TK and TCEs Again Under Focus at 37th WIPO IGC
ABS Canada
On August 27, 2018, the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) reconvened in Geneva for its 37th session.
The August 27-31 meeting is the third under the 2018-2019 biennium of the IGC and also the first opportunity for the experts to further advance negotiations on two texts for traditional knowledge (TK) and traditional cultural expressions (TCEs) under the current two-year program. The last two sessions of the IGC (35 and 36) focused on the genetic resources text. Its most recent iteration received broad and overwhelming cross-regional support of members despite attempts by the United States and its ally, Japan, to stall the adoption of the document by the IGC. Aside from being a part of the record of proceedings, the status of Rev 2 document (GR text) of the 36th IGC remains a contentious matter going to IGC 37 and ultimately to the WIPO General Assembly.
Program and Agenda Items
In the program released for the 37th IGC, the WIPO Secretariat has 10 agenda items for the sessions. At the core of those are Items 5 (continuation of substantive negotiations on TK/TCEs); 6 (establishment of an Ad Hoc Technical Expert Group(s) on TK/TCEs); and 7 (possible recommendations to the 2018 General Assembly). Other items on the agenda worthy of mention include Item 4, which relates to participation of Indigenous and Local Communities, and Item 8, which calls for discussion on the contribution of the IGC to the implementation of respective development agenda recommendations.
Methodology — Juxtaposed Negotiations on TK/TCEs Texts
The IGC’s Chair, Australia’s Ian Goss, proposed a working methodology for the current round of negotiations. Pursuant to the committee’s mandate to “undertake negotiations on TK/TCEs with a focus on addressing unresolved and cross-cutting issues and considering options for a draft legal instrument(s), the Chair isolated 10 items as part of indicative list of cross-cutting issues concerning TK and TCEs for the 37th IGC. They are:
policy objectives;
beneficiaries;
common definition of terms in the operative texts;
relationship with public domain;
criteria for eligibility (which overlaps with scope of protection, exceptions and limitations);
sanctions; remedies and exercise of rights;
administration of interest;
scope of protection, exceptions and limitations;
remedies and exercise of rights;
nature of international enforcement of rights in foreign jurisdictions on the basis of national treatment.
As was the case with IGC 36, delegates nominated smaller group of experts to engage at closed- door informal sessions while the plenary remained the decision-making body. A peculiar nature of the 37th IGC negotiations is the decision by experts to negotiate the text of TK and TCEs contemptuously and in juxtaposition. The last version of the TK text (WIPO/GRTKF/IC/34/5) was developed at IGC 32 in 2016 and transmitted to IGC 34 which passed it to the WIPO General Assembly in 2017 (Annex I GA/49/11). In similar vein, the 34th session of IGC in 2017 developed the latest version of the TCE text (WIPO/GRTKF/34/8) which was also transmitted to the WIPO GA (Annex II WO/GA49/11).
No Progress on Conceptual Orientations
Conflicting approaches to the 10 cross-cutting issues outstanding for negotiations signpost the traditional points of divergence between developing and developed countries on the subject matters of TK and TCEs. These different approaches raise high conceptual questions around the inclination of many developed countries to use conventional intellectual property principles and their economic orientations as protective frameworks for TK and TCEs. This stands in contrast to the unequivocal insistence of Indigenous and Local Community custodians of TK and TCEs that IP frameworks are not able to capture the moral, spiritual and other indescribable essences of TK/TCEs. The idea of juxtaposition of the two draft instruments further complicates the conceptual challenge delegates are required to grapple with even at a higher level, a fact that resulted in the eventual decision to split the two documents and engage with them via two separate but cross-cutting tracks.
In addition to the overarching conceptual conundrum, a clear dichotomy arises in virtually all counts regarding the policy objectives of protection of TK/TCEs. Another area of discordance is who the beneficiaries of the protection should be as between Indigenous Peoples and Local Communities and nation states.
Finally, how best to define operative terms such as TK and TCEs remains a point of contention.
Rights and Measures-Based Approach to Protection
Other contentious matters are the tensions around rights-based and measures-based approaches. The former refers to a regime of protection that issues fundamentally from the inalienable rights of Indigenous peoples and, in applicable cases, Local Communities to their TK and TCEs pursuant to the United National Declaration on the Rights of Indigenous Peoples and the status of Indigenous peoples as co-sovereigns within nation states and also with regard to fundamental human rights principles. That approach contrasts to a protection regime that in anchored on subjecting the claim of Indigenous peoples and Local Communities’ right to TK/TCEs to the control of nation states through national laws and other instruments of power. In non-Indigenous circles that approach is perceived as rights-based, even through the Indigenous Caucus consider it measures-based. But an incontrovertible measures-based approach is the use and role of data bases of TK and TCEs as instruments for defensive protection.
As indicated, stakeholder continue to conflate their understanding of a right-based approach. For example, for most African delegates, a rights-based approach would seem to only consider measures-based approaches like the use of databases and other measures as supplementary to substantive protections which allows national governments, Indigenous peoples and local various unfettered rights-based options, including human and related sights, e.g. statutory rights.
Tiered and Differentiated Approach
Many delegates from Africa and the rest of the global south have proposed a tiered and differentiated approach to the protection of TK/TCEs, distinguishing between sacred/secret, narrowly diffused and widely diffused TK/TCEs in which the level of protection is calibrated with regard to the extent of diffusion. This approach arose in response to concerns regarding legal certainty and questions of public domain and reservations over potential retroactive claims against historic uses of TK/TCEs, especially those that have been widely diffused over time.
While the proponents of the tiered approach consider it a right-based concept, their Indigenous Caucus counterparts consider it a measures-based approach. The Indigenous Caucus at the IGC has been reluctant to fully endorse any sort of tiered and differentiated approach as of yet, expressing concern over further truncation and dichotomization of their knowledge systems and its spiritual essences. While they have continued to engage and to explore the concept with the African and LMCs counterparts, their holding out provides opportunities for interests’ reluctant to make progress in the negotiations to cash in on the perceived gaps between them their traditional allies. The tiered approach represents a pragmatic and realistic option and part of gap-closing strategy designed to accommodate all interests in a subject matter where compromises are inevitable steps to progress.
‘Beneficiaries of Protection’
Another area of tension includes the beneficiaries of protection of TK/TCEs. This is one point where Indigenous Peoples and Local Communities seem to be in agreement with the developed countries of the global north. Both interests believe that Indigenous Peoples and Local Communities are beneficiaries of the protection for TK/TCEs even though countries such as Canada seek clarification on what is meant by “Local Communities”. For China, India, majority of the countries of the African Group and most countries in the Group of Like Minded States (LMCs), there are clear conditions in which states could be beneficiaries of protection of TK/TCEs. In many of those countries also the concept of Indigenous Peoples and Local Communities and their relationships with the state are foggy aspect of their political history and are not as clear as that of Indigenous Peoples in colonial states and enclave territories such as Canada, US and Australia, for example. The contest of beneficiaries of protection has its roots in different narratives of biopiracy as between countries of the global south and Indigenous and Local Communities all over the world.
Key Lessons from the TK/TCEs Negotiations
There are few lessons from these and a host of other outstanding and contentious issues. The first is that for any viable instrument(s) to emanate from these negotiations, that instrument must take the status of a framework document (in the true sense of the word). It must set minimum international frameworks or principles for the protection of TK and TCEs and allow national governments, Indigenous peoples and Local Communities the latitude to work out the operational details for the protection of TK/TCEs in accordance with all prevailing local, political and cultural considerations that may be engaged. That way, it is feasible to secure and apply both rights- and measures-based approaches as a complementary matter even on contingent basis to specific contextual realities.
The other lesson is that continued fixation on the conventional intellectual property principle as the overarching framework for TK/TCEs protection is not realistic and can only stall or frustrate negotiations. Those who insist on that framework demonstrate either genuine or deliberate ignorance over the circumstances that have led to seeking a dedicated international legal framework for the protection of TK/TCEs and, of course, genetic resources in the first place. The WIPO Secretariat has conducted a gap analysis of TK/TCEs and the IP System to demonstrate the imperative for a regime of protection such that the IGC is negotiating as a gap-feeling measure. Historically, the need for deliberate and concerted international effort to protect TK/TCE and even GRs arose as a result of the failure or lack of fitness for purpose of the conventional IP system to do that job. Even though the task to negotiate the new instrument(s) has been consigned to the WIPO, protection of TK/TCEs and genetic resources fundamentally raise complex issues across open-ended considerations with regard to Indigenous peoples and Local Communities that could hardly be captured by the commercial and market economic considerations that are the concern of conventional IP systems. Such principles as public domain, policy objectives for protection, eligibility criteria for the protection raise far considerations than are capable of being accommodated under a standard intellectual property instrument. This is the reason experts and delegates to IGC must come to terms with reality. The expected text to come out of their work must of necessity have a sui generis status and must naturally take into considerations the regime complex which implicates TK, TCEs and GRs in many other fora.
Ad Hoc Technical Expert Group on TK/TCEs
In addition to substantive negotiations on the texts of TK and TCEs, the 37th IGC are expected to nominate members of Ad Hoc Technical Expert Group(s) “to address a special legal, policy and technical issue”. Pursuant to the 2018/2019 biennium mandate, “the expert group(s) will have a balanced and regional representation and use an efficient working methodology.” The 35th IGC established an Ad Hoc Technical Expert Group on Genetic Resources. The work of this group was helpful in advancing negotiation on the GR text despite US’ attempt to stall the text. The IGC 37 has favoured that methodology and it has requested regional groups to nominate members of Ad Hoc Technical Expert on TK and TCEs. The Ad Hoc Group will convene a day ahead of the 38 IGC to tackle key issues with dedicated expert attention in order to facilitate subsequent sessions on TK and TCEs.
Mid-Term Recommendations to the WIPO General Assembly
Aside from IGC 37, experts still have two to three more opportunities to deliberate on TK and TCE texts, specifically at the 38th, 39th and 40th IGC. But perhaps the most contentious issue on the agenda of the 37th IGC is the option offered in the IGC mandate for the committee to consider making recommendation to the 2018 WIPO General Assembly. Such potential recommendation is, in a way, adjunct to the mid-term report for the 2018/2019 biennium. The big elephant in the room is what to do with the text of the Rev 2 document on Genetic Resources which the United States and Japan opposed for adoption as a consensus document. Despite America’s opposition, that document remains part of the record and factual report from the IGC deliberations. Here is how it was captured on the report to the WIPO GA:
"6. IGC 36 continues to work on the text [previous GR text Consolidated Document Relating to IP and GR Rev 2] but unable to reach consensus on its revision decided to transmit the text in the annex to document WIPO/GRTKF/IC/36/4 to IGC 40 in accordance with the committee’s mandate for 2018/2019 and work program for 2018, as contained in document WO/GA/49/21. The revised text prepared by Facilitators and Friend of the Chair will nonetheless be reflected in report of the IGC 36. 7. Pursuant to the decision taken at IGC 36 as described immediately above, this document WO/GA/50/8 Prov] encloses the text in document WIPO/GRTKF/IC/36/4 for information purpose only."
The IGC Chair experiencing pressure from all sides as to whether he could then make recommendations to GA 2018 that would implicate the document that US and Japan stalled or to ignore direct reference to the document and make vague reference to progress on GR text. Regional groups have their own sense of expectations from the Chair and are prepared with their own draft recommendation. After elongated diplomatic shuttles and consultations with regional groups and experts the committee eventually agreed on the following recommendations to the 2018 General Assembly:
"The 2018 WIPO General Assembly is invited to consider the “Report of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)” (document WO/GA/50/8), and to call upon the IGC, based on progress made, to expedite its work with the mandate of the IGC for the biennium 2018/2019 …."
"...Acknowledging the progress made at the 35 and 36 sessions on GRs, reflected in the report and draft report of the sessions respectively (WIPO/GRTKF/IC/35/10 and WIPO/GRTKF/36/11 Prov.)."
The significance of these recommendations is that it marks the first time in over a decade that the IGC made recommendations to the WIPO General Assembly.
Voluntary Funding for Participation of Indigenous and Local Communities
Finally, voluntary funding to support the attendance and participation of Indigenous peoples and Local Communities has been completely depleted. The Indigenous Caucus has expressed its desire to have funding come directly from the WIPO budget rather the voluntary fund which leaves their attendance at the mercy of individual member states. Over the years, only few countries have contributed to the voluntary fund. In order for that issue to be presented to the General Assembly for consideration, that proposal by the Indigenous Caucus has to have the support of at least one WIPO member state. Regrettably, no member state was able to support that save for South Africa which expressed support during the last day of deliberations. Despite that, it looks like no member state is able to go all the way with the subject which has been opposed by the United States much earlier in the life of IGC. As I have written about here, this problematic and peripheral way of treating Indigenous participation in the IGC challenges the very legitimacy of the body charged with negotiating texts for the protection of subject matters that are at the core of indigenous people’s survival, self-determination and their ability create wealth and bridge development deficit.
The above referenced recommendations of the IGC to the WIPO 2018 shied away from directly reflecting the desire of Indigenous Causes to have their funding directly from the WIPO budget. Without ruling that out, though, here is how it was captured in the recommendations:
"Recognizing the importance of the participation of Indigenous peoples and local communities in the work of the IGC, noting that the WIPO Voluntary Fund is depleted and encouraging Member States to consider contributing to the Fund and consider other alternative funding arrangements."
WIPO 2018 General Assembly and Future of the IGC
In late September, the GA is set to receive and consider the IGC mid-term report and recommendations (part of which is highlighted above) while negotiations are set to continue for the 38th, 39th and 40th IGC. The latter session is scheduled to make final recommendations to the WIPO GA in 2019. There are a few potential options. First is a scenario where all the texts (on GR, TK and TCEs) are mature enough to warrant recommending the convening of a diplomatic conference. The second is where one or more of the texts are considered mature for a diplomatic conference. The third scenario is one that rules out diplomatic conference but favours continuation of negotiations to the next potential biennium 2019-20120. This is the reason the 40th in 2019 is very crucial to the future of the expert committee.
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