Sean Flynn

The United States delegation, in its opening statement to the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, expressed its desire to limit the activities and mandate of the Committee.

The US statement, made at the 51st meeting of the Committee, recalled that the last two meetings failed to produce a common text of an agreement on traditional knowledge (TK) and traditional cultural expressions (TCEs) for the next meeting to work on. At the 49th meeting, the Like Minded Countries Group of developing countries supporting the IGC’s work blocked further use of a complex facilitator’s text produced at that meeting that contained a large number of newly competing provisions on most of the draft’s topics. At the 50th meeting, first the US and then Nigeria blocked further consideration of a consolidated text that combined draft documents on TCEs and on TK and contained several proposed changes that would threaten the desire by some for a binding and rights based approach. The US statement cited this lack of “tangible progress on textual negotiations” as evidence of “significant divergence among Member States on the purpose of the IGC and its desired outcomes” which “warrants taking a step back and reflecting on where we are going with these negotiations.” 

The IGC is not a standing committee, which means that the General Assembly must reapprove a mandate for the Committee to continue work. That mandate, for the coming General Assembly meeting in July, will be negotiated at the 51st IGC. In this context, the US opined that “the next mandate should schedule fewer sessions,” and suggested that the Committee move from the current three meetings per year to just one. 

The US statement is reprinted below in full. Other countries and groups supported renewing the mandate and holding three meetings per year. The US statement indicates that the negotiation over the mandate may be hard fought.

UNITED STATES OF AMERICA: Thank you, Chair.

As we discussed potential renewal of the mandate, we should keep in mind the last two IGC meetings, IGC 49 and 50, ended with no tangible progress on textual negotiations.

As we mentioned this morning, this came at great expense of time and money for the WIPO Secretariat, Member States and accredited observers.

This lack of progress reflects the significant divergence among Member States on the purpose of the IGC and its desired outcomes.

For example, we have not even been able to agree on the basic issue of whether the TK and TCE text should reflect the views of all Member States.

In our view, this lack of tangible progress warrants taking a step back and reflecting on where we are going with these negotiations.

The lack of tangible progress also warrants moving the IGC in a more productive and less contentious direction.

This mandate renewal discussion provides an opportunity to reset IGC dynamics which is needed if the IGC is to operate in an effective manner.

To that end, the next mandate should schedule fewer sessions.

It should also require the use of real world scenarios including case studies during Committee sessions to rejuvenate and refocus our discussions and to encourage participants to have a constructive exchange of views.

And the next mandate should also reaffirm that all Member State proposals will be reflected in working text and along those lines should reference the reality that currently exists, namely that Member States have widely divergent positions.

I will briefly elaborate on the number of meetings in the biennium.

The United States calls on the IGC to recommend to the General Assembly that the mandate reduce the number of sessions in the next biennium.

In our view, this will lead to better meeting preparation and attendance which will hopefully result in more productive engagement and forward progress for the Committee.

Fewer meetings will also help to temper expectations given the wide divergence in views among Member States in terms of priorities, working methodologies and acceptable outcomes.

Most WIPO bodies hold their meetings once a year.

It’s time to bring the IGC in line with that standard.

Consequently, the next biennial mandate should schedule no more than two IGC sessions for the biennium, one session per year.

Next, the mandate should continue to reflect the preservation of separate texts and work streams for TK and TCEs. The mandate should also retain language on taking an evidence-based approach, having a Member State driven process, providing examples of national experiences and adopting a work program based on open and inclusive working methods.

We would like Member States to agree that proposals related to IGC work streams, including those directed to biodiversity issues, should be raised in the IGC and not in WIPO’s technical bodies such as technical Committees and working groups.

Over the last year, several technical bodies at WIPO have faced proposals that are duplicative of IGC discussions.

This has created unnecessary confusion in those bodies and distracted them from their properly mandated work.

In our view, these proposals belong only in the IGC.

Participants would be confused and express opposition if patent proposals were raised in the SCCR or updates to the international patent classification were proposed in the Madrid Working Group.

Proposing GR, TK and TCE-oriented changes in other bodies or WIPO contexts is no different and ignores the jurisdictional integrity of WIPO bodies.

The United States believes ensuring discussions are not taking place in duplicative manners across WIPO bodies is a critical consideration in any mandate outcome moving forward.

Neither the TK nor TCE subject matter is ready for a Diplomatic Conference.

Instead, the current texts reflect widely divergent positions.

The IGC needs to continue the discussion and negotiation process.

With or without brackets, the wide range of alternatives in the working text is a compelling reminder of just how far apart Member States are on every critical aspect of these discussions.

Consequently, at this time, the United States cannot support a recommendation to the WIPO General Assembly that it convene a Diplomatic Conference arising from the TK or TCE work stream.

Lastly, at this time, the United States cannot support making the IGC into a WIPO Standing Committee where it would operate alongside Committees on patents, trademarks, copyrights and standards.

It is premature to have this discussion until there is clarity and consensus on the purpose and future direction of the IGC.

There is currently no agreement on these foundational issues.

Recent lack of progress at IGC meetings reflects significant divergence in views among Member States on the role of the IGC and its desired outcomes.

We cannot agree as a Committee on whether working text should reflect the views of all Member States, so the best use of our energy and time at this stage is taking a step back and figuring out how to get the IGC back on track in terms of moving in a positive and productive direction.

Systems for protecting TK and TCEs are not commonplace in the world or even harmonized across countries where they do exist.

Countries need time to experiment with various policy approaches on this issue and to choose appropriate approaches based on their particular circumstances, laws and international obligations.

Rushing this process would undermine national sovereignty and set a worrying precedent for the creation of WIPO Committees.

We are open to revisiting this issue in the future if the IGC is making good progress and is in line with WIPO’s core mission.