WIPO IGC 44th Session – September 2022
World Intellectual Property Organization
12 – 16 September 2022
Forty-Fourth Session
Geneva, Switzerland
The World Intellectual Property Organization’s (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) resumed its text-based negotiations in Geneva, Switzerland, on 12 September 2022. These negotiations would provide a further step towards finalizing an international agreement regarding genetic resources (GR), traditional knowledge (TK) and traditional cultural expressions (TCE). This was the IGC’s 44th Session, where the focus was on TK and TCEs. Attendance occurred both virtually and in person, accommodating delegates across the world. Despite negotiations already spanning over two decades, the new mandate appeared to add a hint of optimism amongst the delegates at the very start of the session. However, accompanying this initial optimism was concerns regarding the inherent challenges faced with such negotiations. The objective of these negotiations entailed considerations of intellectual property (IP) and human rights law. Alongside these considerations, the IGC also accommodated different regional perspectives, which included the voices of various indigenous people and local communities, who hold customary positions regarding TK and TCEs. The IGC’s 44th Session began on this premise.
The Chairperson of the 44th Session was Ms. Lilyclaire Bellamy of Jamaica. Acting as Vice-Chairpersons were Mr. Jukka Liedes of Finland, Mr. Yonah Seleti of South Africa and the newly elected Mr. Felipe Cariño of the Philippines.
True to the precedent which had been set in the previous IGCs, the session began with presentations on the “Collective Nature of Traditional Knowledge and Traditional Cultural Expressions: Perspectives of Indigenous Peoples and Local Communities”, delivered by an indigenous panel. The primary focus of these presentations was to highlight the apparent lack of participation and protection which the current IP system offers to indigenous people and local communities around the world. Far from seeing IP law as a tool of protection, the morning presentations stressed that the rights of indigenous people, inherently safeguarded by human rights standards, must not be compromised by commercially oriented intellectual property legal instruments. Issues of ownership of TK and TCEs, the inability of western law to grasp the concept of TK, and indigenous people’s lack of understanding of the IP law system formed part of the many issues emphasized within the presentations. Therefore, the IGC’s 44th Session began with a summary of future difficulties and tasks. The question of how to balance an IP legal instrument while taking into account human rights legal standards was raised during the morning presentations, and remained paramount throughout the session. The indigenous people and local communities, in the form of an Indigenous Caucus, were present and active throughout the session, serving as a constant reminder of the need to find a balance between these conflicting interests.
Following the draft agenda set for the IGC’s 44th Session, the Plenary began discussions on the committee’s working documents. TK and TCEs were addressed as separate documents with respective draft articles. The key issues addressed covered topics such as beneficiaries, use of terms, eligibility criteria and scope. After the Monday morning Plenary, the IGC delegates agreed to continue the week in an “open-ended contact group”, where discussions and negotiations occurred in a confidential manner, allowing for open and honest negotiations. All delegates and observers were given the opportunity to constantly be present and part of the “open-ended contact group”.
On the final day of the session, 16 September 2022, the appointed “Facilitators”, Mr. Paul Kuruk of Ghana and Ms. Thea Seferovic of Australia, presented revised documents of both TK and TCEs. The two documents presented were “The Protection of Traditional Knowledge: Draft Articles – Facilitators’ Rev.” and “The Protection of Traditional Cultural Expressions: Draft Articles – Facilitators’ Rev”. In both of them the Facilitators included the progress made throughout the negotiations, achieving a balance between all of the points raised and the gaps identified between the differing perspectives. The Plenary agreed to transmit the revised documents to the 45th Session of the IGC, for further negotiations and development. However, issues still remained, with a striking example being the disagreement on how to best understand “beneficiary” within both TK and TCEs. Delegates voiced their concern regarding the ability to come to a successful conclusion of the IGC. With respect to all of the above, the Chairperson announced that through informal consultations she would develop a further text on TK and TCEs in order to facilitate the work of the IGC and to help find a balance between all of the different views.
On the IGC’s 44th Session’s final day the Plenary agreed that an ad hoc expert group on TK and TCEs should be organized prior to the 45th Session. According to the IGC’s mandate, such an ad hoc expert group will focus on addressing “legal, policy or technical issue[s]”[1]. In an effort to advance the negotiations, any results will be handed over to the IGC for consideration.
The concerns raised at the start of the IGC’s 44th Session remained until the very end. The competing interests of the different delegations and the difficulty to find a balance between IP and human right legal standards made the ability to agree upon an international legal instrument an almost insurmountable task. However, the platform provided by WIPO through these IGC sessions allowed both competing voices and voices that have never been expressed at this level to be heard, thus raising awareness to crucial issues that need to be considered in order to legitimately achieve an international agreement. In order for any legal agreement to be successfully acquired, participation between directly affected parties serves as a pre-requisite. The IGC negotiations remain true to such ideals. However, the question still remains whether an international agreement covering issues on IP and human rights laws, all while taking into consideration the vast gulf which appears between the different parties, is possible. The IGC’s 45th Session, due to take place between 5 and 9 December 2022, will certainly provide an interesting opportunity to hear different perspectives on critical issues of IP and human rights law.
Alexander Carl Dinopoulos
CS Consulting
[1] https://www.wipo.int/tk/en/news/igc/2022/news_0008.html