Professor Chidi Oguamanam, the Nigerian delegate to the 36th session of the World Intellectual Property Organisation (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) discusses the session which held at WIPO from 26 to 29 June 2018.
Established in 2000, the WIPO – IGC is a forum where WIPO member states discuss the intellectual property issues relating to genetic resources: GRs, alongside the protection of traditional knowledge: TK and traditional cultural expressions: TCEs (‘traditional cultural expressions’ and ‘expressions of folklore’ are used interchangeably in WIPO discussions).
The WIPO – IGC holds formal negotiations, with the overall aim of reaching agreement on one or more international legal instruments that provide effective protection of GRs, TK and TCEs. The proposed international legal instruments could range from recommendations to WIPO member states to formal international treaties that would bind countries that choose to ratify it.
Flora IP (FI): Can you tell me about the 36th session of the WIPO – IGC?
Professor Chidi Oguamanam (CO): The 36th session of the WIPO – IGC is the second in the 2018 – 2019 biennium. The mandate is to negotiate within these two years, the three international instruments under the IGC namely: a text for Genetic Resources (GRs), a text for Traditional Knowledge (TK) and a text for Traditional Cultural Expressions (TCEs). While the 35th WIPO – IGC was dedicated to genetic resources (GRs), the 36th WIPO-IGC provides the opportunity for further deliberations on GRs.
The WIPO General Assembly, reflecting its commitment to the negotiations under the 2018-2019 biennium, approved the establishment of an ad hoc technical expert group on GRs, which convened on Sunday 24, June 2018, earlier than the main WIPO – IGC sessions. The ad hoc technical expert group were given a definitive mandate to discuss specific issues that are at the very crux of WIPO – IGC negotiations.
For the ad hoc technical group, experts selected across regional boundaries were allowed to participate in their personal capacities as experts, which was a very effective way of engaging. The deliberation of the ad hoc technical group was reported to the plenary on the first day of the WIPO – IGC, which set the tone for the discussions.
Another strategy that changed was that the Chairperson of the WIPO – IGC, Mr. Ian Goss from Australia, demonstrated interest in continued use of contact groups. Issues were divided into three: Trigger, Sanctions and Scope of Subject Matter. The experts across the regional boundaries were chosen to narrow some of these issues to develop more engaging conversations. That was probably more effective because invariably, the expert group understand the issues better than the plenary.
The contact groups reported on Wednesday, 27 June 2018, and their report became the framework for developing the first review document (Rev 1). Rev 1 was submitted on Thursday, 28 June 2018, it was debated at plenary and the WIPO – IGC Chairperson, Coordinators and the Friend of the Chair’s tasks were to work around all the issues. Furthermore, the WIPO – IGC set up the informal group, where there is also balanced representation, mainly by experts. The combination of the work of the contact group and informal session yielded what was discussed on Friday 29 June 2018, which is review document 2 (Rev 2). Rev 2 will be the outcome of WIPO – IGC 36 on GRs.
Rev 2 will be an attempt to weave together some of the representations and impressions – a sense of a framework document.
The question remains whether we could agree to adopt the document and make it a document that can be recommended as a working framework draft text for the diplomatic conference of the WIPO General Assembly, which is where we are aiming at to move this process forward.
There will be the WIPO – IGC 37 which will hold from 27 to 31 August 2018, and the mandate will be to discuss TK and TCEs.
Although there is a trilateral document or negotiation channel where we talk about GRs, TK, and TCEs, GRs seem to activate the interests of the non-demandeur countries, that is, the world’s industrialised powers led by the United States and the European Union, who are particularly sensitive to the issue of protection of GRs, which is the backbone of their life sciences and biotechnology industries.
The level of the non-demandeur countries’ interests in other the other WIPO – IGC international instruments is not as intense as it is for GRs.
FI: What would you like to see in the final WIPO-IGC international instrument(s) on the protection of GRs, TK and TCEs?
CO:
The rubber hits the road at the level of disclosure.
Whether it is optional or mandatory and what has to be disclosed. Essentially, the African Group is requesting for disclosure of GRs and associated TK. There has been a tendency to limit disclosure only to only GRs. But that is completely going to do injustice to the purpose of the WIPO – IGC. There has been a lot of semantics going on about the source of origin. We know that the ‘origin may not be the source’ and the ‘source may not be the origin’ and the fear is that we would be requiring researchers and corporations to begin to look for source.
What we want is due diligence.
We argue for the exercise of due diligence; for researchers to acknowledge their sources. If they don’t know their sources, there has to be a declaration to that effect.
We know that origin can be in more than one jurisdiction. There is no harm in that. For example, there is a centralised approach to handling multiple sources of origin under the FAO regime. But here in the WIPO – IGC, the African Group is asking for the disclosure of the origin of GRs. For example, if there are genetic resources that are endemic to Ghana and Nigeria, and a researcher sources hers from Nigeria, she should disclose that it is from Nigeria.
The connection that the claimed invention or the applicable intellectual property will have with GRs and the associated TK should be disclosed in patent or related intellectual property applications, which is referred to as ‘trigger.’
Some will say you must have utilised the GRs, others will say that the invention must be directly based on the GRs. We have come closer to understanding that you must have used the GRs and associated TK – a material part of which determines the innovation in question. In other words, the GRs and TK are material to the invention.
We have attempted to define ‘material to the invention’ to mean that without the GRs and TK, the invention would be impossible.
Frankly, with good will and honest determination to reach an agreement, I don’t think this is as problematic as most of the non-demandeurs countries make it. What is happening here is people’s tendency to see these debates from the perspective of a ‘user’ as opposed to a ‘provider.’ At the end of the day, user – provider dichotomy is not realistic because it melts down along the way. Until we come to a mindset where we recognise that there is no vehement division between users and providers of GRs, some of these tendencies will continue.
In essence, I want a fair treaty that balances the interests of countries that are naturally endowed with GRs and TK, with those who predominantly apply them to industrial uses.
If we have that, we would be able to create some degree of legal certainty for inventors, researchers, biotechnology entities, while supporting the custodians of GRs and TK. This would promote sustainable linkages between industry, environment and TK.
For more on Professor Oguamanam’s reflections on the 36th session of the WIPO – IGC, see:
Crunch Time at WIPO-IGC: A Last Attempt to Draft a New Genetic Resources Text?
See also:
The decisions and a detailed summary of the 36th Session of the WIPO – IGC.
