Minutes - TRIPS Council - View details of the intervention/statement

H.E. Ambassador Xolelwa Mlumbi-Peter (South Africa)
World Intellectual Property Organization (WIPO)
4; 5; 6 REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B); RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY; PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE

114.   We would like to thank WTO Members for having expressed interest in having a briefing from the Secretariat of the World Intellectual Property Organization (WIPO) on intellectual property and genetic resources, traditional knowledge and traditional cultural expressions. Indeed, it is our pleasure, in our capacity as an Observer, to brief the TRIPS Council. 115.   It is my privilege to make such a briefing, under this agenda item, together with my colleague Ms. Fei Jiao. 116.   I recall that the delegation of Zimbabwe at the TRIPS Council meeting in July 2020 had graciously referred in particular to one of our publications and it is with this that I would like to start. 117.   The publication, entitled "Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions", was first published by the WIPO Secretariat in 2015. We updated it recently in 2020 with a new cover and updates of hyperlinks to other publications and resources. The publication mainly consists of three parts: (i) background to the need for the protection of traditional knowledge, traditional cultural expressions and genetic resources, which describes some of the key concepts and provides a factual summary of ongoing discussions on the objectives and beneficiaries of protection; (ii) options for the intellectual property protection of traditional knowledge and traditional cultural expressions, which covers options within existing conventional intellectual property systems and adaptations thereof; and, (iii) the work of WIPO in the field of traditional knowledge, traditional cultural expressions and genetic resources. 118.   Regarding the work of WIPO, the WIPO Secretariat provides seven services in relation to traditional knowledge, traditional cultural expressions and genetic resources. 119.   One service area of the WIPO Secretariat is the facilitation of the ongoing negotiations of the WIPO Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore (the IGC). The IGC met for the first time in April 2001 and commenced text-based negotiations in 2010. The full text of the current IGC's mandate for the 2020-2021 biennium is available online. In short, the IGC will continue to expedite its work, with the objective of 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 genetic resources, traditional knowledge and traditional cultural expressions. 120.   Due to the COVID-19 pandemic, Members have just agreed that IGC 41, which had been scheduled to take place in the week of 19 October 2020, has been postponed. 121.   Now I would like to invite my colleague Ms. Fei Jiao, Programme Officer, Traditional Knowledge Division, WIPO to continue to introduce other of WIPO's service areas. 122.   I will briefly introduce you to WIPO's other six services relating to genetic resources, traditional knowledge and traditional cultural expressions.1 123.   Upon request, WIPO provides policy and legislative information and assistance to regional and national authorities interested in establishing policies, strategies, action plans and legislation. In 2008, around 70 regional organizations and countries had adopted or were developing such legislation, policies, action plans or strategies. By 2020, that number has doubled to over 140. 124.   We have developed some tools to support this service, such as: a. a compilation of information on national and regional sui generis regimes for the IP protection of traditional knowledge and traditional cultural expressions; b. a table compiling patent disclosure requirements enacted regionally and nationally; c. a collection of codes, guidelines and practices relating to the recording, digitization and dissemination of traditional cultural expressions; and d. a searchable database of laws and regulations relevant to traditional knowledge, traditional cultural expressions and genetic resources. 125.   WIPO also provides support to indigenous peoples and local communities to facilitate their participation in the IGC and other WIPO activities. For example: a. Indigenous representatives are financially supported by the WIPO Voluntary Fund to participate in the IGC negotiations. Each IGC session starts with an indigenous panel where indigenous experts can share their views on and experiences with the issues addressed by the IGC. b. WIPO launched an Indigenous Fellowship Programme in 2009. By now, nine Indigenous Fellows from different regions have benefited from this programme. c. WIPO provides scholarships and other support for indigenous peoples to participate in WIPO training activities. d. Indigenous peoples and local communities benefit from WIPO's training and capacitybuilding activities designed specifically for and with them. 126.   The WIPO Indigenous Entrepreneurship Programme enables Indigenous Peoples and local communities to make effective and strategic use of intellectual property in their businesses. The Programme has a practical approach and consists of training and mentoring phases. 127.   Another WIPO's service is to provide intellectual property advice on the documentation of traditional knowledge and traditional cultural expressions. A Toolkit on the documentation of traditional knowledge, and a Practical Guide for museums, libraries and archives are among the Secretariat's materials. 128.   The WIPO Secretariat provides information, practical tools and training related to the management of intellectual property in genetic resources and genetic data, such as through a forthcoming distance learning course "Intellectual Property and Genetic Resources in the "Life Sciences", and a practical "Guide on IP Issues in Access and Benefit-sharing Agreements". 129.   Last but not least, WIPO provides different information resources on intellectual property and genetic resources, traditional knowledge and traditional cultural expressions. We strongly recommend you all to visit our website, where you can find different kinds of materials on a wide array of topics. 130.   One example of the dynamic resources we have developed is a short animation, which tells the story of the fictional Yakuanoi people2 as they work towards protecting their traditional knowledge assets. Different language versions, including indigenous languages, are available on WIPO's Youtube Channel.

The Council took note of the statements made and agreed to revert to these issues at the next meeting.
19. The Chair recalled that the next three agenda items concerning the Review of the Provisions of Article 27.3(b), the Relationship between the TRIPS Agreement and the Convention on Biological Diversity and the Protection of Traditional Knowledge and Folklore had been traditionally addressed together. She had asked Members, at her consultations in September 2020, whether the Council should take these items individually; and no clear preference had been detected in this regard. She suggested that the Council maintain the traditional practice; and encouraged delegations to identify the specific agenda item to which they would associate their intervention.
20. At the July 2020 meeting, the delegation of Zimbabwe had expressed interest in inviting the World Intellectual Property Organization (WIPO) to brief the Council on its recently updated report "Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions". After her consultations with delegations in September 2020, there seemed to be no objection. Since then, she had been in touch with WIPO and their representatives were willing to brief the Council.
21. She noted that, with respect to the sequence of discussion, the traditional practice had been that Members take the floor first, and observers afterwards. Considering that the Council had a full agenda and the need to be efficient with time, she proposed to offer the floor to WIPO first so that delegations could refer to the briefing in their subsequent interventions, where Members could also address the long-standing procedural issues. She invited WIPO to brief Members.
22. The representatives of WIPO took the floor.
23. The Chair thanked the WIPO Secretariat for the comprehensive briefing. She opened the floor for discussion, including long-standing procedural issues:
24. The suggestion for the Secretariat to update the three factual notes on the Council's discussions on the TRIPS and CBD and related items; these notes were initially prepared in 2002 and last updated in 2006; and
25. The request to invite the CBD Secretariat to brief the Council on the Nagoya Protocol to the CBD, initially proposed in October 2010.
26. She recalled that Members' positions on these issues were well known and extensively recorded in the Council minutes. In addressing these procedural questions, she encouraged delegations to focus on suggestions how to resolve them.
27. The representatives of South Africa; Chile; Tanzania, on behalf of the African Group; Brazil; Bangladesh; Nigeria; Thailand; India; China; Indonesia; Chinese Taipei; the United States of America; Japan; Canada; Ecuador; and Australia took the floor.
28. The Chair recalled that one tool for the review under agenda item 4 was the information provided by Members in response to a list of questions on Article 27.3(b). In 2019, the Council had received two sets of responses; from Ukraine and Mexico. These had been the first responses in 15 years. There had been dynamic and significant developments in this area in many Members. Transparency was of considerable mutual benefit to all Members; both in terms of initial submissions and updates to earlier submissions, many of which were already two decades old. She encouraged delegations to submit responses to this Checklist or update their previous responses; as well as notify any relevant changes in legislation.
29. The Council took note of the statements made and agreed to revert to these issues at the next meeting.
IP/C/M/96, IP/C/M/96/Add.1

1 The PowerPoint presentation is available in Room Document RD/IP/42.

2 https://www.youtube.com/watch?v=3bim1tFE6Tg.