Rising from pandemic-Induced hiatus

February 28-March 4, 2020: Delegates met virtually and in-person at the World Intellectual Property Organization in Geneva to resume the first round of negotiations for the 2022-23 biennium of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The meeting was in continuation of more than two-decades of work, most of which has been dedicated to negotiations of legal instrument(s) for the protection of traditional knowledge (TK) traditional cultural expressions (TCEs) and genetic resources (GR).

Due to the COVID-19 pandemic, the work of the IGC for the 2019-2021 biennium was on hiatus. The last IGC that was held in a normal setting was the June 2019 IGC 40 (with focus on TK and TCEs), pursuant to 2018-2019 biennium. The 2020-2021 biennium mandate was disrupted. and Delegates were only able to hold one meeting remotely, the IGC 41. That meeting, held in September 2021. It was strictly limited to procedural matters and did not involve any substantive negotiation. It was designed to affirm, elect, and/or re-elect officers (Ian Goss (Australia), a Chair, and two Vice Chairs: Jukka Liedes (Finland) and Yona Sileti (South Africa)). The IGC 41 also made a recommendation to the WIPO General Assembly for the renewal of the mandate for the 2022-2023 biennium, keeping the exact terms as the disrupted biennium.

Restored mandate

On its part, the WIPO Bureau (Secretariat) organized a workshop on Traditional Knowledge and Genetic Resources to prepare members for the next round of negotiations due to the previous disruptions. Meanwhile, the Chair of the IGC 41 continued consultations with member states and stakeholders to further develop the Chair’s Draft Text on GR. The text was formally adopted by members as a working document of the IGC at IGC 40 in June 2019.

As anticipated, the 62nd WIPO General Assembly of Member States, which was held on October 21, 2021, renewed the IGC mandate for 2022-23 biennium. The renewed mandate is couched with a sense of urgency requiring experts to “expedite”, “narrow existing gaps”, and earnestly work toward a “final[ized] outcome” under an approved timetable for the biennium. The first meeting opened in Feb 28 and ended March 4, 2022. It was devoted to negotiations on the GR text.

Leadership change

One of the highlights of the meeting was a change in IGC’s leadership. The outgoing Chair, Ian Goss was re-elected to Chair only IGC 42. The serving Vice Chairs from Finland and South Africa were re-elected while Ian Goss was replaced with a new Chair, Lilly-Clair Bellamy (Jamaica), for the 2022-20123 biennium. Mr. Goss will not have the opportunity to conclude deliberations on the GR Text scheduled to continue in IGC 43, as Jamaica’s Lilly-Clair Bellamy takes on the baton in May/June 2022. Under this arrangement, the GR Text(s) would transition through the superintendence of two chairs. As a result, concerns of continuity arise due to the checkered history of negotiations over GR Text.

Breaking from tradition at WIPO: Russia and Ukraine

As a marked break from WIPO’s apolitical institutional tradition, the Assistant Director General of WIPO, Dr. Edward Kwakwa who presided over the opening ceremonies of IGC 42, yielded to the request for opening statements by a few members states who called attention to and condemned the ongoing Russian military invasion of Ukraine. The delegations of the following countries and bloc spoke to this issue: Ukraine, the United States, the European Union, Japan, Australia, and Canada.

Indigenous Caucus: Updated Technical Review

 One of the highlights of IGC 42 was the presentation by the authors and response of reviewers of the updated technical review of key IP-related Issues of WIPO Draft Instruments on GR, TK and TCEs within the Framework of Indigenous Human Rights. The first Tech Review was developed in 2014 by Indigenous Scholar, Professor James Anaya. In 2019, the United Nations Permanent Forum on Indigenous Issues requested that WIPO commission an updated version of this technical review to reflect the evolution of IGC work with special interest on such concepts as “‘balancing’ and ‘public domain’ and how these might conflict with Indigenous peoples’ human rights and customary laws, and the obligation to incorporate and respect human rights in the work of WIPO”. The report (filed as WIPO/GRTKF/IC/42/INF/8) provided an opportunity for the Indigenous Caucus to highlight significant issues of concern in the ongoing work of the IGC while generating a sense of consciousness of those issues among delegations.

Echoes of the failed GR Text at IGC 36

At IGC 36, the United States and Japan stunned delegates when they failed to lend support for the transmission of resulting text of negotiations on the GR text (Rev 2) as a consensus document arising from IGC 36. Faced with this major setback and a very low delegation morale, Mr. Goss took an initiative to craft a Chair’s GR Text. The text was a product of extensive and continuing consultations, involving various exchanges, and feedback from all stakeholders. No stakeholder or regional group was fully pleased with the Chair’s GR text, which is to be expected for such a complicated and delicate subject. But the text provides clarity and a pathway for convergence of interest across many negotiation blocs. It is a stark contrast to the heavily bracketed consolidated and default IGC Text, which reflects bigger gap in parties’ negotiating positions on the heels of failed IGC 36 GR Text.

 Two Parallel GR Texts

At the resumed negotiations of the IGC, delegates were engaged in the delicate art of picking through the consolidated and heavily bracketed text on the one hand, while seeking some inspiration from the more simplified Chair’s GR Text on the other. With the exit of Ian Goss as Chair, the fate of his GR Text remains in the hands of the incoming Chair and the delegates. To a large degree, the test of progress on the GR Text hangs on the pragmatism and ingenuity of delegates. On the GR Text, the incoming Chair and the current crop of delegates have their work cut out for them. There is as much optimism as there is uncertainty over the state of progress on GR Text.

Sense of traction for Chair’s GR Text

While recommending the transmission of little textual negotiation progress on the Consolidated GR Text to the 43rd IGC in May/June, delegates across major negotiations blocs, including the Africa Group, Indigenous Caucus, Like-Minded Countries, European Union, China, and other strategic countries expressed confidence in the Chair’s Text. The move signals a convergence of preference and interest around the text as potential pathway to break the jinx on GR Text. It remains to be seen whether the outgoing Chair’s promised revision of GR Text will sustain this confidence and move things forward.

Chair’s farewell and reflections

Ian Goss concluded the session on the background of overwhelming expressions of appreciation from members and regional groups for his hard work, selfless dedication, and outstanding service in the work of the Committee.

Mr. Goss took the opportunity of his farewell to reflect on the experiences of IGC 42 as well his personal observations on the IGC dynamic, informed by his long-standing services in various capacities. He noted that the hybrid format was a relative success, despite technology hiccups and a lack of genuine human face-on-face contact that are critical to negotiations. For him, use of ad hoc committees is a source of progress in the IGC work.  Most barriers that stand in the way of progress in the work of the Committee are sponsored and imposed by a few and not many. The idea that nothing-is-agreed-until-everything-is-agreed is not viable; it is a recipe for failure. A lowered expectation but incremental approach is more pragmatic for the success of the IGC. He argued that the IGC can periodically issue declaratory statements on the side lines of its negotiations. The Committee, he observed, was on the cusp of finalizing negotiations on the text of GR. The opportunity should not be allowed to slip away. Delegates should continue to engage and work around conceptual divides between Western science worldview and those of Indigenous Peoples and local communities and other divergent interests. One way to make progress is to have like-minded countries liaise with parallel blocs beyond talking past each other. Demandeur countries could be more cohesive in their negotiating approaches. Above everything else, political will is key to the success of the work of the IGC.