7 Original: English date: May 14, 2010 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Fifteenth Session Geneva, December 7 to 11, 2009 report

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AGENDA ITEM 1: OPENING OF THE SESSION

9 The session was opened by Mr. Francis Gurry, the Director General of WIPO. The Director General recalled that the mandate of the Committee had been renewed at the recent meeting of the WIPO General Assembly. This was the Committee’s strongest mandate yet and the Committee should rejoice that it had been adopted by consensus. This first meeting since the new mandate was established was very important in that it would give expression to the new mandate and demonstrate how it would work. The mandate had two main branches, the first establishing that the Committee would undertake text-based negotiations for an international legal instrument or instruments that will ensure effective legal protection for TK, GRs and TCEs. The Director General was hopeful that the Committee would now start the task of establishing a rhythm that was customary in all international instances when text-based negotiations were being undertaken, namely, that it examined a text and that Member States made amendments, comments and suggestions and that, thereafter, a new version of the text was prepared based on the amendments that had been submitted, if necessary with square brackets, and so on. The Director General hoped that the Committee would get into such a rhythm of examination of texts which would lead to a consensus agreement on refined texts. The second important element of the mandate concerned the work program for the Committee for the coming biennium and the methodology that would be used by the Committee and by its intersessional working groups. This had already been the subject of some consultations amongst the membership but it would need to be further explored in the course of the week. It was extremely important that the Committee establish a very clear understanding of what the work program would be for the coming biennium. The Director General thanked Ambassador Alberto Dumont, the President of the General Assembly of WIPO, for the consultations that he had undertaken in the past weeks with regard to these two particular issues. The Director General also introduced Mr. Christian Wichard who was, as from December 1, 2009, Deputy Director General for Global Issues. “Global Issues” referred to any issue that did not fit exclusively into patents, trademarks, industrial designs, copyright, but was really of a cross cutting nature and foremost amongst these issues were the issues with which this Committee was concerned. Mr. Wichard would have overall responsibility for this Committee.

AGENDA ITEM 2: ELECTION OF THE CHAIR
Decision on Agenda Item 2

10 Upon the proposal of the Delegation of Yemen, on behalf of the Asian Group, seconded by the Delegation of Switzerland, on behalf of the B Group, the Committee elected as its Chair His Excellency Juan José Ignacio Gómez Camacho, Ambassador of Mexico, unanimously and by acclaim, for the remainder of the 2008 2009 biennium, the Committee’s Vice Chairs, Mr. Abdellah Ouadrhiri of Morocco and Mr. Lu Guoliang of China, already having been previously elected for the same period.

11 On assuming the Chairmanship, the Chair thanked the Committee for giving him the honor and great responsibility of chairing this session. There were perhaps two or three essential principles which should guide this session and the Chair’s work. There was a great challenge facing the Committee as well as a great opportunity. This was a subject that was tremendously complex from a technical point of view. It was politically controversial, it was also very emotional. The election of the Chair was a vote of trust and the Chair assured that everything he did would be directed towards the success of the session. This session required leadership and guidance, which he was prepared to give. From time to time, the Chair would have to adopt decisions and shoulder responsibility for them and he requested the Committee’s support and vote of confidence. As the Director General had said quite rightly, with the new mandate the Committee had a great opportunity. The Chair didn’t see the success of the meeting as being anything other than discussing the substance. There had to be progress on the substance. This was the objective of the meeting. And as the Director General had said, this would set the pace of the negotiations. The Chair welcomed the indigenous communities and hope that they would participate actively. The Chair only believed in diplomacy that created value for everyone, that did not impose solutions but that involved dialogue, transparency and a constructive approach.

AGENDA ITEM 3: ADOPTION OF THE AGENDA

12 The Delegation of Senegal, on behalf of the African Group, proposed that the Agenda be revised so that Agenda Item 10 (“Arrangements for the Intersessional Working Group Sessions”) be discussed before discussion on substantive Agenda Items 7, 8 and 9.

13 The Chair stated that he respected the proposal of the Delegation of Senegal. The Chair also proposed that, as there had been a change in the mandate, this offered a great opportunity to commence work on substance. Second, the draft program for the session proposed an equal allotment of time to the Agenda items and he would ensure that there was adequate time to discuss Agenda Item 10 irrespective of which day it fell on. It was necessary to make progress on substance to have a more clear idea about the mandate and what type of sessions the intersessional meetings should be.
14 The Delegation of Yemen, on behalf of the Asian Group, stated that the Asian Group had not discussed the possibility of changing the Agenda and preferred that the Agenda remained as it was. The Asian Group did not wish to enter into a discussion on procedural measures at the expense of the texts that the Committee was supposed to be discussing and studying.

15 The Delegation of Switzerland, on behalf of Group B, stated that it attached great importance to the commencement of the substantive work of the Committee on the three items on the Agenda. Without diminishing the importance of the discussions and decisions needed on the intersessional working groups, the Delegation wished to keep the Agenda as it was. A substantive discussion would help to identify which questions ought to be dealt with in the intersessional process. Informal consultations on the intersessional process should continue, but it was preferable to begin substantive discussions in the plenary.

16 The Delegation of Ecuador, on behalf of GRULAC, believed that Agenda Item 10 was in the right place on the Agenda. This would make it possible during the days preceding the discussion on the Item to provide more input on the Item through informal discussions and conversations.

17 The Chair asked the Delegation of Senegal whether it would accept leaving Agenda Item 10 where it was on the Agenda and to begin informal consultations on that Item as soon as possible.

18 The Delegation of Senegal, on behalf of the African Group, stated that it was difficult to understand why it made more sense to discuss substance ahead of procedure. This was not the practice in United Nations meetings. The Delegation wished to consult with the African Group.

19 The Delegation of Yemen, on behalf of the Asian Group, stated that it supported the African Group’s proposal.

20 The Delegation of Angola expressed surprise that a request by a Delegation and Group to alter the Agenda posed a problem.

21 The Delegation of Morocco proposed that, in the interim, discussions begin on Agenda Items 4, 5 and 6.

Decision on Agenda Item 3

22 The Chair submitted the revised draft agenda circulated as

WIPO/GRTKF/IC/15/1 Prov. 2 for adoption and it was adopted.

AGENDA ITEM 4 ACCREDITATION OF CERTAIN ORGANIZATIONS

Decision on Agenda Item 4

23 The Committee unanimously approved accreditation of all the organizations listed in the Annex to document WIPO/GRTKF/IC/15/2 as ad hoc observers, namely: Association of Nepal Kirat Kulung Language and Cultural Development (ANKKLACD), Engabu Za Tooro (Tooro Youth Platform for Action), Fundación Ngäbe-Buglé (FUNGOBE-B), Cercle d’initiative commune pour la recherche, l’environnement et la qualité (CICREQ), Rift Valley Voluntary Counsellors, and the Southeast Indigenous Peoples’ Center.

AGENDA ITEM 5: OPENING STATEMENTS
24 The Delegation of Spain referred to Circular 7767 prepared by the Secretariat, concerning the translation of Member States’ contributions into different languages. It added that this was contrary, ipso jure, to the standards and practices of the United Nations. It stated that it was not able to consent to any potentially-binding document which had not been translated into Spanish and distributed with sufficient time for its analysis.

25 The Director General asked the Delegation of Spain which documents were the ones that were not available in Spanish. He said that he would be very pleased to rectify these omissions expeditiously.

26 The Delegation of Spain clarified that it was not referring to a document in particular but rather to Secretariat Circular 7767, dated October 28, 2009, the last three lines of which read as follows: “Documents received after that date [November 20] will be made available by the Secretariat in the form and in the language(s) received, but translations will not necessarily be available in all languages for the meeting”.

27 The Director General clarified that the Circular referred to submissions by Member States and that the Secretariat had invited Member States to table their documents, submissions and proposals by a certain date in order to ensure that the Secretariat would then be able to provide them in all of the official working languages [of the Committee]. He added that it was intended that the Secretariat would do its best to make them available in the official working languages, but with no guarantee, would those documents, submissions and proposals be tabled after a certain date. He stated that it was an invitation on the part of Secretariat to try to ensure that it was in a position to do exactly what the Member States would like, namely to provide them with the documents in all of the official working languages.

28 The Delegation of Portugal, reminding that the languages and cultural diversity were very important values in the United Nations system, endorsed the statement made by the Delegation of Spain. It also thanked the Director General for his clarification, although it was of the view that the last three lines that were read by the Delegation of Spain did not mean necessarily that all the documents would always be available in all official working languages.

29 The Delegation of Algeria supported the statements made by the Delegation of Spain and thanked the Director General for his clarifications. It also believed that the working documents of the Committee should be available in the six working languages of WIPO.

30 The Delegation of Yemen, speaking on behalf of the Asian Group, thanked the Chair of the General Assembly for the informal consultations he organized before the present session of the Committee. It hoped that the new mandate of the Committee would help Member States to achieve a legal instrument to ensure effective protection of TK, GRs and TCEs. It stated that the focus of the Committee's work in the 2010-2011 biennium should build on the existing work carried out by the Committee and use all WIPO working documents including WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5 and WIPO/GRTKPIC/11/8(a), which were to constitute the basis of the Committee's work on text-based negotiations. It was of the view that the IWGs should be designed in a manner that expedited the realization of the mandate in submitting the text (texts) of an international legal instrument (instruments) which would ensure the effective protection of GRs, TK and TCEs, to the 2011 General Assembly, which should decide on convening a diplomatic conference. It stated that the Asian Group would remain very constructive and active during the discussions.

31 The Delegation of Senegal, on behalf of the African Group, stated that it had no intention of making an opening statement in the customary sense of the term as the Group had prepared a statement focusing on what it believed to be the most salient point, namely Agenda Item 10, which was scheduled for the end of the meeting. Wishing to explain the lack of a general statement, the Delegation of Senegal declared that Agenda Item 7 immediately placed the Committee at the negotiation stage, which exempted it from such statements. It also said that it was concerned with the time at which informal meetings had been scheduled, which it would have preferred to be held at 6 p.m. rather than in the morning.

32 The Delegation of Switzerland, speaking on behalf of Group B, said that delegations from Group B had come to this session with a constructive and result-oriented spirit for advancing the work of the Committee in accordance with the renewed mandate. It stressed the fact that it was nowadays clear to all stakeholders that GRs had assumed a great economic, scientific and commercial value with the emergence of modern biotechnologies, while TK and TCEs had gained new economic and cultural significance within a globalized information society. It was therefore crucial that WIPO, and more concretely the Committee, played a leading role in addressing the IP aspects of protecting, promoting and preserving TK, TCEs and GRs. The Committee had to do it not only in view of achieving the concrete mandate it received from the General Assembly last October, but also for the useful and timely contribution that it could deliver to the work undertaken in other international fora. It was for all these reasons that the Delegations pertaining to Group B recognized the need to strengthen the mandate of the Committee and played an active role during the negotiations that took place in order to give a real impetus to the substantive work of this Committee, while providing the flexibilities needed at this stage concerning the form of any legal international instrument(s) the Committee had to develop. In line with the renewed mandate of the Committee, the Delegation of Switzerland, on behalf of Group B, was of the view that TK, TCEs and GRs should be addressed on an equal footing, and that sufficient time had to be allocated to these issues also during the present session. The issues of terminology and policy objectives should be prioritized in the first phase of the text-based work in the Committee. Besides the importance to start without delay the work on the three substantive issues, it did not forget the necessity to take procedural decisions later during this session concerning the work to be undertaken in the IWGs. In order to facilitate these decisions, it was of the view that it might be useful to launch a process of informal consultations as soon as possible, in order to identify the different ideas and options and work towards a consensus by the end of this session. It thanked the Chair for the consultations he had undertaken over lunch time. It was fully confident that the Chair on the way you will ensure a proper time management for the work of the plenary, in order to ensure that all issues will be dully addressed during this week. It thanked the representatives of indigenous and local communities for having invited Group coordinators as well as representatives of Members States to their Consultative Forum that took place on December 6, 2009 and greatly appreciated the opportunity to have a direct and frank interaction and discussion with the representatives of indigenous and local communities. It was supportive of increasing such interactions and exchanges of views in the future. Group B remained committed to ensuring the participation of the representatives of indigenous and local communities in the work of the Committee and the IWGs, and the interaction between Delegations of Member States and representatives of indigenous and local communities. It reaffirmed its strong commitment to the work of this Committee under its renewed mandate and was confident that the fruitful exchange of views that took place during the Assemblies for the renewal of the mandate would continue to animate the Committee's work and debates, and enable the Committee to progress into substantive discussions and tangible results.
33 The Delegation of Ecuador, on behalf of GRULAC, expressed its gratitude for the efforts and commitments of the Director General and of the Secretariat as regards the work of the Committee. It reiterated its wish that all working documents be made available in a timely manner and in Spanish. It highlighted the importance that WIPO’s member States attached to the Committee, as well as the important decision to pursue text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which would ensure the effective protection of TK, TCEs and GRs. It recalled that in the negotiations during the 2009 Assemblies, GRULAC had maintained a flexible and constructive position, as it had been primarily interested in strengthening the work of the Committee within a new robust mandate, with a view to granting international, prompt and effective protection to TK, TCEs and GRs, taking into consideration, among other aspects, the ancient wealth of its region in TK, TCEs and its biodiversity. It stated that it was vital to extend the benefits of intellectual property to developing countries, as set out in WIPO’s Development Agenda, and that in turn, it would benefit all parties involved, based on the mandate given to the Committee, for which reason past impasses should be avoided. The work on the Agenda was vast, and one of its main items was the one that referred to the arrangements for the Intersessional Working Group meetings. That working group should be composed of members who focused their work on the most-developed issues, as regards aspects of protection for TK and TCEs. That task of the Working Group should be carried out concurrently with discussions on the protection of GRs, whose development in other international fora should be carefully observed, particularly the ongoing negotiations in the context of the Convention on Biological Diversity (CBD) on access and benefit-sharing (ABS). It stressed the importance of the voluntary contribution fund for indigenous and local communities, and encouraged Member States to strengthen their contributions, as the valuable participation of indigenous representatives in the Committee and in the Intersessional Working Group should continue. It reiterated its support for multilateralism and its approval of starting discussions within the new mandate given to the Committee. It welcomed all efforts undertaken to strengthen the work of the Committee, such as the initiative carried out by the Government of Indonesia two weeks previously, with the participation of international organizations, including WIPO. It believed that the process initiated in Bali should be inclusive and stated that as a Regional Group it was ready to join their ranks.

34 The Delegation of China said that for many years the Committee had spared no effort in protecting TK, TCEs and GRs and expressed its satisfaction that the last General Assembly renewed the Committee’s mandate and set priorities for the next biennium. It hoped that this renewed mandate and working mechanisms would result in better methods of discussing more efficient protection of TCEs, GRs and TK within the Committee framework. The Delegation of China ensured that it would participate in the Committee session in an open and constructive fashion.

35 The Delegation of Kyrgyzstan, speaking on behalf of the Regional Group of Central Asian, Caucasus and Eastern European Countries, paid tribute to the contributors to the WIPO Voluntary Fund. It expressed the hope that the experience of indigenous and local communities would enrich the Committee’s work. It endorsed the new mandate of the IGC and invited all Member States to mobilize their efforts in order to implement this mandate and compile a legal instrument on TK, GRs and TCEs. It reminded that the Government of Kyrgyzstan had promulgated a law to protect TK and other legal instruments in relation to the registration, through a database system, of the TK of the indigenous peoples of Kyrgyzstan. It informed the Committee that the first request for registration had already been deposited. It wished the Committee and the Intersessional Working Groups every success in their work.

36 The Delegation of Sweden, speaking on behalf of the European Union and its Member States, looked forward to a constructive, efficient and fruitful meeting. It said that it remained committed to making progress in the important issues under the Committee’s agenda and attached great importance to its work. It acknowledged that the Committee had a leading role in addressing the IP aspects of protecting, promoting and preserving TK, TCEs and GRs, and strongly welcomed the decision of the General Assembly to renew its mandate. It hoped that the renewed mandate would imply an accelerated and more constructive work within the Committee. It recalled that the discussions had for some time focused on the issue whether the outcome of the Committee’s work should be legally binding or not and stated that the renewed mandate allowed for both options. It added that the Committee’s work needed to get some positive momentum by constructive discussions on basic substantive issues. It said that once a broad agreement in substance would be reached, the Committee could come back to the issue of the legal character of the legal instrument or instruments that the Committee was requested to submit to the 2011 General Assembly. In view of the differences in law potentially applicable to TK, TCEs and GRs, and the specific differences in the discussions relating to these three subjects, it believed that more timely progress could be made in the new biennium if they were treated separately. It suggested that one each of the three proposed intersessional meetings be reserved entirely for one of the three subjects on the agenda. It argued that this distribution of work would allow more time for the discussions and would prove more productive. It stated that the IWGs should be as intensive and productive as possible and report back to the Committee. It believed that the Committee should focus its initial work under the new biennium on areas where it is more likely to have progress in the short term. In its view, it would be proper to initially focus on TK so that the first intersessional meeting would be given a precise mandate on TK. It stressed the fact that this was an area where previous discussions had indicated that a common understanding could be within reach and it was also an issue of great importance for many Member States as well as for indigenous and local communities. Progress on TK would also help the Committee to advance the discussions on GRs that were conducted in the Committee as well as in other fora. It highlighted that one outstanding issue related to GRs was the protection of TK associated with GRs and concluded that there was a need to deepen the discussions on TK and agree on a definition. It was of the view that this work should be conducted in this Committee. It also considered that the discussions on TK, as well as on TCEs and GRs, needed to be structured in a way that helped the Committee to make progress. To start with, the Committee should examine those existing Committee texts that focused on the subject for protection. In this respect, it said that finding clear cut definitions of TK or TCEs should be prioritized. It added that the relation to public domain was of vital importance in this aspect. It said that the question of beneficiaries also needed to be analyzed at an early stage. At the next step, it envisaged that the Committee had to address objectives and scope of protection and that exceptions and limitations, as well as the issue of duration of protection, must be dealt with in due course. It recalled that the Committee had worked on the interplay between intellectual property and TK, TCEs and GRs for more than eight years and that significant achievements had been made during this time. It was however of the view that a lot of work was still to be carried out. Many difficult questions regarding the essence of the sought protection and its interplay with existing intellectual property rights needed to be analyzed and answered. The Delegation of Sweden, speaking on behalf of the European Union and its Member States, was ready to engage constructively in this work and endeavor to reach progressive results that would be acceptable for all WIPO Member States.

37 The Delegation of Algeria, speaking on behalf of the Arab Group, congratulated the Chair and thanked his predecessor. It also expressed its gratitude for the presence of the Director General and the importance that he gave to the work of this Committee. It warmly welcomed the renewal of the Committee's mandate for the next biennium 2010-2011 and added that this mandate was based on the very clear assumption that negotiations would now take place on the basis of texts related to documents WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5 and WIPO/GRTKF/IC/11/8(a). It also said that the mandate established a very clear work agenda with a very precise schedule including IWGs. It hoped that this renewed mandate would mean an improvement to the Committee's work and invited all Member States to adopt more flexible positions in order to permit the Committee to make progress in its work and to achieve its objectives, i.e. to establish a legal instrument. It was of the view that the new mandate foresaw the establishment of a legal instrument as an international legally binding instrument. Such an international legally binding instrument would represent the most effective way of protecting GRs, TK and TCEs of the local and indigenous communities living in developing and developed countries, and might re-establish a balance that had been lost in the IP international system and WIPO. It noted that many existing IP conventions considered any infringement of IP as an offence and provided for protection of patents, copyrights and so on. It nevertheless acknowledged that there was a great deal of cultural diversity and traditional knowledge which were constantly exposed to infringements. It expressed the hope that Committee would put an end on this unbalanced situation. The Delegation of Algeria, speaking on behalf of the Arab Group, welcomed the idea of having intersessional meetings which would enable the Committee to achieve its objectives and to prepare the legal instruments of protection of GRs, TK and TCEs. It paid tribute to the Voluntary Fund and encouraged Member States to contribute to it.

38 The Delegation of Cambodia welcomed the renewal of the mandate of the Committee for the next biennium. It believed that the extended two years would allow the Committee to complete its work in looking for an agreeable solution to internationally ensure effective protection and appropriate use of TK, GRs and TCEs, adding that TK, GRs and TCEs were of significant value for the developing countries and in particular the LDCs. In order to reach this agreeable solution, it urged the Committee's Member States to pursue texts based negotiations on these three subjects as provided for by the new mandate. It also believed that all Member states would be able to compromise on the different positions and pay more consideration on the mentioned areas, including the drafts of policy objectives, which could set common general directions for protection and provide a consistent policy framework, general guiding principles that would ensure consistency, balance and effectiveness of the substantive principles, and finally specific substantive principles, which could define the legal essence of the provided protection. It emphasized that it attached great importance to the development of an effective international protection of GRs, TK and TCEs and that the full support from all member states and international organizations, especially WIPO, was needed in order to achieve this goal.

39 The Delegation of Mexico expressed its satisfaction with the decision adopted by the WIPO General Assembly as a result of which the Committee’s mandate had been extended. The renewal of the Committee’s mandate was fundamental to achieving the adoption of an international legal instrument or instruments centered on protecting TK, TCEs and GRs. The work of the Committee should be mainly focused on defining a methodology to be used during the next two years so that the 2011 WIPO General Assembly voted in favor of holding a successful diplomatic conference at which the Organization’s Member States would be presented for consideration with a text or texts sufficiently prepared so as to obtain the necessary ratifications for the entry into effect of the final document or documents. It opined that participants in the Intersessional Working Group meetings should be experts from the respective countries appointed by their governments. These meetings should be open to the participation of the representatives of indigenous peoples and other accredited observers. Intersessional Working Groups may not take decisions, but only make recommendations and/or prepare conclusions for submission to the Committee. It underlined the importance of documents WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5 and WIPO/GRTKF/IC/11/8(a), specifying that their content should be revised, updated and contextualized in the light of the Committee’s concerns. It stated that Mexico had a rich biological diversity and had a large tapestry of cultural expressions. Mexico was a pluricultural nation originally maintained by its indigenous peoples, and its national laws protected and promoted the development of its languages, cultures, practices, customs, resources and specific forms of social organization. It stated that the current consultations with 62 indigenous peoples on the form of protection for TK, TCEs and their associated GRs were at a very advanced stage. It hoped to finalize consultations the following year. It expressed its readiness to continue examining the tabled proposals and to propose alternatives, as it had done during the whole process in a spirit of helping the Committee reach a successful conclusion to its work.

40 The Delegation of Indonesia informed the Committee about the proceedings of the like-minded countries (“LMCs”) meetings on GRs, TK and TCEs that had taken place in Montreux (Switzerland) on October 29 to 30 and in Bali (Indonesia) on November 23 to 27, 2009. It said that the LMCs had had constructive discussions and exchange of views on the relevant issues. They reiterated their commitment to start text-based negotiations by building on the three WIPO documents as cited in the decision of the WIPO General Assembly in October 2009, namely documents WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5 and WIPO/GRTKF/IC/11/8(a). The LMCs had examined those documents and noted that the first two documents on TCEs and TK were already well-advanced and provided sufficient material for commencing negotiations, while the third document on GRs contained a list of options that required further work. Both meetings emphasized that the issues under discussion in the Committee complemented and did not undermine the processes being undertaken in other fora, especially the negotiations under the framework of the CBD and in the WTO. The Delegation of Indonesia said that the LMCs expressed their commitment to continue discussing among themselves to vigorously pursue the establishment of an international legal instrument(s) to ensure the effective protection of GRs, TK and TCEs. LMCs encouraged dialogue among countries of different groups to bridge differences in order to expedite the negotiations in the Committee and the IWGs sessions.

41 The Delegation of the Islamic Republic of Iran associated itself with the statement made by the Delegation of Yemen on behalf of the Asian Group and by the Delegation of Indonesia on behalf of LMCs. It noted that over the past few years the existing IP system had come under considerable criticism for its failure to prevent the misappropriation of TK and for being unfair and unbalanced. It stressed the fact that whereas the technological innovations were highly protected, multinational corporations continued to misappropriate GRs and TK for their commercial gain, without providing a just reward to the right holders. It added that the IP system had even facilitated the misappropriation and use of TK by multinational corporations, mentioning that a large number of patents had been granted on GRs and knowledge obtained from developing countries, without the consent of the legitimate owners of these resources and knowledge. It was of the view that the only option to change the existing unfair trend was an urgent establishment of new norms and binding rules such as securing prior informed consent, equitable benefit sharing and the concept of collective rights regarding GRs, TK and TCEs. It added that the new rules should be incorporated within the IP regime in order to redress unbalance and prevent bio-piracy and misappropriation of TK. It stated that there was a need to create a sui generis protection system of TK with a view of its fair use and commercialization at the international level. It noted that for some developing countries GRs, TK and TCEs were considered as the only potential resources for their sustainable development. It also said that the absence of binding instruments in these areas affected developing countries, had reduced their competitiveness in international markets and hampered their development. It believed that the protection of the heritage of ancient civilizations, as a manifestation of human TK and foundation of cultural heritage within countries, should be ensured through legally binding instruments. It urged the Committee to change the dominant paradigm of the IP system and make it more fair, balanced and development oriented. It said that without such a change developing countries would not be able to use and rely upon IP for their development. It welcomed the decision of the General Assembly of WIPO to renew the Committee's mandate as a new momentum. This new mandate requested that the Committee undertake text based negotiations with the objective of codifying legally binding instruments to fill in the existing legal gaps with new rules and regulations. It also welcomed the decision of the General Assembly regarding the working documents as they constituted a good base for starting the negotiations. It was of the view that given the different nature of GRs, TK and TCEs it would be practical to concentrate the Committee's work on drafting three separate treaties in these three areas. It argued that this approach would ensure the coherence and substantive integrity of the final products. It had no doubt that this process would be challenging and that success would only be achieved through partnership, cooperation and goodwill of all Member States. The Delegation of the Islamic Republic of Iran said that it would spare no collaborative efforts in order to boost the atmosphere of constructive dialogue with Member States in achieving the objectives of the Committee.
42 The Delegation of Peru believed that the Committee’s renewed mandate was of vital importance as it had enabled the negotiation process to start with a view to producing a text of a legal and international instrument (or instruments) which ensured protection of GRs, TK and folklore. It stated that its position as a megadiverse country and a source of vast TK and TCEs had enabled Peru to exercise countless efforts to ensure the conservation, protection and promotion of its resources and to avoid biopiracy involving Peruvian biological resources and the collective knowledge of its indigenous peoples, by means of a sui generis law enacted in 2002 in relation to TK, and by means of actions carried out by the National Commission against Biopiracy. However, such efforts at the national level had not been sufficient, as it had noted various cases of misuse or misappropriation of TK associated or not with GRs and TCEs. That was why it legitimately hoped for a legally-binding international instrument which would ensure the protection of its biodiversity and related knowledge. It supported the statement made by the Delegation of Ecuador on behalf of GRULAC and expressed its specific interest in ensuring that the benefits derived from the appropriate use of the IP system also be extended to developing countries, as provided for in WIPO’s Development Agenda. It urged other Member States to contribute constructively to that process by means of proposals which would enable a text of a legally-binding international instrument to be produced, according to the Committee’s renewed mandate. It stated that the work agenda was considerable and available time limited, and therefore the substantive aspects of the negotiation should be swiftly entered into. It stated that the Intersessional Working Group should comprise all members in order to secure an inclusive and participatory negotiation process in which all the interests were duly reflected. The Intersessional Working Group should examine the three issues of the Committee in parallel, taking into account the level of progress achieved in each, as well as possible developments in other fora, such as the Convention on Biological Diversity. Work should be carried out with clear objectives and with the determination to achieve a successful outcome. It urged all Member States to show the necessary flexibility to fulfill the Committee’s mandate. It recalled that in the final analysis what was sought was to develop a better IP system of benefit to all and that the successful outcome of those negotiations would enable that end to be reached and to be of benefit in particular to the poorest indigenous and local communities in developing countries.
43 The Delegation of Bolivia (Plurinational State of) supported the statement made by Ecuador on behalf of GRULAC. It expressed the expectation and hope that finally the multilateral intellectual property system would pursue a task greatly needed by developing countries, i.e. that of developing sui generis legal instruments which would duly protect peoples’ GRs, TK and TCEs. It stated that it had constitutional provisions which were in line with new developments in international law, such as the United Nations Declaration on the Rights of Indigenous Peoples dated September 2007. However, that had not been enough. Piracy and theft of IP from its peoples persisted. It was necessary for the international intellectual property system to commit to providing the requisite protection, and as such it was necessary to develop new sui generis mechanisms for suitable protection. It encouraged all Member States, in the context of the new mandate, to pool their efforts for the benefit of all, but particularly for indigenous peoples.
44 The Delegation of the Republic of Korea underscored the importance of the recognition and respect for collectively generated innovation and creativity by indigenous people. It looked forward to discussions that would deepen understanding and make progress on the issues of GR, TK and TCEs. It was highlighted that strong political will alone could not provide a solution for the protection of GR, TK and TCEs. The Delegation advised on the importance of discussions based on legal, logical and rational thinking rather than on the interests of each Member State. To this end, the Delegation of the Republic of Korea welcomed the prospect of expert discussions in the inter-sessional working group and expected to have more substantive talks on this issue. The Delegation further looked forward to share experiences with Member States that already had a protection system for GR, TK and TCEs.

45 The Delegation of Thailand aligned itself with the statement made by Yemen on behalf of the Asian Group. The Delegation welcomed the successful renewal of the IGC’s mandate with a clearly defined work program and timeframe. In the past 9 years, the IGC had gathered extensive information on various aspects regarding the protection of GR, TK and TCEs, resulting in a better understanding of this important issue. It was stated that it was time to begin text-based negotiations, building upon the documents WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5 and WIPO/GRTKF/IC/11/8A. The Delegation further welcomed the inclusion of the intersessional working groups under the new mandate, and looked forward to actively participating in the process. The Delegation was of the view that the working groups should be transparent and effective, in order to assist the IGC in realizing satisfactory and concrete outcomes that would lead to a legal international instrument (or instruments). Such outcome, it was added, would complement on going processes in other fora, especially the CBD and the WTO.

46. The Delegation of Guatemala supported the general statement of GRULAC made by the Delegation of Ecuador. It reiterated what had been said at the last General Assembly, that the protection of TK, TCEs and GRs was an issue which generated great interest and one of the most sensitive components of its government’s social agenda, given that the Guatemalan indigenous population accounted for 41 per cent of the total population and comprised 22 different communities, each with its own specific cultural heritage and traditional knowledge. It stated that the outcomes which would be achieved on that issue would have a significant impact on a large proportion of the generally marginalized and impoverished population. It emphasized the work carried out by the Group of Like-Minded Countries, in which it participated and clarified that the Group had set itself the objective of developing and bringing about a search for formulas which would grant international legal protection to TK, TCEs and GRs, pursuing prompt and effective implementation of the mandate given by the General Assembly. It thanked the Government of Indonesia for facilitating the process of coordinating the Group and its work. The Delegation stated that the work of Indonesia had channeled the technical impetus which the African Group had unerringly brought to the Committee.

47. The Delegation of India stated that the terms of reference of the IGC were robust and indicated a clear recognition by Member States of the need for effective protection for TK, TCEs and GRs towards development of international legal binding instrument or instruments that would be taken up by a Diplomatic Conference in 2011. It was stated that early and immediate initiation and time- bound conclusion by 2011 of the development of an international legal instrument or instruments and their content was crucial. It was advised that protection from misappropriation and equitable benefit sharing should be based on principles that protect various forms of IP. India was a vast repository of TK, GRs and TCEs and had faced biopiracy and misappropriation related to TK and GRs for a long time. After the Turmeric patent case back in 1997 and subsequently the Neem patent revocation incident, a conscious decision had been taken by India that made accessible the vast TK in a language and format understandable to patent examiners at a global level so as to establish claims of prior art. This repository of information had helped India identify 35 patent applications at the European Patent Office (EPO) which were based on prior art and the EPO had set aside its earlier decision to grant patents in two cases and six applicants voluntarily withdrew their applications. In addition, India had taken a number of other steps to initiate a legislative framework that protected this knowledge. This included a number of provisions in the National Biodiversity Act, the Patent Act, the Forest Act and the Forest Dwellers Right Act. The Delegation further expressed that it was aware that many other Member States were facing similar problems in cases relating to biopiracy like the Monsanto Soybeans case and the Enola Bean case. It was advised that deliberations in IGC reflected the diversity amongst countries which are depositories of TK. The system of protection that is devised therefore must address both protection of qualified and non qualified knowledge. The WIPO documents reflected in the Agenda for this session were well developed save for the one on GRs which needed further work. It was highlighted that the documents were derived from the Cochin Declaration of 2006 of the Asia Pacific Policy Forum in which ARIPO had also been present. The work undertaken in the IGC on GRs needed to complement and take forward similar processes under the framework of the CBD. Finally, it was necessary to get down to discussing substantive issues. The Delegation of India looked forward to deliberations under a clear mandate that would carve out a definite area of work for the Intersessional Working Groups.

48. The Delegation of the Philippines looked forward to constructively engaging with all delegations in determining the framework and modalities for the conduct of intersessional working groups to facilitate the elaboration and drafting of an international legal instrument that would effectively provide a legal regime to prevent the misappropriation of GRs, TK and TCEs. It was suggested that this would address the centuries old neglect of indigenous peoples, to correct historical wrongs by according them the long deserved recognition of their distinct cultures and ways of life, and allow them to enrich their lives by sharing the benefits of their creative genius.

49. The Delegation of Pakistan associated itself with the statement made by Yemen on behalf of the Asian group and thanked Indonesia for having hosted the meetings of the Like-minded Group. The new mandate provided to the IGC by the WIPO General Assembly to undertake text-based negotiations with the objective of reaching agreement on text of an international legal instrument (or instruments) which will ensure the effective protection of GRs, TK and TCEs would be realized in actuality and that it would not be a false hope to the aspirations of the millions of people whose rights are constantly being misappropriated. The Delegation’s preferred option was for a legally binding international instrument against misappropriation of GRs, TK and TCEs based upon documents WIPO/GRTKF/IC/9/4 and WIPO/GRTKF/IC/9/5 and other relevant documents that provided a sound basis for text-based negotiations. It was stated that there was no need to reinvent the wheel in putting different options on the table. A lot of hard work had already gone into the process and the IGC could develop such documents. The Delegation reiterated that the role of inputs that would be received from the Intersessional Working Group Sessions would be vital to reaching a result on the text-based negotiations.

50. The Delegation of Sudan highlighted the importance of GRs, TK and TCEs and their protection. It was explained that the African Group had been able to establish a framework for the protection of GRs and TK which had created a Sudanese law. The Delegation of Sudan looked forward to similar measures within the framework of the IGC.

51. The Delegation of Nepal described Nepal as multi-ethnic, multi-lingual, multi-religious and multi-cultural. There were 100 castes and indigenous nationalities and different religious groupings in Nepal. The Delegation looked forward to implementing the decisions taken by the Committee.

52. The Delegation of Venezuela (Bolivarian Republic of) supported the statement made by Ecuador on behalf of GRULAC. It stated that from a legal viewpoint misappropriation was a concept that came from criminal law and that it implied a loan of a good which was not returned and an abuse of trust of the legitimate owner. It said that, in the majority of cases related to GRs and TK, there had been a shameless plundering of such knowledge and resources, which in criminal law had a different name and description. It requested that the euphemism for a truly shameful situation be corrected, as that would give the matter its true importance and the seriousness of the past and present situation with such resources would be understood.

53. The Delegation of Egypt supported the statement made by Senegal on behalf of the African Group. The African Group had worked tirelessly in the last session in order to advance the objectives of the IGC. The Delegation also supported the statement made by Algeria on behalf of the Arab Group and the statement by the representative of Indonesia on behalf of Like-Minded Developing Countries Group. The renewal of the IGC’s mandate was a step forward in the work that had been going on for the last ten years. The Delegation stated that a new era had begun involving negotiations on the basis of texts, to produce international legal instruments. It was envisioned that a Diplomatic Conference of an international nature would be held by the end of the mandate to sign one or several conventions that would guarantee the protection of GRs, TK and TCEs. The Delegation highlighted the importance of recognizing the universality of IP that would not ignores the most vulnerable countries which had the greatest need, particularly those in the developing world. Three areas of the mandate should be emphasized. These were: (1) the mandate would endeavor to build on what had been achieved in previous years in order to avoid going back over issues that had already been discussed; (2) the texts that would form the basis of the negotiations were the documents WIPO/GRTKF/IC/9/4 on TCEs, WIPO/GRTKF/IC/9/5 on TK document and WIPO/GRTKF/IC/IC/11/8(a) on GRs; (3) the Intersessional Working Groups should be made up of experts who held the necessary knowledge and expertise in the relevant domains. Developing countries had an incredible wealth of GRs, TCEs and TK and for this reason had been the victims of piracy and misappropriation. It was explained that discussions during the previous sessions of the IGC had highlighted the weak points of the international IP system. The system was incapable of providing the necessary protection of GRs, TK and TCEs. There was no necessary coordination between the different international instruments. An appeal was made to Member States to produce an efficient convention that would allow protection of GRs, TK and TCEs. Participation of local and indigenous communities in the work of this Committee and the Voluntary Fund were supported. The Delegation also reaffirmed the importance of having the documents in Arabic as well as those in the other languages. It appealed for the documents to be made available in all six WIPO languages.

54. The Delegation of Bangladesh endorsed the Asian Group statement made by the Delegation of Yemen. Concerns were expressed that the IGC was yet to make much headway in realizing its targeted objectives. Concrete outcomes were needed in the form of a legally binding international instrument or instruments. Protection measures at the national level alone were not enough to safeguard the interests of the holders of GR, TKs and TCEs in developing countries, especially in LDCs. The Delegation was encouraged by the stronger mandate given to the IGC. It was agreed that it was time for the examination of texts and negotiations towards a consensus on an international legal instrument or instruments for effective protection of GRs, TKs and TCEs. The IGC was advised to utilize the Intersessional Working Groups by having focused, topical and in-depth negotiations among experts in order to deepen and advance its work. The Delegation highlighted that the WIPO Secretariat should provide more assistance to LDCs in specific areas especially for the strengthening of relevant national institutions and support in formulation of national legislations to protect their GRs, TK and TCEs from misappropriation. The WIPO Secretariat was advised to pay particular attention to the LDC Ministerial Declaration adopted earlier in 2009. This Declaration contained a number of ideas that could be pursued further by WIPO to bring concrete benefits to LDCs in such areas.

55. The Delegation of Australia associated itself with the statement made on behalf of Group B by the Delegation of Switzerland. WIPO was facing a range of challenges as it continued to work to improve the efficiency and effectiveness of its operations that would make the IP system fit for purpose in the global knowledge economy of the 21^st century. As reflected in the work of the IGC, there was a need to consider how the IP system interacted with and supported all forms of knowledge, not just those developed in the heart of the industrial age. Additionally there was a need to find an appropriate balance between the rights of the owners of IP and the users. Australia remained committed to working positively, and in good faith, with all Member States, the Director General and the Secretariat, NGOs and representatives of indigenous communities, so that WIPO could meet the challenges of improving the international IP system in ways that balanced the interests of all. The Delegation stated that Australia had significant interests in the work of the IGC. The Delegation explained that Australia was a major biodiverse country with vibrant and living indigenous cultures with a strong link to the land, including through their cultural expressions. Domestically, Australia had strong Ministerial support for the work of the IGC as reflected by its support for the UN Declaration on the Rights of Indigenous Peoples. For an efficient, effective and transparent mechanism to protect TK, TCE and GRs, the Australian Delegation suggested a system that (1) balanced the needs of the owners, including traditional owners, and the users of the system; (2) supported access, where appropriate, to TK, TCEs and GRs so they could be used for the benefit of all communities; and (3) ensured benefits were shared fairly and equitably, particularly without detriment to indigenous cultures and communities. The IGC’s issues crossed the development divide and regional interests. Pursuing such issues on a North-South basis was unlikely to deliver outcomes which had broad support, and without that broad support any outcome was likely to be ineffective. The Australian Delegation acknowledged that, as reflected in the very informative presentations from indigenous observers, which had highlighted the wide ranging national arrangements that different indigenous peoples operated within, the task ahead was not an easy one. It was suggested that the work during the Intersessional Working Groups and the future IGC sessions be targeted on outcomes and focused on substance. The Delegation reassured that it had come prepared for substantive discussions. It was suggested that discussions be directed towards addressing key policy, legal and technical issues, and also towards gaining a better understanding of the needs and issues of indigenous communities. The work program needed to be elaborated and developed to allow fundamental questions on scope, content and nature to be addressed effectively. With such a focused approach, broad international policy mechanisms, while difficult to achieve, were both possible and valuable. There was a need to take the opportunity provided by the IGC to both help guide and develop coherent domestic responses, and ensure fair, equitable, consistent and transparent treatment of TK, TCEs and GRs internationally.

56. The Delegation of Brazil stated that, as one of the megadiverse countries, it had been actively participating in all the fora related to TK, TCEs and GRs and that the issues were fundamental to Brazil. The Delegation looked forward to the work to be undertaken by the IGC, wishing that it would be complementary and not undermine the work being undertaken in other fora. Text-based negotiations should begin by building on the three WIPO documents mentioned in the mandate given to this Committee by the General Assembly, namely documents WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5, WIPO/GRTKF/IC/11/8(a) taking into account the different levels of the maturity of the documents. The Delegation emphasized the need for a legally-binding framework that would put an end to the biopiracy and misappropriation that had been witnessed around the world. The Delegation referred to developments in Brazil in this regard. By virtue of a national legal instrument that implemented the CBD in June 2000, access to Brazilian GRs and associated TK needed authorization by a Council which was under the Ministry of Environment. The authorization had to be presented to the Brazilian Patent Office in order to proceed with examination of any patent applications. The Delegation explained that the granting of a patent involving access to GRs and associated TK in Brazil was completely conditional upon the previous authorization for access.

57. The Delegation of Trinidad and Tobago supported the statement delivered by the Delegation of Ecuador on behalf of GRULAC. It was explained that the extension of the IGC’s mandate was of great strategic importance to Trinidad and Tobago, which was rich in considerable IP assets in the form of traditional healing practices as well as indigenous cultural expressions, much of which formed an intrinsic part of the lexicon of Trinidad and Tobago and many of which had been catalogued in a Trinidad and Tobago dictionary. The Delegation expressed the need to stave off the perverse practice of the unauthorized and unfair extraction and misappropriation of TK and TCEs. It was explained that the government of Trinidad and Tobago had launched decisive action to quell such practices. As part of a regional initiative by WIPO, Trinidad and Tobago had also concluded national consultations on the establishment of a Caribbean Regional Framework for the protection of TK, GRs and TCEs. The Delegation stated that development of an international instrument was important as a means of preventing any future misappropriation, including the granting of wrongful patents. It was explained that the government of Trinidad and Tobago had suffered such losses before and was on a battle against such practices in respect of a national music instrument, the steel pan.

58. The Delegation of El Salvador reiterated the statements made by its Government throughout the process of the Committee work and also the statement made by Ecuador as Regional Coordinator. It expressed its interest in reaching a successful conclusion in the negotiations which had started in September 2009, with the conviction that an international instrument would be produced. It reiterated its flexibility as regards the form to adopt so as to achieve the objective.

59. The Delegation of Turkey expressed agreement with the statement made by Switzerland on behalf of Group B. The issues discussed by the IGC were important for Turkey as a country rich in GRS and culture. The Delegation looked forward to a binding instrument that would protect TK, TCEs and GRs. It was explained that in the past the IGC had suffered from a lack of focus and direction. The Delegation hoped that the new Intersessional Working Groups would facilitate the IGC’s work by giving it greater focus. The key issues to be discussed included ownership of the rights, definitions, protection method at the national and international level, and exceptions and limitations. It was suggested that guidance be given to the Member States legislating on these issues at the national level and as well as inclusion of minimum standards for the protection of TK, TCEs and GRs.

60. The Delegation of Malaysia aligned itself with the statement made by the Delegation of Yemen on behalf of the Asian Group and also by the Delegation of Indonesia on behalf of the Like-Minded Countries. The Delegation reiterated that the IGC’s work be focused on the existing work carried out using the documents WIPO/GRTKF/9/4, WIPO/GRTKF/IC9/5 and WIPO/GRTKF/IC/11/8(a). It was explained that as a megadiverse and cultural country, Malaysia was equally concerned with the phenomenon of biopiracy as well as the misappropriation of TK and GR. The Delegation stated that the Intersessional Working Group would be important in facilitating and ensuring the effective protection of GRs, TKs and TCEs in time for the 2011 General Assembly which would decide on convening a Diplomatic Conference.

61. The Delegation of Morocco supported the statement made by the Delegation of Algeria on behalf of the Arab Group and the statement of Senegal on behalf of the African Group. The Delegation was pleased by the extension of the mandate of the IGC. The Delegation affirmed that this was a new step forward and that the work of the IGC needed to be built upon developments reached in previous mandates despite the fact that there had been no clarity as regards the target. It was explained that, with the clarity of the new mandate, progress had to be made. The Delegation highlighted the importance of the protection of TK, GRS and TCEs for Morocco which had worked in order to put in place legislation for the protection of GRs, TCEs and TK. Such national legislations were ineffective in the face of piracy of TK and TCEs which crossed borders. To deal with the situation, international rules were needed to combat piracy and illegal ownership of TK, GRs and TCEs. The Delegation welcomed the establishment of the Working Groups and suggested that they should remain closed in order to smoothly advance the objectives of the IGC. The Delegation also welcomed the participation of indigenous peoples in the work of the IGC and supported the role of the Voluntary Fund in assisting the representatives of these peoples to attend the meetings. The Delegation looked forward to a legally binding instrument (s) in order to protect TK, GRs and TCEs

62. The Delegation of Japan supported the statement made by Switzerland on behalf of Group B. The importance of GRs, TK and TCEs was highlighted and the Delegation had been engaged in the discussion with a constructive spirit. The Delegation, therefore, welcomed the renewal of the mandate of the IGC. The protection of GRs, TK and TCEs were being discussed in various international fora. The Delegation was of the view that the IGC was the best forum to discuss the relationship between these issues and IP because of its expertise in the field of IP. The Delegation further suggested that the important task of the session was to reach the consensus on the arrangements for future work under the renewed mandate. Establishment of a common understanding on fundamental issues such as definitions and the subjects and objects of protection were an indispensible basis for further collaboration to fulfill the extended mandate. It was explained that there were a lot of useful materials previously prepared including the document concerning a list of ten substantive issues. It was advised that the IGC utilize such materials to the maximum extent to render its work effective.

63. The Delegation of the United States of America (USA) associated itself with the statement made on behalf of Group B. The Delegation was pleased that the mandate of the IGC had been renewed. It explained that at the 12th session of the IGC, the members of the IGC had requested the Secretariat to prepare two sets of working documents. These documents had described existing obligations, provisions and possibilities at the international level for the protection of TK and TCEs, as well as possible “gaps” in the international framework, and related considerations, and had described possible options to address such gaps. The Delegation believed that such documents remained important tools that would help facilitate discussions to continue the work in the 15th session. It was explained that the “List of Options” also remained a useful basis for continuing the work on GRs, along with the useful factual update on international developments in this area of the IGC’s work. The Delegation explained that a critical part of the mandate, namely to “continue its work,” should not be overlooked. It was explained that by adhering to this part of the mandate, a sound foundation for “text-based negotiations” would be built upon and lead to meaningful end results.

64. The representative of the Mbororo Social Cultural Development Association (MBOSCUDA) expressed the hope that significant progress be made toward the achievement of an international binding instrument or instruments for the protection of TK, TCEs and GR during the present session of the Committee in the framework of text based negotiations. He requested that the Committee invite indigenous experts to participate in the intersessional working groups. He thanked the WIPO Voluntary Fund for its continuing support of the participation of indigenous and local community representatives and encouraged Member States and other international organizations to make more contributions to the Fund. It welcomed the renewal of the Committee's mandate.

65. The Delegation of the Democratic People’s Republic of Korea regarded TK, GR and TCEs as important issues in terms of socio-economic development. It added that its Government had initiated the formulation of a new regulation on the protection of TK. It reminded that under the deep attention of its Government, efforts to discover, collect and use TK were made by many institutes, in accordance with their characteristics, including the Ministry of Culture, the Ministry of Commerce, the Invention Office, the Academy of Science, the Academy of Social Science and the Academy of National Medicine, etc. It highlighted the fact that patent officers had examined many patent applications related to TK through TK databases. It said however that the questions related to the content and the method to establish its national TK database were not yet clarified and that the regulation related to TK protection was not yet fully framed. It stressed that the early adoption of a legally binding could facilitate the process of formulating its national TK protection regulation. It added that it was fully committed to the work of the Committee.

66. The Delegation of Nigeria supported the position of the African Group and expressed its willingness to engage constructively in the present Committee and the fulfillment of its new mandate. It said that it was fully committed to text-based negotiations that would include intersessional working groups and would lead to an international legal instrument or instruments, under a clearly defined work program.

67. The representative of the Secretariat of the Convention on Biological Diversity (CBD) updated the Committee on the ongoing activities under the CBD of interest to the work of the Committee with an emphasis on the ongoing negotiations of an International Regime on Access and Benefit-sharing, following up on a call by Heads of States and Governments at the World Summit on Environment and Sustainable Development. He said that these negotiations embarked on the implementation of the new mandate of the Committee. He reminded that the Conference of Parties to the CBD instructed the relevant Subsidiary Body, namely the Working Group on Access and Benefit-Sharing, to continue and finalize these negotiations prior to the tenth meeting of the Conference of Parties that was taking place in October 2010. He reported that this Working Group has met twice since then and has made considerable progress in the negotiation of the Regime and, at its most recent meeting in November 2009, succeeded in putting together, for the first time, a single negotiating text embodying all the chapters and elements of the International Regime. He added that the objective of the Working Group that would meet in March 2010 would be to reach a consensus on the text of the International Regime with a view to its submission for adoption by the Conference of the Parties in Nagoya in October 2010. With regard to the nature of the International Regime, he said that the Co-Chairs of the Working Group pointed out that there was a preponderant understanding among Parties that the negotiations aim at finalizing a draft protocol to the Convention on Biological Diversity. He reported that the chapters dealing with TK and capacity had reached a very advance stage of negotiation and that there was broad agreement on the wording of provisions in the International Regime to ensure that the utilization of TK associated with GR was subject to the prior informed consent of the indigenous and local communities concerned and to mutually agreed terms for the sharing of benefits deriving from the use of such knowledge. He said however that more work was needed with respect to the scope of application of the International Regime, which involves clarifying the exact meaning of some key terminology and concepts, as well as to other three main components, namely fair and equitable benefit-sharing, access, and compliance. With regard to benefit-sharing and to access, he stated that the concepts under consideration included prior informed consent and mutually agreed terms. He added that the development of international minimum conditions and standards and the development of model clauses for material transfer agreements were also under consideration, as well as the possibility of having simplified access rules for non-commercial research and taxonomy. With regard to measures to monitor and enforce compliance with national ABS requirements once the genetic resources had left the country of origin, he pointed out that the negotiators were considering measures and tools including clarification of the concepts of misappropriation and misuse; identification of best practices and code of conduct for groups of users; the possible introduction of internationally recognized certificates issued by competent national authorities; the possible introduction of internationally recognized certificates issued by competent national authorities; the possible introduction of disclosure requirements for patent applications; and measures to facilitate access to justice. The representative of the Secretariat of the CBD highlighted the fact that these negotiations were taking place at a critical juncture in the life of the CBD and against the backdrop of the International Year on Biodiversity that would start on January 1, 2010. He stated that many of the measures contemplated in the International Regime on Access and Benefit-sharing were related to the work of the Committee and that therefore the two processes needed to cooperate closely with a view to ensuring harmonization, mutual support, and to avoid overlap. He assured the Committee of the full cooperation of the Secretariat of the CBD in this regard, as the Secretariat of the CBD had enjoyed and appreciated an excellent working relationship with WIPO over the years. He was looking forward to continue in this direction.
68. The representative of the African Regional Intellectual Property Organization (ARIPO) said he was optimistic that the IGC would witness significant progress towards the development of an international instrument or instruments during the next biennium. He stated that this outcome would enable knowledge holders to benefit from their TK and TCEs, to appropriate the fruits of traditional creativity and know-how, and to promote the wider use and recognition of the knowledge, while ensuring that collective custodianship and ownership are not undermined by private intellectual property rights and curtail the continued misappropriation of their knowledge. He recalled that during the past nine years, ARIPO had participated in the Committee's debate that had led it on a long journey without concrete outcomes. He welcomed therefore the decision of the General Assembly for the Committee to focus on text-based negotiations with the view to developing international instrument or instruments for a possible diplomatic conference by 2012. To achieve this noble objective in a pragmatic manner, he added that it would be essential for the Committee to provide a road map or clearly spell out the rules of engagement for constructive deliberations of the texts as contained in documents WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5 and WIPO/GRTKF/IC/11/8(a). He urged that issues related to the understanding of what was referred to as text-based which some Delegations had difficulties with during the previous Committee's session. He stated that there was a need to clarify what texts would form the basis for the negotiation, what would be the work plan and methodologies required for the work of the IWGs, in order to ensure transparency and openness as well as enable the Committee to engage constructively and achieve tangible outcomes. He reminded that ARIPO and its sixteen Member States had committed themselves to the international debate on the protection of these resources and taken proactive steps towards elaboration of regional and national legal and policy frameworks for their protection. He added that some time ago, ARIPO, uncertain of the immediate outcome of the IGC process, revised its Protocol on Patents and Industrial Designs within the Framework of ARIPO to take account of the protection of TK. He recalled that this interim measure was found to be inadequate for the protection of these resources and that therefore the ARIPO Secretariat was mandated by its supreme organ, the Council of Ministers, to develop a regional legal instrument to provide effective protection of TK and TCEs as well as use it as a model for the Member States to develop their national legislations. He informed the Committee that following this ministerial decision, ARIPO with technical and financial assistance from WIPO had developed a regional Protocol and Implementing Regulations for the protection of TK and TCEs. At the Twelfth Session of the Council of Ministers of ARIPO, held in Gaborone, Botswana from November 26 to 27, 2009, Ministers considered the Draft Protocol on the protection of Traditional Knowledge and Expressions of Folklore and agreed that ARIPO should hold a Diplomatic Conference in Namibia in March or April, 2010 for the adoption of the Protocol. The representative of ARIPO also said that the Ministers had also requested the Government of Botswana, the current chairman of the Council of Ministers of ARIPO to officially submit the ARIPO Protocol to WIPO as a working document for the normative process of the Committee. He hoped that this would be done as soon as possible and stated that the Protocol addressed the objectives and principles underlying the interplay between IP and GRs, TK and TCEs. He was of the view that the Protocol when it enters into force would prevent misappropriation, empower knowledge holders to exploit their knowledge and provide legal certainty for the so-called regional TK and Folklore that are of transboundary or multicultural nature. He hoped that the significant achievement made by ARIPO at the Regional level will serve as a stimulus for the Committee to work towards the fulfillment of its mandate, i.e. the elaboration of the international instrument or instruments for protection.
69. The Representative of Tupaj Amaru stated that there had been nearly eight years of discussions on TK and GRs but not much progress had been made. What it was hearing today was what it had heard every year: broad commitments but nothing concrete. It had observed, on the one hand, countries of the South, poor, underdeveloped countries, which wanted an international instrument to protect TK and GRs and, on the other hand, the systematic opposition of rich countries which did not want a legally-binding instrument. The three tabled documents had been drafted more than three years previously. It expressed the hope that indigenous peoples would participate in the negotiation process, not only with broad abstract statements but rather with concrete, specific proposals, with substantive contributions to the negotiation process, and taking into account the possibility of submitting amendments. The Representative considered that the fundamental problem was that it was faced with the major strategic economic interests of major pharmaceutical and agri-food companies.

70. The Representative of FILAIE believed it was vital that negotiations were text based. It stated that it agreed on moving on to substantive discussions. It reminded governments that IP laws were magnificent texts but, as that was a challenging issue to resolve, they needed to be much more flexible and agile. The source of law was not only the written rules which might emanate from a State or group of States in international treaties but also their practices and customs.

71. The representative of the International Chamber of Commerce (ICC), in a written intervention, supported the Director General’s plea for a business-like approach in line with normal practice in text-based discussions. He was pleased that the WIPO General Assembly in October had been able to find consensus, to continue discussions of these very important topics. Had this not been possible, much valuable work could have been lost, or delegated to fora in which it might have received less attention from those less well-informed about IP. He was of the view that WIPO was the right place to discuss IP and where the expertise was. He hoped that the discussion would be fruitful and the delegations be flexible and constructive, and avoid as far as possible reiteration of well-understood positions. He acknowledged that all agreed that biopiracy was wrong, and should be stopped. But the Committee was far from any complete agreement on what biopiracy was, and whether, for example, further development of information or materials that had been widely circulated could ever properly be considered as biopiracy. He added that business developed products and services that served the needs of the public. In so doing, he said that business may use traditional knowledge and genetic resources. He stated that business aimed to do so in a manner which respected the proper rights and reasonable aspirations of the holders and provide them with appropriate benefits. Endorsing what had been said earlier, he pointed out that there was a need for true balance between the rights of holders and those of users, as well as of society at large. He said that business could contribute its experience and expertise in using TK and genetic resources, and had firm views, based on its experience, about what arrangements were practical and workable, both for its own benefit and that of others. He acknowledged that ICC views might not be fully accepted, but they should at least be heard. As far as the IWGs were concerned, he said that IWGs might be an opportunity for ICC to intervene orally. He noted that the intersessional meetings would provide an important impetus to the work of the Committee and hoped that there could be wide participation from informed experts of all kinds. He made a strong plea therefore for representation from business within the IWGs, since business would have the important responsibility of respecting the rules that an international instrument would put in place. He stated that more discussion was needed about principles. He endorsed the statement of the Delegation of Japan that had suggested that this discussion on the principles might proceed in parallel with text-based negotiations. A far as the process was concerned, he strongly supported the proposal made by the Delegation of Switzerland on behalf of Group B that opening statements should be avoided as far as possible, unless made on behalf of regional groupings, and that they should be replaced or supplemented if necessary in writing. He added that this principle was even more forcibly applicable to observers – which was why this intervention had been made in writing.
72. The Representative of the Coordination of African Human Rights NGOs (CONGAF) stated that the African continent was the continent which suffered the most from the disappearance of languages, and that those were one of humanity’s riches and heritage. It stressed the importance of the Committee and the opportunity it had been given to save languages the world over.

73. The representative of the Maya To’Onik Association of Guatemala stated, in a written intervention, that Guatemala was a small country with an immense variety of cultures, with more than 23 ethnic groups with their own languages, customs and TCEs and TK, which constituted the fundamental elements of the cultural identity of each one of the ethnic groups. As a result of political and economic phenomena, these foundations of identity were deteriorating on a daily basis. From that perspective, the Maya To’Onik Association supported and welcomed the work being done by WIPO. In general terms, to date at the State level no specific measures had been taken in regard to TK, TCEs and GRs, although there were a broad range of national legal rules and international agreements ratified by Guatemala, which referred to IP from an individualized, commercial and westernized perspective. The subject was as yet not being discussed by academics. In Guatemala, there were registers of historical monuments and archaeologies, as well as laws and entities which protected the individual authors’ rights of the different artists and organizations which promoted the commercialization of products of the different craft expressions, and laws and entities responsible for promoting the protection of the environment, indigenous business networks, etc., but these were laws, entities and subjects which had little to do with indigenous cultural and intellectual property. The majority of Guatemalan indigenous organizations had concentrated efforts on eradicating discrimination, promoting gender equality, studying and applying customary law, etc. There were no organizations which focused on the study and defense of indigenous cultural and intellectual property in particular, and this had led to the setting up this Association. According to informal consultations with a number of indigenous authorities and leaders, indigenous cultural and intellectual property fulfilled cultural, social, spiritual and economic functions; the most important of these, however, was the spiritual aspect. TCEs, TK and GRs were “an essential part of human beings and constitute elements of spiritual interrelation”. However, they were not protected; on a daily basis, plagiarism, misuse and counterfeit copies of Maya indigenous cultural and intellectual property could be seen. In the different communities, there was an obvious urgent need for protection, although many leaders considered that the subject should be dealt with very carefully because the commercial interests of individuals could interfere with protection, a fact which was contrary to the Maya indigenous world vision since, according to the leaders, “registering and patenting mean transforming the essence of humanity into private property or into a commodity”. As regards the concepts and definitions currently being discussed at the international level, these did not fit into the Guatemalan indigenous world vision; they were western in style and they had a completely different connotation in the indigenous world vision. In Guatemala, a great deal of research was still required to be able to conceptualize and define the subjects correctly, in order to provide an appropriate connotation and perspective. Guatemalan indigenous cultural and intellectual property was based on sharing and common ownership, and not of individual ownership, as was the case in western law. To refer to the subject is to refer to collective ethnic ownership, which, in terms such as copyright, individual ownership and property, owners, holders, proprietors, public domain, etc., had different connotations in Guatemalan indigenous customary law. The Association supported the repeated suggestions made by different countries at the 15^th session regarding the preparation of a glossary; this should be prepared by indigenous experts and representatives of indigenous communities. In Guatemala to date, no position had been adopted regarding the definition of the terms TCEs, TK and GRs. The Association had for now adopted the WIPO definition of TCEs. TK had up to now been considered to be the technical knowledge of indigenous communities or peoples exclusively relating to traditional medicine, agriculture, environmental conservation, etc., and according to the Association, GRs referred to the biological diversity and TK of such resources, as well as the task of the traditional enhancement of crops and animals. TK and GRs were basically not commercial objects. For this reason, the laws of Guatemala should not be applied. It was extremely important to conduct comprehensive studies on each one of these subjects in order to determine what type of protection could be applied. Regarding TCEs, in Guatemala, there was a variety of cultural expressions such as verbal, musical, material and tangible expressions. Some were considered to be national heritage such as the Rabinal Achi dance, Maya writings such as Pop vuh, the Kaqchikeles annals, etc. However, many of the cultural expressions, mainly their designs, were imitated or forged and sold on local markets as original articles; as a result, the implicit meanings of each article were distorted. There was also an abundance of articles with original designs of indigenous communities, prepared with plastic materials produced by large industries, mainly those of basket making, pottery, kitchen utensils, etc. Equally, there were fabrics and knick-knacks, etc. produced by industries with original indigenous designs and ingredients. Each linguistic community had its own specific features and, in some cases, a TCE was shared with other linguistic communities; for example, the pottery of the indigenous peoples of Santa Apolonia Chimaltenango and of the poqomames of Chinautla from the municipality of Guatemala, the basket making of the Kaqchikeles of Chimaltenango and that of the tzutuhiles of Sololá, etc. It was important to carry out further research to determine or identify the community owning this cultural expression or to create some procedure for its registration, as appropriate. As regards the use of the term “folklore”, in Guatemala the rejection of this term was being envisaged, because it was considered to be an archaic term with negative connotations, associated with the creations of inferior civilizations. As a result, according to Guatemalan indigenous leaders, TCEs should not be referred to as “folklore”. In Guatemala, TK existed in relation to agriculture, natural medicine, ethnic veterinary science, environmental conservation, hunting, etc. This knowledge, for many indigenous communities, was more effective than that which was practiced in western culture. However, there were no entities or laws to protect TK. Rural indigenous communities were frequented by foreigners who sought information on medicinal techniques, agricultures, etc. These visitors proposed projects for cultivation and the processing of medicinal plants; however, these projects had remained only at the cultivation stage, which led to a suspicion of plagiarism of the TK in the plants. In relation to traditional medicine, there existed knowledge from supposed vocational training schools for Maya medicine, which required their undergraduates to prepare a written piece of work – a thesis – which had to establish their knowledge of the properties of a particular medicinal plant or describe an experiment or some traditional technique, which was suspected to be a form of plagiarism of TK. Many firms, known as “naturist centers”, were owned by non-indigenous people or foreigners who had unlimited access to the indigenous TK within which Maya ceremonies, traditional medicinal practices, etc., were carried out using said knowledge as their sources of economic income. Similarly, university researchers who arrived in rural areas had on more than one occasion appropriated particular TK to achieve their status as scientists. Many national firms used indigenous knowledge for trade purposes, acts which constituted plagiarism of indigenous IP. In Guatemalan agricultural lands, a large quantity of natural resources were used and produced, in particular maize, beans, medicinal plants, etc.; these resources were not isolated from the indigenous world vision, but formed part of what indigenous people believed, thought, knew and lived. From that perspective, the GRs in the country might be considered part of indigenous IP since they had implications for agriculture, food security, rural development, the environment and, above all, the culture of the country’s indigenous communities and peoples. In Guatemala, laboratories had referred to the genetic manipulation of maize, which indigenous peoples had firmly opposed, since this seed was considered sacred as it constituted the essence of the food supply of indigenous families. As regards the idea of patenting GRs, for the Maya people of Guatemala this signified “general plagiarism of the spirits, the death of the environment and the extinction of humanity”. The Maya people considered that although there were discussions in international bodies on protection and a form of fair and equitable distribution of benefits, or the application of the strict requirements for disclosure of GRs, in any case this was the commercialization of life itself because, according to the world vision of the Mayas, “animals, minerals and plants are also human beings”. For GRs, legislative initiatives had been put forward in an attempt to regulate such resources; however, an analysis of those initiatives, from the indigenous point of view, showed their content to be from an individualized and commercial perspective. For this reason in Guatemala there was obvious mass biopiracy. In summation, in Guatemala customary indigenous law existed, which were valid and were trusted by indigenous peoples. Consequently, the community authorities, traditional leaders, male and female elders were people in whom the communities placed trust and, on many occasions, they were the custodians of indigenous IP. The subject of indigenous cultural and intellectual property remained in the same situation as when WIPO carried out fact-finding missions in 1998-1999. There had been no progress. Investment was required to conduct research, workshops, seminars, etc., so that the subject could be discussed.

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