Multilateral Matters

An occasional blog on International developments related to intellectual property, innovation, development and public policy.

Preface by Adjunct Professor Wend Wendland

An important and fascinating multilateral negotiation is underway at the World Health Organization (WHO) in Geneva aimed at agreeing on a new convention, agreement or other international instrument on pandemic prevention, preparedness and response. There are critical policy issues at stake. In addition, the process itself – from a methodological point of view – is interesting too.

Victor Owade has been following the process since its inception, and so I invited him to prepare a succinct description of the work completed so far. His report is current as of October 2023. Subsequent blogs will brief on what occurs after.

Over to you Victor!

Key takeaways

• Governments have set in motion an intergovernmental process to negotiate an international legal instrument on pandemic prevention, preparedness, and response by May 2024.

• The fundamental challenge will be to ensure that equity is achieved and that  actions taken will be coordinated in a timely and efficient manner for the benefit of all countries.

• It is still not clear what role intellectual property (IP) will eventually play in a future pandemic treaty.

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Multilateral Matters

An occasional blog on International developments related to intellectual property, innovation, development and public policy.

Preface by Adjunct Professor Wend Wendland

International law already regulates access to and fair and equitable benefit-sharing in genetic resources located within the territories of countries. 

However, it was not clear what legal regime applies to marine genetic resources (MGRs) in areas beyond national jurisdiction – such as in the high seas and the seabed beyond the limits of national jurisdictions. 

Therefore, member countries of the United Nations (UN) began to develop a new international legally binding instrument on MGRs beyond national jurisdiction.  This negotiation took place under the United Nations Convention on the Law of the Sea, 1982 (UNCLOS).

Multilateral Matters # 2 (November 2018) and Multilateral Matters #10 (September 2021) explained, analyzed and reported on this negotiation up to November 2018 and September 2021, respectively.

Since then, the negotiating body – an Intergovernmental Conference (abbreviated as “IGC” or “the Conference”) – has met three times, most recently in February 2023. In the most recent meeting, negotiators finally agreed on the text of an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. 

Nabanji Nanjomwa Nebwe, currently at the World Intellectual Property Organization (WIPO) as part of the Young Experts Program, has been working with me since early 2022, and is well placed to provide Multilateral Matters readers with a report on the concluding development in this intriguing, challenging and important negotiation.
 

Nabanji, over to you.

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Multilateral Matters

An occasional blog on international developments related to intellectual property, innovation, development and public policy

PREFACE BY ADJUNCT PROFESSOR WENDLAND

Member countries of the World Intellectual Property Organization (WIPO) have been discussing and negotiating substantive law topics in the field of copyright and related rights (or, “neighbouring rights”) for many years. Since 1998, they do so in WIPO’s Standing Committee on Copyright and Related Rights (the SCCR). The SCCR last met in May 2022, for its 42^nd time[i]. The SCCR reports to the annual meeting of WIPO’s member states, referred to as the “WIPO General Assembly” (the WIPO GA). This year’s GA took place from July 14 to 22, 2022, and it considered the report presented by the SCCR contained in document WO/GA/55/1.[ii] As invited in the report, the GA took note of the Committee’s work since the last GA and directed the SCCR to continue its work on the issues referred to in the report.

What are the substantive law issues currently on the SCCR’s agenda? What is its composition and structure? What did it report to the 2022 WIPO GA on?

To answer these questions, I invited Dr. Susan Isiko Štrba to write this blog. Susan is the author of aleading guide on copyright and access to education in developing countries.[iii] She has followed the work of the SCCR and of WIPO generally for many years and is well placed to provide her perspectives on the matter. Susan, over to you.

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The UCT IP Unit, in its capacity as an institutional hub for the Open African Innovation Research (Open AIR) network, is managing Open AIR’s participation in the EU-funded African European Maker Innovation Ecosystem (mAkE) project. Launched in 2022 and running until 2025, the mAkE initiative is facilitating collaboration between, and strengthening of, African and European hardware-focused Digital Innovation Hubs (DIHs) and makerspaces. DIHs and makerspaces are key players in their local innovation environments – through their support of innovators, entrepreneurs, start-ups and SMEs seeking to create solutions to local problems and generate livelihoods through sustainable digital innovations.

by Professor Wend Wendland, Adjunct Professor, Faculty of Law, University of Cape Town

Multilateral Matters
An occasional blog on international developments related to intellectual property, innovation, development  and public policy

INTRODUCTION

On July 21, 2022, the General Assembly of the World Intellectual Property Organization (WIPO) decided that, by 2024, two diplomatic conferences should take place, one on a proposed new Design Law Treaty, and the other on genetic resources and associated traditional knowledge (TK).

Diplomatic conferences are held to negotiate and adopt or revise multilateral treaties and conventions.

This decision was as unexpected as it is momentous.

Negotiations among member countries on both subjects have been deadlocked for many years, on design law in the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) and on genetic resources and associated TK in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

What are the substantive issues concerned? What was decided exactly? And what are some of the implications of the decision taken?

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by guest contributor Dr Bonginkosi Shozi, Postdoctoral Fellow, Institute for Practical Ethics, UC San Diego, and Honorary Research Fellow, School of Law, University of KwaZulu-Natal

Multilateral Matters
An occasional blog on international developments related to intellectual property, innovation, development  and public policy

Introduction
In May of 2020, just over a year into the COVID-19 pandemic, and before a publicly available vaccine, I was invited by Professor Wendland to write a blog post on what was, at that point, the most promising initiative for advancing access to healthcare products necessary for responding to the ongoing public health crisis: a voluntary pool of exclusive rights on COVID-19–related subject matter (see Multilateral Matters #6 “What can African Countries do to Make Sure they Have Affordable Access to a COVID-19 Cure?”).

The global calls in support of a voluntary pool led to the launching of the COVID-19 Technology Access Pool (C-TAP), which was endorsed by 45 World Health Organization (WHO) Member States.[1] The operation of this initiative was supported by the Medicines Patent Pool (MPP) – an organization dedicated to advancing access to life-saving medicines in low-to-middle income countries by facilitating voluntary licensing and patent pooling.

The widespread support the voluntary pool received raised the hopes of many that it would help secure equitable distribution of the COVID-19 vaccines which were, at that point, still in development. Ultimately, these hopes were in vain. The first wave of vaccines received approval in December of 2020. In the year that followed, high-income countries were able to procure a sufficient supply of vaccines to vaccinate 75-80% of their populations while low-income countries struggled to secure access to and distribute vaccines, leading to less than 10% of their populations being vaccinated.[2] The so-called global ‘vaccine apartheid’ has persisted into the present day, with massive inequalities in access to COVID-19 healthcare products (including vaccines, diagnostics, and therapeutics).

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By Hanani Hlomani and Gabriel Rybko

The path ahead for non-fungible tokens (NFTs) appears turbulent. Over a year ago, NFTs attracted attention primarily over the absurd prices they fetched on digital auctions. For instance, the first tweet of former Twitter CEO Jack Dorsey was sold as an NFT for $2.9m in March last year. Just last month, however, the same NFT was re-auctioned and the highest bid was around $270 (or 0.09 ETH at the time of the auction). It appears that the wheels on the NFT ‘hype-train’ may have seized up, but there may still be a case to be made for the existence and use of NFTs. 

In this series of blog posts, we take a look at what implications NFTs have in terms of IP law. We look not only at the challenges that NFTs pose to IP law, but also to the solutions they might pose in protecting various intellectual property rights. Before we can assess how NFTs can aid our current IP regime, we need to understand what they are, and why they have anything to do with IP at all.

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by guest contributor Professor Dalindyebo Shabalala, Associate Professor, University of Dayton School of Law

Multilateral Matters

An occasional blog on international developments related to intellectual property, innovation, development  and public policy

Preface by Adjunct Professor Wendland

The 26^th meeting of the Conference of the Parties to the United Nations Framework Convention on Climate Change (the UNFCCC) was held in Glasgow, Scotland in late October to mid-November last year. This meeting is referred to as COP 26. The UNFCCC’s COPs are both formal negotiating sessions for countries to advance their climate commitments and actions as well as forums for many, diverse constituencies and stakeholders from around the world to gather and discuss the climate crisis and possible solutions. The centrepiece of ongoing work under the auspices of the UNFCCC, and which provided the main focus of COP 26, is the so-called Paris Agreement, agreed on at COP 21 in Paris, France in 2015. The role of intellectual property (IP) protections, green innovation and technology transfer in green technologies are among the many issues included in this work. However, these issues were not discussed in any meaningful way at COP 26. To find out why I requested Professor Dalindyebo Shabalala, a South African academic currently based in the USA who follows these and other issues closely, to share his reflections on this topic. Over to you, Professor Shabalala.

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by Professor Wend Wendland, Adjunct Professor, Faculty of Law, University of Cape Town

Multilateral Matters

An occasional blog on international developments related to intellectual property, innovation, development and public policy

 Key Points

In multilateral negotiations, in which up to 200 countries participate, most decisions are meant to be taken by “consensus”.

“Consensus” means the absence of opposition. “Unanimity”, on the other hand, means that all parties approve the decision.

In majority voting, all countries have an equal vote. However, voting creates “winners” and “losers”.

By contrast, consensual decision-making aims at reaching an overwhelming agreement among everyone at the table, maximizing joint gains and coming as close as possible to meeting the underlying interests of all countries. Decisions by consensus build a sense of cohesion, solidarity and joint ownership.

However, in practice, in consensual decision-making less powerful countries may not be able to or wish to express their objections. In some ways, consensual decision-making is, therefore, less democratic than voting.

Furthermore, achieving consensus in multilateral negotiations is proving an insurmountable obstacle, especially negotiations aimed at agreement among all countries on a detailed and legally binding treaty or convention. Some negotiations have not been able to conclude in over 20 years. There are also other disadvantages to consensual decision-making.

It is useful therefore to explore ways in which to relax the consensus principle and/or reduce the number of countries participating in a negotiation (by, for example, concluding plurilateral agreements). Additionally, it might be easier to achieve full consensus on outcomes that are not detailed, legally binding treaties and conventions.

Procedural questions aside, failing multilateralism is, in essence, a failure of Member State leadership. There are several ways in which countries could strengthen multilateralism through more effective leadership.

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by guest contributors Carla Bengoa Rojas, policy advisor on biodiversity and intellectual property matters and Pag-Yendu M. Yentcharé, Postdoctoral Research Fellow at the Intellectual Property Unit of the University of Cape Town.

Multilateral Matters

An occasional blog on international developments related to intellectual property, innovation, development and public policy

Preface by Adjunct Professor Wend Wendland

In November 2018, Multilateral Matters #2 described the context and background to this negotiation, flagged the main intellectual property (IP) issues and described the process up to that time. At that stage, there was not yet a zero draft of the instrument. As of today, an Intergovernmental Conference on an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction has met three times, most recently in August 2019. The fourth session had been scheduled for March/April 2020, but the formal negotiations were interrupted by the COVID pandemic. The fourth, and formally the final, session is now scheduled for 2022. The latest draft of the text of an “agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” will be the focus of the continued negotiations.

In view of the imminent resumption of the negotiations, I invited two experts who have been following the process closely to provide a refresher on the main IP issues and an update on the process, Carla Bengoa Rojas and Pag-Yendu M. Yentcharé.

For readers who may not know, “BBNJ” is shorthand for “biodiversity of areas beyond national jurisdiction”.

Over to Carla and Pag-Yendu.  Continue reading →