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Protecting indigenous knowledge: a personal perspective on international negotiations at WIPO

Ten years ago, WIPO’s member states formally launched negotiations toward developing international legal instruments addressing intellectual property (IP) and genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs). These negotiations take place in an Intergovernmental Committee known in short as the IGC. This article traces the undulating contours of the negotiations so far.

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Background

The IGC was established by the WIPO General Assembly in 2000; its mandate is usually determined by the Assembly every two years.

The objective of the IGC’s new mandate for 2020-2021 is “finalizing an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to intellectual property (IP) which will ensure the balanced and effective protection of” GRs, TK and TCEs.

The ramifications of the IGC’s task are immense. Many argue that adopting one or more international legal instruments would enrich the IP system by expanding its range of beneficiaries to include vulnerable and often marginalized indigenous peoples and local communities. They also argue that it would strengthen the IP system’s contribution to sustainable development, thereby bolstering its legitimacy in all regions, and inspire fresh confidence in multilateralism.

Pragmatic win-win outcomes are tantalizingly within reach, at least on some aspects of the Committee’s mandate. Substantial progress has been made.

However, the negotiation is profoundly challenging.

Key challenges

Challenges relate to the nature of the issues, the ways in which the Committee functions and its situation within the broader multilateral landscape.

The relationships between IP and GRs, TK and TCEs are technically intricate, and the issues are distinct yet interlinked. This requires an unusually high degree of substantive competence as well as domestic coordination and policy coherence within participating countries. On top of this, at best there are only a few national and regional experiences that may be models for negotiators to draw on. While the frequency of IGC meetings is evidence of countries’ determination to make progress, the intensity of the process, coupled with its long duration so far, risks sapping its energy and momentum.

Another challenge lies in the relatively low interdependence between the issues under negotiation in the IGC and other issues on the international IP agenda. This leaves demandeurs (those countries seeking normative outcomes) with little leverage to extract concessions from non-demandeurs. Moreover, the fragmented treatment of these issues across various international forums can complicate efforts by demandeurs to establish dynamic cross-regional coalitions.

Progress is hobbled by varying degrees of political willingness among countries, leading to persistent divergences among them as to the IGC’s objectives and expected outcomes. These in turn hinder the Committee’s attempts to design an effective working methodology that could enable consensual compromise outcomes.

Finally, these issues do not yet seem to stir the hearts of ordinary citizens. There is little pressure from the public and civil society for a speedy conclusion to the negotiation.

Pragmatic win-win outcomes are tantalizingly within reach, at least on some aspects of the Committee’s mandate.

Milestones

The early years

At first, the IGC’s work combined fact-gathering, technical analyses, exchanges of practical experiences and policy debate. Troves of information about national and regional regimes were gathered through member state submissions, questionnaires, case studies and panel discussions. 

The focus was on non-normative work, which led to a number of useful, practical outcomes. These included concrete first steps towards the defensive protection of TK (protection against TK being patented) through its enhanced recognition as prior art.

Work also commenced on technical standards for TK documentation and IP clauses for use in access and benefit-sharing agreements. Work towards new standards (“norm-setting”), especially for the positive or direct protection of TK and TCEs as a new form of IP, was not agreed upon. Impatience among many countries about the lack of progress on legal instrument(s) grew, and the value of gathering further empirical information and of non-normative practical outcomes came into question.

A pivot towards norm-setting

In July 2003, the IGC could not agree on its new mandate for 2004-2005, triggering the Committee’s first real crisis. After four sessions, the enormity of its task was becoming clearer, as was the gulf in expectations among states as to the IGC’s overall purpose and anticipated outcomes. The optimism of the early years dissipated as demandeurs’ expectations of quick normative outcomes soured. Some countries believed it was premature to embark on norm-setting before securing wider agreement on objectives, guiding principles and core concepts. The WIPO General Assembly had to step in. After lengthy negotiations, member states agreed on a carefully constructed mandate, which for the first time included a reference to “international instrument or instruments,” marking an explicit pivot towards normative work. The IGC was also required to “accelerate” its work.

However, developing countries soon grew skeptical about the Committee’s effectiveness in norm-setting. Again, the Committee was at a critical point. Yet, no member state had formally proposed a comprehensive draft instrument. In 2005, the WIPO Secretariat published the working documents on TK and TCEs as concise “draft articles.” Some negotiators found this useful to pinpoint areas of possible consensus and difference. The articles comprised draft objectives, principles and substantive provisions. However, non-demandeurs were not ready to work on them in this form. Such work was shelved and was replaced by discussions of “issues”. At the member states’ request, the WIPO Secretariat prepared materials on the “international dimension” of the IGC’s work and analyses of gaps between the protections provided by the IP system and the needs and aspirations of indigenous peoples and local communities and other demandeurs.

In addition to administering the IGC process, WIPO’s Traditional Knowledge Division provides a wide array of technical assistance and capacity-building services. These assist member states to develop policies, strategies and laws; strengthen the practical ability of indigenous peoples and local communities to make effective use of existing IP tools if they so wish; and, provide hands-on training to a wide range of stakeholders on issues relating to IP and GRs, TK and TCEs in diverse practical situations.

Text-based negotiations begin in 2010

In late 2009, and to the surprise of many, the WIPO Assembly agreed on a much strengthened mandate for 2010-2011. It referred for the first time to “text-based negotiations” on all three themes, to “international legal instrument(s)” (emphasis added), and to the possible convening of a Diplomatic Conference. This language re-ignited demandeurs’ expectations, but drew non-demandeurs into normative work, which they considered premature. Many perceived a chasm between the mandate’s ambition and the maturity of the negotiation.

New working methodologies

From 2010, as the IGC battled to undertake genuine “text-based negotiations”, attention turned to finding more effective work methods. “Intersessional working groups” proved a breakthrough, allowing for considerable technical progress in 2010 and 2011. Other methodological innovations were also tested (see box). The challenge was to balance inclusiveness and transparency, on the one hand, and efficiency and effectiveness, on the other. Often progress made in smaller informal groups was reversed by the plenary. There was much back and forth, with, at times, more “back” than “forth”.

Genetic resources: clarity emerges

Negotiations relating to GRs took a leap forward in 2012, with the emergence of a single consolidated text. Options around a new patent disclosure requirement related to GRs (with or without associated TK) became clearer and pressure mounted for an agreement on this question. In 2017, the WIPO Secretariat published a first-ever compilation of key policy questions on and national experiences with such a requirement (Key Questions on Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge (2017)).

In April 2019, the IGC Chair, Ian Goss, prepared, under his own authority, a draft international legal instrument on GRs and associated TK. Negotiators have recently agreed to include this text among the Committee’s working materials, as a Chair’s text. This suggests that while the Chair will continue to “hold the pen” in relation to his text, it is among the documents that the Committee may consider as it works on the text of a possible future instrument. 

A gap year in 2015 and the current phase

In a development that shocked many, the WIPO Assembly could not agree in late 2014 on a schedule of IGC sessions for 2015. Negotiations ground to a halt with potentially significant implications for the IGC’s future.

Fortunately, a year later, countries renewed the mandate and agreed to a work program for 2016-2017. 

The mandates for 2016-2017 and 2018-2019 are similar. While their language may be soaked in constructive ambiguity, useful new features include “ad hoc expert groups”, an “evidence-based approach” and the simultaneous discussion of TK and TCEs. In this period, certain countries submitted proposals to conduct studies such as cost-benefit analyses, but this was not agreed to. Breakthrough progress remains elusive. Most delegations continue to restate well-known positions and are not negotiating with each other (nor indeed with themselves) to find compromise solutions. As yet, at least on TK and TCEs, there is little sign of gaps narrowing. The recent introduction of the Chair’s text may re-energize work on GRs and associated TK. Most recently, the WIPO Assembly renewed the IGC’s mandate for 2020-2021 on terms similar to those of the past four years.

Enhanced participation of indigenous peoples and local communities

The IGC addresses issues of particular concern to indigenous peoples and local communities. The IGC has introduced a number of mechanisms the have enabled indigenous peoples and local communities to participate in international IP policy-making for the first time. (Photo: WIPO/E. Berrod)

The IGC addresses issues of particular interest and concern to indigenous peoples and local communities to a degree unparalleled in other areas of WIPO’s work. Over time, the Committee has created mechanisms to enhance their participation in its work. This has enabled indigenous peoples and local communities to participate in international IP policy-making for the first time.

From the outset, the IGC has granted ad hoc observer status to a wide range of non-governmental organizations representing indigenous peoples and local communities. Since 2004, their representatives meet among themselves to prepare in advance of IGC sessions. At the suggestion of New Zealand, Indigenous Panels address negotiators. In 2005, member states established the WIPO Voluntary Fund for Accredited Indigenous and Local Communities , which funds representatives of accredited indigenous peoples and local communities to attend IGC sessions. For several years now, community representatives organize themselves in the form of an “indigenous caucus”. The caucus is the only non-governmental stakeholder generally invited to participate with member states in informal meeting formats. Since 2009, an indigenous person works for a year or two at a time in the Traditional Knowledge Division under the WIPO Indigenous Fellowship Program.

Concluding thoughts

The renewal of the IGC’s mandate indicates that countries still believe that these issues require multilateral resolution. Since 2000, negotiators have made a significant technical and political investment and have produced a wealth of substantive materials. National and regional legislative initiatives continue to draw on the draft negotiating texts, which themselves are significant outputs.

However, difficulties stem from differing degrees of political willingness, diverse views on objectives and core policy issues and varying levels of understanding of these technically complex issues.

The rumble of profound tectonic shifts in bio- and information technologies is also beginning to be heard in the margins of the negotiation. Likewise, fresh thinking of multilateralists around shifts from formal intergovernmental conventions to more dynamic and flexible multilateral outcomes is in the air.

Initiating a true negotiation would seem to be a priority. Towards this end, there are several ideas, such as securing firm consensus on the purpose and goals of the process, establishing meaningful intersessional work and enabling consequential informals among key delegations. There are also ideas about demandeurs creating meaningful leverage, building cross-regional coalitions, deploying senior political figures as “champions” of the process, identifying opportunities for compromise outcomes and energizing civil society.

Under its new mandate, the IGC will meet quarterly in 2020. This is a sign of commitment and determination. Lessons learned from the past 10 years will undoubtedly inform thinking on how best to work towards achieving pragmatic, flexible and balanced yet sufficiently consequential outcomes.

The ramifications of the IGC’s task are immense. Some argue it will enrich the IP system, expand its range of beneficiaries, strengthen the IP system’s contribution to sustainable development and inspire fresh confidence in multilateralism. (Photo: Bartosz Hadyniak/E+/Getty Images)
  • Plenary: the meeting of all IGC members and accredited observers. The decision-making body within the IGC process. The IGC reports to the WIPO General Assembly.
  • Thematic sessions: IGC sessions which focus solely on GRs, TK or TCEs. By contrast, cross-cutting sessions focus on more than one of these topics, usually to enable the IGC to address issues arising in respect of two or all of the topics.
  • Ad hoc expert groups: groups formed by experts appointed by countries and the indigenous caucus who, in their personal capacities, meet to address specific legal, policy and technical issues in relation to IGC-related topics in order to support and facilitate the negotiations of the IGC’s plenary.
  • Intersessional Working Groups (IWGs): established by the WIPO General Assembly in 2009 to provide legal and technical advice and analysis to the IGC; these met in 2010 and 2011, and comprised one technical expert from each member state and accredited observer who participated in his/her personal capacity; each IWG met for five days; detailed modalities for their organization were agreed by the IGC in May 2010. So far no further IWGs have been established.
  • Contact groups, informals and informal informals: held during IGC sessions, these meetings tend to comprise a limited number of delegates from each regional group and one or two indigenous representatives to discuss key issues and to make textual or other proposals for consideration by the IGC’s plenary, in an informal, off-the-record setting.
  • Facilitators: individual delegates that may be proposed by the Chair and approved by the IGC to assist the text-based negotiations by following the discussions closely, keeping track of views, positions and proposals, drafting proposals, and preparing revisions of the negotiating texts for review by the plenary.
  • Friend(s) of the Chair: delegates or other persons invited by the IGC Chair to assist and advise him/her on a continuing or ad hoc
  • Seminars: organized by the WIPO Secretariat in 2015, 2016 and 2017; informal opportunities for country delegates and representatives of observers to share regional, national and community practices and experiences, as well as to exchange views on key IGC issues.
  • Expert drafting groups: open-ended, informal drafting groups to produce revised versions of the negotiating texts for consideration by the IGC’s plenary.
  • High-level segments: meetings held among high-level authorities (e.g. ambassadors and senior officials) to share views on key policy issues relating to the IGC’s negotiations to further inform the IGC plenary. A high-level meeting took place during the February 2014 session of the IGC.
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