Imagine delegates of more or less 180 countries assembling in one hall, ceremoniously beginning a session for an entire week. All of them are diplomats or at least accustomed to diplomatic habits. All of them received clear instructions on what should and should not happen during this session. While friendly opening statements are exchanged inofficial talks test what is possible during the week. Nobody really knows anything, of course. But everybody would like to know what the others think. One group of countries circulates a draft page suggesting an additional meeting during the next six months to reach substantial results. Others oppose the idea because they fear the expenses, they don’t have the time, or else perhaps they don’t want substantial results.
This is the 13th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, and held in October 2008 under the auspices of the World Intellectual Property Organisation (WIPO). The entire week is used up with presenting prefabricated statements on issues already discussed during the last dozen of meetings. The week passes. Then, suddenly, on Friday the IGC sessions begin to be frequently interrupted. The chairman is meeting with group representatives to find some common ground on when and how an additional meeting should take place. The session is extended into the night; except for one all the translators have left building; delegates sound much harsher, some get angry. But still there is no consensus reached on how to proceed during the next six months. Finally, the week is over. Nothing was decided. The next meeting will be for a week again – same procedure as every time.
Within our research group we are observing this process of discussing intellectual property rights or something similar for cultural goods in order to understand the linkages between the international law making process and the local or national allocation of property rights. These initiatives take place in countries such as Indonesia, where national laws protect some forms of cultural expressions, folklore or traditional knowledge related to genetic resources. We are a group of ethnographers of communication, legal scholars and economists interested in factors which determine how, why and when international law making will form property rights for cultural property. This research corresponds to three other research projects which address the constitution of cultural property on the local and the national level where cultural heritage such as Angkor Vat, the forming of a cultural landscape in the Toraja-area in Indonesia, and sounds in Germany are the objects of interest.
Apart from these local, regional and national processes of forming cultural property, some countries such as New Zealand, Indonesia and all of the African Group within WIPO attempt to establish property rights on the international level. They are backed in their attempt by many indigenous groups which feel that their cultural expressions, traditional knowledge and folklore should be given protection from being used and misused by others. The industrial countries are opposed to this idea. They feel that cultural expressions, traditional knowledge and folklore belong to the public domain: Available to all, everybody can use them.
The interests all countries represent within this dispute are quite diverse and difficult to ascertain. Apparently, countries with substantial parts of a population which feels indigenous may well have a strong interest in setting up an international regime of cultural property rights. Also, industrial countries will be likely to be opposed to such property rights because they contradict industries’ interests to make available whatever they can use in international markets. But, if these interests would always determine the results in international law making, we would probably not have a Kyoto protocol. Apparently, rational arguments may have an effect on some, perhaps even a majority of countries. Our research on WIPO IGC lines out the interests countries appear to serve and the exchange on positions as well as arguments between them. We are interested whether we can find rational arguments which explain the countries’ moves within the IGC as well as evidence for an exchange of reasonable positions within the documents along the sessions.
When the IGC will convene again in July 2009 we will be prepared for another lengthy discussion of how and when the next session should take place. But at the same time we will not be surprised if sudden advances occur if not on substantial issues than at least on procedural questions. International law making can take decades – but at some point, sudden changes may take place and agreements may be reached. We want to know why it takes so long, if happening at all. If it does not happen, we would like to know why nations spend so much time and money to be part of such a process.