The misappropriation of genetic resources and traditional knowledge – and the forgone benefits derived from their use –continues to elicit serious misgivings among the biodiversity community and indigenous peoples. High-profile cases – such as the neem tree, basmati rice and maca – fuelled calls for a more effective system to prevent such illegal access and ensure fair and equitable benefit-sharing. The Convention on Biological Diversity (CBD) marked an attempt by the international community to address this issue at the multilateral level. To this end, it aims to strike a balance between interests of those countries that are seeking facilitated access to genetic resources (commonly referred to as the “user” countries) and those holding the genetic resources and associated traditional knowledge (the “provider” countries). Negotiations are also underway to design an international regime specifically dedicated to governing access and benefit sharing under the auspices of the CBD.
However, the CBD and other international legal systems to regulate access and benefit sharing, including the International Treaty on Plant Genetic Resources for Food and Agriculture, are weak in scope and enforceability vis-à-vis the global intellectual property systems. The WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), the International Convention for the Protection of New Varieties of Plants (UPOV) and the treaties and processes under the World Intellectual Property Organization (WIPO) – all components of this global Intellectual Property (IP) regime – have thus far neglected to properly reflect communities’ and national ownership of traditional knowledge and genetic resources. It is imperative to redress this imbalance by ensuring that biodiversity conservation and sustainable use objectives are upheld in global IP governance. Requiring patent applicants to disclose the source of the genetic resource and traditional knowledge used in their inventions – as well as evidence of prior informed consent and benefit-sharing – has been raised as a possible mechanism for using the intellectual property system to ensure legal access and benefit-sharing. Multilateral obligations to implement such requirements – proposed to be incorporated, for instance, in the TRIPS Agreements – are expected to ensure a level playing field among those using and providing the resources. Critics, however, point out that the intellectual property regime is not suitable for this task, not least because genetic resource based inventions might never be patented, and that alternative avenues should be explored.
This collection of essays, written by leading experts in this field, aims to shed some light onto the utility of disclosure requirements as a means for integrating biodiversity concerns into intellectual property systems. We hope that the thinking provided here will stimulate debate and help strengthen international governance on access and benefit-sharing in accordance with the CBD objectives.