VZCZCXYZ0000
RR RUEHWEB

DE RUEHGV #0597/01 2010933
ZNR UUUUU ZZH
R 200933Z JUL 09
FM USMISSION GENEVA
TO RUEHC/SECSTATE WASHDC 8873
INFO RUCPDOC/DEPT OF COMMERCE WASHINGTON DC

UNCLAS GENEVA 000597 
 
SIPDIS 
 
SECSTATE FOR EB 
COMMERCE FOR USPTO 
 
E.O. 12958: N/A 
TAGS: ECON KIPR WIPO
SUBJECT:  WIPO on Genetic Resources, Traditional Knowledge and 
Folklore 
 
¶1.  SUMMARY:  Member States at the 14th session of the WIPO 
Intergovernmental Committee (IGC) on Intellectual Property and 
Genetic Resources, Traditional Knowledge and Folklore (GRTKF), which 
was held in Geneva from June 29 to July 3, 2009, failed to reach an 
agreement on a recommendation to the 2009 WIPO General Assembly (GA) 
to renew the mandate of the IGC.  The week-long, contentious 
deliberations were based on a proposal submitted by the African 
Group, which called for "text-based negotiations" in the period 
2009/11, leading to the submission of a text of an "internationally 
legally binding instrument(s)" for the protection of GRTKF to the 
2011 GA.  The African Group proposal also set forth demands for 
convening six "intersessional working groups" in the next two-year 
period, which according to the WIPO Secretariat would nearly triple 
the proposed 2010/11 budget for the IGC.  The United States, along 
with the European Union and the Group B nations, supported the 
renewal of the IGC mandate and offered a number of amendments to the 
African Group proposal.  However, the negotiations collapsed late in 
the week when it became clear that the key elements of the African 
Group proposal were non-negotiable.  The failure of IGC 14 follows a 
procedural impasse at IGC 13.  As a result, the IGC has made no 
progress on its substantive agenda in 2009.  Although some 
delegations (including the United States) expressed a willingness to 
continue the negotiations in informal consultations in the period 
leading up to the 2009 GA, in all likelihood the question of the 
renewal of the IGC's mandate will be left to the September 2009 WIPO 
General Assembly.  End Summary. 
 
The Gathering Storm:  The African Group Proposal 
--------------------------------------------- --- 
¶2.  Under the chairmanship of Ambassador Rigoberto Gauto Vielman 
(Paraguay), the Committee agreed to change the order of the agenda 
for the session, moving up "Future Work" (agenda item 7) for early 
discussion, thus setting the stage for the week-long deliberations 
on the future of the IGC.  The Committee also early agreed to use 
the proposal of the African Group on renewing the mandate of the IGC 
as the basis for the IGC's deliberations.  Many countries in the 
Asian Group and GRULAC supported the proposal from the outset and 
were characterized as "partners."  The African Group proposal 
(styled as "The Elements for the New Mandate") was tabled shortly 
before the meeting and consists of three core elements.  First, the 
proposal calls for "text-based negotiations" on GRTKF during the 
next biennium. Second, the proposal calls for the submission of a 
text of an "internationally legally binding instrument/instruments" 
on GRTKF to the 2011 GA, with a request for convening a Diplomatic 
Conference in 2012.  Third, the proposal calls for convening six 
"intersessional working groups" in the period 2010-2011, with a 
detailed work program and timetable set forth in an annex to the 
proposal.  Taking into account the high sensitivity assigned by the 
African Group to ownership of its proposal, and in deference to the 
decision of the Chair, Group B and the EU initially refrained from 
introducing competing proposals as potentially counterproductive. 
Nor did any other delegation table an alternative proposal. 
 
¶3.  The African Group (supported by India and Brazil) expressed its 
strong preference to "negotiate" the text of its proposal in the 
plenary session, rather than in small working groups (the customary 
WIPO practice). Again bowing to the demands of the African Group, 
the Chair decided on a process of compiling amendments to the 
African Group text in the plenary session.  (Proposed amendments 
were projected onto a screen in the main WIPO hall.)  The Chair's 
process for recording edits to the African Group proposal departed 
from well-established UN procedures.  For example, instead of 
showing brackets or strikeouts to text that other delegations 
proposed to delete, the Chair decided to footnote the text, with a 
comment that a delegation proposed to delete the text.  In addition, 
while some changes were shown by one or two word inserts, in many 
cases the Chair insisted on the submission of alternative paragraphs 
to show suggested revisions to the African Group's text.  In the 
end, this unusual process resulted in a "text" that left the 
original African Group proposal completely intact while showing 
various (often overlapping) objections and alternatives. 
 
Distant Thunder:  Text-Based Negotiations 
----------------------------------------- 
¶4.  The United States coordinated with the delegations of Japan, 
Canada, New Zealand, and Australia (the JUSCANZ group) in an effort 
to reach consensus on alternative language for key elements of the 
African Group proposal, which had mixed results.  The United States, 
for example, proposed the deletion of the phrase "text-based 
negotiations," which would be replaced by "outcome-oriented 
deliberations, without prejudice to any outcome and on the basis of 
the Committee's prior work."  As the U.S. delegation later 
explained, the substitute language was broad enough to allow the 
Committee to reach consensus on an international statement on the 
protection of GRTKF based on the Committee's prior work on "policy 
principles and objectives."  The EU supported the U.S. proposal, 
while the Mexican delegation simply sought deletion of "text-based 
negotiations."  Senegal and South Africa opposed the U.S. language, 
which they complained was unfamiliar in the UN context, and Brazil 
 
criticized the U.S. amendment as "too non-committal." 
 
¶5.  The real enemy of consensus, however, may have been the apparent 
calculated vagueness of the phrase "text-based negotiations."  In 
particular, a number of delegations privately expressed concern that 
the phrase "text-based" negotiations referred to the annexes to WIPO 
documents WIPO/TKGRF/IC/9/4 and 9/5, which contain certain 
"substantive provisions" organized into treaty-like format.  Over 
the last seven sessions of the IGC, the United States and other 
developed countries have taken a firm position opposing the further 
development of these texts.  In an effort to clarify this vague 
phrase, the delegation of New Zealand tabled its own proposal 
calling for the deletion of the phrase "text-based negotiations" and 
replacing it with "the development of text, without prejudice to any 
outcomes."  New Zealand stated that it was not authorized to 
negotiate based upon specific IGC documents.  Nonetheless, Senegal, 
on behalf of the African Group, while refusing to clarify the 
precise meaning of the phrase "text-based negotiations," rejected 
the New Zealand proposal.  New Zealand later backed away from its 
proposed amendment, apparently persuaded that "text-based 
negotiations" referred to negotiations on the basis of all existing 
IGC texts. 
 
¶6.  In the view of a number of delegations, however, not all the 
IGC's work was sufficiently mature to warrant text-based 
negotiations, or even to justify the equal attention of the 
Committee.  In particular, a number of members of the African Group 
and their partners (with Brazil leading the charge) expressed the 
view that the Committee's work on GR, which they characterized as 
not as far along as its consideration of TK and folklore, could 
proceed at a slower pace or be handled in a different way.  Driving 
the point home, the delegation of Brazil (supported by India and 
Mexico) proposed qualifying the phrase "text-based negotiations" 
with the phrase "taking into account the different levels of 
development of the texts."  Noting the lack of symmetry in the IGC's 
substantive work to date, but flipping Brazil's point, the United 
States and the EU tabled language instructing the Committee to 
continue its work in all three substantive areas on an "equal" 
(later revised to "impartial" (EU) or "non-discriminatory" (US)) 
basis. 
 
The Lightning Bolt:  Internationally Legally Binding Instrument 
--------------------------------------------- ------- 
¶7.  The centerpiece of the African Group proposal was a demand to 
submit to the 2011 WIPO GA a text for an "internationally legally 
binding instrument/instruments" on GRTKF, along with a 
recommendation of a date for the Diplomatic Conference.  The demand 
to start negotiating a legally binding instrument drew high praise 
from the delegations of Brazil, Egypt, India, South Africa, 
Indonesia, Iran, Pakistan, and many Caribbean nations.  However, the 
United States, the EU (with France playing a leadership role), and 
other Group B members (including those who were willing to accept 
most other African Group proposals) were not persuaded that the case 
had been made for the negotiation of a legally binding instrument. 
As an alternative, the United States proposed that the IGC submit to 
the 2011 GA "recommendations on the content for an outcome or 
outcomes, including the nature, format and status and how the 
Committee should finalize its recommendations" on GRTKF, while the 
EU suggested that the IGC's work program "should lead to an 
internationally legally binding or non-legally binding instrument/s 
on GRTKF."  Neither the U.S. nor EU proposals were acceptable to the 
African Group. 
 
Leaving the Ground Behind:  The Ballooning IGC Budget 
--------------------------------------------- -------- 
¶8.  Closely related to the African Group's demand for text-based 
negotiations leading to an internationally legally binding 
instrument was the request for "a defined work program and 
timeframe," including convening six "intersessional working groups" 
in the period 2010-2011.  Group B countries and the EU, along with 
the United States, Mexico, and Switzerland, expressed their serious 
concerns regarding the financial and administrative implications of 
this aspect of the African Group proposal, especially during a 
period of constrained organizational resources.  A number of 
delegations and NGOs also expressed concerns about the exclusive 
nature of intersessional work.  The United States, Mexico and 
Switzerland requested additional budget information from the 
Secretariat to evaluate the proposal.  Based on the information 
provided, the estimated IGC budget in the next two-year period would 
balloon to 2 million Swiss Francs, nearly tripling the proposed 
2010/11 budget for the IGC and far in excess of the budgets of other 
WIPO committees.  In part to conserve resources, but also to align 
the IGC work program with other WIPO committees, the United States 
proposed the deletion of the phrase "intersessional work" (to be 
replaced by the phrase "extraordinary sessions of the IGC in a 
format to be agreed"). The EU also opposed intersessional work for 
budgetary and policy reasons, but (as an apparent compromise) 
proposed two additional meetings of the IGC during the next 
biennium.  The EU proposal did not attract support from other 
 
delegations. 
 
The Rainstorm:  Getting Soaked on Process 
----------------------------------------- 
¶9.  In a surprising mid-week ruling, rather than continuing the 
negotiations in the plenary session, Chairman Gauto invited the 
African Group to revise its own proposal, taking into account the 
amendments and comments of other groups and delegations.  Quickly 
reversing their position on the value of the openness and 
transparency of deliberations in plenary sessions, the African Group 
accepted the Chair's invitation.  The African Group promised to set 
aside the next morning for consultations with its "partners" but 
remained non-committal on whether they would deliver a "new 
proposal" to the plenary session.  Looking for the silver lining in 
this dark cloud, the U.S. delegation renewed its earlier request for 
a meeting with the African Group, which was delayed until shortly 
before the plenary session on Thursday afternoon.  At the request of 
the African Group, Australia, New Zealand and Canada joined the 
meeting.  In casual disregard of the week-long effort to coordinate 
positions within the JUSCANZ group, and to the disappointment of the 
United States, the delegations of Australia, New Zealand and Canada 
used the meeting to advance their narrower national positions. 
 
¶10.  When the plenary session reconvened on Thursday afternoon, it 
became clear that the African Group consulted primarily with 
like-minded delegations (Brazil, Egypt, India, South Africa, 
Indonesia, Iran, Pakistan, many Caribbean nations) and had not 
attempted to work out compromise text with other delegations.  With 
strong support from Pakistan, India, Brazil and the Philippines, the 
African Group insisted on retaining the key elements of its original 
proposal, characterizing the amendments offered by other delegations 
as violations of the spirit of and unhelpful efforts to dilute the 
original African Group proposal, or entirely new proposals.  More 
broadly, Brazil and India argued that it was unfair to protect 
holders of patents, copyrights and trademarks but to deny similar 
protection to indigenous and traditional holders of GRTKF.  On 
behalf of Group B, the delegation of Germany repeatedly called on 
the African Group to provide IGC members with information on the 
consultation process and to explain how it discharged the Chair's 
mandate to accommodate the plenary amendments to the African Group 
proposal.  The questions drew evasive and hostile responses from the 
delegate from Senegal and other African Group representatives. 
 
¶11.  On the last day of the plenary session, the EU tabled its own 
two-track proposal, calling for the renewal of the IGC mandate 
coupled with a recommendation for a GA resolution on the protection 
of GRTKF.  The African Group rejected the concept of a two-track 
process as unworkable.  Drawing on well-established national 
positions expressed throughout the meeting, both Australia (with the 
support of New Zealand) and Canada made proposals during the 
final-day plenary sessions.  Although the African Group was 
dissatisfied with the new proposals, some members of the group 
thanked Australia and New Zealand for their efforts to find 
compromise language.  According to some African Group members, the 
new proposals were not only unwelcome but also procedurally 
defective and thus inappropriate to be forwarded to the GA for 
further consideration.  In particular, the delegate from Egypt 
argued that the last-day proposals were defective under the IGC's 
rules of procedure because they were not submitted in writing and 
translated in advance of the session.  It followed, according to 
Egypt, that only the African Group proposal (which also failed to 
comply with certain IGC notice requirements) remained standing at 
the end of the week.  The Legal Advisor, however, respectfully 
disagreed, advising the Committee that the African Group proposal, 
the amendments thereto, and the free-standing proposals tabled at 
the 14th session were all properly before the IGC.  The Legal 
Advisor also stated that the mandate of the IGC continued through 
the end of 2009, correcting the misunderstanding of the delegate 
from Egypt that the mandate expired in September 2009. 
 
Searching for the Rainbow 
------------------------- 
¶12.  Despite persistent rumors that the African Group would call for 
a vote on its proposal for renewal of the IGC mandate, no delegation 
called for such a vote.  Absent adoption of any proposal for the 
renewal of the IGC mandate (either by consensus or vote), it was 
agreed that the report of the committee on future work would simply 
state that IGC members "did not reach agreement on this agenda 
item."  A consensus also seemed to emerge that all proposals on 
future work-the African Group proposal, the amendments thereto, and 
the other proposals-would be discussed and/or appended to a factual 
committee report of the 14th session, which would be available for 
further discussion and action at the September 2009 WIPO GA. 
However, the precise mechanism to reach consensus on the future of 
the IGC at the GA, which typically responds to recommendations from 
WIPO committees, remained unclear at the end of the 14th session.  A 
number of delegations, including the United States, expressed a 
willingness to continue the negotiations in informal consultations 
in the period leading up to the 2009 GA, but the way forward 
 
remained uncertain.  Almost all delegations expressed regret at the 
failure of the IGC to reach agreement on a recommendation to the GA 
on the future of the Committee.  What Brazil trumpeted as a 
"breakthrough" session of the IGC earlier in the week, turned into 
the IGC's "breakdown" session by week's end.  Like an intense, 
summer rainstorm in Geneva, the 14th session of the IGC left the 
participants soaked, somewhat chilled by the experience, and still 
searching for a rainbow at the end of the storm. 
 
¶13.  The United States delegation consisted of Michael Shapiro 
(USPTO), Debbie Lashley-Johnson (State), Karin Ferriter (USPTO), 
Sezaneh Seymour (State), Peggy Bulger (LOC), and Michele Woods 
(LOC). 
 
GRIFFITHS #