamble
  • Objectives
  • Use of terms
  • Subject matter of protection
  • Beneficiaries of protection
  • Criteria for eligibility/scope of protection
  • Administration of rights
  • Exceptions and limitations
  • Term of protection
  • Formalities
  • Sanctions, remedies and exercise of rights/interests
  • Transitional measures
  • Relationship with other international agreements
  • National treatment
  • Trans-boundary cooperation
  • Capacity building and awareness raising

New document

During the session, a new information document, Responses to Questions Regarding National-Level Databases and an International Portal (submitted by the Delegations of Canada, Japan, Norway, the Republic of Korea and the United States of America), was made available. The document was noted.

IGC preparation kit

In line with attempts to further assist delegations to prepare for sessions of the IGC, the WIPO Secretariat had recently created a new IGC Preparation Kit on the TK website. Relevant documents and materials for the session were collated and made directly accessible here.

Voluntary Fund

The WIPO Voluntary Fund for Accredited Indigenous and Local Communities was unable to fund any indigenous and local community participant to the Twenty-Seventh Session of the IGC due to lack of funds. The Chair of the IGC reiterated the need for Member States to come up with solutions to ensure the sustainability of the Fund and the continued participation of indigenous peoples and local communities within the process.

In this regard, a new working document, Participation of Indigenous and Local Communities: Proposal for Subsidiary Contributions to the Voluntary Fund (submitted by the Delegations of Australia, Finland, New Zealand and Switzerland) was submitted on April 4, 2014. The Committee decided that the discussion on this document be deferred to the Twenty-Eighth Session of the Committee.

Indigenous Peoples and Local Community participation

The WIPO Secretariat facilitated, as usual, a meeting of the Indigenous Caucus (the Indigenous Consultative Forum) on the Sunday before the session began, March 23, 2014, at the WIPO Headquarters. Additionally, the indigenous caucus organized daily meetings during the session. The WIPO Secretariat continued to fund secretarial services (secretarial, interpretation and translation) for indigenous and local communities at the session, provided by the Documentation Centre for Indigenous Peoples (DoCip).

Indigenous panel

An indigenous panel PDF, Flyer on indigenous panel on IP, TK & TCEs,titled Intellectual Property, Traditional Knowledge and Traditional Cultural Expressions: Indigenous Peoples’ 'right to maintain, control, protect and develop their intellectual property' under Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples was held on Monday afternoon.

The keynote speaker was Mr. Pavel Sulyandziga, the President of the Batani Fund and Member of the United Nations Working Group on the Issue of of Human Rights and Transnational Corporations and other Business Enterprises, Russia, while other panelists were Mrs. Edith Bastidas, Legal Advisor, Entidad Promotora de Salud Indígena MALLAMAS, Colombia and Mr. Preston Hardison, Policy Analyst, Tulalip Tribes of Washington, United States of America. Many delegates welcomed and attended the Panel, thanks particularly to the high caliber of the panelists who addressed directly the issues under negotiation at the session.

Report

The draft report of IGC 27 will be tabled for adoption at IGC 28 which will be held in July 2014. An initial draft report will be made available on our website on June 4, 2014.

Attendance

The Committee was attended by participants from 100 countries, the European Union and 41 observers.As already noted, it was chaired by Ambassador Wayne McCook (Jamaica), with Ms. Alexandra Grazioli (Switzerland), Ms. Ahlem Sara Charikhi (Algeria) and Mr. Abdulkadir Jailani (Indonesia) as Vice-Chairs. A total of four organizations were accredited as new observers at the session.

Side events

The International Center for Trade and Sustainable Development (ICTSD) organized a side event on Thursday, March 27, 2014, entitled “The Geneva Dialogues on Traditional Knowledge: A Contribution to Consensus-Building at the IGC.” It attracted strong interest and was well attended.

IGC 28

The Twenty-Eighth Session of the IGC will be a cross-cutting session addressing the three thematic areas of the IGC’s work – genetic resources (GRs), TK and TCEs. The session will take stock of progress made by the IGC and make a recommendation to the 2014 General Assembly. It is provisionally scheduled to take place from July 7 to 9, 2014.

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