USA – 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

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Can One Country Block Everything in WIPO?

Sean Flynn / 18 May, 2025

One of the questions swirling around Geneva these days is whether one country can block all progress alone. In WIPO last week, the U.S. laid down a couple gauntlets that may reappear at the Program and Budget Meetings next week. The US delegation asserted that, despite WIPO being a member of the United Nations, “[t]he United States does not support any proposal … intended to advance the implementation of the SDGs.” It also took aim at so-called “DEI” projects, asserting that “the policy of the United States to use clear and accurate language that recognizes women are biologically female and men are biologically male,” and that “[t]he United States does not and will not support the implementation of any program that promotes any form of diversity, equity or inclusion, precepts or initiatives.” So, if other countries do not bend to this will and extract such expenditures from WIPO’s budget, can the US alone block progress? The quick answer is no. Most Geneva-based institutions strive to make decisions based on consensus, which can account for the glacial pace of some policy agendas. In the World Trade Organization, the U.S. alone has ground the organization to a halt by refusing to concede to the appointment of Appellate Board members. The WTO operates based on a very strict norm of consensus. In general, WIPO strives to operate based on consensus and one or a few members can often block progress. But the rules of operation for WIPO actually allow for votes and majority rule. There is a very recent precedent of using voting to approve the diplomatic conferences on the two most recent treaties adopted by the organization – the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (the “GRATK Treaty”), concluded at the WIPO Headquarters in Geneva, Switzerland in May 2024, and the Design Law Treaty (DLT) adopted in Riyadh, Saudi Arabia on November 22, 2024. Chapter VI of WIPO’s Rules of Procedure provide for voting on “[p]roposals and amendments submitted by a delegation … if they are supported by at least one other delegation.” (Rule 25). In such voting, “one half of the States members shall constitute a quorum,” and [u]nless expressly provided otherwise in the applicable treaties or in the present General Rules of Procedure, all decisions shall be made by a simple majority.” These rules were used to sideline US opposition to moving toward diplomatic conferences on the GRATK Treaty and the DLT in the 55th Session of the WIPO General Assemblies (GAs) in July 2022. In that meeting, the US called for several votes to overcome Russia’s opposition to funding IP technical assistance in Ukraine. As Margo Bagley described in a recent article published by the Geneva Graduate Institute, these calls opened the door for voting strategies by others: But where some saw opposition, others saw an opportunity. If WIPO members were open to voting on one issue, how about another? What about a Diplomatic Conference (DipCon), or two? Diplomats from demandeur countries in the IGC conferred with diplomats from high-income countries who wanted adoption of the draft Design Law Treaty, which had been languishing for years in a different WIPO committee and proposed a horse trade: agreement to two DipCons to result in two new treaties. If each group agreed to support the combined proposal (and lobbied like-minded states to do so as well) and the matter came to a vote, there should be enough votes to pass the measure – strategic opportunism at its best. In the end, the minority of countries opposed to the diplomatic conferences, including the United States, abstained rather than vote against the proposals. But the threat of a vote and willingness to call for one enabled the majority of countries in favor of the treaties to move them forward over the protestations of a minorty. Majority rule prevailed. A similar linkage between two normative agenda items – the Broadcast Treaty and an instrument on Limitations and Exceptions – is being pursued in the SCCR. Cf https://infojustice.org/archives/44840 (WIPO IGC Director Wend Wendland noting: describing the “overt linkage between two seemingly unrelated normative agenda items, inspired by ‘package deals’ and ‘single undertakings’ agreed on in other organizations such as the WTO” as ”a novelty in WIPO”). The EU and allied countries are pushing for a diplomatic conference on the Broadcast Treaty. The African Group and allied countries took the position in the last SCCR that “an instrument on the protection of broadcasting organizations should advance to a Diplomatic Conference jointly with an instrument on limitations and exceptions that meets the 2012 General Assembly’s mandate.” https://infojustice.org/archives/46253 At the last SCCR, the US maintained its support for discussing an instrument on “objectives and principles” for limitations and exceptions, and thus it is not formally opposed to progress on an L&E instrument. But even if it changed its position to block consensus, there is a procedural avenue – through voting – to overcome the opposition. Voting is generally only called for in the General Assembly and the Broadcast Treaty and L&E instrument will not be moving at the next meeting. But if the US blocks the budget based on its opposition to sustainable development and DEI considerations, we may see more rounds of voting at the next GA this July.

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Limitations and Exceptions in the U.S. Special 301 Report 2025

Sean Flynn, Lokesh Vyas and Luca Schirru / 9 May, 2025

The first Special 301 Report under the Trump Administration was released last month: 2025 Special 301 Report (final).pdf. The report always gives insight into the administration’s trade priorities1. How the Trump Administration will approach intellectual property matters is a bit of a mystery with its trade policy positions in the campaign taking conflicting approaches to the issue.2 The first Trump Administration Special 301 Report suggests that copyright policy is returning to its norm at USTR, with complaints about overbroad copyright exceptions, including for the circumvention of technological protection measures, raised against many of the countries on its warning lists. Countries Named and Blamed Twenty-six countries are named on in the report, with no country being listed as a Priority Foreign Country — which is the level at which direct threats of trade retaliation are raised. But the Report keeps the threat alive, stating: “Over the coming weeks, USTR will review those developments against the benchmarks established in the Special 301 action plans for those countries”.3 If countries fail to address U.S. concerns, the USTR may take actions, including enforcement measures under Section 301 of the Trade Act or dispute settlement procedures under the WTO or other trade agreements. Eight countries are on the Priority Watch List: Argentina, Chile, China, India, Indonesia, Mexico, Russia, and Venezuela. Eighteen countries are on the Watch List: Algeria, Barbados, Belarus, Bolivia, Brazil, Bulgaria, Canada, Colombia, Ecuador, Egypt, Guatemala, Pakistan, Paraguay, Peru, Thailand, Trinidad and Tobago, Türkiye, and Vietnam. Of the countries listed in the report, two countries on the Priority Watch List (India and Indonesia) and four countries on the Watch List (Canada, Ecuador, Thailand, and Vietnam) are subject to complaints about “overly broad exceptions”: Priority Watch List India: The Report alleges that Section 31d of the Copyright Act, 1957, which governs statutory licensing for the broadcasting of literary and musical works, as well as sound recordings, could be interpreted to allow statutory licensing for interactive online streaming, which, according to the report, “would have severe implications for right holders who make their content available online.” The report also rebukes “overly broad exceptions for certain uses” that raise “concerns about the strength of copyright protection in India”. However, the report does not name those exceptions. Finally, it complains that India has not made sufficient amendments to its Copyright Act to to protect technological protection measures and rights management information to comply with the WIPO Internet Treaties (i.e., WCT and WPPT).4 Indonesia: The report complains of “overbroad exceptions to provisions that prohibit the circumvention of technological protection measures” and urges Indonesia to consider amendments to its copyright law.5 Watch List Canada: The Report states that stakeholders reported issues with a “broad interpretation of the fair dealing exception for the purpose of education, which was added to the copyright law in 2012, as well as the relevant case law on the subject, has significantly damaged the market for educational authors and publishers”.6 Ecuador: The Report raises “concerns raised by the U.S. Government and various stakeholders on issues related to overly broad or vaguely defined copyright exceptions and limitations”.7 Thailand: The report urges Thailand to consider reviewing its copyright law to address several issues, including what is called “overly broad exceptions to provisions that prohibit the circumvention of technological protection measures”.8 Vietnam: Concerns were raised about “overly broad exceptions to copyright” and the implementation of the WIPO Internet Treaties, “including protections against circumvention of technological protection measures and certain acts affecting rights management information”.9