ICTSD » Biodiversity

WIPO IGC Side event: What Comes After Nagoya? Addressing Developing Country Needs in Intellectual Property Rights and Biodiversity

interns — Tue, 01 Mar 2011 15:21:51 +0000

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefit Arising from their Utilization (Nagoya Protocol) is a landmark achievement in the international governance of biodiversity. The Protocol was adopted under the auspices of the Conference of the Parties to Convention on Biological Diversity (CBD) on 29 October 2010 in Nagoya, Japan and entered opened for signature on 2 February 2011. As a protocol to the CBD, it serves as an instrument containing a national and international framework for implementation of the CBD’s access and benefit sharing provisions. Its objective is to assure the fair and equitable distribution of the benefits arising from the utilization of genetic resources and related traditional knowledge, thereby contributing to the conservation and sustainable use of biodiversity.

Geographical Indications, In Situ Conservation and Traditional Knowledge

gpascolini — Fri, 11 Feb 2011 13:44:01 +0000

The importance of geographical indications (GIs) as a concept of rural development is growing steadily. Recent years have witnessed legislative changes, and the registration and commercial development of GIs in a number of biologically-diverse developing countries (e.g. Brazil, India, China, Vietnam) as well a in developed countries (e.g. Germany, Japan). At the same time, there continues to be a lively debate about the actual impact of GIs on environmental conservation and rural development.
This information note presents aims to provide a panorama of current trends in GIs as they relate to biodiversity conservation and rural development, and their potential contributions to poverty, hunger alleviation and environmental goals. The note presents key findings of an analysis of over 30 GI cases and their relation to in situ conservation, traditional knowledge and governance aspects of geographically differentiated value chains. It is presented in the hope that it may enrich the discussions currently taking place in the CBD and the WTO.

Intellectual Property, Trade and Biodiversity Conservation: A South - South Exchange

mwojtczuk — Fri, 15 Oct 2010 07:33:33 +0000

Capitalising on lessons learned from joint African and Latin American initiatives on promoting the pro-poor and pro-biodiversity commercialisation of biological and genetic resources, this session will highlight experiences on the use of intellectual property measures to ensure sustainable use and biodiversity conseration.

Regional experts will highlight domestic and regional experiences with implementing and using domestic ABS legislation. A particular focus will rest on the disclosure requirement, enforcement mechanisms and the role of domestic adjudicative systems. The discussion will be further enriched by views from the bio-trade perspective.

Experts and project partners of ICTSD, GTZ and the UNCTAD-UNEP Capacity Building Task Force on Biotrade will make cutting edge inputs on pertinent issues at the intersection of trade, IP and biodiversity, supported by fresh publications and documentation.

For further information please visit http://ictsd.org/i/events/dialogues/62258/.

Biodiversity Related Intellectual Property Provisions in Free Trade Agreements

gpascolini — Wed, 13 Oct 2010 13:27:32 +0000

This paper addresses the relationship between intellectual property and biodiversity in the context of bilateral trade agreements between developed and developing countries. It identifies the ways in which intellectual property rules can either enhance or diminish efforts to meet the three objectives of the Convention on Biological Diversity (CBD): to conserve biodiversity, sustainably use biological resources, and share the benefits resulting from their use. This is discussed in the context of the World Trade Organization’s (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and its provisions, which have entered into the text of bilateral trade agreements. The focus is on Free Trade Agreements (FTAs) recently concluded by Latin American countries, in particular Colombia and Peru with the United States, Canada, the European Union (EU) and the European Free Trade Association (EFTA) respectively. Overall, the assessment of the evolution of the link between intellectual property and biodiversity in bilateral trade agreements reveals that progress has been made towards a more balanced and sustainable approach in recent years. Although the risks posed by developed countries’ proposals for raising levels of intellectual property protection remain, the proactive participation of developing countries has resulted in the incorporation of biodiversity into a series of intellectual property measures included in bilateral trade agreements. Based on the developments in bilateral trade agreements summarized in this paper, it appears there is an emerging trend in which developing countries consolidate their positions through a coherent strategy and careful co-ordination in different forums. Respective clauses included in FTAs are thus likely to impact international and national biodiversity policy making processes.

Brazil’s Practical Experience with Access and Benefit Sharing and the Protection of Traditional Knowledge

Tamara Asamoah — Thu, 08 Jul 2010 10:49:32 +0000

The use of genetic resources and associated traditional knowledge (ATK) has been characterized by lack of regulation and unfair benefit sharing. This picture began to change only in 1993, when the Convention on Biological Diversity (CBD) came into force recognizing national sovereignty over genetic resources and the need for benefit sharing as a fair return for the asymmetries between users and providers of biodiversity. The CBD also obliges its members to respect indigenous peoples’ and traditional communities’ rights related to the use of their traditional knowledge subject to national legislation.
Access to genetic resources and benefit sharing (ABS) is a recent theme with a new perspective that is still little practiced. So far, few countries have developed specific laws and policies on ABS.1 Brazil has made some progress on ABS, although its experience is still recent, and therefore incomplete. Before ABS legislation, negotiations about bioprospection were treated with deep suspicion, raising questions and heated public debates. Lack of clarity about who the beneficiaries should be, the legitimacy of stakeholders to negotiate contracts, the level of confidentiality of the contracts, and the
role of state and private actors in these activities gave rise to uncertainty that discouraged sustainable business around biodiversity.

Disclosure of Origin and Legal Provenance: The Experience and Implementation Process in South America

Tamara Asamoah — Thu, 08 Jul 2010 10:46:25 +0000

The relationship between access to genetic resources and benefit-sharing (ABS) and intellectual property is based on recognition of the following principle: the granting of patents or other intellectual property (IP) rights over biodiversity related innovations should be conditioned on biodiversity components being acquired, obtained or accessed legally. In other words, inventions derived from biodiversity, including genetic resources, must be submitted to additional scrutiny that requires such resources to comply with national ABS laws and regulations regarding the protection of associated
traditional knowledge (TK) if it were the case. This is the principle of disclosure of origin and legal provenance that determines the link between IP and ABS.

The idea of creating synergies between different legal regimes (IP and ABS and/or the protection of TK) raises considerable policy, economic, legal and practical challenges that have been addressed over time in various countries’ laws and regulations. It has also been a matter for debate in international forums, such as the Conference of the Parties to the Convention on Biological Diversity (CBD),1 the Council for the Trade Related Aspects of Intellectual Property Rights (TRIPS) and the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). In order to contribute to a better understanding of this principle and overcome future challenges that may arise from connecting ABS, IP and TK, this document briefly analyzes the history of disclosure of origin and legal provenance and their development. It also reviews legal experiences in various countries and implementation in practice. Finally, it provides with some recommendations for improved application.

Thinking Outside the Box Innovative Options for an Operational Regime on Access and Benefit Sharing

Tamara Asamoah — Thu, 08 Jul 2010 10:44:19 +0000

The ongoing discussions on the Draft Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization has highlighted a series of complexities both at the technical and political level which will require further careful negotiations. The existing draft text of the Protocol still reflects contentious areas regarding issues such as: compliance with access and benefit sharing (ABS) measures, protection of traditional knowledge, and the recognition of disclosure and certificates of origin. This research paper explores the current situation of ABS debates within the WG-ABS on the Protocol and, more importantly, offers an alternative approach to designing an international policy and legal framework on ABS. It argues that the central problem which ABS frameworks confront refers to the policy and legal treatment given to subject matter at hand: genetic resources. The paper explores the idea that genetic resources need to be understood as coded genetic information - natural information - for which economics offer a set of well developed and tested principles to ensure appropriate regulatory frameworks. It further asserts that the regularly unaccounted intangible nature of genetic resources in debates is the main cause for the ongoing difficulties that countries - and the international process on ABS in general - face in terms of conceptual developments and, especially, implementation. When this status is recognized, a wholly new and redirected process will be required if benefit sharing objectives of the Convention on Biological Diversity (CBD) are to be realized. This will imply consideration to geographical distribution of species, databases (i.e. iBOL), certificates of origin, and most critically, a reassessment of the concept and implications of sovereignty in the context of genetic resources and ABS debates in general.
The paper finally proposes a “roadmap” and critical characteristics of a “new protocol” that would take account of the conclusions of the author and ensure a viable international ABS regime.

The Disclosure of Origin Requirement in Central America: Legal Texts, Practical Experience and Implementation Challenges

Tamara Asamoah — Thu, 08 Jul 2010 10:33:46 +0000

This paper presents Central America’s legal framework and practical experience with regard to the disclosure of origin and the certificate of compliance in intellectual property application, particularly in cases involving patents.

The paper starts by presenting some theoretical considerations on this mechanism. It then outlines the main legal and administrative aspects of the disclosure of origin requirement in Costa Rican and Panamanian national laws, and discusses the actual experiences and challenges that arose from their implementation. Moreover, the paper analyses the impact of Free Trade Agreements on the disclosure of origin and biodiversity-related provisions in Costa Rican law. Finally, it suggests some recommendations on how to improve the drafting and implementation process of national legislation regarding this instrument.

The Political Economy of the International ABS Regime Negotiations:Options and Synergies with Relevant IPR Instruments and Processes

Tamara Asamoah — Thu, 08 Jul 2010 10:28:55 +0000

This paper examines the history, evolution and current status of the negotiations of an international regime (IR) on access to genetic resources and benefit sharing (ABS) in the context of the Convention on Biological Diversity (CBD). It addresses the relationship between the IR and the World Trade Organization (WTO), the International Union for the Protection of New Varieties of Plants (UPOV) and the World Intellectual Property Organization (WIPO). The article highlights options and scenarios for a synergistic implementation of the intellectual property rights (IPR) instruments, processes and the possible outcomes of the IR and raises some questions that require further scrutiny.
This document covers the following:

The general dynamics of the negotiations under the international ABS regime.
The different options in the current negotiations in relation to trade, intellectual property and bio-diversity issues and in particular disclosure of origin in IPR applications.
The possible outcomes for the negotiations on these issues.
The relationship of the ABS negotiations with other relevant fora and negotiations at the multilateral (WTO-WIPO-UPOV), bilateral and regional level.

The IR negotiations have addressed a wide range of issues of interest for developing countries. However, this paper is limited to describing and analyzing the most relevant elements related to IPR and biodiversity under discussion in the IR.1

Geneva Trade and Biodiversity Day

Andrew Aziz — Thu, 04 Mar 2010 14:21:14 +0000

In the spirit of the International Year of Biodiversity and with a view towards the 2012 United Nations Conference on Sustainable Development (Rio+20), the International Centre for Trade and Sustainable Development (ICTSD) and the United Nations Environment Programme (UNEP) held “Geneva Trade and Biodiversity Day” to explore the increasingly important intersection between trade and biodiversity policy in the promotion of sustainable development.

From WTO negotiations on fisheries subsidies to sustainability certification schemes for biofuels, trade policies have strong implications for the conservation and sustainable use of biodiversity around the globe. Similarly, ongoing talks on an international regime on access and benefit-sharing under the Convention on Biological Diversity could impact existing multilateral trade rules. Despite the clear links between these two policy-making processes, there has been relatively little international discourse or analysis that has considered how these policy communities can enhance their cooperation.

It is against this backdrop that the Geneva Trade and Biodiversity Day sought to identify and explore key issues at the trade and biodiversity nexus and provide inputs to the perceived lack of synergies between the two policy communities. In this way, participants helped to ensure that trade and biodiversity rules are mutually supportive and work together for sustainable development.

Specifically, the event aimed to:

Improve understanding among the trade and biodiversity communities of how the pursuit of their respective goals and objectives might complement or hinder each other;
Provide information, analysis and knowledge on the impact of multilateral trade rules on biodiversity and how biodiversity policies impact on trade and poverty reduction;
Promote policy coherence in multi-governmental fora, including the WTO, the CBD, and WIPO, especially with regards to negotiations on an international access and benefit-sharing regime;
Explore the synergies between trade policy and biodiversity as it relates to sectoral themes, including agriculture, intellectual property, fisheries and climate change; and
Facilitate synergies between trade and biodiversity policy-making that results in tools that are complementary to the objectives of both communities.

This important gathering was held on 22 April 2010 at the World Meteorological Organization (WMO) headquarters, Conference Room “A”. The individual sessions brought together Geneva negotiators, international organisations, civil society and academia in an effort to foster interaction among policy makers involved in different fora, as well as with those influencing policy-making processes. See “Documentation” above for select presentations from the event.