Traditional knowledge (TK), genetic resources (GRs), and traditional cultural expressions/expressions of folklore (TCEs) have been the subject of text-based negotiations to develop an international legal instrument by the World Intellectual Property Organization (WIPO) since October 2000.1 The evolving concern about these matters is recognition that GRs (and their associated TK) and TCEs (including TK) have developed increased economic, scientific, cultural, and commercial values, and that intellectual property is increasingly relevant and important to their protection and exploitation. The circumstances of these negotiations demonstrate some of the underlying structural complexity in reaching agreement in international organizations such as WIPO. At present the solutions are not clear. Their resolution, however, is critical for the ongoing functioning and credibility of these organizations, and WIPO in particular. The key problems for WIPO in trying to develop new intellectual

property norms are: the highly fragmented subject areas, like access and benefit sharing (ABS) GRs; and achieving some form of consensus among a very broad range of stakeholders with diverse interests (developed and developing countries, patent system users, business groups, indigenous peoples, biodiversity-rich poor countries, etc.). This chapter illustrates these problems in the context of the work addressing GRs in WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The comment concludes that the expansion of WIPO’s forum to include a broader engagement among members and a broad range of other

non-member stakeholders makes reaching agreement in complex (cross-cutting) subject areas almost impossible. The main problem is that members and stakeholders are attempting to find resolution to issues much broader than pure questions of intellectual property. The likely consequence for WIPO will be a loss of credibility because it will cease to be a forum that sets international intellectual property norms.

WIPO’s first tentative step in this area was to convene the IGC in 2001. After this there were deliberations over 12 sessions until 2008 without reaching a consensus about any of the identified issues. The WIPO General Assembly subsequently extended the IGC’s mandate: to undertake substantive text-based negotiations. The director general of WIPO considered that the “mandate had two main branches”—first undertaking text-based negotiations for international legal instruments to protect legally TK, GRs and TCE, and second, “the work program for the [IGC] for the coming biennium and the methodology that would be used by the [IGC] and by its inter-sessional working groups.”2 Under this new mandate the IGC agreed to take into account its previous work and prepare separate working documents addressing individually GRs, TK, and TCE. Unfortunately, the two following sessions, the thirteenth and fourteenth, of the IGC failed to settle a future work plan. The next session, however, started to make progress. The result was attention to an actual text starting from documents prepared by the secretariat for earlier meetings addressing GRs, TK, and TCE, and which had been identified by the WIPO General Assembly as those “which are to constitute the basis of the [IGC’s] work on text-based negotiations.”3 With a target date of the end of 2011 for a negotiated text to provide effective protection of GRs, TK and TCE, the IGC’s deliberations gained a renewed urgency and significance. These deliberations are, however, still ongoing with sequentially updated work programs in 2011 and 2013, still hoping to conclude a text for an international legal instrument to provide effective protection for GRs, TK, and TCE. The 2013 work program called for meetings to revise the text for GRs, TK, and TCE, and consider cross-cutting issues taking stock of progress already made. The results were due to be reported to the 2014 WIPO General Assembly. Following the twenty-seventh IGC session there remained no consensus and further negotiations were required. Below I consider the details of what has been achieved specifically for GRs and the remaining areas of disagreement.