Pole-based Partisanship? Observations on National Positions at the Intergovernmental Committee

WIPO delegates at the Standing Committee on Copyright and Related Rights. (Photo: WIPO)

Barring a few exceptions, there is a pattern as to where a country likely stands on protecting traditional knowledge, traditional cultural expressions, and genetic resources at the Intergovernmental Committee.  Simply look at a map, and determine if that country is closer to the North Pole or the South Pole.

In any forum in which negotiation and compromise are an element, disagreements are bound to break out.  The W.I.P.O. Intergovernmental Committee is no exception.  Since the I.G.C.’s inception in the spring of 2001, there had been procedural squabbles between countries, but they had been relatively minor.   However, at the sessions between the committee’s first and second mandates — in June of 2005 and April of 2006 — entrenched national positions on issues began to form.  What is interesting is that, as some delegations within the I.G.C. itself have noticed, the two groups of countries that have the strongest diverging opinions are also rather dissociated geographically — one in the Northern Hemisphere, and one in the Southern Hemisphere (or close to it).

The “North” group contains countries such as the United States of America, Japan, South Korea, and many in the European Union.  A few of the more neutral countries such as Canada, Russia, and Australia (as a bit of an exception) seem to have moved closer to this camp as time has passed.  Most of the countries in this group are thought of as “developed” countries, with advanced economies and sophisticated intellectual property regimes already in place.  These countries seems primarily concerned with making sure that the terms of any I.G.C. treaty do not place undue financial or administrative burdens on their already numerous high-volume patent offices, and do not restrict creativity or innovation by making too much intellectual property completely off-limits to even non-commercial public use.  To this end, most of these countries have expressed their preference that the I.G.C. treaties be more of best practices guidelines rather than enforceable legal documents.

The “South” group contains several countries in Central and South America (notably Bolivia, Venezuela, Brazil, and Peru), many countries in Africa and the Middle East (notably Nigeria, Namibia, South Africa, Egypt, and Iran), and several countries in South Asia (notably India, Thailand, and Indonesia).  Several tropical island nations (such as Cuba, Trinidad & Tobago, and Barbados) are also part of this group, as are a few curious converts among neutral Northern Hemisphere countries (notably China and Norway, though an influential indigenous group called the Saami Council is from Norway, which may explain that particular anomaly).  Many of the countries in this group are so-called “developing” countries, with economic growth and intellectual property standards not yet on par with some of the states in the Northern Hemisphere.  Also, in quite a few of these countries, indigenous peoples comprise a significant percentage of the population.

Due to these traits, many of these countries are attempting to negotiate terms for I.G.C. treaties that will provide the most effective and comprehensive legal protection possible for traditional knowledge, traditional cultural expressions, and genetic resources as intellectual property.  In doing so, they are also often interested in enforcing the rights of indigenous peoples, as spelled out by the likes of the United Nations Permanent Forum on Indigenous Issues and the United Nations Declaration on the Rights of Indigenous Peoples.  These countries insist that the I.G.C. treaties become enforceable international legal instruments in order to achieve these objectives.  Concerns of interference in patent systems or restriction of public domains, as put forward by the “North” group, are of little or no consequence in this regard.