A historic solar eclipse is ’round the bend, and like so many astronomical occurrences, bears ominous tidings.
“The Committee did not reach a decision on this agenda item”,
as reported on the Decisions of the Committee. These ten words belie the agitated conversations that took place behind the scenes, of which few were witness to, but which could have decided the fate of an intellectual property very dear to several communities and states around the world.
In a beautifully detailed narrative of the goings-on at the WIPO IGC deliberations, Thiru Balasubramaniam of Knowledge Ecology Interational (KEI), writes of the “intractable Gordian knot” that the IGC finds itself in, which is now left for the WIPO General Assembly to deliberate upon in September 2009. Other, briefer, reports can be found here and here. If nothing else, these notes offer a fascinating insight into diplomatic negotiations, and a ringside view of the international politics that are played out in an arena such as WIPO.
Bringing the discussions down were irreconcilable differences on three core issues: the demands for one or more international legally binding instruments, text based negotiations, and a clear timeframe.
There was some hard-hitting realpolitik on display, as can be seen in India’s comments towards the end of the session. India’s representative, whom we tried to contact for comments but with no success, suggested that member states were less than committed to seriously negotiate agreement(s) on TK, and related matters, in contrast with the more aggressive discussions that are taking place at forums like WHO, WCO, and ACTA, where “countries want greater protection and enforcememt of the rights of patent and copyright holders.”
Brazil attempted to articulate why it was important to have a legally binding instrument in this matter, for the practical need to entitle indigenous communities with rights to protect their intangible assets, and for the sentimental need to stop treating indigenous communities as second-class.
A few distinct interest groups emerged in the course of the discussions. Led by the African Group, which mooted the proposals stated above, were a group of developing countries, including India, China, Brazil, and others. Throughout, this group was consistent in the belief that “text-based negotiations on a timetable and one or more international legally binding instruments” was “the only way to guarantee effective protection of local and indigenous rights in developing and developed countries”.
The EU, the US and South Korea refused to accept the principles of “text-based negotiations” and “internationally legally binding instruments”, while Australia, Canada and New Zealand accepted “text-based negotiations” but were unsure about “legally binding instruments”. The general criticism was that their objections were without reason.
The discussions appear to have been a combination of perceptive observations and amateur under-researched remarks that reveal the hugely varying degrees of interest among members to pursue the Committee’s activities to a fruitful end.
Pakistan, for instance, warned that the IGC served as a “great example of a committee that could negotiate for years without any sign of light”. and that it did not wish to renew a “deaf and dumb mandate”. There were already documents available with WIPO that served as good working papers on issues of Traditional Cultural Expression and Tradition Knowledge, but were being ignored.
South Africa added that the IGC lacked political will and disregarded the development agenda, noting that the “current mandate is not enough to insure political will. Lack of support from some countries will reinforce status quo of misappropriation.”
South Korea, while refusing to commit to text-based negotiations, was concerned that such protection would “erode the public domain”, and “reduce resources for innovative activities”. The South Korean representative made a peculiar and inexplicable digression into kimchi, with observations that were bordering on the callow and hysterical. For that reason alone, it is worthy of reproduction:
“Korea has kimchee, if a foreign company tries to patent a recipe we will try to invalidate it. But does that mean Korea owns kimchi? Do we have right to authorize its production by foreign companies? Could we get license fees from them? If so we would have to pay Japan for sushi, Italy for pizza. Perhaps we could have certificates of origin with proprietary rights. New rights will raise costs which will be borne by the public consumers.”
Brazil remarked that “It’s surprising that when developing countries present their interests here they must make such efforts for their demands to be taken as seriously as the demands of the developed countries. Even for them to have to say ‘binding’ is an offense.”
India’s “larger point”, towards the end of the session, was similarly evocative of a tiredness on the part of the developing world to constantly have to “prove” something to their more developed counterparts, in order to have their demands met:
“I make a larger point: our organization administers 25 agreements on patents, copyrights, trademarks, industrial designs. Most of the IP in these areas is owned by our developed partners, if we had suggested it should only be “guidelines” on patent rights would they have accepted it? Today for the 1st time developing countries are asking for protection of their rights, it’s only a very small portion of the global IP rights. Non-binding wouldn’t be acceptable because it wouldn’t amount to any difference on the ground. We need to recognize the need for equity balance and justice, these are principles. The crisis shows the need for balance in equity, political rights. We can bring proportion equity and justice.”
So what are the options? The IGC mandate comes to a close in December 2009, after which it is left to the WIPO General Assembly to decide its future. One option, as KEI suggests, is to split the existing committee into three = one for each of the subjects under discussion, i.e., traditional knowledge, genetic resources and folklore. At any rate, it is of immediate concern for the General Assembly to ensure that the nine years of the IGC have not been wasted. Some form of mediation may need to be executed here. This includes establishing clarity on what “legally binding” entails, and making it clear that the act of ratification, and the consequences thereof, is independent of arriving a legally binding agreement.
In keeping with the astronomical metaphor that I began with, I came across this lovely haiku by Matsuo Basho, written over four hundred years ago: Summer moon–/ Clapping hands,/ I herald dawn. Basho derived inspiration perhaps from the annual summer solstice, which has just gone by for us too, celebrating a warm season in a cold country, and the coming of a new day. Can we hope that the powers that be at WIPO bear similarly pleasant tidings in the months to come?