Today, experts and diplomats from member countries of the United Nations special agency in charge of intellectual property (IP), the World Intellectual Property Organization (WIPO), re-convene in Geneva for final deliberations under their 2016-2017 biennium mandate. Specifically, these individuals are meeting under the auspices of a specialist committee known as the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The IGC has been meeting for seventeen years after being charged by the WIPO General Assembly to undertake text-based negotiations aimed at effective protection of three interconnected subject matters: Traditional Knowledge (TK), Genetic Resources (GRs) and Folklore. The latter is better known as Traditional Cultural Expressions (TCEs). These instruments are part of a growing consciousness about the importance of recognizing the contribution of Indigenous Peoples and Local Communities (IPLCs) all over the world, not only to the conservation of global biodiversity but also to knowledge and innovation in a variety of interconnected areas including biotechnology, agriculture, food security, health, medicines, environmental sustainability, and climate change adaptation and management through equitable legal processes and frameworks. The WIPO negotiations are just one of multiple sites in which similar negotiations to empower traditional knowledge, innovation and practices of IPLCs as a crucial aspect of cultural production, wealth creation and development for a just and equitable world order.
The current negotiations will last for five days, from June 12 to June 16, 2017. Their core focus is to conclude text-based negotiations on TCEs. Earlier negotiations in the autumn of 2016 and in the winter of 2017 resulted in significantly improved negotiating texts on GRs and TK pursuant to the 2016-2017 biennium, which mandated the IGC to close remaining gaps on the instruments. The current text of the TCEs document is the least developed of the three instruments, hence its transmission to the Thirty-Fourth Session of the IGC to close those gaps and to bring it to par to the two other instrument on TK and GRs.
In addition to negotiations on TCEs, the significance of the Thirty-Fourth IGC lies in its second major agenda item which is to take stock of progress made during the 2016-2017 biennium and to make recommendations to the WIPO General Assembly on the future of IGC and its mandate going forward. After seventeen years, there is no question that both the demandeur countries (those who want effective protection of GR/TK/TCEs through treaty instrument(s)) and non-demandeur countries have fallen into a kind of negotiation lethargy. These states have sometimes radically different ideas for a pathway forward on the work of the WIPO special committee. Before exploring that crucial question, a few words on the state of TCEs negotiations. The current working text of the on TCEs defines the term as follows:
“Any form of [artistic and literary], [other creative, and spiritual,] [creative and literary or artistic] expression, tangible or intangible, or a combination thereof, such as actions, materials, music, sound, verbal and written [and their adaptations], regardless of the form in which it is embodied, expressed or illustrated [which may subsist in written/codified, oral or other forms], that are [created]/[generated], expressed and maintained, in a collective context, by indigenous [peoples] and local communities; that are the unique product of and/or directly linked with and the cultural [and]/[or] social identity and cultural heritage or indigenous [peoples] and local communities; and that are transmitted from generation to generation, whether consecutively or not. Traditional cultural expressions may be dynamic and evolving.”
The heavily bracketed nature of the above text reflects the kind of heavy lifting that will characterize the next few days of negotiations (bracketed text indicates no agreement amongst negotiating states). For the most part, the outstanding issues and gaps that need to be closed in the TCEs text include, but are not limited to, the following: policy objectives, subject matter, scope of protection, beneficiaries, definition of terms and concepts, administration of rights, and exceptions and limitations.
Determined to ensure progress on these frustrating and seemingly unending negotiations, the WIPO secretariat facilitated informal pre-IGC consultations among delegates from regional negotiation blocks in addition to well-resourced seminar/roundtable on TCEs, with a keynote delivered by Professor Peter Jaszi of the American University in Washington, DC. One of the highlights of the seminar was a panel that explored the negotiating history of key international instruments, including the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIPs), UNECO 2003 and 2005 treaty and declaration on Intangible Cultural Heritage and Cultural Diversity, respectively, the 2010 Nagoya Protocol, and the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Disabled. By exploring the histories, the panel was able to effectively tease out the lessons to motivate the IGC delegates to drive the long lingering negotiations to a logical (and final) outcome.
With regard to the crucial issue of stocktaking and the future of the IGC, there is no doubt that delegates will have to work hard to achieve a consensus. The failure to do that in 2014 put the committee on hiatus. In the past, demandeur countries have expressed their preference for a diplomatic conference as opposed to non-demandeurs’ predilection for continuing negotiations. Both blocs have a very different interpretation of ‘progress.’ The inclination for a diplomatic conference reflects a sense of progress at closing some of the gaps in the text, as well as a resignation that outstanding differences could be left to a more political forum such as the diplomatic conference. However, there is the potential to reach a variety of middle grounds. For example, a stop-gap expert technical committee could be established that would operate on an intercessional basis to fine-tune the text(s) and make them ready for a later diplomatic conference. The drawback here is that it is not clear whether all the texts are mature enough for such a conference. These options are, however, not exclusive to the desire by delegates from Africa and a coalition of like-minded countries for requesting the General Assembly to convert the IGC into a WIPO Standing Committee. There is no question that the complexity of the issues implicated in GR-TK-TCEs traverse open-ended sites and institutions. They also reflect the dynamics in the state of knowledge on those fields. As such, the idea of a Standing Committee can no longer be wished away and in fact could be a concurrent idea to a diplomatic conference. Beginning today, the next five days will be crucial regarding the future direction of the seventeen years of normative, conceptual, doctrinal and policy work on issues crucial for justice, equity and fairness for the world’s most marginalized peoples and countries.