WIPO on Genetic Resources, Traditional Knowledge and

UNCLAS GENEVA 000012

SIPDIS

STATE FOR EEB/IPC, IO/GS, OES/ENRC
COMMERCE FOR USPTO

E.O. 12958: N/A
TAGS: ECON KIPR WIPO
SUBJECT: WIPO on Genetic Resources, Traditional Knowledge and
Folklore, December 7-11, 2009


1. SUMMARY: The 15th session of the World Intellectual Property
Organization's Intergovernmental Committee (IGC) on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore
(GRTKF) had successful discussions on substantive issues, but
delegations remained far apart on procedural issues related to
intersessional meetings intended to speed the IGC's work. With no
agreement on the terms of reference for the intersessional working
group (IWG),the IWG will not meet in March 2010 as planned, and the
full IGC committee will meet in March instead to try to agree on
process. END SUMMARY.


2. The Fifteenth Session of the IGC was held from December 7 to
December 11, 2009. In addition to the participation of Member
States, over 200 NGOs are accredited to the IGC, many representing
indigenous and local communities. U.S. delegation members were
Karin Ferriter, Attorney Advisor, Office of Intellectual Property
Policy and Enforcement, US Patent and Trademark Office (USPTO)
(co-head of delegation); Susan Anthony, Attorney Advisor USPTO
(co-head of delegation); Peggy Bulger, Director of American Folklife
Center Library of Congress; Sezaneh Seymour, Foreign Affairs
Officer, State Department; Nancy Weiss, Nancy E. Weiss, General
Counsel, U.S. Institute of Museum and Library Services, and Deborah
Lashley-Johnson, IP Attache for Economic and Science Affairs, U.S.
Mission, Geneva.

IGC Resumes Substantive Work
--------------

2. Under a new mandate agreed to at the September 2009 WIPO General
Assemblies, the IGC is to move to "text-based negotiations" to
ensure the effective protection of TK, GRs and TCEs with the
objective of developing an international legal instrument (or
instruments) to be submitted to the WIPO General Assembly in
September 2011.


3. With this new mandate and after several years of
stalemate concerning what type of legal form of GRTKF protection
should the IGC pursue, the IGC's substantive work resumed at the
15th session. Delegations proposed initial modifications to a
number of key, earlier documents, including working documents for
the protection of TCEs and TK. Unlike with TCEs and TK, GR did not
have a draft text upon which the Committee could focus its work.
Instead, the document discussed referenced listed options for
further work. Although some delegations expressed a preference to
discuss a second cluster of options, which is related to the
disclosure requirement, there was general support for continuing
work on each of the three clusters identified in the document.


4. In particular, Member States posed questions and
answers on issues such as what constitutes a traditional cultural
expression and what type of protection against the misappropriation
of TK should be given. Before the next IGC meeting, the Secretariat
will prepare new revised working documents on TCEs and TK reflecting
the proposed modifications and comments to the earlier documents.
The documents will be available by January for Member State comment.
As for GR, the Chair also provided an opportunity to the submission
of written comments, with a deadline of mid-February, 2010.


5. Nonetheless, delegations appeared to have different
interpretations on the status of the revised working documents on
TCEs and TK. Many developing countries viewed the working documents
as the only basis for the negotiations to achieve an internationally
legally binding treaty immediately. However, Members of the Group B
developed countries view the working documents as one of many
documents the IGC should use in developing a legal instrument.
Moreover, Group B noted that while the new mandate of the IGC refers
to three specific documents concerning TCEs, TK, and GR, the mandate
also notes that all the Committee's other documents, should
"constitute the basis of the Committee's work on text-based
negotiations".


Procedural Questions Remain
--------------

6. Under the new mandate, a full program of IGC meetings and
intersessional work between now and September 2011 is stipulated.
IGC 15 was supposed to develop terms of reference for the
intersessionals, however, agreement failed to be reached on who will
attend the IWG, what its mandate will be (negotiating group or
technical group),and what order will the issues be discussed. An
African Group proposal from early 2009 calls for a limited group of
technical experts (27 experts) to speed up the mandated work of the
IGC. Though the proposal is unclear, based on numerous
interventions, the proponents of the proposal think the mandate of
the IWG is to negotiate the drafting of the legal text. In
contrast, Group B was generally willing to not oppose a limited
group if the mandate was of a technical nature where questions are
posed at the IGC and are then referred to the IWG. However, Group B
could not support a limited expert group with negotiating authority,

because that would eliminate the role of Member States.


7. Regarding the issue concerning the way the IWG
discussions will be organized, the African proposal suggested
focusing each of the three scheduled intersessional meetings on one
of the three IGC issues, beginning with TCEs in February or March
2010, TK at the October 2010 intersessional, and discussion on GR at
the intersessional planned for February or March 2011. The U.S. and
other developed countries are concerned that the proposed timeline
for GR (2011) would fail to effectively influence negotiations at
the UN Convention on Biological Diversity (CBD),where negotiations
on an international regime on access and benefit-sharing for genetic
resources (which will include details on handling IP) are moving
quickly, with a deadline for completion in July 2010. While
developing countries seek to have the outcomes at the CBD influence
the IGC's work, the U.S. and other Group B countries view issues
concerning IP to be under WIPO's mandate and therefore should be
discussed at the IGC first.


8. To formalize concerns, Group B tabled a proposal
outlining its views on the IWG. While a Chair's text was released
to bridge gaps, positions remain unchanged. The next IGC now
scheduled for March 2010 in place of the IWG will focus on this
issue, and may also address who will chair future IGCs and IWGs.

GRIFFITHS#






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