Statement by India at the 25th session of WIPO Intergovernmental Committee on GRTKF, delivered by Prof. N.S. Gopalakrishnan, on 15 July 2013
Thank you Mr. Chairman.
Indian delegation joins other delegations in congratulating you and your team for the progress we made and for the preparations for this meeting including the documents.
We have concerns on some observations made by some of the delegations on the text. We feel that in the process of moving forward we forget the main objectives for which the Committee is trying to find solutions. Among many objectives, we would like to place emphasis on two important objectives. Firstly it is the prevention of misappropriation of TCEs that remains the major focus of the discussions. We must acknowledge that out of the many ways in which TCEs are misappropriated, use of modern IP systems is one of the major sources.
The second major objective is the recognition of the valuable contributions of the communities in creating and maintaining this knowledge system from generation to generation. It is the lively hood of these communities, as emphasized by some of the delegations, that is at stake, that we need to protect and promote through this instrument. In this context the observation of some countries to use standards from modern IP system, by preserving “public domain” and “balancing the interests” as in the IP instruments is going to be detrimental to the interest of the holders of TCEs. Of course we are mindful of the social implications of creating a legal instrument to protect TCEs and any attempt to find solution to this should not undermine the interest of the holders of knowledge. It is in this back ground we would like to make some specific comments on the four articles.
Regarding Article 1 dealing with subject matter of protection, as observed by the delegation of South Africa we need to make use of the progress we made in the TK document. We could find a solution in TK since we agreed to remove the reference to the IP standards. It is the presence of the terminology of the modern IP system in Article 1 of TCE’s text that creates problem. For example is the term “artistic and literary” which is taken from Berne Convention. This is going to limit the coverage of the TCE’s. We would like to remove this from the text. It is important to keep the term “knowledge” in the definition. The distinction we make in the IGC on TCE’s and TK is artificial from the perspective of the communities and there is considerable overlap between the two. This was clearly brought out in the morning presentation. It may be possible for us to find a solution when we attempt to finalize both the TCE’s and TK documents. But given the reality we would like to keep it in the text for the time being. But we are flexible on the illustrative list in the definition since it is more to do with the implementation at the national level.
On criteria for protection, India is of the view that it must be stand alone and not cumulative. We also oppose the use of modern IP standards like “intellectual creativity” which do not appear in any IP document, and use of “unique” and “distinctive”. Regarding the term “held”, which was introduced in the last session, we expressed our reservation and we believe that this term brings into the notion of possession and control by the beneficiaries resulting in limiting the nature of TCE’s that are protected. We would like to keep it in brackets till we find a viable solution to beneficiaries in Article 2.
Regarding Article 2, as suggested by South Africa and based on the discussions in the meeting held in Bangkok, we need to follow the progress we made in the TK document particularly 2.2 as a viable solution. This is important because the beneficiaries are going to be the same in the case of TK and TCE’s.
Regarding Article 3 we support a right based approach and we believe that measures are equally important for its implementation. But without recognizing some specific positive rights measures are not going make any impact on the prevention of misappropriation.
We would like to come back on limitations and exceptions after we make clear progress on definition and beneficiaries.