International negotiations on Indigenous knowledge to resume at WIPO: a view of the journey so far and the way ahead

Wend Wendland, Director, Traditional Knowledge Division, WIPO and Secretary to the WIPO IGC*

*Any views expressed are those of the author alone and do not necessarily reflect the views of WIPO or its member states.

Twelve years ago, WIPO’s member states formally launched negotiations toward developing international agreements on intellectual property (IP) and genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs). These negotiations take place in an Intergovernmental Committee known as the IGC. The negotiations were suspended in 2020 and 2021 due to the COVID-19 pandemic, but will resume in 2022. This article traces the negotiations’ ups and the downs so far.

Background

The IGC was established by the WIPO General Assembly in 2000; its mandate is usually determined by the Assembly every two years. In September, member states consensually renewed the IGC’s mandate for 2022-2023.

The objective remains “finalizing an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to intellectual property, which will ensure the balanced and effective protection of” GRs, TK and TCEs.

Much has been written about the intrinsic epistemological and scientific value of TK, the roles that TCEs play in the cultural lives of communities and the value of GRs in the life sciences. These are reasons enough to support their enhanced protection.

Pragmatic win-win outcomes are tantalizingly within reach, at least on some aspects of the IGC’s mandate. Substantial progress has been made.

Benefits of internationally agreed outcomes

Agreed international outcomes flowing from the IGC’s negotiations would bring several additional benefits.

Some are political. Positive outcomes could:

1. demonstrate that the IP system is flexible and benefits a broad range of interests;
2. respond to long-standing calls from developing countries for greater equity and balance in the IP system;
3. inspire fresh confidence in multilateralism, and
4. strengthen the IP system’s contribution to sustainable development, thereby bolstering perceptions of its legitimacy in all regions.

Other benefits concern economic and cultural development. Indigenous peoples and local communities would be able to benefit from third-party use of their TK and TCEs. This would empower them, if they wish to generate income on their own terms, become stakeholders in the IP ecosystem and participate in global markets.

From a legal perspective, a wise agreement on international principles – one that is balanced, meaningful and not too prescriptive – would help harmonize the current checkerboard of national and regional laws and provide a mechanism for transboundary protection. On GRs, a measured and balanced patent disclosure requirement might further enhance the quality, efficiency and transparency of the patent system.

Finally, a successful conclusion to the IGC’s negotiations could benefit the business and R&D environments by reducing uncertainty for companies and researchers, providing more clarity and predictability in the rules governing their activities.

Pragmatic win-win outcomes are tantalizingly within reach, at least on some aspects of the IGC’s mandate. Substantial progress has been made.

However, this ambitious negotiation is profoundly challenging.

Key challenges

Challenges relate to the nature of the issues (substance), the ways in which the Committee functions (process) and its situation within the broader multilateral landscape (context).

A web of interlinked relationships

The relationships between IP and GRs, TK and TCEs are technically intricate, and the issues are distinct yet interlinked. The negotiation spans the entire IP system. This means that the negotiators should have an unusually high degree of substantive expertise and requires extensive coordination and policy coherence at the national level. On top of this, the negotiations only have a few successful national and regional laws to draw on. While the high frequency of IGC meetings may evidence countries’ determination to make progress, the intensity of the process, and its long duration so far, risk sapping energy and momentum.

Few bargaining chips

Another challenge lies in the relatively low interdependence between the issues under negotiation in the IGC and other issues on the international IP agenda. This leaves demandeurs (those countries seeking normative outcomes) with little leverage (room for integrative bargaining across several issues) to extract concessions from non-demandeurs.

Moreover, the fragmented treatment of these issues across various international forums can complicate efforts by demandeurs to establish dynamic cross-regional coalitions. The negotiations, which seek to address environmental, human rights and cultural issues that go beyond IP, are driven by countries and communities who have not frequently been demandeurs in international norm-making in the past.

Varying levels of political will

Progress is further hobbled by varying degrees of political willingness among countries, leading to persistent divergences among them as to the IGC’s objectives and expected outcomes. These, in turn, hinder the Committee’s attempts to design an effective working methodology that could lead to compromise outcomes.

Rather than a true negotiation based on the interests of the parties, discussions in the IGC have largely ossified into a ritual exchange of well-known positions. The harder negotiators pull on the rope in different directions, the tighter the knot in the middle becomes. The “nothing is agreed until everything is agreed” approach means that reaching consensus in the IGC is enormously challenging – as is the case in almost every multilateral process at present.

Low public appeal

Finally, these issues do not yet seem to stir the hearts of ordinary citizens. There is little pressure from the public and civil society for a speedy conclusion to the negotiation.

Milestones: the early years

At first, the IGC’s work combined fact-gathering, technical analyses, exchanges of practical experiences and policy debate. Troves of information about national and regional legal regimes were gathered.

The focus was on non-normative work, which led to a number of useful, practical outcomes. These included concrete first steps towards the defensive protection of TK (protection against TK being patented) through its enhanced recognition as prior art.

Negotiators could not agree on work towards new standards (“norm-setting”), especially for the positive or direct protection of TK and TCEs. Impatience grew among many countries about the lack of progress in this area, with empirical information gathering and work on non-normative practical outcomes seen by some as time-wasting.

The pivot towards norm-setting

In July 2003, the IGC could not agree on its new mandate for 2004-2005. This triggered the Committee’s first real crisis. After four sessions, the enormity of its task was becoming clearer, as was the gulf in expectations among states as to the IGC’s overall purpose and anticipated outcomes.

Demandeurs’ expectations of quick normative results soured. Some countries believed it was premature to embark on norm-setting before securing wider agreement on objectives, guiding principles and core concepts. At the 2003 WIPO Assembly, member states agreed on a carefully constructed mandate, which, for the first time, included a reference to “international instrument or instruments.” This marked an explicit pivot towards normative work.

However, developing countries soon grew skeptical about the Committee’s effectiveness in norm-setting. While the IGC was again at a critical point, no member state had formally proposed a comprehensive negotiating text. In 2005, the Traditional Knowledge Division published draft articles on TK and TCEs as working documents.

Many countries found these useful in pinpointing areas of agreement and disagreement. However, non-demandeurs were not ready to work on draft articles. This work was replaced by discussions of “issues”.

At the request of member states, the Secretariat prepared materials on the “international dimension” of the IGC’s work and analyses of gaps between the protections provided by the IP system and the needs and aspirations of Indigenous peoples and local communities and other demandeurs. These gap analyses were recently updated.

Text-based negotiations begin in 2010

In late 2009, and to the surprise of many, the WIPO Assembly agreed on a much-strengthened mandate for 2010-2011. For the first time, it referred to:

• “text-based negotiations” on all three themes;
• “international legal instrument(s)” (emphasis added); and,
• the possible convening of a Diplomatic Conference.

This language re-ignited demandeurs’ expectations, but pulled non-demandeurs into normative work, which they considered premature. Many perceived a chasm between the mandate’s ambition and the maturity of the negotiation.

New working methodologies

From 2010, as the IGC battled to undertake genuine text-based negotiations, attention turned to finding more effective working methods. Often progress made in smaller informal groups was reversed in the plenary. There was much back and forth, at times, with more “back” than “forth”.

“Intersessional working groups” proved a breakthrough, allowing for considerable technical progress in 2010 and 2011. Other methodological innovations were tested (read more about methodological innovations). As process often dictates outcomes, the challenge was to balance inclusiveness and transparency with efficiency and effectiveness.

Genetic resources: clarity emerges

Negotiations relating to GRs leapt forward in 2012, with the emergence, for the first time, of a single negotiating text. Options around a new patent disclosure requirement became clearer with pressure mounting for an agreement on this question. In 2018, WIPO published a first-ever compilation of policy questions on, and national experiences with, such a requirement. The publication was updated in 2020.

In April 2019, the IGC Chair, Ian Goss, prepared, under his own authority, a draft international legal instrument on GRs and associated TK. This now features among the Committee’s working materials as a Chair’s text.

A gap year in 2015 and the current phase

In a development that shocked many, in late 2014, the WIPO Assembly could not agree on a schedule of IGC sessions for 2015. Negotiations halted with potentially significant implications for the IGC’s future.

Fortunately, in 2015, countries renewed the mandate and agreed to a work program for 2016-2017, which was similar to that subsequently agreed for 2018-2019. While their language may be soaked in constructive ambiguity, “ad hoc expert groups” (read more about “ad hoc expert groups”) were a useful new feature in these mandates.

Up to 2019, certain countries submitted proposals to conduct studies and cost-benefit analyses, but these were not agreed upon. Progress remained elusive. Most delegations continued to restate well-known positions and were not negotiating with each other to create compromise solutions.

Enhanced participation of Indigenous peoples and local communities

The IGC addresses issues of particular concern to Indigenous peoples and local communities to a degree unparalleled in other areas of WIPO’s work. The Committee has created mechanisms to enable Indigenous peoples and local communities to participate in international IP policy-making for the first time. These include, a WIPO Voluntary Fund which supports their participation in IGC sessions. Also, under the WIPO Indigenous Fellowship Program an Indigenous person works for up to two years in the Traditional Knowledge Division.

Concluding thoughts

The repeated renewal of the IGC’s mandate indicates that countries still believe these issues require multilateral resolution.

After the marathon that has been run by the IGC to date … hopefully negotiators can inject fresh energy into the IGC’s legs and propel the negotiation across the finish line. In doing so, they will make history.

Since 2000, negotiators have produced a wealth of substantive materials. National and regional legislative initiatives continue to draw on the draft negotiating texts, which themselves are significant outputs.

However, difficulties stem from differing degrees of political willingness among countries, diverse views on objectives and core policy questions, and uneven levels of understanding of the technical issues.

How to move forward in the negotiation?

Initiating a truly interests-based negotiation is a priority. This means negotiators moving beyond positional bargaining and paying careful attention to each other’s interests, options and alternatives. Second, exploring all forms of “consensual” decision-making and re-thinking the “single undertaking” approach would be useful.

Also important would be clarity on the purpose and goals of the process. Similarly, launching effective intersessional work among to support the plenary, which is the decision-maker, could help advance the work. Demandeurs should lead by building cross-regional coalitions, deploying senior political figures as “champions” of the process, identifying yes-able options for outcomes that create value for all sides, and energizing civil society.

If the negotiation continues as before, negotiators will simply repeat history.

After the marathon that has been run by the IGC to date ─ without concrete outcomes and after the pandemic-induced break ─ hopefully negotiators can inject fresh energy into the IGC’s legs and propel the negotiation across the finish line.

In doing so, they will make history.

Related Links

• Protecting indigenous knowledge: a personal perspective on international negotiations at WIPO