E WIPO/GRTKF/IC/38/16 ORIGINAL: ENGLISH DATE: MARCH 22, 2019 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Thirty-Eighth Session Geneva, December 10 to 14, 2018 REPORT Adopted by the Committee WIPO/GRTKF/IC/38/16 page 2 1. Convened by the Director General of the World Intellectual Property Organization (“WIPO”), the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (“the Committee” or “the IGC”) held its Thirty-Eighth Session (“IGC 38”) in Geneva, from December 10 to 14, 2018. 2. The following States were represented: Albania, Algeria, Argentina, Armenia, Australia, Austria, Azerbaijan, Belarus, Bolivia (Plurinational State of), Brazil, Burkina Faso, Burundi, Cameroon, Canada, Chile, China, Colombia, Côte D’Ivoire, Czech Republic, Democratic People’s Republic of Korea, Denmark, Egypt, El Salvador, Ecuador, Finland, Former Yugoslav Republic of Macedonia, France, Germany, Ghana, Guatemala, Honduras, Holy See, Hungary, India, Indonesia, Iran (Islamic Republic of), Israel, Italy, Jamaica, Japan, Kazakhstan, Kenya, Lebanon, Lithuania, Malaysia, Malawi, Mexico, Morocco, Myanmar, Nepal, Netherlands, Nicaragua, Niger, Nigeria, Oman, Pakistan, Panama, Peru, Philippines, Portugal, Republic of Korea, Romania, Russian Federation, Saudi Arabia, Senegal, Seychelles, Slovakia, South Africa, Spain, Sudan, Sri Lanka, Sweden, Switzerland, Thailand, Trinidad and Tobago, Turkey, Uganda, Ukraine, United Kingdom, United States of America, Uruguay, Venezuela (Bolivarian Republic of) and Zimbabwe (84). The European Union (“the EU”) and its Member States were also represented as a member of the Committee. 3. The Permanent Observer Mission of Palestine participated in the meeting in an observer capacity. 4. The following intergovernmental organizations (“IGOs”) took part as observers: Patent Office of the Cooperation Council for the Arab States of the Gulf (GCC Patent Office); and South Centre (SC) (2). 5. Representatives of the following non-governmental organizations (“NGOs”) took part as observers: Asia Indigenous Peoples Pact (AIPP); Centre for International Governance Innovation (CIGI); Centro de Estudios Multidisplinarios – Aymara (CEM-Aymara); Civil Society Coalition (CSC); Comisión Jurídica para el Autodesarrollo de los Pueblos Originarios Andinos (CAPAJ); CropLife International (CROPLIFE); France Freedoms - Danielle Mitterrand Foundation; Health and Environment Program (HEP); Indian Movement - Tupaj Amaru; Indigenous Peoples’ Center for Documentation, Research and Information (DoCip); Indigenous World Association (IWA); International Committee for the Indians of the Americas (Incomindios); International Indian Treaty Council; International Trademark Association (INTA); Korea Invention Promotion Association (KIPA); MALOCA Internationale; Métis National Council (MNC); Motion Picture Association (MPA); Native American Rights Fund (NARF); Tebtebba Foundation - Indigenous Peoples’ International Centre for Policy Research and Education; Tulalip Tribes of Washington Governmental Affairs Department; and World Trade Institute (WTI) (22). 6. The list of participants is annexed to this report. 7. Document WIPO/GRTKF/IC/38/INF/2 Rev. provided an overview of the documents distributed for IGC 38. 8. The Secretariat noted the interventions made, and the proceedings of the session were communicated and recorded on webcast. This report summarizes the discussions and provides the essence of interventions, without reflecting all the observations made in detail or necessarily following the chronological order of interventions. 9. Mr. Wend Wendland of WIPO was Secretary to IGC 38. WIPO/GRTKF/IC/38/16 page 3 AGENDA ITEM 1: OPENING OF THE SESSION 10. The IGC Chair, Mr. Ian Goss, opened the session. He thanked the Vice-Chairs, Mr. Jukka Liedes and Mr. Faizal Chery Sidharta, for their advice and their assistance. They were a team and discussed regularly. He thanked the Secretariat who worked tirelessly behind the scenes to ensure the meetings operated efficiently and effectively. He had consulted with Regional Coordinators (“RCs”) in advance of the session, and he thanked them for their continuing support and constructive guidance. Over the past 18 months, he had been very appreciative of their efforts to avoid process debates. He hoped that the IGC could continue in that constructive atmosphere throughout IGC 38. IGC 38, as previous sessions, was on live webcast on the WIPO website, which further improved openness and inclusiveness. All participants were required to comply with the WIPO General Rules of Procedure. The meeting was to be conducted in a spirit of constructive debate, in which all participants were to take part with due respect for the order, fairness and decorum that governed the meeting. As the Chair, he had the right to call any person to order based on the WIPO General Rules of Procedure and the usual rules of good conduct or whose statements were not specifically relevant to the issues. Under Agenda Item 2, opening statements of up to three minutes would be allowed by regional groups, the EU, the Like-Minded Countries (“the LMCs”) and the Indigenous Caucus. Any other statements could be handed to the Secretariat in writing or sent by email to [email protected]. Those would be reflected in the report as in past sessions. Observer statements and proposals would be interspersed with Member States’ statements as in the past. Member States and observers were strongly encouraged to interact with each other informally, as that increased the chances that Member States would be aware of and perhaps support observers’ proposals. He acknowledged the importance and value of the indigenous representatives as well as other key stakeholders, such as representatives of industry and civil society, with whom he intended to meet during the week. The IGC should reach an agreed decision on each agenda item as it went along. Each decision would be gaveled at the end of each agenda item. On Friday, December 14, the decisions as already agreed would be circulated or read out again for formal confirmation by the IGC. The report of IGC 38 would be prepared after the session and circulated to all delegations for comments. It would be presented in all six languages for adoption at IGC 39 in March 2019. AGENDA ITEM 2: ADOPTION OF THE AGENDA Decision on Agenda Item 2: 11. The Chair submitted the draft agenda circulated as WIPO/GRTKF/IC/38/1 Prov. 3 for adoption and it was adopted. 12. The Chair opened the floor for opening statements. [Note from the Secretariat: Many delegations which took the floor for the first time congratulated and thanked the Chair, the Vice- Chairs and the Secretariat and expressed their gratitude for the preparation of the session and of the documents.] 13. The Delegation of Indonesia, speaking on behalf of the Asia and the Pacific Group (“APG”), supported the working methodology and the work program proposed by the Chair. It conveyed its appreciation for the Information Note prepared by the Chair. It had studied the Chair’s Information Note, which summarized the work undertaken by the IGC on traditional knowledge (“TK”) and traditional cultural expressions (“TCEs”) since the text-based negotiations had begun in 2010. With regards to the draft articles on TK and TCEs, it favored the discussion on the core issues in order to arrive at common landing zones, namely on the issues of objectives, beneficiaries, subject matter, scope of protection, and exceptions and limitations. WIPO/GRTKF/IC/38/16 page 4 How to define TK and TCEs would lay down the foundation of the IGC’s work. Most of the members of the APG believed that the definition of TK and TCEs should be inclusive and capture the unique characteristics of TK and TCEs. Furthermore, there should be a comprehensive definition that did not require separate eligibility criteria. Most of the group’s members were also in favor of a differential level of protection for TK and TCEs, and such an approach offered an opportunity to reflect the balance referred to in the IGC’s mandate and the relationship with the public domain, as well as the balance in the rights and interests of owners, users, and the wider public interest. However, some members were in a different position. Establishing the level of rights based on the characteristics of the TK or TCEs could be a way forward towards narrowing existing gaps, with the ultimate objective of reaching an agreement on international instruments which would ensure the balanced and effective protection of TK and TCEs, in addition to the protection of genetic resources (“GRs”) and associated TK. On the issue of beneficiaries, it agreed that the main beneficiaries of the instrument were indigenous peoples and local communities (“IPLCs”). Some members of the APG had a different position, however most of the members were of the view that it was pertinent to address the role of other beneficiaries in accordance with national law, as there were certain circumstances in which TK or TCEs could not be specifically attributable to a particular IPLC. On the issue of the scope of the protection, most of the members of the APG were in favor of providing maximal possible protection for TK and TCEs, depending on the nature of the characteristics of the TK and TCEs. However, some members had a different position. On exceptions and limitations, it was of fundamental importance to ensure that the provisions be considered in a balanced way between the specific