ELSA INTERNATIONAL DELEGATION REPORT

On the 20th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

Of the World Intellectual Property Organisation

(WIPO)

14-23 February 2012

Geneva

Opinions expressed by the authors do not necessarily represent the official positions of ELSA.

IndexHosting Organisation: WIPO................................................................................................................3

Agenda..................................................................................................................................................5

Table of Acronyms................................................................................................................................6

The Session...........................................................................................................................................7Day 1 – February 14, 2012..............................................................................................................7

Day 2 – February 15, 2012..............................................................................................................9Day 3 – February 16, 2012............................................................................................................11

Day 4 – February 17, 2012............................................................................................................13Day 5 – February 18, 2012............................................................................................................14

Day Off – February 19th, 2012......................................................................................................15Day 6 – February 20, 2012............................................................................................................16

Day 7 – February 21, 2012............................................................................................................17Day 8 – February 22, 2012............................................................................................................18

Conclusion..........................................................................................................................................19

Annex.................................................................................................................................................20

Appendix A – February 15, 2012: Private copying and fair compensation...................................20Appendix B – February 17, 2012: Indigenous Statement..............................................................23

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Hosting Organisation: WIPOThe World Intellectual Property Organization (WIPO) is one of the many agencies of the United Nations that has a particular competency and purpose. WIPO’s mandate is the promotion and protection of intellectual property rights (patents, copyright, trademarks, designs, etc.) with a view to encouraging creative activity.

This objective is realised by assisting with the coordination of international IP regimes by: providing specialist expertise to member states and instigating ongoing legal reform to reflect changing technologies and society expectations.

Intergovernmental Committee on Traditional Knowledge, Genetic Resources and Folk-lore

The Intergovernmental Committee on Traditional Knowledge, Genetic Resources and Folk-lore (IGC) was created in the year 2000 at the 25th session of WIPO’s General Assembly (GA)1. The creation of this committee was influenced by other international efforts related to intellectual property and traditional knowledge (notably the Convention on Biological Diversity2). The role of the IGC is to investigate developing an international instrument to protect the ownership of traditional knowledge (TK).

The IGC is made up of the states that are members of WIPO. In addition to national delegations are observer organisations such as other UN bodies, trade organisations, indigenous people’s organisations and civil society NGOs (for example ELSA International).

The way in which the IGC conducts its work is through a large plenary format (with all delegations present) and with peripheral closed door negotiation sessions. Countries typically organise themselves into regional groups and topical interest groups (for example the Development Agenda Group).

The context of the 20th session was that a draft document on the protection of TK had already been created in the prior session. The meeting was the last of several sessions dedicated to discussing options for protection of traditional knowledge of genetic resources (GR). This topic has been considered one of the most complex upon which to reach consensus since there are many interested parties and GRs have a high commercial value (to pharmaceutical companies for example).

1 Dutfield, Graham, and Uma Suthersanen, Global Intellectual Property Law (Edward Elgar Publishing 2008), p.342;2 Ibid.

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The ELSA International Delegation

Michael Rowse, Head of Delegation, University of Leicester, UK (mr22 1@le.ac.uk )

I am a first year law student enrolled in a fast track LLB programme for those who already have a degree. My first degree was a social science and arts degree and I have subsequently been working with public interest organisations. Consequently, I am interested in any area of law that impacts upon civil and political rights, governance and development.

I am a local ELSA director for Seminars and Conferences. Leading the delegation to Geneva has been my first opportunity to work with ELSA law students from other countries and cultures.

Calvin Tinlop Chui, Universidade Católica Portuguesa, Portugal (ctl.chui@alunos.lisboa.ucp.pt)

I am a second year law student and a member of the local group ELSA UCP Lisboa. Prior to Lisbon, I have been educated in a wide range of education systems: elementary school in Macau, China and high school in California in the USA. Upon finishing a seminar on intellectual property, I applied for the

ELSA Delegation to WIPO’s 20th

IGC on GR and TK. This has been an exceptional opportunity to gain academic knowledge and extend my horizons by interacting with other delegates from different countries, regions, and cultures.

I would like to take this space to express my sincere thanks to my university – home to some of the most highly regarded LLM programs – for sponsoring my trip. I would also like to thank my local group ELSA UCP Lisboa – host of ELSA UCP Lisboa Summer School 2012: Energy and Environmental Law programme – for supporting my university experience.

Católica Global School of Law: http://www.fd.lisboa.ucp.pt/english

Jacek Saffell, University of Warsaw Law Faculty, Poland (jacsaf@gmail.com)

I am currently in my fourth year of studying law. Visiting the WIPO IGC session was about learning how organizations such as the UN and WIPO actually function on a day to day basis. During my stay in Geneva I witnessed the difficult process of finding a compromise between state’s interests and the interest of indigenous groups from all over the world. To all future delegates from Poland: I would recommend trying to arrange a stay with the Permanent Mission of the Republic of Poland to the UN

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Agenda3

1. Opening of the Session

2. Election of Officers

3. Adoption of the Agenda

4. Reports

5. Accreditation of Certain Organizations

6. Participation of Indigenous and Local Communities

7. Genetic Resources

8. Draft Study on the Participation of Observers in the Work of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

9. Proposed Revision to the Rules of Procedure of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

10. Any other Business

11. Closing of the Session

3 Source: Document WIPO/GRTKF/IC/20/1 PROV. 2

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Table of Acronyms• ABS – Access Benefit-Sharing

• ATK – Associated Traditional Knowledge

• CBD – Convention on Biological Diversity

• DAG – Development Agenda

• FPIC – Free and Prior Informed Consent

• FAO – Food and Agriculture Organisation of the United Nations

• GA – General Assembly

• GR – Genetic Resources

• IGC – Intergovernmental Committee

• IPR – Intellectual Property Rights

• MD – Mandatory Disclosure

• NGO – Non-Governmental Organisation

• PIC – Prior Informed Consent

• TCE – Traditional Cultural Expressions

• TK – Traditional Knowledge

• TPGRFA – The International Treaty on Plant Genetic Resources for Food and Agriculture

• UNCTAD – United Nations Conference on Trade and Development

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The SessionDay 1 – February 14, 2012

Presentations by Indigenous Representatives

Following the morning procedural agenda items were three presentations by representatives from indigenous groups. This panel had been convened since the seventh IGC session and has been intended to enrich the discussions by highlighting case-studies in which intellectual property and traditional knowledge intersect.

Hokotehi Moriori Trust

The Hokotehi Moriori Trust is an organisation that represents the descendants of the Moriori people who lived on the island of Rekohu off the coast of New Zealand. The Moriori were devastated by colonialism and since the 1980’s the Moriori have been experiencing a cultural renaissance. Part of this renaissance has involved commercialization of aspects of Moriori TK.

The Trust has negotiated uses of their TK. The health benefits of blue cod is being explored and traditional imagery, carved on Kopi trees (a species integral to the life of the Moriori), is being used on clothing and other tourist merchandise. The descendants also have a cultural database. This database was developed from the work on Traditional Knowledge Revival Pathways4. The database is used to capture oral knowledge, archaeological artifacts and other TK. Access is mediated to prevent unauthorized use.

Dr. Sreedharan Nair Rajasekharan, Tropical Botanic Garden and Research Institute

Mr. Rajasekharan presented a case study from Kerala that exhibited access benefit-sharing (ABS). The case-study predated the Nagoya Protocol, but the project was undertaken under the rubric of ‘informed consent’ as found in the Convention on Biological Diversity (CBD)5. The importance of pre-benefit sharing was emphasised as an important part of building a trusting relationship. To accomplish this, indigenous elders were employed as consultants before the execution of the project.

They found that one of the challenges for creating ABS agreements was the difficulty of the categorisation of the beneficiaries. It was sometimes difficult to identify whether the TK was held by an individual, family, group or culture.

Alejandro Argumedo, Associate Director, Asociación ANDES

Mr. Argumedo presented his work with the Potato Park6. The Potato Park is a remarkable multifaceted Peruvian-project which makes use of a protected area to sustain the environment and improve the lives of indigenous people. The most interesting aspect of the park with respect to the IGC was what was described as ‘ABS in reverse’. In a manner not unlike the repatriation of archaeological artifacts, ancient species of potatoes were repatriated from the International Potato Centre7 to the care of the indigenous peoples from where the species were developed.

4 ‘Traditional Knowledge Revival Pathways’, <http://www.tkrp.com.au/>, accessed 4 April, 2012;5 Article 15(5) of the Convention on Biological Diversity <http://www.cbd.int/convention/text/>;6 ‘The Potato Park’, <http://www.parquedelapapa.org/>, accessed 18 March, 2012;7 ‘International Potato Centre’, <http://cipotato.org/> accessed 28 March, 2012.

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Afternoon Session

The afternoon session began with opening statements and a discussion of process.

Discussion of the General Assembly Mandate

A major area of discussion throughout the entire 20th IGC centred on the mandate of the general assembly (GA)8. In particular, contention focused around the degree to which the GA requested the IGC to prepare a draft legal document. The various delegations would attempt to frame the proceedings in a manner that reflected their position on this question. Broadly speaking, those countries which were interested in enacting a more extensive regulatory regime were keen to emphasise that the aim was a legal document, whilst other countries were more interested in proceeding more cautiously.

Those countries that saw their work as developing a treaty would suggest that the principles and objectives should be reformatted into a preamble and the various options should be developed into articles.

FAO Briefing

In the evening Dr. Bhatti of the UN Food and Agriculture Organisation (FAO) presented information about the International Treaty on Plant Genetic Resources for Food and Agriculture (TPGRFA)9. The TPGRFA is a treaty developed to enabled the sharing of GR related to agriculture for the purposes of increasing genetic diversity. Databases, ABSs and disclosure of origin were discussed throughout the IGC, and this presentation, early in the week, was an attempt to focus negotiation by pointing to best-practices and a functioning legal regime.

Dr. Bhatti stated that 90% of the worlds caloric intake depends on less than 20 crops. Given rapid changes in the climates of many regions of the world that are inhabited by populations vulnerable to food shortages, the FAO is particularly concerned with promoting the development of new strains of staple foods. For most of the 20 staple crops, in the language being used within the IGC, the country of origin was not known; however, the GR was owned by a group or research institute. Part of the purpose of the TPGRFA is to encourage these strains to be shared and developed. The TPGRFA treaty set up a multilateral sharing system that is facilitated through databases and ABS contracts. These contracts permit researchers, businesses, indigenous groups and others to gain access to new varieties of agricultural plant strains. Facilitating the transfer is a database of existing germplasts called Genesys10. This database can be used for both identifying plant strains for localized breeding (e.g. strains resilient in higher altitude) and for identifying misappropriated GR (e.g. one can search by actual gene sequences).

When a party identifies a plant strain that they would like access to, they can then request a sample which is regulated by a standard materials transfer agreement. This agreement ensures the transfer complies with the CBD. The transfer requires that any further sharing of the GR is done under the same contractual terms. The transfer agreement also requires that a small proportion of any economic benefits (1%) are contributed to a FAO managed fund which is used to develop new plant varieties and improve food security (predominantly) in the developing world. The Potato Park (mentioned above) was one such recipient of funding.

8 Matters Concerning the IGC on IP and GR, TK and Folklore. WO/GA/40/7, Geneva, Switzerland, <http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_40/wo_ga_40_7.pdf>, para. 16(a);

9 ‘International Treaty on Plant Genetic Resources for Food and Agriculture’, <http://www.planttreaty.org/>;10 ‘Genesys: Gateway to Genetic Resources’, <http://www.genesys-pgr.org/> accessed 26 February 2012.

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Day 2 – February 15, 2012

Principles & Objectives

Interactions with other International Agreements

Part of the work on principles and objectives11 was ensuring that the IGC work would not prejudice work taken in other fora. The most relevant agreements are the CBD, its accompanying Nagoya Protocol12 and the declarations relating to the rights of indigenous peoples13. One concern advanced was that the document should not go beyond the scope of WIPO since some parties that are members of WIPO are not part of the other treaties.

The delegate from FAIRA14 suggested that member states should attempt to provide some flexibility in the language of the draft. He was particularly concerned that should countries wish to change their laws to give more rights to indigenous peoples, it would be regrettable if being a signatory to a treaty made this more difficult in the future.

It was also important to ensure coherence with national constitutions. France for example, could not accept the wording of ‘self determination’ due to their constitutional requirement of being an ‘indivisible state’. Greater difficulties were presented by constitutions of countries like that of Bolivia and Venezuela which promoted collective ownership and prohibited patents on life-forms

Cluster A – Defensive Measures

Databases

All parties accepted the value of having databases (DB) of GR for patent offices to consult; however, there was a divergence on the purpose of the DB. For the countries concerned by biopiracy (Ecuador for example), DBs are a safeguard secondary to MD. Iran suggested that without MD, having DBs might make biopiracy easier. Concerns were expressed by ARIPO15 that not all indigenous people want their TK to be in the public domain. India supported this intervention by adding that their experience had demonstrated that a DB would never capture everything.

Cluster B – Options on Disclosure Requirements

One of the most cogent arguments advanced against MD was that patent offices are already overburdened, and that such a requirement might add additional burdens. Another argument advanced by the Japanese delegation was that MD requirements might remove some of the motivation of industry and thus result in a drop in ABSs.

Switzerland presented a proposal16 modelled on its own domestic legislation. This proposal was put forward as modest and pragmatic. It was claimed that it would increase transparency and was compliant with the Nagoya Protocol and CBD (including a workable form of MD). This proposal was supported in principle by countries such as Indonesia who pointed out that much of the document was included

11 Draft Objectives And Principles Relating To Intellectual Property And Genetic Resources, WIPO/GRTKF/IC/20/4, Geneva, Feb 14-22 2012, <http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_20/wipo_grtkf_ic_20_4.pdf>;

12 ‘The Nagoya Protocol on Access and Benefit-sharing’, <http://www.cbd.int/abs/>;13 ‘Declaration on the Rights of Indigenous Peoples’, <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>;14 ‘The Foundation for Aboriginal & Islander Research Action’,

<http://esvc000200.wic061u.server-web.com/>, accessed 5 April 2012.15 ‘African Regional Intellectual Property Organization’, <http://www.aripo.org/>;16 Declaration of the Source of GR and TK in Patent Applications: Proposals by Switzerland,

WIPO/GRTKF/IC/20/INF/10, <http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_20/wipo_grtkf_ic_20_inf_10.pdf>.

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in the draft submitted by the like minded countries.

At one point a question was asked to the plenary about the US government’s Bayh–Dole system. The US delegation clarified that the Bayh–Dole system is a contractual disclosure obligation for patent applications for innovations funded by government research grants; it is not MD. It was recommended by the delegation as a good case study of a contractual arrangement that could work (in contrast to a disclosure based system).

Private copying and fair compensation

During lunch, a presentation was given on private copying and fair compensation. A reproduction of the handout can be found in appendix A.

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Day 3 – February 16, 2012

Clarifying the Observer participation at the IGC

The morning session addressed nine proposals covering a range of initiatives that included: ways of structuring observer participation, methods of communication and financial support17. In this session indigenous peoples played the most active role. The indigenous contributions were constructive and pointed. There was a marked difference in approach between countries with more (ex. Peru) and less (ex. US) indigenous constituents.

Re-categorization of Observers

The most contentious proposal was the re-categorisation of observers. Rule 24 of WIPO’s procedures18 does not distinguish between lobbyists (companies), NGOs and indigenous peoples. The goal of the proposal was to give different rights of participation to different groups. Tupaj Amaru suggested that the categorisation should be drawn from other international definitions.

The difficulty in trying to re-categorise observers is identifying the correct criteria. The delegation from Namibia pointed to the difference between organisations with a constituency and those which claim to represent the interests of indigenous peoples. The Culture of Afro-Indigenous Solidarity pointed out that some definitions would exclude diasporas which share the same experience as indigenous peoples.

FAIRA suggested a category of ‘self-determining’ observers. The Assembly of First Nations19 underscored that indigenous peoples are self-governing and should be seen as equal to states or elevated from others participants.

Indigenous Textual Contributions

An issue that was raised by many delegations in this session, and repeated throughout the meeting, was the desire that indigenous people be able to make substantive textual interventions without the support of a state delegation. Although the delegation of Columbia supported the validity of indigenous contributions (especially where there were no consultation of indigenous populations by governments), such a proposal was bound to be controversial given that states are keen to maximise their sovereignty.

Communications tools

Part of the proposals for improving observer participation included creating summaries and guides for upcoming IGC meetings. FAIRA suggested that the website was not particularly accessible to indigenous groups and Tupaj Amaru pointed out that many indigenous peoples do not have access to the internet or phones. The proposal, amended to include other forms of media, was passed.

17 Draft Study on the Participation of Observers in the Work of the IGC on IP and GR, TK and Folklore, WIPO/GRTKF/IC/20/7, <http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_20/wipo_grtkf_ic_20_7.pdf>;

18 WIPO General Rules of Procedure, <http://www.wipo.int/freepublications/en/general/399/wipo_pub_399.html#rule24>;

19 ‘Assembly of First Nations’, <http://www.afn.ca/>, accessed 5 April 2012.

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Lunch Time Workshop: Triggering Synergies between ABS & IPRs

The lunch time workshop session was presented by the ABS Capacity Development Initiative20. The purpose of the workshop was to develop awareness among delegates of the issues and ongoing ABS research. The group was created as a result of CBD negotiations and has been primarily supported by UNCTAD and the German development agency. They work to: increase awareness of ABS among policy makers, improve regional cooperation, enhance partnerships with business and to provide a platform for discussion and research.

Access Benefit-Sharing

ABS is a process whereby companies are given rights to use TK in exchange for sharing a proportion of the profits (or benefits), derived from the access, with the originating indigenous community. The essential requirements of ABS, clarified by the Nagoya Protocol, are prior informed consent (PIC) and mutually agreed terms (MAT). PIC means that the originating community has given its consent to the use of the IP freely and has also an adequate understanding of what they are consenting too. MAT means that the terms of use are properly negotiated by or on behalf of the indigenous peoples with their interests in mind.

To make ABS work, protecting the interests of indigenous people is one side of the coin. On the other is making the scheme work for business. The problem is that domestic laws are not always coherent. Businesses need reliable and clear legal frameworks to make international investments.

Challenges

The ABS Capacity Development Initiative recently completed a consultation working group with the goals of identifying: a) what information does a business have to give in order for the providers to give PIC and b) what elements need to be incorporated into MAT to make a workable agreement?

The result of this workshop was a realisation that many domestic authorities were not aware of the IP issues involved in ABS agreements. Developing MAT resembles the process at the beginning of product development: a time when outcomes may not be certain. This requires expert legal advice and someone who knows the particular industry well. It was claimed that many of those who negotiate ABS agreements are not trained negotiators or lawyers; yet, there are many complex legal pitfalls.

One legal issue, which had been a problem historically, was the challenge of catering for the assignment of rights after a potential bankruptcy. A partner company to an ABS agreement involving the Ethiopian grain Teff went bankrupt and then passed on the rights to another corporation. The new owner did not have a policy of corporate social responsibility and had not been part of the original negotiations (thereby understanding the needs of the originating community). Another drafting issue involves how to draft an ABS agreement that includes a technology transfer (or sell back of patent) as envisaged by the CBD.

Templates

One of the large projects of the ABS Capacity Development Initiative is to create templates for policy makers. These are model agreements that demonstrate what MAT and PIC might look like. From these, governments, policy makers and business will be able to model their own work. Other refinements might include sectoral or specialised MAT and templates for international certifications. The hope is to have these ready for COP 11 of the CBD.

20 ‘The ABS Capacity Development Initiative’, <http://www.abs-initiative.info/>, access 5 April 2012.

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Day 4 – February 17, 2012

The contributions from earlier in the week were returned in a document titled The Facilitators’ Consolidated Document Relating to Intellectual Property and Genetic Resources. The Morning session process was a paragraph by paragraph review to achieve greater agreement.

The talks began with a split between delegates over the issue of MD (cluster B). There was general agreement that patent applicants should not receive exclusive rights on inventions that are not new or inventive, but there was a divergence of position on whether the scope of protection should be greater (for example for derivatives). The Korean delegation supported Japan and America’s proposal for no MD to be included.

Other countries insisted that the risk of erroneously granted patents is reduced by disclosing the country of origin. They also argued that evidence of PIC and evidence of benefit-sharing should be disclosed in patent applications because this also provides additional information that patent examiners can use when they conduct a prior art search.

The proceedings prompted a strong response from the South African delegation. It was felt that process had become ‘boring’ because of the repetitive way in which textual proposals were being made and then immediately highlighted for deletion by opposing countries. It was felt that the process would be unnecessarily prolonged and a request was made for a change.

Afternoon Session

In the afternoon session the discussion moved to options on defensive protection of GR. The USA delegation proposed an option, supported by Canada, Japan and Korea, that WIPO should begin developing an inventory of database and information resources on GR. At the same time WIPO should respect indigenous wishes where source cultural protocols exist that prevent such information from being made public.

Indigenous Statement

The indigenous delegation released a statement of principles relating to GR which can be found in appendix B.

The ABS Patent Index

A workshop on The ABS Patent Index (ABSPAT) computer system was presented over lunch. The Index was created to increase efficiency for both research on patents and for patent offices seeking to identify prior art.

One of the big difficulties for those wishing to identify biopiracy is the scale of the task. There are roughly 11 million patents in the United States, Europe and WIPO and over six million Latin names for species. It was estimated that identifying all the patents that incorporated a particular species (possibly having several Latin names) would take around 1,130 years on a personal computer, whereas with ABSPAT it would take 3 hours.

A number of interesting ways of visualising and sorting data were presented. ABSPAT can show how patent applications and patent granting varies between countries. The US and the EU have the most patents, whereas the Russian Federation stands lower in their global patent activity. One can also look at the top species used in a given patent category. Though it clearly had value for patent offices, the major limitation of ABSPAT was that patent applications do not require a disclosure of origin. This may have motivated organisers to include it as a workshop as it illustrated the value that MD could have.

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Day 5 – February 18, 2012

Delegates continued discussion on The Facilitator’s Consolidated Document Relating to Intellectual Property and Genetic Resources. As before, the effects of biopiracy and misappropriation were the main contentious topics of the discussion.

Biopiracy

According to the publication Bridging the Gap on Intellectual Property and Genetic Resources in WIPO’s Intergovernmental Committee21 by policy adviser David Vivas-Eugui: reports of biopiracy cases from media sources, NGOs and individuals continue to surface with different levels of intensity and notoriety.

The term ‘biopiracy’ itself, was coined by the North American advocacy group, Action Group on Erosion, Technology and Concentration22 to refer to the uncompensated commercial use of biological resources or associated traditional knowledge (ATK) from developing countries, as well as the patenting by corporations of claimed inventions based on such resources or knowledge. The term ‘misappropriation’ means the use of GR in violation of access conditions and/or deriving benefits from GRs without equitable benefit-sharing.

During discussions, the US delegation contended that patent law was never intended to fight theft or biopiracy; rather, it was contended its purpose was to promote innovation. This contention seemed at odds with the analysis that the way that patents promote innovation is through the granting of a monopoly that is protected by law to prevent theft.

Disclosure Requirements

On this day, doubts were raised about the efficacy of MD. Delegations such as the US and Japan expressed doubts that such a system would work. Where these countries did support the idea of disclosure was within the narrow circumstances where the disclosure of GR “is material to the patentability criteria of novelty, inventive step or enablement.” They also wanted to limit this further by excluding this requirement where any of the following applied: “1) all human GR including human pathogens 2) derivatives 3) commodities 4) TK in the public domain 5) GR found outside of national jurisdictions [and] 6) all GR acquired before the national implementations of the CBD and the Nagoya protocol”. Furthermore, they advocated for a fact based analysis by WIPO before proceeding.

Countries from the DAG and others argued that without MD, the possibility of preventing the grants of erroneous patents was low. It was also argued that requiring further study would delay negotiations, at a point when extensive study had already been undertaken. FAIRA noted that voluntary disclosure puts indigenous groups at a disadvantage as they have very limited resources to research whether their TK or GR have been misused. It was also remarked that not having MD would put companies wishing to act ethically at a disadvantage.

International cooperation

The transboundary cooperation proposals would create means of cooperation between countries allowing for the creation of better ways to protect GR and TK. Instead of fighting biopiracy on their own, parties would be able to cooperate and broaden their capabilities. The EU Delegate stated that they are strong supporters of transboundary cooperation, but cannot agree on the current form and wording. Thus they asked for its deletion from the draft.

21 ‘Bridging the Gap on Intellectual Property and Genetic Resources in WIPO’s Intergovernmental Committee’, <http://ictsd.org/i/publications/124403/>, accessed 5 April 2012;

22 ‘etc Group’, <http://www.etcgroup.org/en>, accessed 5 April 2012.

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Day Off – February 19th, 2012

15

Flower Clock

Bridge over the rivers Rhône and Arve

University of Geneva

Fathers of the Reformation

Day 6 – February 20, 2012

The morning session was suspended to give the Facilitators extra-time to amend the next draft text. The session reconvened at three in the afternoon for a brief gathering, and then the regional groups dispersed to separate rooms for private discussion.

The Facilitator from Australia, Mr. Ian Gross, proceeded to give an explanation of the compiled text. Throughout the process, the facilitators objectives were to:

1. Establish with the proponents of proposals, whether the material options had been captured

2. Establish whether in the view of delegates, there were additions or deletions that were not reflected

3. Establish whether the text adequately captured the material proposals

The Facilitator noted the difficult nature of the task of composing the text. They attempted to remove duplication and give clarity to objectives and principles by adding boxed texts and bold headings. The previously bracketed suggestions were grouped into options and sub-options to reflect convergences and divergences.

Sub-options were used extensively throughout the most controversial section: disclosure of origin. The section was split into three options: an option for a non-mandatory approach and two options for a mandatory approach (one of which included reversing patents granted where biopiracy had occurred).

Intellectual Property Rights, Patent Rights and Derivatives

One particular point of divergence was the use of the phrase ‘intellectual property rights’. Those delegations that wished to limit the scope of the treaty requested that this be changed to ‘patent rights’.

The other cross-cutting way that countries wished to narrow the effect of the work was by removing references to ‘derivatives of genetic resources’. One argument, made by the EU, was that derivatives should not be included and thus be left for negotiation in bilateral contracts. This intervention may not have been an attempt to limit the scope of protection (the EU may want to prevent the misuse of derivatives), but it may rather have been an attempt to reach a textual convergence that would offer some international protection.

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Day 7 – February 21, 2012

Morning Session

The day began with the election of a Vice Director (who would be responsible for the plenary when the Chairman was not available) and then proceeded with a detailed examination of the text to ensure that the prior inputs had been successfully captured in the new facilitators text.

Indigenous Participation

The inclusion of the indigenous peoples’ delegates was an interesting element in the meeting, and the interactions between them and the IGC was illustrative of the difficulties faced by these groups. The participation of these groups provided additional legitimacy to the IGC work; however, it was clear that indigenous people were there to be consulted and not to draft the rules that would ultimately apply to them. On several occasions frustration was expressed that parts of the text were drafted behind closed doors without transparency.

Although NGOs were not able to amend the text without a member state’s support, the indigenous groups were successful in achieving textual contributions. These moved the draft text closer to compliance with other international agreements such as the CBD and in some cases made contributions that emphasised indigenous sovereignty over their resources. That indigenous peoples were not forefront in the proceedings was suggested by the complaint that the facilitators’ text was not translated into Spanish. This made it inaccessible to many of the indigenous delegates from Latin America.

Having endorsed a declaration earlier in the session requesting greater involvement, Instituto Indigena Brasileiro para Propriedade Intelectual (INBRAPI)23 announced its withdrawal until such time as rules of procedure were changed. This was premised upon the ongoing denial of direct participation. Later FAIRA clarified that they were not withdrawing, but might consider doing so if the text did not reflect the concerns of indigenous people. The Chairman addressed the withdrawal of indigenous people by expressing his regret and helplessness to alter the rules of procedure. Later in the week an approach was proposed that would bring INBRAPI back to the negotiations.

Afternoon session

Following from the various ways that delegations were framing the proceedings (discussed above): an extensive number of consultations were taken to prepare a prologue to the draft text. Suggestions were made to include the description of the text in the Chairman’s summary; this was vigorously opposed. The ultimate result was that a chapeau would be placed in the document as a ‘Chairman’s Note’, but it not be considered actually part of the text. The Chairman’s Note was to read:

This text represents the results, at the conclusion of the IGC’s 20th session, in accordance with the mandate of the WIPO General Assemblies (contained in WO/GA/40/7). It represents a work in progress and is without prejudice to the positions of the participants.

Where one or more options are presented on any issue, it is understood the possibility remains for there to be a no option or additional options on the issues.

The titles by the facilitators’ that are used are indicative of the content only and they do not form a framework for the document.

23 ‘Indigena Brasileiro para Propriedade Intelectual’, <http://www.inbrapi.org.br/>, accessed 9 April 2012.

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Day 8 – February 22, 2012

Morning Session

In the morning session the Joint Recommendation on Genetic Resources and Associated Traditional Knowledge24, proposed by USA and co-sponsored by Norway, Japan, Republic of Korea, and Canada, was discussed.

The introduction of this text prompted a highly technical discussion on procedure. Egypt pointed out that the Joint Recommendation was not part of the adopted agenda, and so seemed to be out of the scope of the mandate (and therefore should not be discussed). In response, the USA argued that it fell clearly within the scope of the mandate in terms of ‘textual proposals’.

Egypt (this sessions representative for the African regional group) submitted that the recommendation did not sufficiently address the challenges that African countries faced. Concern was expressed that language such as ‘sovereign rights of states over’ were missing. It was also said that the recommendations were neither binding nor even soft law. Russia proposed that it should be kept on the agenda and discussed in the inter-sessional period. The same view was shared by the OEAB.

Cameroon thanked the proponents for taking the effort to prepare the work and noted that the recommendation inverted the burden of proof that was usually placed upon the applicant for a patent. This change would increase the cost to countries that had financial problems.

Afternoon Session

After meeting with the Chairman and Secretariat, Indigenous peoples’ groups announced their willingness to return to participate in the meeting. This was contingent on the proposal that there should be two participants from the indigenous forum in each drafting group. Once again, representatives asserted that they should be entitled to directly express their views, formally and informally, on an equal basis with states. They also proposed a specific category (as distinct from NGOs) of ‘Indigenous People on an equal footing with states’. The Chairman advised the Secretariat to put this statement in the record to be discussed in the next committee meeting.

The committee moved to the last stage of the meeting: closing of session and adoption of decisions. Many of the delegations expressed thanks to the Chairman, Secretariat, interpreters and fellow colleagues. The Chairman closed the session by thanking all delegations for the constructive and cooperative approach. He reminded them that it was as if the committee had just completed the first leg of a race. Each participant should work to try to understand the views of their colleagues so that the relay race could be completed.

24 ‘Joint Recommendation on Genetic Resources and Associated Traditional Knowledge’, WIPO/GRTKF/IC/20/9 REV., <http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_20/wipo_grtkf_ic_20_9_rev.pdf>.

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ConclusionAnecdotally, this was quite an important meeting in the life of the IGC. From our perspective the 20 th IGC was interesting and highly educational. We would like to conclude by outlining: some of our general impressions, unexpected aspects of the meeting and some suggestions for future delegations.

Overall, we were struck both by the intensity of interventions by delegation but also by the collegial and friendly work environment. Intellectual property negotiations might sound uneventful; however, the variety of interests and philosophical positions makes for a complex and interesting dynamic. The difficulty faced by the facilitators was immense; the IGC has been discussing the issue of IP and GR for over ten years. Throughout the week there were moments where it seemed that the meeting would be yet another session where discussions repeated themselves and decisions were postponed; however, there were also breakthroughs that suggest that a treaty might be possible.

The relationship of the indigenous peoples’ representatives to the proceedings were particular notable. These talks impacted disproportionately on their lives and many of the ideas in the IP system are antithetical to their various world views (for example owning a patent on a life form). In some respects their participation was essential for the treaty to have legitimacy. On the other hand, their actual interests often seemed pushed to the margins.

We recommend to future delegations to go to the optional workshops. Other international organisations have asked to present them and researchers are invited for a reason! At times, the wider context may be lost when the plenary sessions are working in a detailed fashion, but the workshops often provide a wider view that helps one to understand the plenary discussions. Furthermore, the workshops illustrate career paths that you may not know exist and offer opportunities to meet diplomatic, business and civil society delegates.

To conclude, we would like to thank ELSA International for facilitating this interesting and educational delegation. We would highly recommend the experience to other students interested in the work of international organisations. If readers have any questions please do not hesitate to contact us.

Michael, Calvin and Jacek

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From left to right: Michael Rowse, Calvin Tinlop Chui, Jacek Saffell and His Excellency, Ambassador Wayne McCook of Jamaica (IGC Chairman)

AnnexAppendix A – February 15, 2012: Private copying and fair compensation

An empirical study of copyright levies in Europe25

Martin Kretshmer of the Center for intellectual property policy & management at the Bournemouth University

EC levy definition

A private copying levy is a form of indirect remuneration for right holders, based on the premise that some acts of private copying cannot be licensed for practical purposes by the relevant right holders.

1. What activities should be possible without permission?2. If without permission, requirement to pay?3. Are copyright exceptions just a response to market failure?

Levy history

• 1965: Germany UrhG par. 53• 2001: Info Soc Directive (“fair compensation”)• 2006: EC recommendation (almost)• October 2010: ECJ Padawan (“uniform interpretation”, “calculation based on harm”• May 2011: EC announces “comprehensive legislation action” regarding private copying levies• August 2011: UK commitment to introduce private copying exception without compensation • (Norway), Finland, Netherlands, Spain move on changing their levy laws

Levy revenues

25 Source:http://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ip_econ_ge_1_12/wipo_ip_econ_ge_1_12_ref_kretschmer.pdf

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What is private copying?

1. Making back-up copies / achieving / time shifting < no harm – “first sale”

2. Passing copies to family, friends < reproduction

3. Downloading for personal use < reproduction

4. Uploading to digital storage facilities < no exception possible

5. File sharing in digital network < no exception possible

6. Online publication, distribution without networks of friends < no exception possible

7. User generated content, mixing, mash-up < no exception possible

Study I – legal and policy context characteristics of levy schemes

Levies on MP3 Players, Printers and PCs (2009)

Island, Sweden and Finland have MP3 levies

Mainland Europe has PC’s and Printers levies

France has high levies, Poland low.

Germany – not from evidently unlawful sources, up to seven copies

Denmark – lawful sources, not from borrowed media, family and close circle of friends

France – lawful sources,

In total 1.63 billion copies made from 2006 to 2007. 345 million (42%) came from the internet, out of which 20% came from itunes etc. Which leads to a result that 96% of all music on pmp is copied.

Distribution

Study II

1. Relationship of levy and retail price (HP printer)Scandinavia has the highest online retail price, (levy + tax).

2. Relationship of levy and retail price (ipod touch)

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USA < Scandinavia

Study III – what are levies for?

Transaction costs, state regulated licenses, consumer value, off balance sheet tax, creator rewards, privacy.

Concept of harm(1)

Harm in law = lost licensing opportunity, i.e. a fee that could have been charged. Although if there is a copyright exception, there is no infringement and no license could have been issued. And thus, there is no harm from a permitted activity.

Harm in economics = lost sale, i.e. if copying replaces a purchase that otherwise would have been made.

Concept of harm(2)

Hal Varian(2005) – a situation when a publisher or producer can completely determine the terms and conditions under which the products it sells can be consumed,

So to sum up, the main point at hand, during this presentation was the question of whether not levies are an essential part of import / export relationships, and how they influence commerce, especially when their level varies among different European countries. As we learned during the presentation a private copying levy is a form of indirect remuneration for right holders, based on the premise that some acts of private copying cannot be licensed for practical purposes by the relevant right holders. In that case, one must ask, what activities should be possible without permission? There would probably by as many answers as there are countries, but as the study showed, there is a general understanding that making back-up copies, time shifting, can be easily done without harm to the copyright holder.

And though the study touched the issue on a very limited scale, only working around mp3, pc and printer levies, it was interesting and in-depth enough to show that the issue of private copying, fair compensation, and copyright levies in Europe is a very complex one that requires a lot more study to achieve fair and unbiased conclusions. For in the European Union, and its internal market based on the concept of free movement of goods, even the slightest taxation difference amongst member states can lead to a diversification of interests in certain goods between countries.

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Appendix B – February 17, 2012: Indigenous Statement

On the 17th the Indigenous People submitted a text on GR:

Indigenous peoples, as Peoples and Nations, submit the following text proposals that contain the fundamental positions that should be included in any instrument that affects the biological material, spirituality, and traditional knowledge originating from our territories and Peoples.

Objectives

Any instrument(s) must:

1. Recognize Indigenous Peoples sovereignty and title over their resources and associated traditional knowledge (ATK).

2. Ensure protections to prevent theft and misappropriation of Indigenous Peoples GR and ATK.

3. Recognize and be consistent with the customary laws of Indigenous Peoples.

4. Recognize that Indigenous Peoples have the inherent and inalienable right to collectively own, manage and protect their territories, resources, and knowledge.

5. Recognize Indigenous Peoples right to own, control, posses and determine access over their GR and ATK.

6. Implement Indigenous Peoples right to free, prior and informed consent (FPIC).

7. Respect Indigenous Peoples right of self-determination and their right in international law.

8. Recognize and protect Indigenous Peoples interest to keep their GR and/or TK secrets .

9. Provide a mechanism whereby the rights over any GR and/or TK obtained without FPIC must be transferred back to the Indigenous Peoples.

10. Provide remedies for GR and TK of Indigenous Peoples that have been put in the public domain without consent.

11. Affirm the universal protection of the rights of Indigenous Peoples and nothing in the instrument(s) can be constructed as diminishing or extinguishing the rights Indigenous Peoples have now or may acquire in the future.

Guiding Principles

1. To uphold the highest moral and legal standards in international law with respect to Indigenous Peoples.

2. To respect and protect the worldview, cultural diversity, and rights of Indigenous Peoples who are often the most vulnerable and marginalized peoples in the world.

3. To stop or prevent the patenting of any biological material.

4. To recognize Indigenous Peoples right to prevent external use of their GR and ATK through the use of databases, registers, or other means

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