Back-to-Back: Special Session and Preparatory Committee

Experts, diplomats and delegations of WIPO member states, Indigenous peoples and various observers are reconvening in Geneva, back-to-back, September 4 – 8 (for a Special Session of the WIPO IGC) and, thereafter, September 11-13 (for the meeting of the Preparatory Committee) ahead of the 2024 Diplomatic Conference (DipCon) on Genetic Resources (GRs). These meetings are pursuant to the 63rd WIPO General Assembly decision in July 2022. They are part of the last series of crucial negotiations before the DipCon expected to birth a treaty on intellectual property, genetic resources and associated traditional knowledge.

Surprise Decision of WIPO 63rd General Assembly on Genetic Resources

The WIPO 63rd General Assembly (GA), in July 2022, stunned pundits by deciding that the IGC Chair’s compromise text on Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources (GR Text) should be the basis for the first-ever DipCon out of the IGC’s over two-decade work. Recognizing that there are remaining issues to be resolved on the Chair’s GR Text, the GA charged experts to close existing gaps on the text and prepare same for the DipCon no later than 2024. As of the time of writing, the venue of the DipCon has yet to be officially announced.

Pre- and Post- DipCon, GRs Remain Sticky Issue

Following the decision of the GA for a DipCon, the International Bureau, via the TK Division and delegates, intensified work on the GR text. Recognizing that the GR is not yet a done deal, the coalition of demandeur negotiating blocs, including the Africa Group, the Asia Pacific Group (APG), the Group of Latin American and Caribbean States (GRLAC), China and, of course, Indigenous Caucus insisted that it would be premature to remove or diminish GR from the IGC program of work against sentiments from non-demandeurs. Consequently, the July 2023 64th WIPO GA decision on the IGC ensured that the subject of GRs remains on the Committee’s agenda pending the outcome of the DipCon and after, even if as a stocktaking matter. This decision halts the tendency by non-demandeur (even those not likely to sign a potential treaty) to diminish GRs in IGC work program. The latter approach was of concern to demandeur states because there is yet no guarantee on the outcome of the DipCon on GRs. Moreover, the decision to benchmark the GR Text to patents, as done in the Chair’s Text, remains contentious and not quite resolved. Further, negotiations actively continue on the remaining TK and TCEs Text(s), where demandeurs continue to insist that it is not feasible to totally disentangle GRs from TK and TCEs. Thus, there are compelling reasons why GRs remain very much on the agenda of IGC pending and even post the DipCon.

Patent Disclosure Requirement & Information Systems

Since the GA 2022 decision, there has been a flurry of activities on the IGC schedule geared toward ramping up negotiations on the GRs. First, pursuant to the 43rd decision of the IGC, the Chair established an ad hoc virtual expert meeting/committee on the Chair’s GR Text to assist with closing gaps in Patent Disclose Requirement (PDR), including, among other things, trigger for disclosure. Second is the virtual technical meeting/committee on information systems, registers and databases of GRs, TK and TCEs. Simultaneously, as a complementary initiative, the International Bureau (WIPO Secretariat) conducted a global survey on these matters, now generally characterized as information systems. These meetings of experts, which included industry and private sector experts and, of course, in addition to the survey, were conducted virtually. The expert committees are not decision-making bodies. However, their reports, which have been published by WIPO, constitute part of the working documents to assist delegates to the Special IGC Session on GRs.

Regional and Cross-Regional Strategies

Second, virtually all regional negotiating blocs, including the Indigenous Caucus, also have had the opportunity to hold strategic regional consultative meetings: Asia Pacific Group (Bali, Indonesia); Group of Latin American and Caribbean States (Montevideo, Uruguay); Africa Group (Algiers, Algeria) to explore their positions on outstanding issues on Chair’s GR Text ahead of the Special Session. In related regard, China hosted, in Beijing, an informal cross-regional consultative meeting, which included delegates from both demandeur and non-demandeur negotiating blocs. Though tagged a technical meeting, the Beijing meeting has no decision-making status. It was an informal opportunity for delegates across the regions to reflect and interact with one another on the background of their regional strategic and consultative meetings and positions on specific provisions of the Chair’s GR Text as the negotiation instrument for the DipCon.

A Curious Division of Labour

According to the work plan released by WIPO, the Special IGC Session on GR and the Preparatory Committee on the DipCon mandated by July 2022 GA are now to tackle one of the two parts into which the Chair GR Text has been split. The Special Session deals with Articles 1-9 on the substance of the genetic resources text, including: objectives, important definitional matters (such as TK associated with genetic resources); the nature of the relationship between an invention and genetic resources and/or associated TK to warrant disclosure (trigger); nature/scope of exceptions and limitations; transition provisions; sanctions/remedies for non-disclosure; relationship with relevant international instruments, and the basis and time for review of the instrument, etc. The Preparatory Committee (PrepComm) meeting, which is conducted within the remit of the WIPO Legal Counsel’s Office, on the other hand, is to deal with administrative aspects (so-called final acts) of the GR Text as a potential treaty. Those provisions are covered under articles 10-23 of the text. They include, for example, eligibility for membership, accession and ratification, revision, amendment, entry into force, signature, etc.

This division of labour approach appears to be a matter of convention in the WIPO treaty-making process. However, it is unclear whether the negotiations on Special Session will not overlap with the second part of the treaty and specific articles now within the remit of the PrepComm. The language of the 63rd DipCon on the mandate of the PrepComm was not elaborate to task it with 61% of the Draft Text. Among other things, the decision tasks the PrepComm with preparing the “draft Rules of Procedure … organizational question relating to the Diplomatic Conference and approval of “the Basic Proposal for the administrative and final provisions of the Treaty”. This is a practical matter because it is hard to read the substantive provisions of the text in isolation from its administrative provisions. For example, Articles 9 and 14 which now domicile with the Special Session and PrepComm, respectively, both deal with “review” and “revision” of the treaty. Also, delegates need to deal with the scope of the authority of WIPO member states, especially those who are least likely to ratify any resulting treaty but may desire to participate in one capacity or another in matters affecting the implementation of the treaty by virtual of their WIPO membership. The precedent of this tendency is not lacking. For example, it is not unusual for member states to negatively interfere in the budgetary decision making over specific WIPO treaties to which they are not members. However, the pathbreaking nature of this GR text and anticipated treaty will likely make this matter a potentially charged question at the PrepComm.

Crunch Time and Transition to a Political Process

The subtlety in the relationship between the Special Session and the PrepComm has yet to fully dawn on many delegates. The Special Session reports to the PrepComm, which appears to wield so much power, albeit in disguise, being the International Bureau’s de-factor channel to informally wrestle negotiations on the GR Text, as a transition matter from the TK Division and turning same over to the more politically driven process going forward.

In the wake of the Special Session, delegates and experts have their work cut out for them. Through these crunch moments, the stakes could not have been higher, and from the PrepComm, the stage appears set for the much-touted and much-needed political will to drive the IGC to a tangible outcome. So far, indications point to a determination by all stakeholders, barring any surprises, to not drop the ball at this crucial point in more than two decades-long negotiations. Going forward, it’s time for horse trading in which political capitals may be on offer, with a lot of expectation on the yet-to-be-unveiled host. Through it all, concerns remain on how best Indigenous peoples can effectively participate in a state-centric process on a subject in which they have the highest stakes but the least say.