Identifier
Created
Classification
Origin
09GENEVA597
2009-07-20 09:33:00
UNCLASSIFIED
Mission Geneva
Cable title:  

WIPO on Genetic Resources, Traditional Knowledge and

Tags:  ECON KIPR WIPO 
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VZCZCXYZ0000
RR RUEHWEB

DE RUEHGV #0597/01 2010933
ZNR UUUUU ZZH
R 200933Z JUL 09
FM USMISSION GENEVA
TO RUEHC/SECSTATE WASHDC 8873
INFO RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
UNCLAS GENEVA 000597 

SIPDIS

SECSTATE FOR EB
COMMERCE FOR USPTO

E.O. 12958: N/A
TAGS: ECON KIPR WIPO
SUBJECT: WIPO on Genetic Resources, Traditional Knowledge and
Folklore

UNCLAS GENEVA 000597

SIPDIS

SECSTATE FOR EB
COMMERCE FOR USPTO

E.O. 12958: N/A
TAGS: ECON KIPR WIPO
SUBJECT: WIPO on Genetic Resources, Traditional Knowledge and
Folklore


1. SUMMARY: Member States at the 14th session of the WIPO
Intergovernmental Committee (IGC) on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore (GRTKF),which
was held in Geneva from June 29 to July 3, 2009, failed to reach an
agreement on a recommendation to the 2009 WIPO General Assembly (GA)
to renew the mandate of the IGC. The week-long, contentious
deliberations were based on a proposal submitted by the African
Group, which called for "text-based negotiations" in the period
2009/11, leading to the submission of a text of an "internationally
legally binding instrument(s)" for the protection of GRTKF to the
2011 GA. The African Group proposal also set forth demands for
convening six "intersessional working groups" in the next two-year
period, which according to the WIPO Secretariat would nearly triple
the proposed 2010/11 budget for the IGC. The United States, along
with the European Union and the Group B nations, supported the
renewal of the IGC mandate and offered a number of amendments to the
African Group proposal. However, the negotiations collapsed late in
the week when it became clear that the key elements of the African
Group proposal were non-negotiable. The failure of IGC 14 follows a
procedural impasse at IGC 13. As a result, the IGC has made no
progress on its substantive agenda in 2009. Although some
delegations (including the United States) expressed a willingness to
continue the negotiations in informal consultations in the period
leading up to the 2009 GA, in all likelihood the question of the
renewal of the IGC's mandate will be left to the September 2009 WIPO
General Assembly. End Summary.

The Gathering Storm: The African Group Proposal
-------------- ---

2. Under the chairmanship of Ambassador Rigoberto Gauto Vielman
(Paraguay),the Committee agreed to change the order of the agenda
for the session, moving up "Future Work" (agenda item 7) for early
discussion, thus setting the stage for the week-long deliberations
on the future of the IGC. The Committee also early agreed to use
the proposal of the African Group on renewing the mandate of the IGC
as the basis for the IGC's deliberations. Many countries in the
Asian Group and GRULAC supported the proposal from the outset and
were characterized as "partners." The African Group proposal

(styled as "The Elements for the New Mandate") was tabled shortly
before the meeting and consists of three core elements. First, the
proposal calls for "text-based negotiations" on GRTKF during the
next biennium. Second, the proposal calls for the submission of a
text of an "internationally legally binding instrument/instruments"
on GRTKF to the 2011 GA, with a request for convening a Diplomatic
Conference in 2012. Third, the proposal calls for convening six
"intersessional working groups" in the period 2010-2011, with a
detailed work program and timetable set forth in an annex to the
proposal. Taking into account the high sensitivity assigned by the
African Group to ownership of its proposal, and in deference to the
decision of the Chair, Group B and the EU initially refrained from
introducing competing proposals as potentially counterproductive.
Nor did any other delegation table an alternative proposal.


3. The African Group (supported by India and Brazil) expressed its
strong preference to "negotiate" the text of its proposal in the
plenary session, rather than in small working groups (the customary
WIPO practice). Again bowing to the demands of the African Group,
the Chair decided on a process of compiling amendments to the
African Group text in the plenary session. (Proposed amendments
were projected onto a screen in the main WIPO hall.) The Chair's
process for recording edits to the African Group proposal departed
from well-established UN procedures. For example, instead of
showing brackets or strikeouts to text that other delegations
proposed to delete, the Chair decided to footnote the text, with a
comment that a delegation proposed to delete the text. In addition,
while some changes were shown by one or two word inserts, in many
cases the Chair insisted on the submission of alternative paragraphs
to show suggested revisions to the African Group's text. In the
end, this unusual process resulted in a "text" that left the
original African Group proposal completely intact while showing
various (often overlapping) objections and alternatives.

Distant Thunder: Text-Based Negotiations
--------------

4. The United States coordinated with the delegations of Japan,
Canada, New Zealand, and Australia (the JUSCANZ group) in an effort
to reach consensus on alternative language for key elements of the
African Group proposal, which had mixed results. The United States,
for example, proposed the deletion of the phrase "text-based
negotiations," which would be replaced by "outcome-oriented
deliberations, without prejudice to any outcome and on the basis of
the Committee's prior work." As the U.S. delegation later
explained, the substitute language was broad enough to allow the
Committee to reach consensus on an international statement on the
protection of GRTKF based on the Committee's prior work on "policy
principles and objectives." The EU supported the U.S. proposal,
while the Mexican delegation simply sought deletion of "text-based
negotiations." Senegal and South Africa opposed the U.S. language,
which they complained was unfamiliar in the UN context, and Brazil

criticized the U.S. amendment as "too non-committal."


5. The real enemy of consensus, however, may have been the apparent
calculated vagueness of the phrase "text-based negotiations." In
particular, a number of delegations privately expressed concern that
the phrase "text-based" negotiations referred to the annexes to WIPO
documents WIPO/TKGRF/IC/9/4 and 9/5, which contain certain
"substantive provisions" organized into treaty-like format. Over
the last seven sessions of the IGC, the United States and other
developed countries have taken a firm position opposing the further
development of these texts. In an effort to clarify this vague
phrase, the delegation of New Zealand tabled its own proposal
calling for the deletion of the phrase "text-based negotiations" and
replacing it with "the development of text, without prejudice to any
outcomes." New Zealand stated that it was not authorized to
negotiate based upon specific IGC documents. Nonetheless, Senegal,
on behalf of the African Group, while refusing to clarify the
precise meaning of the phrase "text-based negotiations," rejected
the New Zealand proposal. New Zealand later backed away from its
proposed amendment, apparently persuaded that "text-based
negotiations" referred to negotiations on the basis of all existing
IGC texts.


6. In the view of a number of delegations, however, not all the
IGC's work was sufficiently mature to warrant text-based
negotiations, or even to justify the equal attention of the
Committee. In particular, a number of members of the African Group
and their partners (with Brazil leading the charge) expressed the
view that the Committee's work on GR, which they characterized as
not as far along as its consideration of TK and folklore, could
proceed at a slower pace or be handled in a different way. Driving
the point home, the delegation of Brazil (supported by India and
Mexico) proposed qualifying the phrase "text-based negotiations"
with the phrase "taking into account the different levels of
development of the texts." Noting the lack of symmetry in the IGC's
substantive work to date, but flipping Brazil's point, the United
States and the EU tabled language instructing the Committee to
continue its work in all three substantive areas on an "equal"
(later revised to "impartial" (EU) or "non-discriminatory" (US))
basis.

The Lightning Bolt: Internationally Legally Binding Instrument
-------------- --------------

7. The centerpiece of the African Group proposal was a demand to
submit to the 2011 WIPO GA a text for an "internationally legally
binding instrument/instruments" on GRTKF, along with a
recommendation of a date for the Diplomatic Conference. The demand
to start negotiating a legally binding instrument drew high praise
from the delegations of Brazil, Egypt, India, South Africa,
Indonesia, Iran, Pakistan, and many Caribbean nations. However, the
United States, the EU (with France playing a leadership role),and
other Group B members (including those who were willing to accept
most other African Group proposals) were not persuaded that the case
had been made for the negotiation of a legally binding instrument.
As an alternative, the United States proposed that the IGC submit to
the 2011 GA "recommendations on the content for an outcome or
outcomes, including the nature, format and status and how the
Committee should finalize its recommendations" on GRTKF, while the
EU suggested that the IGC's work program "should lead to an
internationally legally binding or non-legally binding instrument/s
on GRTKF." Neither the U.S. nor EU proposals were acceptable to the
African Group.

Leaving the Ground Behind: The Ballooning IGC Budget
-------------- --------------

8. Closely related to the African Group's demand for text-based
negotiations leading to an internationally legally binding
instrument was the request for "a defined work program and
timeframe," including convening six "intersessional working groups"
in the period 2010-2011. Group B countries and the EU, along with
the United States, Mexico, and Switzerland, expressed their serious
concerns regarding the financial and administrative implications of
this aspect of the African Group proposal, especially during a
period of constrained organizational resources. A number of
delegations and NGOs also expressed concerns about the exclusive
nature of intersessional work. The United States, Mexico and
Switzerland requested additional budget information from the
Secretariat to evaluate the proposal. Based on the information
provided, the estimated IGC budget in the next two-year period would
balloon to 2 million Swiss Francs, nearly tripling the proposed
2010/11 budget for the IGC and far in excess of the budgets of other
WIPO committees. In part to conserve resources, but also to align
the IGC work program with other WIPO committees, the United States
proposed the deletion of the phrase "intersessional work" (to be
replaced by the phrase "extraordinary sessions of the IGC in a
format to be agreed"). The EU also opposed intersessional work for
budgetary and policy reasons, but (as an apparent compromise)
proposed two additional meetings of the IGC during the next
biennium. The EU proposal did not attract support from other

delegations.

The Rainstorm: Getting Soaked on Process
--------------

9. In a surprising mid-week ruling, rather than continuing the
negotiations in the plenary session, Chairman Gauto invited the
African Group to revise its own proposal, taking into account the
amendments and comments of other groups and delegations. Quickly
reversing their position on the value of the openness and
transparency of deliberations in plenary sessions, the African Group
accepted the Chair's invitation. The African Group promised to set
aside the next morning for consultations with its "partners" but
remained non-committal on whether they would deliver a "new
proposal" to the plenary session. Looking for the silver lining in
this dark cloud, the U.S. delegation renewed its earlier request for
a meeting with the African Group, which was delayed until shortly
before the plenary session on Thursday afternoon. At the request of
the African Group, Australia, New Zealand and Canada joined the
meeting. In casual disregard of the week-long effort to coordinate
positions within the JUSCANZ group, and to the disappointment of the
United States, the delegations of Australia, New Zealand and Canada
used the meeting to advance their narrower national positions.


10. When the plenary session reconvened on Thursday afternoon, it
became clear that the African Group consulted primarily with
like-minded delegations (Brazil, Egypt, India, South Africa,
Indonesia, Iran, Pakistan, many Caribbean nations) and had not
attempted to work out compromise text with other delegations. With
strong support from Pakistan, India, Brazil and the Philippines, the
African Group insisted on retaining the key elements of its original
proposal, characterizing the amendments offered by other delegations
as violations of the spirit of and unhelpful efforts to dilute the
original African Group proposal, or entirely new proposals. More
broadly, Brazil and India argued that it was unfair to protect
holders of patents, copyrights and trademarks but to deny similar
protection to indigenous and traditional holders of GRTKF. On
behalf of Group B, the delegation of Germany repeatedly called on
the African Group to provide IGC members with information on the
consultation process and to explain how it discharged the Chair's
mandate to accommodate the plenary amendments to the African Group
proposal. The questions drew evasive and hostile responses from the
delegate from Senegal and other African Group representatives.


11. On the last day of the plenary session, the EU tabled its own
two-track proposal, calling for the renewal of the IGC mandate
coupled with a recommendation for a GA resolution on the protection
of GRTKF. The African Group rejected the concept of a two-track
process as unworkable. Drawing on well-established national
positions expressed throughout the meeting, both Australia (with the
support of New Zealand) and Canada made proposals during the
final-day plenary sessions. Although the African Group was
dissatisfied with the new proposals, some members of the group
thanked Australia and New Zealand for their efforts to find
compromise language. According to some African Group members, the
new proposals were not only unwelcome but also procedurally
defective and thus inappropriate to be forwarded to the GA for
further consideration. In particular, the delegate from Egypt
argued that the last-day proposals were defective under the IGC's
rules of procedure because they were not submitted in writing and
translated in advance of the session. It followed, according to
Egypt, that only the African Group proposal (which also failed to
comply with certain IGC notice requirements) remained standing at
the end of the week. The Legal Advisor, however, respectfully
disagreed, advising the Committee that the African Group proposal,
the amendments thereto, and the free-standing proposals tabled at
the 14th session were all properly before the IGC. The Legal
Advisor also stated that the mandate of the IGC continued through
the end of 2009, correcting the misunderstanding of the delegate
from Egypt that the mandate expired in September 2009.

Searching for the Rainbow
--------------

12. Despite persistent rumors that the African Group would call for
a vote on its proposal for renewal of the IGC mandate, no delegation
called for such a vote. Absent adoption of any proposal for the
renewal of the IGC mandate (either by consensus or vote),it was
agreed that the report of the committee on future work would simply
state that IGC members "did not reach agreement on this agenda
item." A consensus also seemed to emerge that all proposals on
future work-the African Group proposal, the amendments thereto, and
the other proposals-would be discussed and/or appended to a factual
committee report of the 14th session, which would be available for
further discussion and action at the September 2009 WIPO GA.
However, the precise mechanism to reach consensus on the future of
the IGC at the GA, which typically responds to recommendations from
WIPO committees, remained unclear at the end of the 14th session. A
number of delegations, including the United States, expressed a
willingness to continue the negotiations in informal consultations
in the period leading up to the 2009 GA, but the way forward

remained uncertain. Almost all delegations expressed regret at the
failure of the IGC to reach agreement on a recommendation to the GA
on the future of the Committee. What Brazil trumpeted as a
"breakthrough" session of the IGC earlier in the week, turned into
the IGC's "breakdown" session by week's end. Like an intense,
summer rainstorm in Geneva, the 14th session of the IGC left the
participants soaked, somewhat chilled by the experience, and still
searching for a rainbow at the end of the storm.


13. The United States delegation consisted of Michael Shapiro
(USPTO),Debbie Lashley-Johnson (State),Karin Ferriter (USPTO),
Sezaneh Seymour (State),Peggy Bulger (LOC),and Michele Woods
(LOC).

GRIFFITHS #