Apologies for cross-posting from the new blog, TK Community, but this Kat has spent this week at the 13th Session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.
At the opening plenary, the new Director-General, Francis Gurry, quipped that 13 is unlucky for some, but lucky for others. However, it seems that it has acquired overwhelmingly bad connotations for indiegnous peoples at the IGC.
It's been an interesting meeting, more in terms of the politics and procedures than in terms of the discussion, which has largely been removed from the plenary to informal, closed sessions of regional groups.This has been criticised by some delegates and indigenous groups as a "divide and rule" strategy contrary to the multilateral and open spirit of the IGC. It is also coming under criticism for effectively alienating indigenous groups and civil society from the discussion.
This morning we began the agenda item on future work, where Algeria, on behalf of the African Group, presented the revisions of the original African Group proposal on inter-sessional meetings to accelerate the Committee's work.
The original proposal called for 5 groups to be established according to the 5 items: Definitions and Object of Protection; Exceptions, Limitations and Duration; Prior Informed Consent (PIC), Rights – Moral/Economic; Beneficiaries; and Sui Generis options for protection. However, after lengthy and closed-door regional meetings, the revised proposal (courtesy of IP-Watch) was presented at this morning's opening plenary. Algeria, on behalf of the African Group, explained that the proposal was based on the recommendations of the 2007 WIPO General Assembly and Recommendation 18 of the Development Agenda to speed up the work of the IGC, together with the 12th Session of the IGC which highlighted the importance of holding inter-sessional meetings and the need to arrive at a mechanism to accelerate the committee's work.
The proposed mechanism of the proposal is to set up special task force groups to meet during the inter-sessional period in order to accelerate the committee’s work to achieve concrete results. After informal consultations and in a spirit of flexibility and compromise, this has been revised to three based on the three categories of traditional cultural expressions (TCE), traditional knowledge (TK) and genetic resources (GR). While the original proposal arguably supported a holistic approach to the discussion, the revised proposal, although more likely to be acceptable to the plenary, is certainly a compromise that continues the partitioning of discussion according to conventional intellectual property categories.
The membership is proposed for 37 in total, 27 from member states and 10 from accredited observers. Although some members have argued for open-ended membership, this was suggested as an unnecessary duplication of the IGC process. The mandate, which would be clarified if the proposal is to be accepted, is to be based on that of the IGC and to provide legal opinions, technical advice, possible options and recommendations for the 14th Session. The basis of the work is the body of work already developed by the IGC, including the lists of issues, factual extractions and gap analyses.
France presented a proposal, on behalf of the EU, which appeared to come as a surprise to the other regional groups, including Algeria who raised an objection that this had not been discussed. The Chair declared that such objections should not be made in plenary and the meeting was suspended to closed-door regional groups. The process has raised objections that the multilateral process of discussion is being undermined, effectively blocking genuine participation by indigenous groups, as the plenary is being reserved for particular comments only and prevented from entering into discussion on documents, this occurring only in the closed regional group discussions.
As far as the participation by indigenous peoples in this process, this week appears to have been seriously damaging to the integrity of the process and the spirit of participation. The indigenous groups wanted to make a statement in the plenary session on future work, but the suspension of the meeting prevented this. The result has been that several key indigenous groups have already walked out of the meeting, including the Saami Council and the following statement has been distributed to delegates, ahead of the re-convening of the meeting in plenary.
Closing Statement from Indigenous Peoples and Local Communities
Thank you Mr Chairman,
This Statement is being made on behalf of WIPO Indigenous Caucus:
We are cognizant of the difficult task that you have taken on in leading
this committee in its work to fulfill its revised mandate to accelerate its
However, we must express our severe disappointment that in your haste to
move into regional consultations you did not afford an opportunity to the WIPO
Indigenous Caucus to express its positions on future work which could have fed
into the informal discussions. This negates the very purpose of having a
voluntary fund which supports indigenous participation in this committee. As you
may be able to tell, some of our colleagues have already left, seeing no further
purpose in simply rubber-stamping the decisions already taken.
This may have been corrected by the inclusion of the elected representative
of the WIPO Indigenous Caucus in the informal consultations, something which, in
any case, would be required by Articles 18 and 19 of the UN Declaration on the
Rights of Indigenous Peoples, which state, respectively:
"Indigenous peoples have the right to participate in decision-making in
matters which would affect their rights, through representatives chosen by
themselves in accordance with their own procedures, as well as to maintain and
develop their own indigenous decision-making institutions."
"States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order to
obtain their free prior and informed consent before adopting and implementing
legislative or administrative measures that may affect them."
We will, of course, submit our now, obsolete, prepared statement for
inclusion in the records of the committee, and sincerely hope that the future
operation of this committee will more properly reflect the rights of
participation of indigenous peoples.
Having not participated in the deliberations and decisions on future work,
the WIPO Indigenous Caucus regrets that its inputs may not be reflected in the
decisions taken by the IGC.
Thank you again for this opportunity to voice our concerns, and we look
forward to continuing to work with you and the member states in ensuring respect
and protection for the rights of indigenous peoples and local communities.