WTO Ministerial Section • Volume 3 • Number 15.5 • 8th September 2003
WORKSHOP 2: CBD-TRIPs Relationship
Special Issue - 8 September 2003 WORKSHOP 2: CBD-TRIPs Relationship back
Participants from a broad range of groups discussed the link between the WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement and the Convention on Biodiversity (CBD) called for the protection of traditional knowledge and biological and cultural diversity in the face of trade liberalisation. A variety of opinions were expressed at the workshop, reflecting the diversity of perspectives that have characterised the TRIPs-CBD debate since the end of the Uruguay Round in 1994.
Deliberations were held on prior informed consent (PIC) in access agreements; access and benefit-sharing regimes; options for the protection of traditional knowledge (TK), and the mandate of para. 19 of the WTO’s Doha Ministerial Declaration, which instructs Members to examine, inter alia, the TRIPs-CBD relationship and the protection of TK and folklore.
A central controversial issue was over the legitimacy and appropriateness of any regime that protects intellectual property over life forms. One group of participants was of the view that granting IPRs over life forms is incompatible with the conservation of biological and cultural diversity. Another group, however, was of the view that the best solution was to reform the TRIPs Agreement in light of the CBD, in an effort to find synergies and mutual supportiveness.
Local communities must play key role in PIC procedures
Workshop participants reviewed several international instruments (in particular the CBD) that support recognition of the rights of indigenous peoples and other local communities to prior informed consent (PIC) for access to genetic resources and TK. While it was clear that uncertainties regarding the implementation of PIC remain, the successful utilisation of PIC in some cases — together with best practices guidelines — were said to provide valuable lessons and guidance for future application of PIC. Some participants in the session expressed concern that the discussion on PIC must first address the underlying problem: patents on life. If the issue is not addressed, in their opinion, PIC could be used to legitimise the patenting of life forms and thus the monopoly of private companies over genetic resources.
Various issues emerged from the PIC session. Inter alia, these included: Members of the WTO and other relevant institutions should include the requirement of evidence of PIC of local communities for granting of patents; PIC should be necessary even for knowledge considered to be in the public domain; and countries should support articulation by local communities of prior informed consent procedures.
Whether, when and how to create an international ABS regime?
Many of the workshop participants called for an international legally binding system on access and sharing of benefits (ABS) from the use of genetic resources (as called in para. 44(o) of the Johannesburg Plan of Implementation), since national instruments alone were not seen as sufficient to guarantee the rights of states nor the rights of local communities. However, others did not see an international regime negotiated by national governments as an adequate and trustful framework to protect local community rights, and called for a system based on needs expressed by communities themselves. A number of participants emphasised that IPR regimes developed within the WTO or the World Intellectual Property Organization (WIPO) are inconsistent in many aspects with the objectives of CBD, and failed to foster traditional knowledge, conservation of biodiversity, and innovation and technology transfer. Others reminded the session of the intrinsic value of genetic resources and TK, and said it was impossible to put a price on these and treat them as economic goods.
Presentations on the group of megadiverse countries emphasised the need for both positive (i.e. recognition of community rights over traditional knowledge) and defensive strategies (i.e. defend from ‘biopiracy’), as well as certificates of origin, for these countries to promote an appropriate distribution of benefits and technology transfer.
Traditional Knowledge and IPRs - irreconcilable differences?
This session addressed possible ’sui generis’ options for positive protection of TK. Discussants noted the fundamental incompatibility between current mainstream structures, on the one hand, and indigenous and local communities’ beliefs and livelihoods, on the other. A key concern was that there is a need to recognise the fundamental rights of indigenous peoples as a precondition to any negotiations involving TK, and develop institutional mechanisms for the effective participation of these groups. Many participants recognised that prior informed consent of indigenous peoples must not only reflect communities’ cultures and indigenous views, but also ensure their right to prevent access to genetic resources or TK. Some indicated that certificates of origin should not be considered as an implicit approval of IPRs over life forms.
Session discussants noted that since TK systems are extremely complex and embedded in specific socio-cultural understandings, IPRs offer several limitations. As such, sui generis systems could be a mix of IPR-like rights and other non-IPR mechanisms that allow for the dynamic evolution of knowledge systems and preservation of traditional lifestyles. Participants said that ‘positive’ TK protection can serve several objectives, such as moral entitlement, commercialisation, self-determination, dissemination, and biodiversity conservation. Such TK protection should be geared towards creating a balance between holders of knowledge and the potential users of such knowledge. It should also respect health, food and needs of populations in developing countries that rely on traditional medicine and traditional crop varieties. Further, sui generis structures should focus more on building upon customary laws than on the needs of the biotechnology industry.
Calls to amend TRIPs on life patents and disclosure
There was much discussion around para. 19 of the Doha Declaration (on the examination of the TRIPs-CBD relationship and the protection of TK and folklore): participants noted that this paragraph needed to be addressed at the Cancun Ministerial and solutions found. In particular, many were of the view that due to environmental and ethical concerns, patents for products and processes for life forms should not be allowed — a position taken by the African group of WTO Members. As a result, they urged that the TRIPs Agreement should be revised to establish a mandatory exception to the patentability of life.
There was also general agreement that irrespective of whether patents over life forms are allowed, disclosure of the origin of genetic resources and TK should be required. This could be addressed for instance in the ongoing review of TRIPs Agreement, where participants also noted that the link between IPRs and human rights should be explored.