AN OVERVIEW OF RELEVANT IP DEVELOPMENTS IN VARIOUS FORA discussions and find agreement on pressing IGC and three inter-sessional working questions within this time frame. group meetings in the next two years. To highlight the urgency of agreed If the IGC successfully completes its outcomes, the WIPO General Assembly has mandate, the 2011 WIPO General Assembly repeatedly requested that the IGC speed up would receive the text from the IGC and its work and move towards tangible convene a Diplomatic Conference, the last outcomes. Despite this, in the past eight treaty-making step at WIPO, to conclude years, the IGC has not agreed on any the treaty or treaties. outcome for any of the three main issues it is dealing with. The huge amount of Developing countries fought hard to reach research done by the IGC has not yet this outcome. It took lengthy and intense translated to a new international legal discussions in the previous two sessions of framework for the protection of TK and the IGC and in the 2009 GA, where folklore (or traditional cultural expressions). positions of developed and developing Nor has it translated into any agreed countries were highly polarized. solutions on IP aspects of access to GR and equitable benefit sharing derived from the At the fourteenth session of the IGC in April use of such resources. 2009, countries failed to reach agreement on the future work plan for the IGC. The The outcome(s) of the work of the IGC IGC did not recommend that the 2009 GA should complement and not undermine the renew its mandate. related work taking place in other international fora, including: the Informal deliberations took place on the negotiations on an international Access and basis of an African Group proposal that Benefit Sharing Regime in the context of sought to bring diverging positions together the Convention on Biological Diversity concerning the “list of issues” under (CBD); implementation of the Bonn discussion and set a specific time frame for Guidelines on access to GR and the fair and text based negotiations. Developed equitable sharing of the benefits arising countries were adamant in opposing new from their utilization; discussions at the language for the mandate of the IGC. WTO on both the relationship between the CBD and the TRIPS Agreement as well as The African Group, Brazil, Indonesia, India review of Article 27.3b; and the and most other developing countries implementation of the United Nations Food strongly supported the African Group and Agriculture Organization (FAO) proposal. On the other hand, the EU, International Treaty on Plant Genetic South Korea, Japan and the US adamantly Resources for Food and Agriculture opposed text-based negotiations towards (ITPGRFA). an internationally legally binding instrument(s). Australia, Canada and New Zealand accepted text-based negotiations, II. The New Mandate of the WIPO IGC but not the objective of concluding international legally binding instruments. The 47th session of the WIPO General Assembly (GA) in September 2009 marks a Indigenous, community groups and other limited success for developing countries. observers reacted strongly against what The GA renewed and reviewed the IGC they viewed as a lack of transparency in mandate, giving it clear guidance to start informal deliberations, in which they were text-based negotiations with a specific unable to take part. objective, time frame and road map. Due to the informal nature of the The objective of the negotiations in the IGC discussions on the issue of the IGC’s future will be to reach agreement by 2011 on a work, no country statements are included in text that would constitute an international the provisional report of the Session legal instrument, or instruments, to ensure (WIPO/GRTKF/IC/14/12 Prov. 2) on this effective protection of GR, TK and folklore. issue. Building on the previous work of the IGC, the negotiations and technical work will The 2009 GA was thus a defining moment take place in four regular sessions of the for the future of the IGC. Developing Page 2 AN OVERVIEW OF RELEVANT IP DEVELOPMENTS IN VARIOUS FORA countries were unwilling to accept renewal After days of informal deliberations, the of the previous mandate of the IGC. It was 2009 GA reached the following decision: argued that the Committee had built over the past eight years sufficient work to move “ The committee will during the next towards text-based negotiations. budgetary biennium (2010/2011) and Developing countries voiced their without prejudice to the work pursued in frustration with “the deadlock and watering other fora, continue its work and undertake down of substantive issues.” Indeed, it text-based negotiations with the objective would be of little value for developing of reaching agreement on a text of an countries to continue discussions in the IGC international legal instrument (or without agreement on a clear roadmap for instruments) which will ensure the effective concrete outcomes within a specific time protection of GRs, TK and TCEs” frame. Rather, it could undermine related work in other multilateral fora. “The Committee will follow, as set out in the Annex, a clearly defined work program The Director General, in his opening for the 2010/2011 biennium. This work remarks to the 2009 GA, appealed on program will make provision for, in addition Member States to “show the flexibility and to the 15th session of the Committee understanding that is necessary to renew schedule for December 2009, four sessions the mandate of this Committee on terms of the IGC and three inter-sessional that will provide grounds for the developing working groups in the 2010-2011 countries, in particular, to believe that biennium” tangible solutions at the international level to the unfair misappropriation of TK and traditional cultural expressions are close”. “The focus of the committee’s work in the 2010/2011 biennium will build on the In their opening remarks, the EC, Japan, existing work carried out by the committee South Korea, and the US all expressed and use all WIPO working documents, discontent with the demand for a legally - including WIPO/GRTKF/IC/9/4, binding instrument. The EC suggested that WIPO/GRTKF/1C/9/5 and the IGC’s mandate be renewed with a more WIPO/GRTKF/IC/11/8A (Traditional Cultural focused work-plan, building towards a Expressions, Traditional Knowledge and WIPO Declaration on Genetic Resources, Genetic Resources), which are to constitute Traditional Knowledge and Folklore. the basis of the Committee’s work on text- However, the US disagreed with the EC, based negotiations” stating that many gaps were still present in the Committee’s work and that a “The Committee is requested to submit to declaration was premature, let alone a the 2011 General Assembly the text (or treaty. Rather, the US suggested texts) of an international legal instrument accelerating substantive work to fill in the (or instruments) which will ensure the gaps left unfinished from the previous effective protection of GRs, TK and TCEs. mandate. The US further stated that text The General Assembly in 2011 will decide based negotiations of a declaration or on convening a Diplomatic Conference.” treaty should not be held without agreement on contexts, nature and “The General Assembly requests the substance. Australia, in a written proposal International Bureau to continue to assist offered a compromise solution: text-based the Committee by providing Member states negotiations under a clear time-frame. with necessary expertise and funding of the participation of experts from developing With these positions on the table, the countries and LDCs according to the usual resolution of the issue of the future formula”. mandate of the IGC was yet again taken behind closed doors. These informal “The General Assembly adopts the draft discussions dragged for several days. report of the 14th session of the Committee as reflected in document III. The 2009 General Assembly WIPO/GRTKF/IC/14/12 Prov.2 as the report Decision on the Future Mandate of the of that session”. IGC [The Annex to the decision contains the list Page 3 AN OVERVIEW OF RELEVANT IP DEVELOPMENTS IN VARIOUS FORA of meetings that will be held between this interventions by developed countries GA and the 2011 GA as follows: First indicate an intention to revisit earlier Intersessional Working Group- working documents. This will delay the February/March 2010; IGC 16-May/June Committee’s efforts in producing 2010; WIPO General Assembly-September international legal instruments by the 2011 2010; Second International Working Group- GA. October 2010; IGC 17-December 2010; Third Intersessional Working Group- The work of the IGC should be “fully February/March 2011; IGC 18-May/June complementary with, and supportive of,” 2011; IGC 19-Early September 2011; WIPO the work of the other intergovernmental General Assembly-September 2011] fora.1 Under the new mandate, it remains to be seen how the IGC will interact with IV. Future Work under the New the other intergovernmental institutions Mandate and international instruments so as to both not undermine the developments in the fora Developing countries have achieved a mentioned above, but also provide an major success in achieving the new adequate response to the demands and mandate for the IGC. However, many expectations of the IGC in producing challenges lie ahead. international instrument(s) that will provide effective protection of GR, TK and Folklore. A major challenge is the lack of real engagement of developed countries in the A more long-term challenge will be to IGC. Cohesion among developing countries ensure that any international instrument(s) will be essential to confront the skepticism that derive from the IGC will be integrated of developed countries that developing into national and/or regional law. While a countries are not clear in their demands Diplomatic Conference may help in this from the IGC.