Intellectual property and the Global South

Walid M Abdelnasser, Tuesday 25 Jun 2024

The Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge agreed by the World Intellectual Property Organisation is a significant step for the Global South, writes Walid M Abdelnasser

 

When the Diplomatic Conference held at the headquarters of the World Intellectual Property Organisation (WIPO) in Geneva last May succeeded in reaching agreement on an international treaty on Intellectual Property (IP), Genetic Resources (GRs), and Associated Traditional Knowledge (TK), this was a success that had several significant implications.

First, we need to recall that the treaty is the first in nine years after the previous IP-related international treaty was concluded in the context of the WIPO, namely the Geneva Act of the Lisbon Treaty on Geographical Indications, also agreed in Geneva in 2015.

During this nine-year period international treaties were not only scarce in the area of IP, but also on a broader scale, being an indication of the more global challenges facing multilateral action experienced by almost all international organisations. This was due to a general trend of retreat from multilateralism in many countries, particularly main players, due to insufficient political will, the priority of domestic concerns, and the rise of protectionist tendencies under the banner of variants of “economic nationalism.”

Second, the treaty is important due to the complexity of its subject-matter as well as the length of the international negotiations it took to reach agreement in the context of the WIPO. An intergovernmental body was established inside the WIPO in the early years of the new millennium with open-ended membership available to all the Organisation’s Member States, in order to negotiate on three interrelated subjects, namely TK, GRs, and Traditional Cultural Expressions (also known as “folklore”).

Such negotiations have been characterised over the years by serious challenges, even as their subject matters are of primary importance for the majority of the developing countries, whether from economic, cultural, or historical perspectives. This is the case because the Global South has a “comparative advantage” in such areas.

In recent years, there has been rising interest among WIPO Member States in advancing negotiations and trying to make a qualitative breakthrough on the basis of mutual compromises among the participating parties. This formula has been based on getting things moving in two directions, in order to ensure that the developed countries and the countries-in-transition will be ready to go along with the minimum requirements for reaching a treaty, as seen from the perspective of the developing countries.

The first track was to combine progress in the negotiations on the treaty with achieving similar progress on negotiating a Design Law Treaty (DLT), a demand primarily of interest to the Western countries for many years. This treaty was successfully achieved when the WIPO’s assembly declared in its 2022 session that the organisation would convene two Diplomatic Conferences in 2024, the first being successfully concluded in Geneva last May on IP, GRs, and Associated TK, and the second, to be hosted by Saudi Arabia in November 2024, on the DLT.

The other direction of movement was for the negotiating countries to be satisfied for the time being on trying to reach agreement on an international treaty on IP, GRs, and Associated TK only, while leaving other subjects included in the negotiations of the intergovernmental body, namely TK in general and folklore, to another occasion when a minimum of worldwide consensus had been secured on these remaining matters.

The recent treaty even contains a provision that allows future agreements on the remaining areas, whenever they are arrived at, to be added to it.

The third significant implication of the recent treaty is the most substantive and probably the most important. The treaty is the first among the 27 treaties in the area of IP administered by the WIPO that is of paramount importance to the majority of countries belonging to the Global South, since it touches on their vital interests in a clear manner. The countries of the Global North are the primary beneficiaries of the majority of the rest of the WIPO-administered treaties.

One IP international treaty of a humanitarian nature, namely the Marrakesh Treaty which provides exceptions from IP rights for visually impaired persons, is a significant precedent. It was successfully concluded following the Diplomatic Conference the WIPO convened in Marrakesh, Morocco, in 2012, and the treaty benefits all visually impaired persons worldwide.

The new treaty is expected to provide the legal framework needed to ensure tangible economic and cultural benefits for countries in the Global South in general, as they possess a large percentage of GRs and associated TK. These countries have been heavily involved in drafting and seeking legal recognition of patents in several vital fields, including many in the area of pharmaceuticals, which provide protected IP rights to both individual innovators as well as corporate bodies that are usually located in the Global North.

In the past, the countries that were the origin of the GRs or the associated TK did not enjoy any moral acknowledgement, legal protections, or economic benefits from other parties exploiting them. In order for them to benefit from the new treaty, it has to be ratified by at least 15 countries. It will enter into force only for those countries that ratify or accede to it.

It is true that the new treaty is the outcome of a long negotiating process. As a result, the countries of the Global South had to make some compromises and probably did not secure all their demands. However, the treaty still constitutes a significant achievement in the area of IP, GRs, and associated TK that could be further built on in the future.

Fourth, the new treaty has a particular characteristic that was also part of the negotiating process leading to its finalisation in that it provides observer status to the representatives of NGOs and civil society organisations that represent indigenous populations and local communities in a number of Member States. In the text of the treaty itself, the same status of “observers” is accorded to these NGOs and organisations in the context of the new General Assembly that will be established to supervise its implementation, and they will also be responsible for finding further ways and means of developing and considering its possible revision in future.

The role of the representatives of indigenous populations, where these are recognised by the laws of their countries, was instrumental in the long negotiating process, together with the governments of Member States. The final outcome of this process, as included in the text of the treaty, provides benefits to those populations and communities in cases where they are recognised by the governments of their countries, alongside the benefits accrued to them.

It would be impossible to conclude without acknowledging the role played over the years by two outstanding Egyptian experts in the area of TK, GRs, and folklore who not only made an excellent case in defending the interests of Egypt but were also vital in elaborating the positions of the Arab world, the African Continent, and the whole Global South in the negotiating process leading up to the new treaty.

I refer here to the late Ahmed Morsy and Hassan Badrawi. The latter played an instrumental role in the successful conclusion of the treaty at the recent Diplomatic Conference.

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*The writer is a diplomat and  commentator.

* A version of this article appears in print in the 27 June, 2024 edition of Al-Ahram Weekly

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