Protecting genetic resources, still a long process

by Desy Nurhayati on 2013-09-05

The protection of genetic resources, traditional knowledge and folklore (GRTKF) through an international legally binding instrument has been hampered by complex legal technicalities and a lack of political will from governments, an official said.

Although those issues were critical in international politics, the process to create the instrument had been long, complicated and suffered delays, said Abdul Kadir Jailani, director of economic and sociocultural treaties at the Foreign Ministry, on Wednesday.

“Strong rejection from major powers like the US, Japan and the European Union, to an international legal instrument has also been a threat in the negotiation process on this issue at the United Nations’ World Intellectual Property Rights (WIPO) that started 13 years ago,” Jailani said.

He was speaking after the consultative meeting of like-minded countries (LMCs) and other interested countries on the future work of the intergovernmental committee on GRTKF.

In 2000, members of WIPO established an intergovernmental committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

In 2009, they agreed to develop an international legal instrument that would give traditional knowledge, genetic resources and traditional cultural expressions (folklore) effective protection.

Such an instrument could range from a recommendation to WIPO members, to a formal treaty that would bind countries choosing to ratify it.

WIPO’s work addresses three distinct, yet related, areas: traditional knowledge in thestrict sense (technical know-how, practices, skills, and innovations related to topics like biodiversity, agriculture or health); traditional cultural expressions/expressions of folklore (cultural manifestations such as music, art, designs, symbols and performances); and genetic resources (genetic material of actual or potential value found in plants, animals and micro-organisms).

Recognizing traditional forms of creativity and innovation as protectable intellectual property would be a historic shift in international law, enabling indigenous and local communities, as well as governments, to have a say over the use of their traditional knowledge by others, Jailani said.

“This would make it possible, for example, to protect traditional remedies and indigenous art and music against misappropriation, and enable communities to control and benefit collectively from their commercial exploitation.”

He further explained that two types of intellectual property protection were being sought. The first being defensive protection, aiming to stop people outside the community from acquiring intellectual property rights over traditional knowledge.

The second being positive protection, which is the granting of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation.

“Because the existing international intellectual property system does not fully protect traditional knowledge and traditional cultural expressions, many communities and governments have called for an international legal instrument providing protection,” Jailani said.

An international legal instrument would define what is meant by traditional knowledge and traditional culturalexpressions, who the rights holders would be, how competing claims by communities would be resolved, and what rights and exceptions ought to apply.

This week, a three-day consultative meeting is being held in Bali to facilitate further negotiations on the future work of the IGC before the upcoming WIPO General Assembly.

The meeting is expected to be able to bridge the differences between countries and ease the negotiation in the next general assembly. In the meeting, countries intended to explore all possible common grounds to identify building blocks for resolution of outstanding issues.

Wayne McCook, chair of the IGC, shared with Bali Daily that the pace of the negotiation process would depend on the political will of the members and the progress on technical and other issues that remained unresolved.

“If breakthroughs are found, the process could speed up, and we could see the possibility of an agreement being reached very early.”

“It’s not impossible that if the pace accelerates, we could reach a point where members consider that within one year they are ready to finalize the agreement. But also, there is a possibility that members may wish to take more time to address issues that remain difficult and not quickly resolved, and also to ensure that in fashioning the agreement they do all the necessary work to make it the best agreement.”

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