Sisule F. Musungu - On 1 October 2009, the last day of the 47th Series of Meetings of the World Intellectual Property Organization (WIPO) General Assemblies, a new mandate for its Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (commonly known as ‘the IGC’) was agreed by the Member States. The last minute agreement, following a year of wrangling, was hailed by many as a major breakthrough (see IP-Watch story), particularly for the African Group. WIPO’s Director General called it “a real step forward”. The African Group, with the support of many developing countries, had insisted on a mandate that would deliver a ‘binding’ treaty on these issues in two years time.
As the dust settles the question that arises is whether this new mandate will, in reality, be able to deliver. This question is particularly pertinent when looking at the debate around the “biopiracy” problem which was the primary driving force behind the creation of the IGC nine years ago.
The new two-year mandate ordains that the IGC will “without prejudice to the work pursued in other fora, continue its work, and undertake text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (instruments) which will ensure effective protection…” of genetic resources, traditional knowledge and folklore (traditional cultural expressions). Four session of the Committee plus three inter-sessional working groups are planned so us to deliver the texts to the 2011 WIPO General Assembly which will decide on the convening of a diplomatic conference. A diplomatic conference constitutes the final stage of treaty-making in WIPO and is considered the real negotiations (to read more on the stages of treaty-making at WIPO see e.g., Musungu & Dutfield, pp.6.)
In the beginning…
The IGC was created in October 2000 in terms of paragraph 13, 16, 17 and 18 of WIPO document WO/GA/26/6. The Committee was created as a result of a deal reached at the May/June 2000 Diplomatic Conference for the Adoption of the Patent Law Treaty (PLT) at which developing countries had threatened to torpedo the adoption of the PLT unless their concerns and interests related primarily to genetic resources were addressed. The deal was expressed in the following terms (read out at the Diplomatic Conference by the then Director General Dr. Kamil Idris): “Member States discussions concerning genetic resources will continue at WIPO. The format of such discussions will be left to Director General’s discretion, in consultation with WIPO Member States.”
Historically, therefore, the IGC was created as safety valve to release the pressure on the PLT Diplomatic Conference and, more generally, from the patent system. This is an important point because, then as now, a key issue that has made agreement elusive is how to address the issue of “biopiracy“, that is, the use of biological resources and/or associated traditional knowledge in inventions over which patents are applied for without disclosing the source and without compliance with the requirements of prior informed consent for access and without offering fair and equitable benefit sharing to the country of origin. Consequently, while a lot of technical, strategic and advocacy work will be needed to arrive at texts that address the myriad of issues in these discussions, the question of how far the new mandate will deliver on the emotive issue of biopiracy will be an important yardstick to measure success.
Solving the biopiracy challenge and the new IGC mandate
The Committee’s work began as exploratory work. Over its nine years of work the IGC has moved to a stage where discussions have mainly focused on whether or not an international instrument (instruments) is needed to tackle the issues at hand. On the biopiracy question, the primary problem relates to disciplining the patent system so that it is not used to perpetrate the practice that is seen as unfair, immoral, illegal (at least in some cases) and inequitable. Indeed, when you listen to the debates at WIPO it is clear that while many issues are at play, biopiracy is the most powerful card.
The central plank of the solution therefore lies in the patent system. It follows therefore that the new IGC mandate, while an important achievement, it cannot deliver a comprehensive solution on the question of biopiracy. This is not to say however, that the new mandate does not offer opportunities for complimentary action on this issue. Neither is it to suggest that the new mandate will not offer a critical opportunity to address issues related to developing new rights related to traditional knowledge and folklore.
Going forward, the African Group and the broader group of developing countries and other stakeholders interested in seeing a lasting solution on the issue of the relationship between intellectual property, genetic resources and traditional therefore need consider a number of key issues with the mandate of the IGC and the broader WIPO framework. Two particular issues are important. Complimentarity and the general weaknesses of treaty-making and implementation at WIPO.
Without prejudice to the work pursued in other fora…
This wording has been a constant refrain in the IGC negotiations for a long time. In the last mandate (WIPO document WO/GA/30/8 para 93) of the Committee, the General Assembly had decided that the IGC would continue its work focusing “in particular, on the consideration of the international dimension of those questions, without prejudice to the work pursued in other fora…” It is therefore important to understand the political and strategic implications of this phraseology.
Primarily, this language has been used in the IGC to ensure that negotiations and positions on these issue in other international organisations, particularly the World Trade Organization (WTO), and other WIPO committees and bodies, especially those dealing with patents, including the Standing Committee on Patents (SCP) and the working Group on the Patent Cooperation Treaty (PCT), are not undermined. In other words, this language makes a case that to address the issue of biopiracy requires a comprehensive solution with a key part of that solution being within the patent system itself. Within the international patent system the solution lies in (1) amending the TRIPS Agreement (along the lines proposed in WTO document IP/C/W/474 for a new Article 29bis to TRIPS on Disclosure of Origin of Biological Resources and/or Associated Traditional Knowledge) and (2) amending the rules of the PCT (generally along the lines of the Swiss proposal contained in WIPO document PCT/R/WG/9/5).
Treaty-making at WIPO and implementation
The importance of a multi-pronged approach and the critical role of the WTO discussions and the need to think about the PCT is reinforced when one considers the treaty-making process and implementation at WIPO.
The first hurdle that needs to be overcome with respect to all issues in the IGC relates to arriving at sufficiently developed texts for submission to the 2011 General Assembly. This should be doable provided there is sufficient investment in technical, political and advocacy work by the key proponents. It also has prospects because it is not necessary to have complete consensus on all parts of the texts. That means that a text with alternatives would be a good enough basis to call a diplomatic conference. The second hurdle will relate to taking through a successful diplomatic conference. There is no guarantee that a treaty would result from a diplomatic conference if called. Already WIPO has seen a number of failed diplomatic conferences. The third hurdle will be getting the necessary ratifications for the treaty to come into force. Even with just ten ratification required, it took almost five years for the PLT to come into force. Even worse, some treaties, such as the Washington Treaty on Intellectual Property with Respect to Integrated Circuits, concluded almost 20 years ago, have not yet come into force and it has only three countries that have ratified or acceded to it. This means that even with a treaty (treaties) it takes time to actually have an operational international system with the WIPO structure and it quite a task to get developed countries like the United States to become a party and therefore be able to discipline actors who operate from their jurisdictions.
The hope with TRIPS is that the issue is being addressed (in the Doha Round) in the context of a single undertaking and it is therefore easy to push agreement and adherence, including for countries like the United States. For the PCT the advantage is that changes to the rules under the treaty do not need ratification country by country.
