Traditional Knowledge And Biodiversity Under Discussion At WTO And CBD

Intellectual property rights (IPRs) and traditional knowledge (TK) as they relate to the use and conservation of biological resources are among the topics for discussion at the Sixth Conference of the Parties (COP-6) to the Convention on Biological Diversity (CBD), to be held on 7-19 April in The Hague, The Netherlands, where Parties are expected to adopt international guidelines on access to genetic resources and benefit sharing. Similar discussions are also taking place at the World Trade Organization (WTO), most recently at the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPs) on 5-7 March.

COP-6 expected to adopt guidelines on access to genetic resources

The Parties to the CBD are expected to adopt the "Draft Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization" -- adopted by the CBD Open-ended Working Group (WG) on Access and Benefit-sharing in October 2001 -- which would constitute the first-ever international guidelines on this issue. Outstanding items to be concluded in The Hague include the use of terms, the scope of guidelines with respect to products and derivatives of genetic resources, and stakeholder involvement. Parties will also discuss IPRs as they relate to access and benefit-sharing, focusing in particular on clarifying the relationship between the CBD and the TRIPs Agreement. In this context, the WG's recommendations for COP-6 as well as those of the WG on Article 8(j) reflect some of the developing countries' proposals put forward in TRIPs Counci.

In particular, the Working Groups called on the Conference to encourage the disclosure of the origin of genetic resources and relevant TK in IPR applications, and urged Parties to (a) consider taking into account the CBD provisions of prior informed consent and mutually agreed terms in IPR applications, and (b) take TK into account in the examination of novelty and inventive step in patent applications. COP-5 of the CBD had previously invited the WTO to acknowledge relevant provisions of the Convention, to take into account the fact that the provisions of the TRIPs Agreement and the CBD are interrelated, and to further explore this interrelationship. The COP had furthermore reiterated its request for observer status in the TRIPs Council -- which has still not been granted primarily due to objections by the US (see related story on the CTE, this issue) -- and is expected to do so again at its upcoming meeting.

Working Group 2 of COP-6 is currently scheduled to discuss access and benefit-sharing as related to genetic resources on 9 April in the afternoon and issues related to Article 8(j) on the morning of 15 April.

Little movement on life patentability, TK and biodiversity at WTO

Discussions at the WTO TRIPs Council on the patentability of life forms (as set out in Article 27.3(b) of the TRIPs Agreement which is currently under review), TK and the relationship between the CBD and WTO rules made little headway with Members mainly reiterating their previously stated positions. In the past, Brazil, India and some other developing countries have highlighted what they see as possible conflicts between the CBD and the TRIPs Agreement, and suggested that these could be resolved through a revision of Article 27.3(b) or of Article 29 (on conditions on patent applicants). Such a revision would incorporate requirements that patent applicants disclose the source of genetic material and relevant TK, and that they provide evidence of fair and equitable benefit-sharing and prior informed consent. Most developed countries, in contrast, including the EC, the US and Japan, have generally resisted such amendments to the TRIPs Agreement, arguing that there is no conflict between the two agreements and that they can be simultaneously applied.

The debate on these issues had stalled prior to the Fourth WTO Ministerial Conference in November, leading some analysts to speculate that they could only be resolved within a new round of trade talks. While negotiations on these issues were not explicitly launched at the Conference, the Ministerial Declaration for the first time included references to TK and folklore, linking discussions on TK and the CBD-WTO relationship to the reviews under Articles 27.3(b) and 71.1. [Article 71.1 deals with reviews of the implementation of the Agreement, including with a possible view to modifying or amending it.] According to one developing country delegate, the discussions have thus become part of the larger package of items in the work programme (to be completed by 1 January 2005), thereby possibly providing the impetus required to advance the debate.

TRIPs Council meetings for 2002 are currently scheduled for 25-27 June, 17-19 September and 25-27 November.

Access, benefit-sharing and TK at the WTO and CBD

While most of the world's genetic resources are found in the developing world, commercial benefits derived from their use are largely concentrated in industrialised countries. The CBD aims to strike a balance by requiring Parties to facilitate access to genetic resources while also stipulating that such access should be on mutually agreed terms and with the prior informed consent of the country of origin. Making the State the responsible entity for determining access (rather than e.g. local or indigenous communities) has been an issue of concern to some. To protect the TK associated with the genetic resources, Article 8(j) requires Parties to "respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles" relevant to achieving the objectives of the CBD, and to promote their wider application with the approval and involvement of TK holders while ensuring the equitable sharing of benefits arising from the use of TK.

In the WTO, discussions on access to genetic resources and associated TK have mainly taken place in the context of the TRIPs Agreement. Article 27.3(b) is of particular relevance for the CBD. The Article allows countries to exclude plants, animals and certain biological process from patentability as long as plant varieties are protected by patents, sui generis systems or both. The Article is currently under review in the TRIPs Council where discussions focus on whether to extend the scope of 27.3(b) to include issues such as biodiversity, TK, benefit sharing, and the ethics of patenting of life forms; whether and how to harmonise the TRIPs Agreement with the CBD; and the extent of flexibility to create sui generis plant variety protection. In contrast to the CBD, the TRIPs Agreement's focus is primarily on patents and other IPRs defined in conventional IPR regimes. This emphasis is seen by many as favouring inventors and corporations involved in the formal research sectors of developed countries, while failing to provide equivalent legal protection for informal innovators including holders of TK. Others, however, argue that a strong IPR regime is necessary to encourage innovation as it allows producers to recover the research and development costs.

Traditional Knowledge associated with biodiversity can be valuable for finding and using biological resources, such as genetic resources or associated biochemicals that can be the basis for pharmaceuticals, herbal medicines and other products, but also for non-market applications, such as locally used technologies and resources applied to conservation, agriculture and healthcare. Regarding the protection and use TK, and the sharing the benefits derived from their use, discussions have primarily focused on whether TK can and/or should be protected using existing IPR systems as provided in the various conventions of the World Intellectual Property Organization (WIPO) and in TRIPs. In most cases TK cannot be attributed to identifiable individuals, but rather has developed through several generations. In addition, TK is often shared by groups within a community or even whole communities. For these reasons, it is often argued that conventional IPR systems are not suitable for the protection of TK. Others, however, believe that existing systems can be modified to accommodate TK. The frequent lack of a specified source of TK also raises questions with regard to benefit-sharing. For example, it is often unclear whether the benefits should be distributed to an individual, an indigenous community, or to the country of origin of TK, and in what form they should be distributed, such as direct payments (up-front payments or royalties) or contributions to a fund.

Additional Resources

Background information on Article 27.3(b).

Reports of the two CBD Working Groups on Access and Benefit-sharing (UNEP/CBD/COP/6/6, including the Draft Guidelines) and on Article 8(j) (UNEP/CBD/COP/6/7), http://www.biodiv.org/meetings/cop-06.asp.

Documents on TK and IPRs of the WIPO's Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore.

"Australia assails EU over WTO talks on geographical indications," WTO REPORTER, 8 March 2002; ICTSD Internal Files.