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TITLE: WIPO to Elaborate Principles on Model Contract
Clauses PUBLICATION: World Intellectual Property Report,
Vol 16, No 1 DATE: 15 January 2002 SOURCE: BNA
International, Inc URL:
http://www.bna.com
WORLD INTELLECTUAL PROPERTY REPORT Volume 16 Number 1 Tuesday, January 15, 2002 WIPO Activities Genetic Resources
WIPO TO ELABORATE PRINCIPLES ON MODEL CONTRACT CLAUSES
Geneva -- The World Intellectual Property Organization has been asked to develop further a set of operating principles it drew up on the use of "model clauses" in contracts governing access to genetic resources and benefit sharing.
The mandate was given to the WIPO secretariat at a December 10-14 meeting of the organization's intergovernmental committee on intellectual property and genetic resources, traditional knowledge and folklore. The secretariat had presented the meeting with a report outlining four possible operational principles which could be used in the formulation of model clauses for the use of genetic resources.
RESOURCE IMBALANCE SEEN
WIPO was asked by its members last June to develop the model clauses in order to address a perceived resource imbalance between private companies seeking to secure the rights to use genetic resources for commercial purposes, and those governments or government agencies which claim ownership over the resources. The model clauses are intended to serve as "best practices" guidelines and would not be binding on members.
The four possible principles outlined by the WIPO secretariat for the development of contractual clauses include the following:
* Intellectual property rights and obligations set out in the model IP clauses "should recognize, promote and protect all forms of formal and informal human creativity and innovation, based on, or related to, the transferred genetic resources";
* The rights set out in the model clauses "should take into account sectoral characteristics of genetic resources and genetic resource policy objectives and frameworks" (i.e. policy objectives of other fora such as the United Nations Convention on Biodiversity);
* The rights "should ensure the full and effective participation of all relevant stakeholders and address process issues related to contract negotiation and the development of IP clauses for access and benefit-sharing agreements"; and
* The rights "should distinguish between different kinds of use of genetic resources, including commercial, non-commercial and customary uses".
WIPO Assistant Director General Francis Gurry said the proposed principles generally were well received by member governments. Some governments, however, said they would like the Convention on Biodiversity principles on use of genetic resources to be included among the four operational principles, specifically those concerning prior informed consent, benefit-sharing, and the right of each country to exercise sovereignty over its genetic resources. In addition, some wanted WIPO to expand upon the operational principles by addressing the issue of contracts between civil society actors, including indigenous communities.
Gurry said WIPO will now solicit comments from member governments on the operational principles for model clauses, including the kinds of scenarios involving access to genetic resources which they wish to address with the model clauses. The WIPO secretariat will then issue a new report elaborating upon the principles by March so that they can be discussed at the next intergovernmental committee meeting on genetic resources, June 17-21.
INTEREST IN PROTECTION OF TRADITIONAL KNOWLEDGE
In a related development, the WIPO secretariat has been asked by a number of developing countries to draw up elements of a possible sui generis system for the protection of traditional knowledge.
The call for the drafting work came from African and Latin American countries, in particular Brazil, which argue that a positive system of protection is needed in order to ensure the protection of traditional knowledge from biopiracy.
WIPO members have been wrestling with the idea of drawing up a global system of rules for the protection of traditional knowledge. U.S. officials have expressed reservations, arguing that different expectations, goals, and systems relating to ownership rights would make a useful and enforceable global system virtually impossible to create.
WIPO officials said that such a sui generis system did not necessarily have to take the form of a treaty but could be adopted as guidelines or model national laws. An initial draft is expected to be prepared by next spring for presentation at the June 17-21 meeting of the intergovernmental committee on genetic resources.
WIPO defines traditional knowledge as tradition-based literary, artistic, or scientific works; performances; inventions; scientific discoveries; designs; marks, names, and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary, or artistic fields.
Copyright © 2001 by The Bureau of National Affairs, Inc., Washington D.C.
TITLE: WIPO Committee:
Countries Divided Over Need for New Legal Norms to Protect
TK AUTHOR: International Centre for Trade and Sustainable
Development PUBLICATION: BRIDGES Trade BioRes DATE: 20
December 2001 URL:
http://www.ictsd.org/biores/01-12-20/story4.htm
BRIDGES Trade BioRes Volume 1 Number 3 20 December 2001
WIPO COMMITTEE: COUNTRIES DIVIDED OVER NEED FOR NEW LEGAL NORMS TO PROTECT TK
Substantive discussion at the second meeting of the WIPO [World Intellectual Property Organization] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore on 10 - 14 December in Geneva focused mainly on two subjects: operational principles for contractual agreements concerning access to genetic resources and benefit-sharing; and traditional knowledge as prior art. Due to time constraints, deliberations on folklore were brief. The topic of operational definitions appeared in the draft agenda but was completely omitted.
The WIPO Secretariat had prepared several documents including two on the above-mentioned subjects, which formed the basis of most of the discussions. On the whole, the deliberations were fairly technical in nature and were less politicised than those covering the same issues tend to be in other international forums. While there was little in the way of a debate and the atmosphere was non-confrontational throughout, there was a clear division between those countries that favour the creation of new legal norms (mainly from Latin America and the Africa Group) and those that do not, including the US and Canada. The latter group of countries considers that solutions should be sought within existing legal frameworks and, while willing to contemplate additional obligations, would prefer these to be non-binding. Industry representatives also shared the call for non-binding obligations.
Several countries pointed out that any agreed model contractual provisions should be consistent with both the Convention on Biological Diversity and the new FAO Treaty on Plant Genetic Resources for Food and Agriculture.
The issue of representation of indigenous peoples and local communities came up throughout the meeting. While a few organisations representing these communities attended the meeting, such as the Indigenous Peoples Biodiversity Network, the Inuit Circumpolar Conference and the Saami Council, and one important developing country (Brazil) had a well-known indigenous person on its delegation, the Committee supported the proposal made by the EC that WIPO and its member states should consider creating a fund to ensure greater participation by indigenous peoples and local communities in future Committee meetings.
The Committee also agreed that WIPO should continue its work to establish model intellectual property rights (IPR) clauses for contractual agreements regulating access to genetic resources and benefit sharing, possibly including the development of a database of such clauses to help guide negotiations. Approval was also given to continuation of WIPO's work on the IPR aspects of documenting public domain traditional knowledge, the aim of which is to ensure that patent examiners are able to prevent cases where patents whose claims extend to traditional knowledge are improperly awarded.
Towards the end of the meeting, several developing countries proposed, without objections from other participating countries, that WIPO should produce a document providing elements for model sui generis protection for traditional knowledge.
The Committee is scheduled to meet for the third time in June 2001.
BACKGROUND
The protection of traditional knowledge is being discussed in the WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPs) and was explicitly listed for examination by the Council in the Doha Ministerial Declaration (see BRIDGES Trade BioRes, 22 November 2001). Many developing countries, such as India, Brazil and the Africa Group, would like to see the TRIPs Agreement and in particular Article 27.3(b) (patentability of life forms) broadened to include issues such as disclosure requirements for the origin of genetic resources and associated traditional knowledge, benefit-sharing arrangements and prior informed consent. Most developed countries, however, oppose such a broadening of scope, arguing that these issues should not be discussed at the WTO, but in other relevant forums, such as WIPO.
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