October 4, 2023
JAKARTA – As all eyes are focused on the ASEAN Summit and related events in Jakarta this week, it is worth mentioning another significant international gathering in Geneva, Switzerland.
Representatives of the 193 member nations of the World Intellectual Property Organization (WIPO) are gathering at WIPO headquarters to negotiate a proposed new regulation during the Intergovernmental Committee (IGC) Special Session this week. Their aim is to formulate a legal text or basic proposal for a diplomatic conference on intellectual property (IP), genetic resources (GR) and traditional knowledge (TK) associated with GR, scheduled for early 2024.
If agreed upon, the legal instrument would provide for a more transparent, just and effective IP regime – one that would facilitate benefit-sharing and deter misappropriation of GR and associated TK. Such a system has been sorely missing from the global IP system, where cases of misappropriation of GR are common, usually at the expense of developing countries, including Indonesia.
Instances of misappropriation or misuse of GR in Indonesia have included cases of biopiracy, for example during influenza pandemic outbreaks, where samples of genetic material in the form of pathogens were used to develop new vaccines, without prior informed consent nor the sharing of the benefits of the results obtained from the research to Indonesia.
The new legal instrument would deter third parties from the unlawful use of GR and reward its rightful beneficiaries.
Furthermore, this instrument will help create economic opportunities, advance pharmaceutical technology and provide legal clarity for biotechnology and related sectors, all of which are crucial to achieving industrial development and the attainment of the Sustainable Development Goals (SDGs).
The negotiation of GR in IGC was not always smooth. In the past, the negotiations often encountered challenges because of diverse stakeholder interests, complex legal and technical issues, a lack of trust among parties, resource conflicts, varying national legislation and capacity limitations in some countries.
However, a ray of hope emerged during the 2022 WIPO General Assembly when a historic decision was made to convene a diplomatic conference by 2024 and host a special session to address any gaps in the draft legal text.
The decision, which was the result of a combination of political opportunity, a matured legal text and savvy diplomacy by developing countries, rooted in an African Group proposal – in the form of a package deal – to jointly include a diplomatic conference on a design law treaty, ultimately led to the historic decision.
The decision has resonated as a call to action and a strong signal that developing countries’ voices for a more equitable and just global IP landscape have been heard.
Indeed, since 2009, the year of its inception in Bali, the Like-Minded Group of Countries (LMCs) have consistently advocated for the protection of GR, TK and traditional cultural expressions.
As the world’s largest archipelago nation and one that is rich in biodiversity and cultural heritage, Indonesia has always been well-suited to champion this cause.
By spearheading negotiations over the years, Indonesia has amplified the voices of developing countries and ensured their concerns are duly addressed in the forthcoming international legal instrument.
Now, over a decade later, Indonesia, as the coordinator of the LMCs, is once again presented with a pivotal opportunity to shape the future of global IP rights and ensure balanced protection of GR and the TK associated with GRs.
The LMCs, a group now representing over 60 countries across Asia and the Pacific, Latin America and Africa, must now seize the opportunity. Only through a united front can developing nations contend with developed countries’ interests and big industries.
While the opportunity is there, many challenges lie ahead. Divergent views remain on some crucial points of the agreement.
Developing countries predominantly advocate for a state sovereignty approach, asserting their rights over GR, emphasizing the need for disclosure requirements, guarding against biopiracy and promoting free, prior and informed consent.
Conversely, developed nations lean toward the mankind approach, emphasizing global accessibility, the importance of balancing interests to foster innovation and a cautious stance on excessive regulation.
Balancing these diverse viewpoints is paramount to crafting a comprehensive and equitable framework that respects the sovereignty of nations and the interests of developing countries while encouraging responsible utilization and protection of shared resources.
Reaching an equilibrium of interests that can be accepted by all parties involved is the aim of this week, and a goal that Indonesia has always aimed to achieve.
A successful outcome and agreement on a draft legal text would be monumental, not only within the realm of IP but also in the broader landscape of multilateralism.
In the broader landscape, success in this endeavor carries the potential to inspire similar efforts across different domains, underscoring the indispensable role of multilateralism in addressing global challenges, particularly in a time of global conflict, economic downturn and gridlocked negotiations in other multilateral fora.
As discussions in the special session intensify this week, Indonesia and the LMCs must focus on several key aspects.
First, to continue engagement in constructive dialogue with all stakeholders, including developed countries, to build consensus and ensure a balanced outcome. Second, to bridge gaps between diverse perspectives and interests, laying a solid foundation for mutually beneficial agreements. Third, to foster a holistic approach to negotiations and ensure that no voice is left unheard.
Indonesia’s leading role in the negotiations for an international legal instrument to protect GR associated with TK is a testament to its commitment to a more just and equitable global governance.
By championing the cause of developing countries, Indonesia has paved the way for a more inclusive framework that recognizes the value of TK and ensures the fair sharing of benefits derived from GR.
In the IGC special session, it is fundamental that WIPO members share a mutual understanding that the existing draft text offers the best opportunity for a GR protection agreement. Restraint in reopening discussions on well-developed articles, albeit imperfect, is essential for consensus-building. This commitment to consensus will create the conditions necessary for a successful diplomatic conference in 2024 to finalize the draft text for GR protection.
As the diplomatic conference nears, it is indispensable for Indonesia and the LMCs to continue engagement constructively with all parties in efforts to bridge gaps and build consensus toward a robust legal instrument that safeguards the world’s biodiversity and cultural heritage for generations to come.