Bridging the gap on intellectual property and genetic resources in WIPO’s Intergovernmental Committee (IGC)
David Vivas-Eugui
ICTSD Issue Paper 34, January 2012

In the past two years, WIPO’s IGC has witnessed an acceleration of its work in particular on traditional knowledge and traditional cultural expressions. However, the gap in positions on genetic resources remains significant. Against this background, this issue paper examines at length the range of measures and options discussed in the IGC especially biodiversity disclosure requirements and databases. It also considers the binding or non-binding nature of the instrument(s) that might emerge from the IGC and their different implications. In connection to all these aspects, the paper makes recommendations regarding processes, substance and existing research gaps that could contribute towards advancing the IGC’s deliberations. In this regard, the study emphasizes that a binding instrument is the surest way to see biodiversity-related measures in the IP system implemented by user countries, taking into consideration the need that the solutions it provides have an effect in practice. It further points out that soft law solutions should not be ruled out, provided they address issues in an effective manner. Furthermore, it underlines the important fact that WIPO deliberations on disclosure requirements should be seen as complementary to WTO outcomes which could be enforced more effectively through the WTO’s dispute settlement system. Finally, the author highlights that an international instrument comprising disclosure requirements, databases and model clauses for genetic resources protection is not a substitute for an effective ABS mechanism at the national level. Besides proactive attention by competent authorities, direct notification of companies using genetic resources or associated TK, engagement in post-access negotiations, utilisation of certificates, compliance and exploration of litigation options within and outside the national jurisdiction, can also effectively contribute to curb potential biopiracy cases. The publication will be presented at a side-event organized during WIPO IGC-20. Access the resource …