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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Scholars today exchange a wide range of content in the course of their academic work. In some cases this occurs in the context of formal publication, but a large amount of content is also shared online in teaching and research contexts. As the amount of information available on the internet grows at an exponential rate, so too does the imperative for academics to share and promote their work online in order to boost visibility and attract citation. Within this context, engagement with copyright and content licensing is a key new academic proficiency.

In the formal publication realm, the rise of the open access movement has resulted in a change of approach where academics increasingly retain copyright rather than assigning it to publishers. Higher education institutions are also taking a stand on the issue of copyright transfer in order to protect their investment in knowledge creation and ensure that they have the rights to distribute and exploit the content they produce outside of formal publication channels. The University of Cape Town (UCT) Open Access Policy, for instance, recommends that authors avoid the transfer of copyright to publishers in cases where the publisher does not allow archiving, reuse or sharing of a submitted version of a scholarly publication. Continue reading →

The Network of African Science Academies (NASAC) in collaboration with the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Royal Netherlands Academy of Arts and Sciences (KNAW) recently held a ‘Consultative Forum on Open Access: Towards high level interventions for research and development in Africa’ in Nairobi, Kenya, on 29-30 January 2015.

Michelle Willmers, former Programme Manager of the Scholarly Communication in Africa Programme and current Project Manager of the Open Data Africa Initiative in the UCT IP Unit, was one of the scholarly communication experts invited to present in the forum. The two-day meeting drew together senior representatives from African science academies and was intended as a springboard to consolidate and promote a regional approach in advancing the Open Access agenda in Africa. The discussion covered a wide range of scholarly communication issues, ranging from new approaches to journal publishing and peer review to curation and intellectual property.

Questions around intellectual property, rights management and patenting are of central importance in the local debate around Open Access as many African institutions straddle the space between new open approaches and traditional more closed systems of practice. The need to consolidate efforts at regional level and lobby government for support and engagement with Open Access issues was one of the principle recommendations emerging from the forum.

The full set of final Scholarly Communication in Africa Programme (SCAP) outputs (including useful briefing papers on various aspects of Open Access) can be accessed here.

 The IP Unit is hosting a high level round-table meeting on Plant Variety Protection in Africa in collaboration with the Integrated Seed Sector Development (ISSD) Africa Program and Wageningen University. ISSD aims to promote agricultural development by recognizing and building upon the diversity of seed systems in a given country. The meeting is funded by the Dutch Ministry of Economic Affairs and the Netherlands Organisation for Scientific Research (NWO).

Several countries and regions in Africa are in the process of developing and implementing Plant Variety Protection (PVP) systems in response to various policy goals. However this has not been without social debate because of concerns about the impact on informal seed systems, which still is the predominant source of seed for smallholder farmers in Africa. Plant variety rights are an important instrument for incentivising breeding in the formal and above all the commercial seed systems, their impact on informal seed systems is disputed.

The goal of the meeting is to encourage a free and frank discussion among key stakeholders of these issues including key components of a differentiated PVP system which incorporates the various seed systems and supports commercial, food security and smallholder farmers’ interests. The round-table meeting will be held in Cape Town, South Africa, on 27-28 November 2014.

The IP Unit will run a CopyrightX course at UCT in early 2015. CopyrightX: UCT will be administered by UCT Law@Work: Professional Development Protect of the Faculty of Law, UCT.

CopyrightX: UCT is a member of the growing CopyrightX Community, a network of affiliated courses offered by several universities and other institutions between January and April of each year. Through a combination of pre-recorded lectures, readings, seminars, live webcasts, and online discussions, the participants in these courses examine and assess the ways in which law seeks to stimulate and regulate creative expression. Some of the conversations enabled by CopyrightX are small and limited to students in a single course, while others are global and engage the students in all of the affiliated institutions. CopyrightX was developed by Professor William Fisher at Harvard Law School; it is hosted and supported by the HarvardX distance-learning initiative and the Berkman Center for Internet and Society. A list of the other participating organisations and additional information concerning this educational initiative is available at http://copyx.org

CopyrightX: UCT consists of the Harvard pre-recorded lectures, accompanied by reading materials relating to U.S. and South African copyright law. Weekly class-room seminars will be held every Thursday from 18h00 to 19h30 at the University of Cape Town, starting on 12 February 2015 and ending on 23 April 2015. These seminars will be taught by Dr. Tobias Schonwetter . Seminars consist of discussions of lectures and will more closely analyse copyright issues from a South African perspective.

Admission to the South African affiliate course is free. Everyone residing in South Africa can apply, provided they can attend the face-to-face lectures on Thursdays at UCT. However, the number of course participants is limited, and registrations will be capped at 30. Applications are considered based on a short motivation letter. Application is open between now and 30 November 2014. All applicants will be notified of the status of their application no later than 15 December 2014.

For more info and to apply click here.

by Kelsey Wiens

The benefits of open licenses are clear and substantial. By reducing the burdens and removing the risks associated with ordinary copyright, we make it easier for others to use, share, and build on materials. This week US-based international funder, the Hewlett Foundation, announced that it now requires that grantees license the final materials created with those grants (reports, videos, white papers) under the most recent Creative Commons Attribution license (currently CC-BY 4.0). With over $8 billion in its endowment, the foundation’s policy stance has monumental consequences. It also begs the question:

Why don’t all funders do the same? 

The copyright of the outputs of a project either sits with the foundation or the grantee and once the work is completed is most often buried in a press release or a research paper; filed in a boxed marked “Good Job”. The foundation or grantee must henceforth give permission for others to copy, distribute, remix or reuse the works. It’s guarded, often it’s difficult to find and even more difficult to locate the owner and negotiate and secure permissions. Continue reading →

Sub-Saharan African countries are currently establishing or updating their Plant Variety Protection regimes through the regional organisations of which they are part. These initiatives are largely modelled on the 1991 Convention of the International Union for the Protection of New Varieties of Plants (UPOV). The 1991 UPOV Convention is claimed to attract more investment in plant breeding, allowing farmers to access a wider range of improved varieties which contributes both to economic development and food security. At the same time, however, these processes have been heavily criticised by civil society organisations for being out of step with Sub-Saharan African agricultural realities, undermining smallholder farmers agricultural practices, farmers’ rights and, ultimately, threatening food security. A new article by Dr. Bram de Jonge discusses three of the main concerns of the civil society organisations in tandem with examples of alternative provisions from PVP systems from around the world. While the article shows that the civil society concerns are not likely to be acted upon, the article aims to answer the pressing question whether the proposed legal regimes will indeed hamper traditional farming practices in developing countries. As it is argued that this question needs to be answered in the affirmative, the article finally explores some legal avenues through which Sub-Saharan countries could establish a legal regime that protects the interests of breeders, in line with the highest international standards, while at the same time protecting and preserving the needs of those who make up the single largest group of farmers in the region – the smallholder farmers. 

B. De Jonge (2014). Plant Variety Protection in Sub-Saharan Africa: Balancing Commercial and Smallholder Farmers’ Interests. Journal of Politics and Law 7(3). pp. 100-111. Available at: http://dx.doi.org/10.5539/jpl.v7n3p100