WIPO Conference on Genetic Resources to Discuss Draft Law

A draft text for a legal instrument on the protection of traditional knowledge will continue to make its way towards a potential diplomatic conference, members of the World Intellectual Property Organization (WIPO) decided last week in Geneva.

The Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC) was created in 2000 in response to concerns by biodiversity-rich countries and indigenous communities about the misappropriation of their genetic resources and associated traditional knowledge.

The committee is currently working toward developing text(s) for an international legal instrument(s) aimed at ensuring the effective protection of genetic resources, traditional knowledge, and traditional cultural expressions. The work has been divided into three thematic sessions to deal with the respective topics, with the last of these slated for July. The document considered last week is expected to be transmitted to the organisation’s General Assemblies in September, which will in turn decide whether to convene a diplomatic conference on the subject - the UN body’s highest level of negotiations.

Text sees progress, though brackets remain

The 22-26 April meeting saw delegates work in informal and small drafting groups in order to whittle down a text fraught with brackets. For the most part, members focused on trying to resolve some of the remaining kinks in the areas of the subject matter, beneficiaries, and scope of protection, as well as exceptions and limitations to the instrument.

Though some parts of the text - such as the definition of traditional knowledge - appear to have fewer brackets than before, the document still reflects important disagreements between countries on core issues.

One particularly contentious issue under “scope of protection” continues to be a mandatory disclosure requirement in patent applications regarding the origin of genetic resources and associated traditional knowledge. Proponents say that such a measure would prevent erroneous patents from being granted and ensure that adequate access and benefit-sharing provisions are in place.  Opponents say such a requirement would be burdensome for patent applicants and may not ensure the adequate protection of traditional knowledge.

Members are also still at odds over exceptions and limitations in the potential instrument, and agreed that most countries needed more time to thoroughly assess the options on the table.

Public domain issue heats up

Another issue that turned heated during the discussions was whether traditional knowledge found in the public domain or that is known and used outside the community is eligible for protection. The African Group, for one, noted the intellectual property (IP) system already has a difficult time defining what is meant by the public domain, and it is not up to traditional knowledge negotiations to resolve this problem.

Other texts reignite controversy

One of the documents is a joint recommendation that sets non-binding general guidelines for the protection of genetic resources and associated traditional knowledge, which was submitted by the US, Canada, Japan, Norway, and South Korea.

Another one features a proposal for the terms of reference for a WIPO study on measures related to the avoidance of the erroneous granting of patents. The third suggests that a joint recommendation be made on the use of databases for the defensive protection of genetic resources and the associated traditional knowledge. These last two were tabled by the same group of countries as the first proposal, with the exception of Norway.

Many developing countries expressed concern that reopening these previously acknowledged texts would bring up “parallel discussions” that would significantly hinder the existing process on the current draft text.