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ELSA INTERNATIONAL DELEGATION REPORTELSA INTERNATIONAL DELEGATION REPORTELSA INTERNATIONAL DELEGATION REPORTELSA INTERNATIONAL DELEGATION REPORT

On the 25th Session of the Intergovernmental Committee on Intellectual Property and Genetic

Resources, Traditional Knowledge and Folklore

Of the World Intellectual Property Organization

(WIPO)

15–24 July 2013

Geneva

The views and opinions expressed in this Report are the sole responsibility of the authors. The Report is not intended to reflect views of ELSA.

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IndexIndexIndexIndex

The ELSA International Delegation ...................................................................................................... 3

The World Intellectual Property Organization (WIPO) ........................................................................ 7

Table of Acronyms ................................................................................................................................ 9

Agenda ................................................................................................................................................ 10

The Indigenous Panel: Indigenous Peoples´ Perspectives on Intellectual Property Protection for

Traditional Cultural Expressions: Beneficiaries, Subject Matter, Rights and Exceptions ...................... 11

The Sessions on 15–16 July ................................................................................................................. 14

July 17–19: Evolution of the Draft Articles ......................................................................................... 20

The First Version of the Draft Articles ............................................................................................. 20

The Second Version of the Draft Articles......................................................................................... 21

July 19 –The Third Version of the Draft Articles ............................................................................ 22

July 20–21: Exploring Geneva ............................................................................................................. 24

22–24 July: Cross-cutting Session ....................................................................................................... 25

22 July: Morning and Afternoon Sessions: ....................................................................................... 25

Consolidated Document Relating to Intellectual Property and Genetic Resources ........................... 25

The Main Issue: Disclosure and Burden of Proof. ............................................................................ 25

The protection of Traditional Knowledge. ....................................................................................... 27

The Protection of Traditional Cultural Expressions ......................................................................... 28

Future Sessions ................................................................................................................................ 29

Further proposals ............................................................................................................................. 30

Side Events .......................................................................................................................................... 30

Conclusion .......................................................................................................................................... 33

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The ELSA International DelegationThe ELSA International DelegationThe ELSA International DelegationThe ELSA International Delegation

Mari HeinoMari HeinoMari HeinoMari Heino, Head of Delegation, University of Helsinki, Fin, Head of Delegation, University of Helsinki, Fin, Head of Delegation, University of Helsinki, Fin, Head of Delegation, University of Helsinki, Finland (land (land (land (mari.heino@helsinki.fimari.heino@helsinki.fimari.heino@helsinki.fimari.heino@helsinki.fi))))

I am currently writing my master´s thesis on Intellectual Property Law, namely about the international

development of anti-piracy policy, and I am hoping to graduate within the next six months. I have also

gained work experience from the field of IP Law during my studies. I applied for the delegation to learn

how decision-making processes function on international level. It was very interesting to observe the

differences between the groups of countries, why they had mutual or differing opinions on the subject

matters.

I have been a member of ELSA since my first year in the Faculty of Law. However, in the beginning of

my studies I was just a passive member. I got the spark to become more active in late 2011 after a

marvellous Institutional Study Visit by my local group to see the EU institutions in Strasbourg,

Luxembourg and Brussels. In 2012 I was the Vice President for Marketing of ELSA Helsinki.

Matteo Barbieri, University of GenoMatteo Barbieri, University of GenoMatteo Barbieri, University of GenoMatteo Barbieri, University of Genova/University of Glasgow, Italy (va/University of Glasgow, Italy (va/University of Glasgow, Italy (va/University of Glasgow, Italy (m.barbieri@hotmail.itm.barbieri@hotmail.itm.barbieri@hotmail.itm.barbieri@hotmail.it))))

I work as a legal practitioner in an IP Law firm based in Milan since November 2011, when I got my

Ll.M. in IP Law from the University of Glasgow.

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To me, participating to the IGC represented a unique opportunity not only to look closely at WIPO

(its organization, working methodology, and so on...), but also to observe first-hand the evolution of

the debate on Genetic Resources, Traditional Knowledge and Folklore in the international scenario, a

contemporary major issue in international IP Law, as well as focus of several classes held at the

University of Glasgow.

Aleksandra BurdaAleksandra BurdaAleksandra BurdaAleksandra Burda, , , , University of WarsawUniversity of WarsawUniversity of WarsawUniversity of Warsaw, , , , Poland (Poland (Poland (Poland (burda.aleksandra.92@gmail.comburda.aleksandra.92@gmail.comburda.aleksandra.92@gmail.comburda.aleksandra.92@gmail.com))))

My name is Aleksandra, I’m 21 years old and starting my 3rd year on a Law Faculty in Warsaw, Poland.

I have just started as a VP S&C ELSA Warsaw.

Having an opportunity to be in the delegation to WIPO was a chance for me to improve my knowledge

about the IP Law in which I am particularly interested. It was also a unique chance to see how the

international organization works, experience the international atmosphere and meet interesting people.

I strongly recommend to apply to the ELSA Delegations and consider it as an enriching experience.

Frida Frida Frida Frida Fostvedt, Fostvedt, Fostvedt, Fostvedt, University of BergenUniversity of BergenUniversity of BergenUniversity of Bergen, , , , NorwayNorwayNorwayNorway ((((frida.fostvedt@gmail.comfrida.fostvedt@gmail.comfrida.fostvedt@gmail.comfrida.fostvedt@gmail.com))))

My name is Frida, I'm 23 years old and now starting my 4tt year of Law School in Bergen, Norway.

I have been active in ELSA for some years now, and have just started as VP S&C of ELSA Norway.

Recruiting students to go as delegates is one of my tasks, and I therefore wanted to experience it myself.

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Being a delegate in WIPO was very interesting. It is clearly a field with many challenges, different

opinions and a wide spread of stakeholders. It was especially interesting to see how creative means must

be used to get the parties out of a locked negotiation-process. I would absolutely recommend attending

sessions as an ELSA-delegate, it's a unique opportunity to get deeper understanding of a field you're

interested in!

Andrija IliAndrija IliAndrija IliAndrija Ilić,ć,ć,ć, University of BelgradeUniversity of BelgradeUniversity of BelgradeUniversity of Belgrade, , , , Serbia (Serbia (Serbia (Serbia (andrijailic18@gmail.comandrijailic18@gmail.comandrijailic18@gmail.comandrijailic18@gmail.com))))

My name is Andrija Ilić. I have been an ELSA member since 2011. During my membership in ELSA I

have organized numerous conferences, debates and markings of the important legal days. Currently I

am the Public Relations Manager of ELSA Belgrade.

Being a delegate at WIPO was an outstanding experience, which gave me an opportunity to get to

know how the decisions on global level are brought. Especially interesting was to see how parties are

approaching there different opinions in order to reach an agreement. I definitely recommend every

ELSA member to apply to be a delegate in international organizations, it will provide the delegate a

better and deeper understanding of the field of law he is interested in.

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Our delegation: Andrija, Mari, Aleksandra, Frida and Matteo.

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The World Intellectual Property Organization (WIPO)The World Intellectual Property Organization (WIPO)The World Intellectual Property Organization (WIPO)The World Intellectual Property Organization (WIPO)

WIPO is the United Nations organization dedicated to the protection of intellectual property. The

agency was established in 1967, has 186 member states, and its headquarters are in Geneva. WIPO

consists of a fixed secretariat, who administrates the work and facilitates sessions, where member states,

NGOs, IGOs and observers (e.g. ELSA International) meet.

The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional

Knowledge and Folklore

The Committee (IGC) was established in 2000 as a forum for discussing the protection of traditional

knowledge. The original initiative for establishing the Committee came from the Development Agenda

Group (DAG). In 2009 the IGC started negotiating a legal instrument, but has still not reached an

agreement on whether it should be a legally binding document or a recommendation.

The aim is also to prevent misappropriation and secure a beneficial use and preservation of traditional

knowledge for all stakeholders. As traditional knowledge has had little protection in the IP system, a big

task for the committee has also been to raise awareness about the topic. This has been done through

studies and development of databases and guidelines.

There are two main types of protection; defensive and positive. Defensive protection shall limit

outsiders' access to the communities´ knowledge, whilst positive protection gives the community rights

to control use of the knowledge.

The sessions have been divided into sessions about respectively genetic resources (GRs), traditional

knowledge (TK) and traditional cultural expressions (TCEs).

To secure the participation of Indigenous Communities, the WIPO Voluntary Fund was created in

2005. There accredited Indigenous groups can get funding to finance their participation.

Twenty-Fifth Session

This session was firstly dedicated to the discussion of the draft Articles for protection of TCEs. The last

days were dedicated to a review and stock taking of the texts on GRs, TK and TCEs. The session was

held from 15 to 24 July 2013.

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The WIPO Main BuildingThe WIPO Main BuildingThe WIPO Main BuildingThe WIPO Main Building

9

Table of AcronymsTable of AcronymsTable of AcronymsTable of Acronyms

• DAG – The Development Agenda Group

• CAPAJ – Comisión Jurídica Para el Autodesarrollo de los Pueblos Originarios Andinos

• CISA – The Indian Council of South America

• FAIRA – the Foundation for Aboriginal and Islander Research Action

• GA – General Assembly

• GI – Geographical Indication (of Origin)

• GRs –Genetic Resources

• GRTKF – Genetic Resources, Traditional Knowledge and Folklore

• GRULAC – The Latin American and Caribbean Group

• ICTSD – International Centre for Trade and Sustainable Development

• IGC – Intergovernmental Committee

• ILO – International Labour Organization

• IP –Intellectual Property

• LDCs – Least Developed Countries

• OMPI – Organisation Mondiale de la Propriété Intellectuelle, the French acronym for WIPO

• TCEs –Traditional Cultural Expressions

• TK –Traditional Knowledge

• UNDRIP – United Nations Declaration on the Rights of Indigenous Peoples

• UNPFII – The United Nations Permanent Forum on Indigenous Issues

• WCT – WIPO Copyright Treaty

• WIPO – The World Intellectual Property Organization

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AgendaAgendaAgendaAgenda1111

1. Opening of the Session

2. Adoption of the Agenda

3. Adoption of the Reports of the Twenty-Third and Twenty-Fourth Sessions

4. Accreditation of Certain Organizations

5. Participation of Indigenous and Local Communities

• Update on the Operation of the Voluntary Fund

Appointment of the Advisory Board for the Voluntary Fund

Information Note for the Panel of Indigenous and Local Communities

6. Traditional Cultural Expressions

7. Review and Taking Stock of the Text(s) of the International Legal Instrument(s) Ensuring the

Effective Protection of Traditional Cultural Expressions, Traditional Knowledge and Genetic

Resources and Recommendation to the General Assembly

8. Contribution of the Intergovernmental Committee on Intellectual Property and Genetic

Resources, Traditional Knowledge and Folklore (IGC) to the Implementation of the Respective

Development Agenda Recommendations

9. Any other Business

10. Closing the Session

1 Document WIPO/GRTKF/IC/25/1 PROV. 2, 2 July 2013,

<www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_25/wipo_grtkf_ic_25_1_prov_2.pdf>.

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The The The The IndigenousIndigenousIndigenousIndigenous Panel: Panel: Panel: Panel: IndigenousIndigenousIndigenousIndigenous Peoples´ Perspectives on Intellectual Property Peoples´ Perspectives on Intellectual Property Peoples´ Perspectives on Intellectual Property Peoples´ Perspectives on Intellectual Property

Protection for Traditional Cultural Expressions: Beneficiaries, SubjecProtection for Traditional Cultural Expressions: Beneficiaries, SubjecProtection for Traditional Cultural Expressions: Beneficiaries, SubjecProtection for Traditional Cultural Expressions: Beneficiaries, Subject Mattet Mattet Mattet Matter, r, r, r,

Rights and ExceptionsRights and ExceptionsRights and ExceptionsRights and Exceptions

July 15, 20132222 from 11:00 a.m. to 1:00 p.m.

The Indigenous Panel was organized by the World Intellectual Property Organization. Chaired by Mr.

Jim Walker of the Foundation for Aboriginal and Islander Research Action (FAIRA).

Keynote speaker of the panel was Ms. Valmaine Toki who is the Indigenous-nominated member of the

United Nations Permanent Forum on Indigenous Issues (UNPFII). Ms. Toki comes from New

Zealand and works as a senior lecturer in the University of Waikato. She gave an overview of matters

concerning traditional expressions of culture and Indigenous Peoples.

According to Ms. Toki, traditional expressions of culture (TCEs) are integral to the cultural and social

identities of the Indigenous Peoples. She considers Indigenous Peoples´ rights to their TCEs as

substantive rights. She sees that her view has support from various doctrines, because in the United

Nations there are already instruments that involve Indigenous Peoples. One of those is the United

Nations Declaration on the Rights of Indigenous People (UNDRIP) that was adopted in September 13

20073.

In relation to the drafted texts, the most important Article of UNDRIP is Article 314. Other important

Articles of the declaration are Article 18 on participation and Article 3 on self-determination. As a

means of self-determination of the Indigenous Peoples, the Treaty text should be viewed through an

Indigenous lens. Ms. Toki stressed that the Indigenous participation is crucial and that the text should

comply with UNPFII recommendations and UNDRIP. She also told about Tikanga Maori, a system of

Law of the Indigenous People in New Zealand. It has derived from the Maori cosmology and does not

have any concept of ownership, only access and use. In Tikanga Maori it is important that the

2Source: <www.wipo.int/tk/en/news/igc/2013/news_0017.html>

3 The Declaration can be found here: <www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>

4 1. Indigenous Peoples have the right to maintain, control, protect and develop their cultural heritage,

traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences,

technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties

of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing

arts. They also have the right to maintain, control, protect and develop their intellectual property over such

cultural heritage, traditional knowledge and traditional cultural expressions.

2. In conjunction with Indigenous peoples, States shall take effective measures to recognize and protect the

exercise of these rights.

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individual is in balance with the community. Ms. Toki admitted that fitting Indigenous perspective to a

non-Indigenous framework is hard. She also gave more specific opinions on Articles 1–5 of the draft for

the Treaty on TCEs.

The next speaker of the panel was Mr. Ramiro Batzin, Executive Director of Centro para la Investigación

y Planificación del Desarrollo Maya Sotz’il, from Iximulew, Guatemala. According to Mr. Batzin it is

fundamental that Indigenous Peoples have the right to determine how their cultural heritage is

maintained, controlled, protected and developed.

Mr. Batzin mentioned a traditional Mayan ball game called pelota as an example of TCEs. He wanted

to emphasize that the game is not only a cultural, athletic or recreational activity but a spiritual process

about the concept of life. He explained that pelota teaches the youngsters that a human being is not the

centre of the universe and that everything is connected and we are one with the nature with all its plants

and animals. Another example he gave of TCEs in Guatemala was the Academy of Mayan languages.

The academy is an autonomous legal entity and it is run by Indigenous People. It organizes various

linguistic, educational and cultural projects every year.

Mr. Batzin told we should introduce mechanisms to consult the Indigenous Peoples to guarantee that

the Indigenous way to see the universe would serve as a basis for the concepts, techniques, legal matters

and policies. The Indigenous Peoples have a holistic way to see life and the universe and this applies

also to the way they see their culture. Mr. Batzin also stressed the importance of free, prior and

informed consent.

The third speaker of the panel was Jon Petter Gintal from the Sámi Parliament of Norway. He gave the

audience a presentation about the Sámi People, the only Indigenous People in Europe. The Sámi live in

four national states: in Norway, Sweden, Finland and in north-west Russia in the Kola Peninsula. The

Sámi have a common language and they also share the culture, national symbols and traditions. For

Sámi People the landscapes and natural resources are connected to cultural self-understanding and

especially reindeer are a very important source of their TCEs.

The Norwegian Parliament gave the Sámi Act in 1987. The Sámi parliament of Norway opened on

October 9 19895. The following year Norway ratified the ILO6 Convention no. 169 on Indigenous and

Tribal Peoples. The Sámi Parliament of Norway has thirty-nine representatives and there are seven

constituencies. The requirements to be included in the electoral register are that the voters have to

consider themselves as Sámi, have Sámi as their domestic language, or at least have or have had a parent,

5 Sweden and Finland have later formed their own Sámi Parliaments.

6 International Labour Organization

13

grandparent or great-grandparent with Sámi as domestic language or be the child of person who is or

has been registered in the electoral register.

According to Article 31 of the Nordic Sámi Convention the States shall respect the Right of Sámi

people to manage its traditional knowledge and traditional cultural expressions while striving to ensure

that the Sámi are able to preserve, develop and pass these on to future generations. Article 31 also says

that the Sámi culture shall be protected against misleading use of cultural expressions.

The last speaker of the panel was Jennifer Tauli Corpuz, the Legal Desk Coordinator for Tebtebba

Foundation in the Philippines. She told us about the Indigenous Expert Meeting that was held in

Geneva 19–21 April 2013. The Expert Meeting was co-organized by the Secretariats of WIPO and the

UNPFII and had participation of Indigenous experts from each of the world´s seven socio-cultural

regions7. The substantive agenda of the expert meeting was the identification of key issues and

commenting them.8 Ms. Tauli Corpuz stated that over aching principles should be Indigenous Peoples´

right to self-determination and their permanent sovereignty over their resources. The first can be

defined as the right to maintain, control, protect and develop their intellectual property interests over

their traditional expressions of culture. The latter means that Indigenous Peoples get back the rights to

their TCEs when the term of legitimate use has expired. Also in cases where their TCEs have been

accessed without their consent they retain their rights.

The protected expressions are those that are distinctive of or the unique product of the collective and

inalienable cultural and social identity. Ms. Tauli Corpuz emphasized that the protected subject matter

shall be determined in accordance with Indigenous Peoples´ own jurisdictions. She also noted that

limitations on protection of TCEs shall only extend to authorised utilization. On the other hand, the

measures for protecting TCEs shall not restrict creation, customary use, transmission, exchange and

development of TCEs by the beneficiaries themselves. Ms. Tauli Corpuz was not in favour of an

internationally drafted list of traditional knowledge and traditional expressions of culture because the

list would not necessarily cover the diversity of contexts of Indigenous Peoples. And the standard for

protection should be equal irrespective of the possible full, prior and informed consent from the

Indigenous People.

7 1 Africa, 2 The Arctic, 3 Asia, 4 Latin America, 5 North America, 6 The Pacific, 7 Eastern Europe, Russian

Federation, Central Asia and Transcaucasia

8 WIPO/GRTKF/IC/25/INF/9

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The Sessions on 15The Sessions on 15The Sessions on 15The Sessions on 15––––16161616 JulyJulyJulyJuly

On the July 15 2013, in the WIPO building there was first the registration process and the opening

and the beginning of the 25th Session of the Intergovernmental Committee (IGC) on Intellectual

Property and Genetic Resources, Traditional Knowledge and Folklore. The opening was held in the

conference hall, or Room A, of the old WIPO building. The session was chaired by the His excellency,

Ambassador of Jamaica to the UN, Mr.Wayne McCook, as well by his deputies Alexandra Gracioli and

Bebeb Djundjunan. The officer in charge of the session was also Wend Wendland, the Director of the

Traditional Knowledge Department of the WIPO.

First of all, there was the welcoming of the delegates and wishes for successful session presented by the

chairman and the Secretariat. Later the adoption of the decisions from 23rd and 24th sessions came into

agenda. Decisions were adopted unanimously, then the next agenda items came into discussion.

The objectives of the document were disposed with options and alternatives.

The first, fundamental and basic objective was to provide Indigenous [Peoples] and [Local

Communities] [and Nations]/[Beneficiaries] with the [legal and practical/appropriate] means,[including

effective and accessible enforcement measures/sanctions, remedies and exercise of rights] to:

To provide beneficiaries with the appropriate measures, which may include legal and practical means to:

a. [Prevent] the[misappropriation and misuse/offensive and derogatory use] of their traditional

cultural expressions [and adaptations thereof] and

b. Control ways in which their traditional cultural expressions [and adaptations thereof] are used

beyond the traditional and customary context and [promote the equitable sharing of benefits

arising from their use] as necessary.

The document, as it is possible to notice from the first objective, contained numerous alternatives

which were put into brackets in order to put the flexibility for the draft text, so that the Governmental

Delegates could have more options and possibilities to find a mutually acceptable text which could be

transmitted to the WIPO General Assembly in 2013.

The committee, while preparing the draft text, cleverly had in mind and left many options on

determination who will be the beneficiaries of the Treaty. During the 15 July in the Conference Hall,

many Governmental Delegates had remarks on the term `Local Communities´ referring to the meaning

of the term, arguing in their statements that Local Communities do not necessarily need to consist of

the Indigenous Peoples. Actually, in majority of cases Local Communities are bonded with some other

linkage like proximity of living places, common work or a common soccer club they support. This does

not mean, however, that the Indigenous Peoples would not be connected in local groups. The point of

the statements was that the bracketed term `Local Communities´ does not fit precisely into the purpose

of protecting the Indigenous Peoples. The term expands the beneficiaries of protection above the

proper, intended limit.

The delegates of the Indigenous Peoples had a different point of view. Their arguments were that the

meaning of the term `Local Communities´ refers to strong historical bonds of the Indigenous Peoples,

15

as well as to spiritual bonds to a local places, and most importantly to common TCEs, unique for the

Indigenous Peoples in their local communities.

In that context, the term `Nations´ stretches ever further more than necessary. Other aspects of

discussion were the legal and practical means of protection, including effective and accessible

enforcement measures, sanctions, remedies and exercise of rights.

According to the view of certain countries, the nature of this international legal instrument is to be

binding in its entirety, and it should not be applied incompletely, partially or selectively. In that aspect,

the opposing countries reminded of the existing international legal instruments, such as the Berne

Convention. If the text would be transformed into an international, legally binding instrument, it

should be aware of the Berne Convention and pay close attention to the Articles contained in the Berne

Convention, so that there would be no double legislation on the same issues. The matter of the effective

and accessible enforcement measures opened the subject debate on how to create enforcement agencies

if the text will not be legally binding. That brought the discussion back to the main and fundamental

objective of the future Treaty, namely to its paragraph a.: to [prevent] the [misappropriation and

misuse/offensive or derogatory use] of their traditional cultural expressions [and adaptations thereof] b.

paragraph to: control ways in which their traditional cultural expressions [and adaptations thereof] are

used beyond the traditional and customary context and [promote equitable sharing of benefits arising

from their use] as necessary. So the question arose, who will enforce this the goals contained in the

Objective number 1. In the further draft text there was as the option to put the principles and

objectives into the Preamble9.

The committee left a significant number of bracketed options, leaving the governmental delegates to

choose the one that fits the best into the purpose of the document. During the first day of the session

9 2. [[To prevent/preclude] to [grant], exercise and [enforcement] of intellectual property rights [acquired by unauthorized parties/inappropriately acquired]

over traditional cultural expressions [and their adaptations]].

3. [To promote/facilitate intellectual and artistic freedom, research [or other fair] practices and cultural exchange [based on mutually agreed terms which are

fair and equitable [and subject to free, prior and informed consent of] Indigenous [Peoples], [Local Communities] and [Nations/Beneficiaries]].

4. To protect/safeguard and [reward] [tradition based] creativity [and innovation] based on the traditional cultural expressions of Indigenous [Peoples] and

[Local Communities] and [Nations/Beneficiaries].

4. Alternative: To protect and reward creativity and innovation by Indigenous Peoples and [Local Communities] for their traditional cultural expressions.]

5. To [secure/recognize] rights [already acquired by third parties] and [secure/provide for] legal certainty [and a rich and accessible public domain].

6. [Recognizing/to recognize] that the cultural heritage of Indigenous [peoples], [local Communities], [and nation]/beneficiaries has intrisic value, including

social, cultural, spiritual, economic, scientific, intellectual, commercial and educational values.

7. [Being]/ [to be] guided by the aspirations [and expectations] expressed directly by Indigenous [Peoples], [Local Communities] [and

Nations]/Beneficiaries, respect their rights under national and international law, and contribute to the welfare and sustainable economic, cultural,

environmental and social development of such [peoples], Communities [and nations]/beneficiaries.

8. [Acknowledging]/ [to acknowledge] that the traditional cultures and folklore constitute frameworks of innovation and creativity that benefit Indigenous

[peoples], [Local Communities], [and nations]/beneficiaries, as well as all humanity.

9. [Recognizing] /[to recognize] the importance of promoting respect for traditional cultures and folklore, and for the dignity, cultural integrity, and the

philosophical, intellectual and spiritual values of Indigenous [peoples], [Local Communities][and nations]/beneficiaries that preserve and maintain

expressions of these cultures and folklore.

10. [Respecting]/ [to respect] the continuing customary use, development, exchange and transmission of traditional cultural expressions by, within and

between communities.

11. [Contributing]/ [to contribute] to the promotion and protection of the diversity of traditional cultural expressions, [and the rights of beneficiaries over

their traditional cultural expressions].

12. [Recognizing]/[to recognize] the importance of preservation and safeguarding the environment in which traditional cultural expressions are generated

and maintained, for the direct benefit of Indigenous [Peoples],[Local Communities][and nations]/beneficiaries, and for the benefit of humanity in general.

13. [Recognizing]/ [to recognize] the importance of enhancing certainty, transparency, mutual respect and understanding between Indigenous [Peoples],

[Local Communities],[and Nations]/Beneficiaries on the one hand, and academic, commercial, governmental, educational and other users of their

traditional cultural expressions on the other.

16

there was not much debate on the objectives, simply because the objectives were quite clear and because

all participants expressed their consent, except for the aforementioned beneficiaries of protection who

were put into square brackets in every Article. The governmental delegates had much more to negotiate

with these alternatives.

The draft text itself contained a total of 12 Articles, which were presented to the delegates by the WIPO

Secretariat. Before going to the plenary session there was a lunch break during which the delegates

could get to read the draft text and get familiar with its composition. When the plenary session started,

the delegates had opportunity to express their view of the Articles and give their opinions,

recommendations and suggestions.

The first Article of the document was called Subject Matter of Protection. It had 2 options which were

intensely discussed during the entire session. Option 1 offered a definition of the traditional cultural

expressions, (TCEs). The definition was drafted like this:

Traditional cultural expressions are any form of [artistic and literary] expression,

tangible and/or intangible, or a combination thereof,

Alternative 1: in which traditional culture [and knowledge] are [embodied]

Alternative 2: which are [indicative] of traditional culture and [knowledge]

which is intergenerational/from generation to generation and between generations,

including, but not limited to: phonetic and verbal expressions, [musical and sound

expressions], [expressions by action],tangible expressions, [and adaptations of these

expressions].

Since the very start of the session day, many delegates had objections to the bracketed expressions,

especially to the expression “artistic and literary”.

The main arguments were that artistic and literary expressions need to be protected but their nature

already gives them other forms of protection such as copyright. On the international level there are

existing legal instruments like the Berne Convention for the Protection of Literary and Artistic Works

(188610) and the WIPO Copyright Treaty (WCT, 1996) which are already in use. So it would be

unnecessary to double the protection. On the other hand, the delegates of the Indigenous Peoples

argued that artistic and literary expressions actually represent the most valuable and most important

forms of TCEs. These were the two different points of view which were not agreed upon to the end of

the session, so the issue was left unsolved.

Important was also the criteria for eligibility that determined which TCEs are eligible for protection.

Protection extends to traditional cultural expressions that are:

10

The text has been modified over the years. The current version of the Berne Convention is the Paris Act from 1971.

17

(a) [the result of the creative intellectual activity] of [and/or]

(b) [distinctive of or the unique product of][associated with] the cultural and social identity of

[and/or]

(c) [held], maintained, used and/or developed as part of the cultural and social identity of [or

heritage] by the beneficiaries as defined in Article 2.

The terminology used to describe the protected subject matter shall/should be determined in

accordance with National Law, where applicable, Regional Law. On the matter of criteria for eligibility

there was no major debate among governmental delegates, because the criteria was set properly and

precisely.

The second option was more precise than the first one and it was written the following way:

For the purposes of this instrument, TCEs include any form of [creative and other

spiritual] expressions, tangible or intangible, or a combination thereof, such as

phonetic and verbal, musical and sound, actions, tangibles and materials [and their

adaptations] regardless of the form in which it is expressed, illustrated or embodied

and are :

intergenerational and or passed from generation to generation

distinctive to or associated with the traditional culture, knowledge, or heritage of the

beneficiaries, and

maintained, used or developed as part of their collective culture or social identity.

The second option raised concerns and interpretations of the words tangible and intangible. During the

session the delegates had many different approaches for this matter, in relation with the other subjects.

The Article 2 was called Beneficiaries of Protection.

It also had two options, which had differences in the way of determining the beneficiaries of protection.

More precisely the question was if the text should be interpreted restrictively or extensively.11

11

Option 1

[Indigenous [Peoples] or [Local Communities] [or Nations] who [hold, maintain, use [and/or] develop their traditional

cultural expressions as part of their collective cultural or social identity] are the beneficiaries of protection in respect of those

traditional cultural expressions as defined in Article 1 [or an entity defined by national legislation as a beneficiary]].

[Where a traditional cultural expression is not specifically attributable or confined to an/the Indigenous [People] or [Local

Community] that [holds, maintains, uses [and/or] develops it] and/or it is not possible to [identify] the Indigenous [people]

or [local community] that holds, maintains, uses or develops it, [Member States]/[Contracting Parties] may define [a] [any]

national entity as a beneficiary by national legislation].

Option 2

Beneficiaries of protections of TCEs as defined in Article 1 are Indigenous [Peoples] and [Local Communities], or as

determined by national law.

18

Discussion on Article 2 was closely related with the very objectives of the document, in the context of

the determining who will the beneficiary of the protection, Indigenous Peoples, Local Communities or

nations? There was no consensus of the subject until the end of the session.

The Article 3 was called the Scope of Protection. It also had 2 options like the previous two Articles.

Option 1:

The economic and moral interests of the beneficiaries concerning their TCEs, as

defined in Articles 1 and 2, shall/should be safeguarded as appropriate and according

to national law, in a reasonable and balanced manner.

Option 2:

Adequate and effective legal, administrative or policy measures shall be provided to

safeguard the economic and moral interests of the beneficiaries, including but not

limited to:

- Have exclusive and inalienable collective rights to authorize and prohibit the use

and exploitation of TCEs by others

- Prevent the unauthorized disclosure, fixation or other exploitation of (secret)

traditional cultural expressions

Acknowledge the beneficiaries to be the source of TCEs, unless this turns out to be

impossible.

- Prevent use or modification which distorts or mutilates a TCE or that is

otherwise offensive, derogatory or diminishes its cultural significance to the

beneficiary

- Protect against any false or misleading uses of TCEs, in relation to goods and

services that suggest endorsement by or linkage with the beneficiaries.

In the matter of the Article 3, delegates held long negotiations during their closed meetings in working

groups. The primary focus was on the limits of protection, with some countries having clear demands

with the economic rights being their first plan, but of course not forgetting the moral rights.

Other countries, wanted further explanation from the Secretariat on the economic rights and the scope

of protection.

Where TCEs as defined in Article 1 are not specifically attributable or confined to an/the Indigenous [People] or

[Local Community] or it is not possible to identify the [Indigenous people] or community that generated it,

Contracting Parties may define any national entity defined by national legislation as a beneficiary.

19

The Article 4 was called Administration of Rights/Interests. The document once again contained two

options, a longer and detailed one, i.e. Option 112, and the other one13 that was short and concise.

The debate on Article 4 had the most differing views and statements during the first days of the session.

The main issue was the future of the Treaty. Should the Treaty be legally binding or non-binding? No

12 Article 4, Option 1

Where so requested by beneficiaries:

Alternative 1: a competent authority [regional, national or local]

Alternative 2: a national competent authority

May to the extent authorized by the beneficiaries, and in accordance with:

Alternative 1: the traditional-decision-making and governance processes of the beneficiaries

Alternative 2: customary protocols, understandings, laws and practices

Alternative 3: national law

Alternative 4: national procedure

Alternative 5: international law

Carry out the following functions [but need not to be limited to such functions]:

- Conduct awareness-raising, education, advice and guidance functions

- Monitor uses of TCEs for purposes of ensuring fair and appropriate use

- Grant licences

- Collect monetary or non-monetary benefits from the use of the TCEs and provide them to the

beneficiaries [for the preservation of TCEs]

- Establish the criteria to determine any monetary or non-monetary benefits

- Provide assistance in any negotiations for the use of the TCEs and capacity building

[-if determined by National Law, the authority may, with the consultation and approval of the beneficiary

where possible, administer the rights in relation to a TCE that fulfils the criteria under Article 1, and is not

specifically attributable to a community]

The management of the financial aspects of the rights shall/should be subject to transparency, concerning the

sources and amounts of the money collected, the expenditures if any to administer the rights, and the

distribution of money to the beneficiaries.

13 Article 4, Option 2:

Where so requested by the beneficiaries, a competent authority may, to the extent authorized by the beneficiaries

and for their benefit, assist with the management of the beneficiaries’ rights/interests under this [instrument].

20

other Article caused so much debate and different opinions. Applicability, accountability,

administrative questions and many other practical questions rose in the Conference Hall, with the

governmental delegates expressing their opinions and Mr. Chairman trying to put all the opinions into

harmony. That was not an easy task. It took Mr. Chairman many dialogues and negotiations with the

opposing countries so that in the end only a draft decisions of the Twenty-Fifth Session of the

Committee were adopted to be transmitted to the WIPO General Assembly (GA).

July 17July 17July 17July 17––––19: 19: 19: 19: Evolution of the Draft Evolution of the Draft Evolution of the Draft Evolution of the Draft ArticleArticleArticleArticlessss

During the 25th session of the IGC Draft Articles about the protection of Traditional Cultural

Expressions, had been discussed.14 The first version, which had been available on the website the 15

July, was changed two times. Countries made amendments and their propositions to the text that could

show on which issues they were particularly focused.

Developed countries like USA, EU member states and Japan, are not interested in the creation of legally

binding instrument. Their statements during the sessions were aimed at non-binding declaration. On

the other hand, African countries and organizations which represent Indigenous People perceived

legally binding instrument as an important step to protect their IP rights.

The FirsThe FirsThe FirsThe First Vt Vt Vt Version of the Draft ersion of the Draft ersion of the Draft ersion of the Draft ArticleArticleArticleArticlessss

The most important issue occurred to be the Article 1, where the definition of the TCEs is. It was not

only a discussion on what TCEs are, but also on how the definition should be written. In the first

version of the Draft Articles there was a list of examples, which included e.g. stories, legends, rituals,

handcrafts etc. There was concern whether to make that list or not. And if the list had been made,

would it have to be in a footnote or not? El Salvador said that the definition should be as flexible as

possible, otherwise the list might be too extensive and some issues might be left out. As it turned out,

representatives of Indigenous Peoples started making their statements in which they wanted to add

other examples to the list, like mythology, architecture and rituals. The crucial speech was made by

Namibia, in which it was pointed out that TCEs are passing from generation to generation and that it

should be added to the definition. Spain added that the definition should also include words ‘between

generations’. What aroused controversy were the words ‘artistic and literary’. USA claimed that the

definition of TCEs should only be limited to this phrase. However, organizations which represented

Indigenous People pointed out that it is a misleading concept which could exclude some traditional

rituals and suggested adding `any other form of expression´. That statement was supported by Brazil,

who wanted to protect their carnivals, which would not have fit to the definition suggested by the USA.

After that discussion two options showed up. First one was to have a flexible definition which enables a

wide range of expressions to be protected by those Articles. Second one listed the features of TCEs and

without them no party would seek protection. It would be a strict version not reflecting the

stakeholders’ approach. Most Western countries were into that option.

Governmental delegates also had different points of view about the Article 2 – ‘Beneficiaries of

protection’. Mexico said that Local Communities should be mentioned, because many countries like

14

WIPO/GRTKF/IC/24/4

21

them do not have Indigenous People, but Local Communities. In Mexico´s view their rights should

also be protected. Some countries like Norway stated that it ought to be written in the Article 2

‘Indigenous People OR Local Communities’, but France was into option ‘Indigenous People AND

Local Communities’. It was also considered what may happen if there is no beneficiary or it the

beneficiary cannot be identified. Should the nation be one in that case? It was the economic reason that

was the most important here and that is why some Western Countries that do not have Indigenous

People wanted to add other kind of beneficiaries.

As a summary of the discussion, an interesting issue to the whole Draft Article-Document was said by

Egypt. The delegate said that the culture of Local Communities/Indigenous People must be in the

mainstream of national culture. In other words, it should be an enriching notion and not something

that is considered to be opposite to national culture. Delegates should take that under consideration

when they make their statements.

The SecondThe SecondThe SecondThe Second VVVVersion of the Draft ersion of the Draft ersion of the Draft ersion of the Draft ArticleArticleArticleArticlessss

After two days of discussion the Draft Articles had been rewritten. Only four objectives had been left.

In a nutshell, the main goal of the document was to prevent misappropriation, control the way TCEs

are used, promote artistic freedom, research practice and cultural exchange. Other objectives were

reorganized and some of them were put in the preamble. USA objected to it, because reorganizing and

the new preamble was not a subject to a prior discussion. Morocco said that the word ‘nations’ should

be added there, because only Indigenous Peoples and Local Communities were mentioned. Algeria had

an amendment to the objectives – to prevent not only the misappropriation but also the misuse of the

TCEs. Japan said that in the objective 3 other fair practice should be promoted, not only research

practice. Also USA had their opinion about that objective. They said that the promotion of “cultural

exchange”, which was mentioned there, should be based on a mutually agreed terms and be subject to

prior informed consent. EU suggested that the objective 4 should be written differently: ‘to promote

creativity and innovation of Indigenous People’.

Significant changes had been made to the Article 1 during the first week Examples of the TCEs were

put into footnotes, like some countries had stated. An organization Tupac Amaru asked how to

understand that footnote; “It is legally binding or it is just a suggestion for nations?” Brazil’s suggestion

was taken into account – a work of mass was added to the list. USA’s statement, that the definition

should only have words ‘artistic and literary’, was not supported. It was written that TCEs are

‘expressions of any kind’. The words ‘passed from generation to generation’ were also added like

Namibia said, but the suggestion made by Spain was not taken. Although, other countries like El

Salvador, Poland and Brazil said that it should be also written ‘between generations’. The new version

didn’t appeal to every delegation. For example, EU said that they preferred the old one. The Article 1 in

its new version was an attempt to strike the right balance between the flexible definition and the strict

one.

In the Article 2, as Mexico and Norway suggested, ‘Indigenous People or Local Communities or

nations’ was written. It was not in accordance with what France had wished for – replacing the word

22

‘or’ with the word ‘and’. CAPAJ15151515 also opted for that change. Canada didn’t agree with the addition of

word ‘nation’. Japan said that the term ‘Local Communities’ is not clear and should be defined in the

text. Otherwise nations may maximize its usage to maximize their profits. They also, like Canada,

wanted to exclude nations form beneficiaries. Namibia said that in Africa there are many tribes and

ethnic groups that cannot define themselves as Indigenous People because of political reasons. For

Africa, they said, it is crucial to include Local Communities as beneficiaries, so they suggested to add:

‘Local Communities embodying traditional lifestyles’. The statement of Egypt had also an influence on

the text. TCEs were described there “as a part of their cultural or social identity”.

Arts Law Centre of Australia didn’t agree with the Article 2.2 as it may be used with harm

to the Indigenous People. They stated that if it’s not possible to identify Indigenous People or Local

community, a national entity will be defined by National Law. Also Poland do not agree with the text

proposed there. Algeria suggest to delete that Article and add to the Article 2.1: or an entity defined by

a national legislator as a beneficiary’.

July 19 July 19 July 19 July 19 ––––The Third VThe Third VThe Third VThe Third Version of the Draft ersion of the Draft ersion of the Draft ersion of the Draft ArticleArticleArticleArticlessss

In the afternoon session on 19 July the 3rd version was presented to the delegates. The preamble’s text

was changed into the ‘Principles/Objectives’. Every paragraph from the second version was transformed

into a single objective, but any significant changes had been made. The four objectives from the prior

version had been changes. They were two alternative versions of the first one. It was not only

mentioned about the provision of legal and practical means but also ‘appropriate’. That was broadening

the scope of protection not only because of that but it was also added what it’s included: ‘effective and

accessible enforcement measures/sanctions, remedies and exercise of rights. Comparing to the other

alternative, which was the objective one from the second version of Draft Articles, it was appealing

more to Indigenous People. In the third objective Japan’s statement was included. Also ‘mutually

agreed terms’ and ‘prior informed consent’ was added like USA wanted. The fourth one was changed in

accordance with the EU EU EU EU speech: ‘creativity and innovation of Indigenous People’ was added. That part

of the Draft Articles seems to reflect all statements and is a compromise between countries and their

different interests. What is more, it reflects the real will to protect Indigenous People.

The Article 1 was divided into three options. The first option was similar to that in the first version of

Draft Articles. But it was not mentioned about ‘passing from generation to generation’. Also the list of

examples was different. There was a footnote which included specific examples TCEs. That option was

supported by Poland and Japan. The other one was a mix from the second version of Draft Articles. As

the TCEs, in accordance with the text, were regarded also spiritual expressions not only tangible and

intangible but also a combination of thereof. Also the form in which they are embodied is not

significant. The words ‘from generation to generation’ were included. The list of examples was similar

to that of Option 1 – there was also the footnote. However, it was not said whether the text would be

legally binding or not. That version of definition was much more reflecting the interests of Indigenous

Peoples and it was supported by countries like India, Colombia, El Salvador and Brazil. There was also

15 Comisión Jurídica Para el Autodesarrollo de los Pueblos Originarios Andinos

23

the Option 3 which was based on the African Group proposal. Option 3 was a compromise between

the Options 1 and 2, but it was withdrawn by the African group during discussions. However, the

delegation of USA objected to the withdrawal, saying that since it had been added to the text and had

been a subject of the discussion, it could not be withdrawn without the consent of the all the

delegations who had made amendments to it. The consultation with those delegations was made and

finally the Option 3 was successfully withdrawn.

In the Article 2 there were also two options. The first one was more strict because the beneficiaries were

not only Indigenous People or Local Communities or Nations in general, but only those ones which

‘hold, maintain, use [and/or] develop their traditional cultural expressions’. Also national legislation

could define beneficiaries and not only in the case when it is not possible to define them. For example

EU and Poland supported that option. The second option was more flexible. Beneficiaries had no

specific features, however only Indigenous People were mentioned without Local Communities and

nations. National legislation was enabled to define beneficiaries only when it was not possible to point

them. That option reflected in a better way the interests of Indigenous People and it was supported by

the organization which were representing them.

The last Article subjected to important changes was the Article 3. Option 1 was very short and it was

protecting TCEs as defined in the Articles 1 and 2. However, the protection was in accordance with the

National Law ‘in a reasonable and balanced manner´. Option 2 was very similar to the one from the

second version of the Draft Articles. But a significant issue was added in the Option 3. It was said that

only the beneficiaries have an exclusive rights ‘to authorize and prohibit the use and commercial

exploitation of the traditional cultural expressions’. It hadn’t been in the text before.

At the Twenty-Fifth Session of the IGC the Committee developed, on the basis of document

WIPO/GRTKF/IC/25/416, a further text, “The Protection of Traditional Cultural Expressions: Draft

Articles Rev.2”. The Committee decided that this text, as at the close of the Agenda Item 6 in

document WIPO/GRTKF/IC/25/1 Prov.2 on July 19, to be transmitted to the WIPO General

Assembly taking place in September 2013, in accordance with the Committee’s mandate contained in

document WO/GA/40/7 and the work programme for 2013 as contained in document

WO/GA/41/1817. The document “The Protection of Traditional Cultural Expressions” contains in

total 12 Articles.

16

<www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_25/wipo_grtkf_ic_25_4.pdf>

17 <www.wipo.int/edocs/mdocs/govbody/en/wo_ga_41/wo_ga_41_18_prov.pdf>

24

July 20July 20July 20July 20––––21212121:::: Exploring GenevaExploring GenevaExploring GenevaExploring Geneva

From left to right: The CERN Visitor Centre, Jet d´Eau by night, a yellow boat at Lake Geneva, the

botanic garden and a very peculiar flower clock in downtown Geneva.

Since there were no sessions during the weekend, the ELSA Delegation had the chance to get around in

Geneva. There were lots of beautiful parks here and there, and the water in Lake Geneva looked

astonishingly clean. On Saturday afternoon most of our delegation headed for CERN. There we

learned lots of confusing things about the atoms and the universe. Also the botanic garden near the UN

buildings is definitely worth visiting.

25

22222222––––24 July: Cross24 July: Cross24 July: Cross24 July: Cross----cutting Scutting Scutting Scutting Sessionessionessionession

The last three days of the IGC were devoted to the analysis of cross-cutting issues. This means that after

five days spent discussing the draft document WIPO/GRTKF/IC/25/7 on the protection of TCEs, the

debate began to encompass all the three different topics of the whole meeting, i.e. GRs and TK (as well

as TCEs, of course).

The starting point of this discussion had a very solid basis. In fact, the draft documents

WIPO/GRTKF/IC/25/5 on IP and Genetic Resources and WIPO/GRTKF/IC/25/6 on the protection

of Traditional Knowledge had been already discussed and analysed during meetings of the IGC

scheduled earlier this year (4–8 February for GRs; 22–26 April for TK). The outcome of said meetings

were two separated draft documents (one on GRs and the other one on TK) which, following the same

proceeding used for the drafting of the paper on TCEs, had been prepared by the facilitators into their

second revision.

22 July: Morning and Afternoon S22 July: Morning and Afternoon S22 July: Morning and Afternoon S22 July: Morning and Afternoon Sessionessionessionessionssss::::

Consolidated Document RConsolidated Document RConsolidated Document RConsolidated Document Relating to Intellectual Property and Genetic Resourceselating to Intellectual Property and Genetic Resourceselating to Intellectual Property and Genetic Resourceselating to Intellectual Property and Genetic Resources

The discussion on cross-cutting issues started from the consolidated document on IP & GRs.

Said choice was due to both chronological and practical reasons. Not only was the document the

“oldest” among the three drafts the IGC had prepared (since it dated back to last February). In fact, it

was also the one where, after negotiations, the opinions of member states and other stakeholders had

converged the most, with less topics of disagreement compared to the other documents discussed

during the IGC.

A logical reason for the wider consensus met by stakeholders in the draft of the document on Genetic

Resources might be explained as follows. The subject matter of the whole IGC (Genetic Resources,

Traditional Knowledge and Folklore) proves itself difficult to fit into the legal framework developed by

western countries to accommodate Intellectual Property Rights. Despite said difficulties, the subject

matter of Genetic Resources can easily fit within the legal framework of Patent Law, giving rise to far

less issues and debates regarding, on the one hand, the nature of the rights which should be

acknowledged to Indigenous People and, on the other hand, the legal instruments and concepts to be

taken as a basis for the draft of the document – which are, indeed, those common to all western

countries' Patent Acts.

However, it must be stressed that throughout the whole draft document the word `patent´ is always

bracketed, underlining the fact that not all the stakeholders agree over the use of such word referring to

GRs, probably finding more desirable the use of a sui generis term.

The Main Issue: Disclosure and Burden of PThe Main Issue: Disclosure and Burden of PThe Main Issue: Disclosure and Burden of PThe Main Issue: Disclosure and Burden of Proof.roof.roof.roof.

The main issue discussed by stakeholders at the 3 p.m. plenary session held on Monday, 22 July,

regarded the disclosure regime as provided by Article 3 of the draft document, regarding the

26

scope/instruments of protection or the legal obligations to ensure the protection (the whole title of the

Article is bracketed, yet it is clear what issues are at stance here).

The main objective of debate regards the opportunity (or not) to provide for a mandatory disclosure

requirement in order to grant protection to inventions deriving from the use of GRs.

Under Option 1 disclosure is considered a mandatory-basic requirement to be fulfilled so that the

invention can acquire legal protection. Option 2, instead, suggests not to require the applicant of a

patent a mandatory disclosure of the invention, but to ask instead member states to establish, compile,

and maintain databases of all Genetic Resources attributable to the Indigenous Peoples living within

their borders, and to harmonize the structure and content of such databases at an international level.

On this topic the diplomatic representative of Brazil explicitly stated that a disclosure regime, as defined

by option 1, is the best solution to address the necessity of protection of GRs and Indigenous Peoples'

rights. He also stressed that not only the mandatory disclosure is necessary, but it must be accompanied

by effective and appropriate measures for non-complying actors. On this point the EUEUEUEU expressed the

different opinion that sanctions should be set outside of the patent system defined by the document.

Several countries shared the same opinion of Brazil with regard to the preference for Option 1 and the

setting of a mandatory disclosure regime. Among them South Africa, Nigeria, Mexico, Thailand.

The Tulalip Tribes, represented by Preston Hardison, pointed out that a system of country- or

international-managed databases would be a detriment for the rights of Indigenous Peoples for two

reasons:

1) It would constitute a tremendous burden of proof, since they will have to provide substantial

evidence of their prior art on every said GR;

2) Databases will put a concrete risk for the possibility for Indigenous People to control the access

and use their knowledge on GRs.

Different opinions have been expressed by other stakeholders who preferred the regime laid down by

Option 2. Particularly, the United States of America pointed out that a database system would more

easily address the problem of issuing patents deprived of novelty.

The Russian Federation, instead, focused the attention on the fact that a mandatory disclosure regime

would bring several practical problems with regard to the procedure to be followed for such disclosure.

More controversial was the statement of Canada which, on the one hand, expressed the opinion that

the disclosure requirement is no longer considered as an effectively protective formality. On the other

hand, Canada said that statistics show that disclosure fairly accommodates all the needs of protection

claimed by Indigenous People.

To conclude, paraphrasing a statement of Namibia's delegate, we could say that except western

countries all the others support the implementation of a mandatory disclosure regime.

A second issue underlying the documents in exam regards the definition of `derivatives´ which, as

pointed out by Australia and the EU, among the others, is not clear-cut.

27

In the section called “List of terms” at the beginning of the draft document a derivative is defined as `a

naturally occurring biochemical compound resulting from the genetic expression or metabolism of

biological or genetic resources, even if it does not contain functional units of heredity´.

As all the other definitions, this one is put in brackets, highlighting the fact that agreement on it is still

lacking. Of course such definition, together with the protection granted to derivatives, is of paramount

importance, since it can influence massively the breadth of the document, particularly with regard to its

subject matter.

The protection of Traditional Knowledge.The protection of Traditional Knowledge.The protection of Traditional Knowledge.The protection of Traditional Knowledge.

At the same session, the discussion moved to the analysis of issues related to the subject of TK. Unlike

the document regarding GRs, when it comes to TK the more “ethereal” nature of the subject matter

and the difficulties to accommodate it within the existing IP framework and concepts, resulted in a

drafted document where far less consensus had been reached.

Key issues: general lack of consensus and the Public DomainKey issues: general lack of consensus and the Public DomainKey issues: general lack of consensus and the Public DomainKey issues: general lack of consensus and the Public Domain

Evidence of the said lack of agreement is given by the statement of the USAUSAUSAUSA, which stressed that there is

a need to revise the Articles regarding the subject matter, the scope of protection, its duration, and the

beneficiaries. Such statement (endorsed by several other member states, like the EU, France, the

Netherlands, the UK, and Canada) proves how many difficulties have been encountered and still lie in

reaching a broad consensus on the text, which will anyway be submitted in the present version to the

General Assembly.

Of course, some stakeholders shared also their diverging opinions. For instance, South Africa openly

disagreed with the statement of the USA and pointed out that previous discussions took the IGC to the

draft of a clear-cut definition of what the subject matter is. The delegate went even further asking the

representative of the USA to have a more constructive approach and submit a different definition of TK

to the plenary.

Also India protested about the “red flags” raised by the nations listed at the beginning of the paragraph,

and endorsed the statement of South Africa, lamenting the attitude of some groups to oppose to

everything without proposing alternative solutions.

Another issue which arose in the session was the one regarding the relationship between TK and the

public domain, in the light of the potential finalization of the document at hand. More specifically,

some member states expressed their worries that, if the document would be of a legally binding nature,

then the protection granted to TK would also encompass TK works which instead, according to the

existing IP rules, should be considered to belong to the public domain. This, in their opinion, would

constitute an illegitimate and risky extension, or rather a revival, of the rights lying on them.

28

However, according to Mr. Preston Hardison, spokesman of the Tulalip Tribes, said worries had no

reason to be lifted. He pointed out that such a mechanism of extension/revival of rights had already

occurred every time that the duration of copyright has been extended18.

Even stronger has been the statement of Namibia, whose delegate said that certain kind of knowledge

like TK should never fall in the public domain.

The discussion on TK closed with the statements of Tupac Amaru and CISA lamenting that the

ongoing negotiations are state-driven, without an effective participation of Indigenous People s who are,

in fact, deprived of their right to self-determination. Such statements have been endorsed by FAIRA

which, however, thanked the Chairman and the Secretariat for making the Indigenous People take part

in the Experts Group.

The PThe PThe PThe Protection of Traditional Cultural Expressionsrotection of Traditional Cultural Expressionsrotection of Traditional Cultural Expressionsrotection of Traditional Cultural Expressions

As it seems clear from the preceding chapters, the consensus over the document on TCEs is far from

being reached, yet. During the session under comment, the remaining divergence of opinions among

stakeholders has been lamented by several stakeholders, namely New Zealand, the UK, Sweden, and

Canada. Only South Africa reckoned that, notwithstanding the deep divergence of the stakeholders on

several relevant topics of the document, yet they managed to draft some options on which they reached

an agreement, and which will constitute the starting point for the work of the General Assembly (which

will be held between September 23rd and October 2nd, 2013)

Worth to mention is the statement of CAPAJ regarding the need for the General Assembly to shape a

legal instrument keeping in mind that the main aim of such document should be granting Indigenous

Peoples the control over their TCEs, in order to allow the Indigenous rights-holders to permit their use

without using any right on them.

23232323––––24 July: Renewal of the Mandate and Working Plan for the Following B24 July: Renewal of the Mandate and Working Plan for the Following B24 July: Renewal of the Mandate and Working Plan for the Following B24 July: Renewal of the Mandate and Working Plan for the Following Biennium.iennium.iennium.iennium.

The morning session opened with a statement made by Mr. McCook, the Chairman, who invited the

delegations to discuss informally about the issues at stake, with particular regard to the opportunity to

ask the General Assembly to renew the short-running mandate of the IGC, and to the meetings to be

scheduled (in case of renewal) in the following biennium.

Said topics had already been discussed in the previous day during the morning session, and in

consideration of the far distance between the opinions expressed by the stakeholders and the short time

to reach an agreement before the closing of the discussions (scheduled for the following day), the

Chairman took the decision to let the them pursue informal negotiations with the hope that such

strategy would take to a quick decision.

18

It has to be stressed that in 1790 the US Copyright Act granted protection for 14 years from the recording

of the title with the right to renew it for other 14 years...sensibly less than the 70 years after the death of

the author granted nowadays.

29

Our delegation could not participate to these meetings. Yet after the delegates returned, from their

statements it was possible to understand what the discussed topics had been. We can summarize them

as follows: 1) the renewal and the breadth of the mandate to the IGC; 2) the number, content and

schedule of the oncoming IGC sessions; 3) the opportunity to schedule a diplomatic conference; 4)

further proposals.

Renewal of the MRenewal of the MRenewal of the MRenewal of the Mandate.andate.andate.andate.

All member states agreed to ask the renewal of the mandate, yet their proposals slightly differed with

regard to its breadth.

As it emerges from the Report of the Proposals Made by Delegations Regarding Future Work of the

IGC, Following the Review and Stocktaking Conducted under Agenda Item 7, as at the Close of the

Session on July 24, 201319 while some member states want the GA to mandate the IGC to finalize its

work on the negotiations, others propose to use the verb `expedite´ rather than `finalize´, suggesting the

idea that there is a lack of political will to accept the documents as they are at the current state and few

hope that stronger consensus will be reached within the end of the following mandate.

Future SFuture SFuture SFuture Sessionsessionsessionsessions

Much more disagreement rose with regard to the number, breadth and schedule of future sessions,

resulting in the proposal of six different options - written down in the above-mentioned report - to be

submitted to the GA.

We can summarize them classifying the main issues as follows:

a) number of sessions: provided that there will be thematic sessions (one per each subject matter, i.e.

GRs, TK and TCEs) and cross-cutting ones, some delegates suggested to have four sessions (three

thematic and one cross-cutting) per year both years, some others asked for four of them (3 + 1) just on

2014, with decision about the opportunity to repeat them in 2015 to be taken at a later stage, some

others asked also to schedule only four sessions (again, 3 + 1) throughout the whole biennium.

b) end of the works: the considerations and suggestions regarding the number of future sessions had

been influenced also by the deadline that the states wished for the work of the IGC; some stakeholders

wish for it to end within September 2014 (hence asking just for 4 sessions in 2014). The majority,

though, considered more auspicable and feasible to schedule the deadline in September 2015.

Diplomatic conference.Diplomatic conference.Diplomatic conference.Diplomatic conference.

As for future sessions, even with regard to convening a Diplomatic Conference (which should terminate

the work with the adoption of a legal instrument prepared by the General Assembly based on the

documents submitted) there has been a clash between those stakeholders wishing for a fast conclusion

of the negotiations and those who prefer to delay it.

Such divergence resulted in the draft of four different options setting different deadlines for convening

the Conference, with some member states requiring it to be at the earliest moment possible within the

19 <www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_25/wipo_grtkf_ic_25_ref_future_work_of_the_igc.pdf>.

30

biennium, others within the end of 2014, some wanting it to be at the end of the mandate in 2015 and,

to conclude, a group of stakeholders suggesting to let the General Assembly decide, at the end of the

biennium, about the opportunity to convene the Conference or not.

Further proposalsFurther proposalsFurther proposalsFurther proposals

In September it will be suggested to the WIPO General Assembly to evaluate the opportunity to set

down in the mandate an invitation either to the Member States or to the Secretariat to submit studies

relevant for the IGC.

It has also been proposed (by GRULAC – Latin America and Caribbean Group) to make every session

be preceded by a high level segment with Ambassadors and Senior Officials of Member States.

The Indigenous Caucus, endorsed by Peru, suggested to plan an intersessional informal meeting, or a

special session, to let observers from the Indigenous Peoples or Local Communities share their views

with Member States.

Side EventsSide EventsSide EventsSide Events20202020

There were in total four side events during the IGC.

Shared Traditional Knowledge: Issues and Options, presented by the International Centre for Shared Traditional Knowledge: Issues and Options, presented by the International Centre for Shared Traditional Knowledge: Issues and Options, presented by the International Centre for Shared Traditional Knowledge: Issues and Options, presented by the International Centre for

Trade and Sustainable Trade and Sustainable Trade and Sustainable Trade and Sustainable DevelopmentDevelopmentDevelopmentDevelopment (ICTSD)(ICTSD)(ICTSD)(ICTSD)

Our delegation did not attend this side event because it overlapped with the other lunchtime side event

of July 16.

Traditional expressions of cultureTraditional expressions of cultureTraditional expressions of cultureTraditional expressions of culture and contemporary creativity: A perspective from audioand contemporary creativity: A perspective from audioand contemporary creativity: A perspective from audioand contemporary creativity: A perspective from audio----visual visual visual visual

artists and creators, presented by the International Federation of Film Producers Associations artists and creators, presented by the International Federation of Film Producers Associations artists and creators, presented by the International Federation of Film Producers Associations artists and creators, presented by the International Federation of Film Producers Associations

(FIAPF), in association with the Permanent Mission of Trinidad an(FIAPF), in association with the Permanent Mission of Trinidad an(FIAPF), in association with the Permanent Mission of Trinidad an(FIAPF), in association with the Permanent Mission of Trinidad and Tobago and the Permanent d Tobago and the Permanent d Tobago and the Permanent d Tobago and the Permanent

Mission of the United States of AmericaMission of the United States of AmericaMission of the United States of AmericaMission of the United States of America

The side event was actually held in July 16 in two parts. The first part was at the lunch break from 1:15

p.m. to 2:45 p.m. The other part was in the evening from 6:30 p.m. to 8:30 p.m.

Ambassador Santi from Trinidad and Tobago gave the opening speech that highlighted the importance

of works of mas. This was due to the fact that works of mas such as calypso and carnival are very

important parts of Trinidadian culture. After the opening speech the US representative gave a couple of

words before we moved on to artist interviews.

Asha Lovelace, a Trinidadian film maker and producer was the first one to tell about her work. She was

asked what in her work derives from cultural heritage. Her answer was that the culture of Trinidad is in

20 In addition to the actual side events, there was a briefing for observers on 15 July 2013 at 1 p.m. At the

briefing we were told about the key issues of the draft text for the Treaty on TCEs. After the briefing we also

heard a presentation about the evaluation process of the work of the WIPO Secretariat.

31

everything she does. She is trying to find a Trinidadian voice, but of course not in an overly

nationalistic sense. She told that finding her own voice had been difficult, just as it had been for the

whole nation after only 50 years of independence. The starting point of the Trinidadian cinema was in

literature because literature was the first means to figure out the Trinidadian identity. Ms. Lovelace was

a little dubious about the protection of TCEs. In her personal view she thought she should not be

obliged to ask anybody´s permission since what she creates is a part of herself. She does not see herself

exploiting her cultural heritage, but promoting it.

The second interviewee was the French film director, Michel Ocelot. He explained about the various

cultural influences he had gotten during his childhood and youth. ”As a filmmaker I continued to mix

all these cultures and followed films from different countries. I never thought I was stealing but paying

them homage”, Mr. Ocelot us. In his view the culture itself will remain intact even if you borrow from

its structures. Mr. Ocelot is also the director of the film Kirikou that we saw later that day. In the

lunchtime he already gave us a small revelation about the plot, namely how the young hero was able to

speak even before his own birth. A bit later one person from the audience was criticizing Mr. Ocelot for

stealing Africa´s voice and thus harming Africa. Mr. Ocelot himself thinks the story is about more than

just Africa; in his opinion the story is mostly about family and therefore universal.

The third artist of the panel was Esther Bigot, the Princess of Benin. Not only is she a member of the

royalty, but also a photographer and a singer. As a singer she follows old African traditions and as a

photographer she is mainly into making portraits. Her Royal Highness noted that there are IP problems

everywhere. As an example she mentioned the lack of financial support for photographers, due to which

only the most successful photographers can earn their living. As a woman she was also dissatisfied with

the fact how photography is a male-dominated art form.

After the afternoon session had ended around 6 p.m., our delegation headed for an evening at the

cinema. There was a bus transport straight from WIPO. Kirikou was indeed a story about an

exceptionally clever and precocious baby boy who rescues his village from the supposedly evil sorceress

and other harms. The story was based on an old African story but the director, Mr. Ocelot, had only

kept the original beginning and changed the rest of the story to better suit his personal taste. Before the

film started there was a cocktail event at the cinema lobby where our delegation had the chance to meet

interesting people from all the corners of the world. Mainly there were IP experts who were

participating the IGC as well, but there were also people from the Embassies of US and Trinidad and

Tobago.

La nouvelle règlementation du patrimoine cuLa nouvelle règlementation du patrimoine cuLa nouvelle règlementation du patrimoine cuLa nouvelle règlementation du patrimoine culturel au Cameroun, presentée parlturel au Cameroun, presentée parlturel au Cameroun, presentée parlturel au Cameroun, presentée par Dr RachelDr RachelDr RachelDr Rachel----Claire Claire Claire Claire

Okani, Expert pays CIPI Okani, Expert pays CIPI Okani, Expert pays CIPI Okani, Expert pays CIPI –––– OMPI/RGSTFOMPI/RGSTFOMPI/RGSTFOMPI/RGSTF21212121 UUUUniversité de Yaoundé II, Camerouniversité de Yaoundé II, Camerouniversité de Yaoundé II, Camerouniversité de Yaoundé II, Cameroun n n n

Unfortunately our delegation was not able to attend this side event that was held only in French.

21

WIPO/GRTKF

32

WIPO Project on Intellectual Property and Product Branding for Business WIPO Project on Intellectual Property and Product Branding for Business WIPO Project on Intellectual Property and Product Branding for Business WIPO Project on Intellectual Property and Product Branding for Business DeveDeveDeveDevelopmentlopmentlopmentlopment in in in in

Developing and Least Developed Countries (LDCs), Organized by the WIPO SecretariatDeveloping and Least Developed Countries (LDCs), Organized by the WIPO SecretariatDeveloping and Least Developed Countries (LDCs), Organized by the WIPO SecretariatDeveloping and Least Developed Countries (LDCs), Organized by the WIPO Secretariat

The last side event of the 25th session was held in 23 July from 1:15 p.m. to 2:45 p.m. in the New

Building, Room 3. It was presented by Francesca Toso, Senior Advisor of the Special Projects Division

in the WIPO Department for Africa and Special Projects. The side event was moderated by Wend

Wendland, the Director of Traditional Knowledge Division.

The purpose of the WIPO Project on Intellectual Property and Product Branding for Business

Development in Developing and Least Developed Countries is to promote the development of Local

communities and to strengthen capacities at both community and institutional levels. The project

focuses on the promotion and the strategic use of intellectual property, particularly geographical

indications and trademarks.

There are three countries in the project: Panama, Thailand and Uganda, all of which had proposed

themselves to take part in the project. From each country there are three selected products. From

Panama there are pineapples, coffee and quilts, from Thailand there are textiles, bamboo products and

silk and from Uganda there are cotton with especially long fibres, top-quality vanilla and sesame oil. So,

in total WIPO has developed nine IP and branding strategies.

The pilot products were originally sold without any indication of their origin. Because of this, no value

used to go back to the community. All the pilot products are of high quality and have unique

characteristics linked to the community or region where they are produced. One could probably

describe them as hidden gems. For instance, the Ugandan vanilla is of better quality than any other

vanilla species in the world.

One goal of the project is to support local farmers and producers to use intellectual property for

branding their products. The second goal is to strengthen local and national IP management capacities

in the selected countries. The third goal is to raise awareness on methodological approaches to IP and

branding.

Branding is more than only IP, so it is important to have market-oriented strategies. In order to achieve

results, concerned communities, local authorities and other stakeholders have to be trained so that they

will have the appropriate tools for branding, product design and marketing. WIPO has been helping

the communities to find the most suitable form of IP protection based on the previous analysis.

For instance, in Panama a collective mark was given for the coffee, and the coffee growers felt so

motivated because of this that they have now also filed for their own appellation of origin. Also the

vanilla and the cotton from Uganda and the pineapples from Panama now have collective marks. Ms.

Toso pointed out that geographical indications of origin are more difficult to get protected. You really

have to consider why you would choose to apply for a GI instead of a collective mark.

33

WIPO does not participate in the marketing part because it is out of WIPO´s mandate. What WIPO

can do is to provide the communities possible contributing partners. In spite of this, the packaging of

the coffee from Panama was developed in collaboration with WIPO.

As a conclusion it can be said that the brands can succeed if the business capacity is strong enough. In

order to achieve this there is a need to raise awareness on all levels from grassroots to the highest top.

ConclusionConclusionConclusionConclusion

In the Twenty-Fifth Session of the IGC, the most important issues were the ones connected with the

economic aspects of the TCEs. First and foremost, what should be regarded as TCEs? In that topic we

had both a flexible and a strict approach. The main problem was whether the TCEs are only ‘artistic

and literary’ or should any other forms of expression be included. Also defining beneficiaries aroused

many different opinions. The capability to define them in the national legislation posed a threat that it

could be used to the detriment of Indigenous People. Furthermore, the possible including of the Local

Communities as beneficiaries is a chance for more nations to benefit from the protection.

Despite all these contrary interests, we are hoping that the Draft Articles have been evolving in a

direction that will fulfill everyone´s expectations someday22. Discussion is still needed, but hopefully we

get progress slowly but surely and a legal document will be eventually adopted.23

22

Decisions of the Intergovernmental Committee:

<www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_25/wipo_grtkf_ic_25_ref_decisions.pdf>