traditional cultural expressions – Centre on Knowledge Governance

US Proposes Limiting IGC Meetings and Mandate

Sean Flynn / 3 June, 2025

The United States delegation, in its opening statement to the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, expressed its desire to limit the activities and mandate of the Committee. The US statement, made at the 51st meeting of the Committee, recalled that the last two meetings failed to produce a common text of an agreement on traditional knowledge (TK) and traditional cultural expressions (TCEs) for the next meeting to work on. At the 49th meeting, the Like Minded Countries Group of developing countries supporting the IGC’s work blocked further use of a complex facilitator’s text produced at that meeting that contained a large number of newly competing provisions on most of the draft’s topics. At the 50th meeting, first the US and then Nigeria blocked further consideration of a consolidated text that combined draft documents on TCEs and on TK and contained several proposed changes that would threaten the desire by some for a binding and rights based approach. The US statement cited this lack of “tangible progress on textual negotiations” as evidence of “significant divergence among Member States on the purpose of the IGC and its desired outcomes” which “warrants taking a step back and reflecting on where we are going with these negotiations.” The IGC is not a standing committee, which means that the General Assembly must reapprove a mandate for the Committee to continue work. That mandate, for the coming General Assembly meeting in July, will be negotiated at the 51st IGC. In this context, the US opined that “the next mandate should schedule fewer sessions,” and suggested that the Committee move from the current three meetings per year to just one. The US statement is reprinted below in full. Other countries and groups supported renewing the mandate and holding three meetings per year. The US statement indicates that the negotiation over the mandate may be hard fought. UNITED STATES OF AMERICA: Thank you, Chair. As we discussed potential renewal of the mandate, we should keep in mind the last two IGC meetings, IGC 49 and 50, ended with no tangible progress on textual negotiations. As we mentioned this morning, this came at great expense of time and money for the WIPO Secretariat, Member States and accredited observers. This lack of progress reflects the significant divergence among Member States on the purpose of the IGC and its desired outcomes. For example, we have not even been able to agree on the basic issue of whether the TK and TCE text should reflect the views of all Member States. In our view, this lack of tangible progress warrants taking a step back and reflecting on where we are going with these negotiations. The lack of tangible progress also warrants moving the IGC in a more productive and less contentious direction. This mandate renewal discussion provides an opportunity to reset IGC dynamics which is needed if the IGC is to operate in an effective manner. To that end, the next mandate should schedule fewer sessions. It should also require the use of real world scenarios including case studies during Committee sessions to rejuvenate and refocus our discussions and to encourage participants to have a constructive exchange of views. And the next mandate should also reaffirm that all Member State proposals will be reflected in working text and along those lines should reference the reality that currently exists, namely that Member States have widely divergent positions. I will briefly elaborate on the number of meetings in the biennium. The United States calls on the IGC to recommend to the General Assembly that the mandate reduce the number of sessions in the next biennium. In our view, this will lead to better meeting preparation and attendance which will hopefully result in more productive engagement and forward progress for the Committee. Fewer meetings will also help to temper expectations given the wide divergence in views among Member States in terms of priorities, working methodologies and acceptable outcomes. Most WIPO bodies hold their meetings once a year. It’s time to bring the IGC in line with that standard. Consequently, the next biennial mandate should schedule no more than two IGC sessions for the biennium, one session per year. Next, the mandate should continue to reflect the preservation of separate texts and work streams for TK and TCEs. The mandate should also retain language on taking an evidence-based approach, having a Member State driven process, providing examples of national experiences and adopting a work program based on open and inclusive working methods. We would like Member States to agree that proposals related to IGC work streams, including those directed to biodiversity issues, should be raised in the IGC and not in WIPO’s technical bodies such as technical Committees and working groups. Over the last year, several technical bodies at WIPO have faced proposals that are duplicative of IGC discussions. This has created unnecessary confusion in those bodies and distracted them from their properly mandated work. In our view, these proposals belong only in the IGC. Participants would be confused and express opposition if patent proposals were raised in the SCCR or updates to the international patent classification were proposed in the Madrid Working Group. Proposing GR, TK and TCE-oriented changes in other bodies or WIPO contexts is no different and ignores the jurisdictional integrity of WIPO bodies. The United States believes ensuring discussions are not taking place in duplicative manners across WIPO bodies is a critical consideration in any mandate outcome moving forward. Neither the TK nor TCE subject matter is ready for a Diplomatic Conference. Instead, the current texts reflect widely divergent positions. The IGC needs to continue the discussion and negotiation process. With or without brackets, the wide range of alternatives in the working text is a compelling reminder of just how far apart Member States are on every critical aspect of these discussions. Consequently, at this time, the United States cannot support a recommendation to the WIPO General Assembly that it convene

Blog, Traditional Knowledge

Why the WIPO IGC Deadlocked

InfoJustice Eds. / 11 March, 2025

By: Chidi Oguamanam Chidi Oguamanam, representative of Nigeria and University of Ottowa Professor of Law, provides analysis of the failure to endorse a new consolidated text by the 50th session of the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC). The article was originally published by ABS Canada, and is reprinted here with the author’s permission. Link to article Discord over Rights and Measures-Based Approaches to the Protection of TK and TCEs Scuttles WIPO IGC 50 By: Chidi Oguamanam Backdrop to the 50th WIPO IGC Session At the 50th session of the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC), delegates arrived with expectations for a better outcome. However, after one week of deliberations from March 3-7, 2025, experts and diplomats failed to achieve consensus over an improved working text of international legal instrument(s) for the protection of traditional knowledge and traditional cultural expressions (TK/TCEs). The last session of the WIPO-IGC (the 49th session) was stalemated because the majority of delegates agreed that they failed to narrow gaps in the working texts of TK and TCEs from the 47th WIPO-IGC session. At the 49th session, delegates resolved not to transmit any instruments to the 50th session, which meant that they would fall back to the text of the 47th session to the collective disappointment of the Committee and its Finnish Chair, Anna Vuopala, at the December 2024 meetings. The 50th WIPO-IGC session was chaired by Brazilian diplomat Ms. Erika Patriota, who was invested in breaking the jinx of the 49th session. Despite her best efforts through a methodology that relied heavily on informal sessions as well as drew from the facilitation skill of the Filipino Friend of the Chair, Anne Adlon, the session’s intended purpose to narrow gaps and deliver on an improved text of negotiating instruments was not met. A hopeful start on the first couple of days resulted in ridding the two working texts (TK and TCEs) of a few redundant and unsupported alternative articles. However, a methodological failure arising from not reining in delegates who were determined to contribute new textual language, and who were determined to even substitute in wholesale fashion some existing articles, pushed the Committee off-balance away from narrowing gaps. Rights and Measures-Based Approach is Now a Critical Schism There was a palpable ideological schism among delegates on the perennial high level conceptual question over the nature of the instrument in relation to intellectual property rights. On one side are demandeur delegations who favour negotiating the TK/TCEs instruments as sui generis, or what one delegate characterizes as “IP+.” On the other side are those who prefer that the instruments be in sync with conventional IP rights – with term limits, elaborate exceptions and limitations, and accommodation of the so-called “vibrant public domain.” More prominently and equally worrisome at the 50th WIPO-IGC session was a palpable division among delegates along “rights-based” and “measures-based” approaches to the protection of TK and TCEs. In simple terms, the rights-based approach is premised on the recognition of inalienable and existing rights of Indigenous Peoples and Local Communities (IPLCs) to their TK and TCEs as a fundamental anchor for the protection of those rights and the premise upon which any consequential measures are based. On the other hand, proponents of the measures-based approach, who are mainly non-demandeurs led by the United States and its allies in Group B (Japan, Canada, South Korea, Switzerland, UK), the EU, the Central European and Baltic States (CEBS), etc., are inclined toward a measures-based approach. The latter group of proponents of the measures-based approach proactively emphasizes and promotes a list of policy, regulatory, persuasive, and non-binding measures to encourage the “safeguarding” of TK and TCEs. In the opinion of these proponents, a soft-law (i.e., non-binding) approach is the preferred nature of such measures. The argument is that, in accordance with its mandate, the Committee should not prejudge the nature of the instrument that will result from its work. For most non-demandeurs, a measures-based approach is a suitable pathway to a non-binding treaty. For the demandeurs, that is, IPLCs as well as mostly developing countries of the global south who coalesce around the mainly fluid category of like-minded countries (LMCs), the African Group, the Group of Latin American and Caribbean Countries (GRULAC), India, China, and some members of the Asia Pacific Group (APG), a rights-based approach is preferred. The demandeurs support a stronger and binding instrument in the nature of the already-concluded treaty from the work of the Committee – the 2024 WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. For this group, the fact that the Committee is required not to prejudge the outcome of its deliberations does not preclude designing a binding instrument. For demandeurs, the narrow focus of non-demandeurs on a non-binding instrument misses the other consideration regarding the outcome of the Committee’s work, which relates to whether it would result in a single or multiple instruments. At the beginning, the Committee set out on a pathway to three instruments, namely, TK, TCEs and Genetic Resources (GRs). It has agreed on only one instrument so far, which is the binding instrument on GRs. Cut-and-Paste Merger for Artificial Consolidation Despite a lack of consensus, the 50th IGC attempted to merge the two remaining negotiating instruments on TK and TCEs into one document, in contrast to their being negotiated in parallel, which has been the practice. It is not as if no attempt has been made in the past at consolidating the two remaining documents. In February 2023 and March 2023, the Jamaican Chair of the IGC, Lilly-Clair Bellamy, raised the Chair’s Consolidated Texts of TK and TCEs, which some delegations wanted to be used as a working instrument at the aborted 49th session of the IGC. The attempt at the equally aborted 50th session to merge both texts in a cut-and-paste merging approach reflects the potential inclination of delegations toward a consolidated instrument. The Committee appears open to consider a single TK/TCE instrument to complement the

Blog, Design Law Treaty

Developing Countries' Accomplishments in the WIPO Design Law Treaty

Sean Flynn and Luca Schirru / 24 January, 2025

Last year, two new intellectual property treaties were adopted by the World Intellectual Property Organization — one on the disclosure of uses of genetic resources in patent applications and a second on applications for design law protection. Although the design law treaty was promoted by wealthy countries of the global north, the final outcome shows the impact of developing countries who advocated for deleting or softening provisions that regulated substantive design law while protecting the ability to require information related to Traditional Cultural Expressions (TCEs), Traditional Knowledge (TK), or biological and genetic resources (GR). Opening the closed list for application criteria The main intent of the Design Law Treaty was described as harmonizing procedures and formalities for applying for design law protection. There is very little substantive international law on design protection, and the treaty was not billed as creating such minimum requirements. However, by proposing to restrict the elements that may be requested in a design law application, the basic proposal for the treaty in effect restricted what elements could be considered in granting protection. The basic proposal for the treaty followed the Trademark Law Treaty in proposing a closed list of elements that could be required in an application. The closed nature of the list was made clear in subsection 2 of what was ultimately included as Article 4 of the treaty, which states: “[Prohibition of Other Requirements] No indication or element, other than those referred to in paragraph (1) and in Article 10, may be required in respect of the application.” The problem with a closed list of application criteria is that it limits the substantive criteria that governments can rely upon in granting design law protection. As Bagley (2018, 995-996) argued: “by delineating a closed list of application requirements that countries can impose on applicants, the DLT in effect moves beyond formalities to placing substantive limits on countries in relation to design registration”. In the early stages of consideration of the Treaty, developing countries focused on the lack of language in the closed list allowing countries to require disclosure of traditional cultural expressions, traditional knowledge, or genetic resources used in the design seeking protection. The basic proposal for the DLT included two alternatives on these issues: “ALTERNATIVE A [(ix) a disclosure of the origin or source of traditional cultural expressions, traditional knowledge or biological/genetic resources utilized or incorporated in the industrial design;]” “ALTERNATIVE B [(ix) an indication of any prior application or registration, or of other information , of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design;]” During the negotiation, Knowledge Ecology International raised other issues that the United States and other laws require disclosure of in design law applications that were not included in the closed list. These included, for example, requirements to disclose uses of public funding and artificial intelligence in the creation of the design. There was considerable opposition from the “Group B” wealthy countries of the global north to the language in Alternative A including reference to “biological/genetic resources” in the permitted elements of an application. Delegations argued that such resources were not relevant to design law. In the end, the compromise text excluded direct mention of genetic resources but adopted open language that permits countries to require any application element deemed “relevant” to the registration of the design: Article 4 … (2) [Indication of Information] A Contracting Party may require, where permitted under the applicable law, that an application contain an indication of any prior application or registration, or of other information, including information on traditional cultural expressions and traditional knowledge, of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design. (3) [Prohibition of Other Requirements] No indication or element, other than those referred to in paragraphs (1) and (2) and in Article 12, may be required in respect of the application. The final outcome thus permits countries to allow disclosures of genetic resource information as well as information about uses of public funding, artificial intelligence, and other elements that a country deems relevant to the registration. Eliminating Term of Protection The basic proposal for the DLT included two options for requiring a term of protection. Term of protection is indisputably substantive, and many countries opposed its inclusion in the treaty on this basis. But two other treaties — the Hague Agreement and the WTO’s TRIPS agreement — have minimum terms of protection of 5 years and 10 years respectively. A proposal by the USA would have harmonized members to a minimum 15-year term, which is the present US law. [Article 9Bis Term of protection A Contracting Party shall provide a term of protection for industrial designs of at least 15 years from either: (a) the filing date, or (b) the date of grant or registration.], proposed by USA.[Article 9Bis Term of protection Contracting Parties shall have the option to comply with Article 17 of the Hague Convention or Article 26 of the TRIPS Agreement.], proposed by Nigeria. There was united opposition to any term of protection in the agreement by the Africa Group, GRULAC, and APG. As a result, fairly early on in the negotiation, Article 9bis was dropped from the negotiating text and no term of protection was included in the final treaty. Making the Grace Period Optional The basic proposal included language on grace periods during which a design could be disclosed without affecting its registerability. There are no regulations of grace periods in the Patent Law Treaty, Trademark Law Treaty, or the Hague Agreement. Concerns were raised that this provision may disproportionately favor larger firms in weather countries that “can afford to disclose their designs publicly without immediately filing for protection, potentially stalling local competitors who lack the financial or legal capacity to navigate complex intellectual property landscapes”. The final text established a grace period of 12 months but made this provision subject to a reservation. Thus, countries may join the agreement without binding themselves to the grace period