Thailand Law Journal 2009 Spring Issue 1 Volume 12

1.1 Convention on Biological Diversity

There are currently over 180 countries adhered to CBD. The international agreement, which entered into force in 1993, has an aim to secure the conservation and sustainable use of biological diversity. It also explicitly acknowledges the role of TK, innovations and practices in biodiversity conservation and sustainable development. CBD provides the framework for governments in developing countries: (i) to regulate access to biological resources and TK and to ensure equitable benefit sharing, and (ii) to empower the indigenous and local communities in those countries to control the utilisation of their TK and to ensure that benefits from wider commercial use of the knowledge are shared with them. CBD provisions for access and benefit sharing (ABS) include:

The most prominent provision that requires the recognition and protection of TK is Article 8 (j) which stipulates:

“Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovations and practices;”

Recognising communal rights would provide an incentive to the communities for the conservation of biodiversity and the eco-system. If communities were deemed as the rightful owners of TK, they would have the rights to prohibit or restrict commercial exploitation of such knowledge, as well as of the resources related to it. Preserving and recognising the cumulative collective systems of TK will no doubt help to prevent the loss of the knowledge and biodiversity. However, the language in the provision is vague and does not impose any specific legal requirements on the Contracting Parties.

The genetic resources have been subject to open and unregulated use. CBD makes it clear that the use of such resources should be under the authority of the sovereign State. But the issue of what national regimes and conditions for access to biological resources and transfer of TK should be established and adopted is left to the discretion of the Contracting Parties. For example, such regimes may require an environmental impact assessment to be carried out before an access permit can be granted. The regimes may have to define the authorities in which responsibility for issuing access permits and negotiating mutually agreed terms. They must also clarify the role of indigenous and local communities that must be consulted regarding resource extraction and use. The ABS regimes may govern not only bioprospecting activities undertaken by commercial enterprises but also extraction of resources performed by academic and other research institutions.

In May 2002 at the Sixth Meeting of CBD’s Conference of the Parties (COP 6), the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilisation were officially adopted.⁹ The Bonn Guidelines is envisaged to be an important guidance to aid countries in developing and drafting legislative, administrative or policy measures on ABS and to aid countries in negotiation of contractual arrangements.

1.2 WTO/TRIPS Agreement

TRIPS, appendix of WTO, aims to provide a multilateral framework for promoting effective and adequate protection of IPRs both to reduce distortions and impediments to international trade and to ensure that measures and procedures to enforce IPRs do not themselves become barriers to trade.

Although basic principles of the TRIPS Agreement are based on the philosophy of protecting the personal interests of the IPR holders, a properly functioning system protecting IPRs can provide a positive environment for investment in the development and transfer of technology in the right-granting State. Article 7 states “protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”.

TRIPS does not demand for the protection of informal knowledge systems like TK. No direct tools to establish a link between IPR protection and the principles of CBD can be found under the Agreement. However, nothing in the Agreement would appear to either prevent or promote the development of additional measures that provide for the sharing of benefits with countries and communities providing resources or TK, as long as those measures do not contravene TRIPS provisions. WTO/TRIPS also leaves plenty of room for nations to move with regard to the recognition and adoption of sui generis rights.

The term “sui generis” does appear in the TRIPS Agreement. Article 27.3(b) authorises signatory countries to exclude particular categories of biotechnological inventions from patentability, including animals, plants and essentially biological processes. Legal protection however is required for plant varieties either by patents or an effective sui generis system or both. This specific provision has been under renegotiations since 1999.

9 Secretariat of the Convention on Biological Diversity (2000) “Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity”, UNEP/CBD/COP/6/20.
10 Correa, C. M. (1997) “TRIPS and the Protection of Community Rights”, in Signposts to Sui Generis Rights, GRAIN and BIOTHAI, Bangkok, pp.59-60

This article is published with the kind permission of Jakkrit Kuanpoth, Senior Lecturer, Faculty of Law, University of Wollongong, Australia. This article originally appeared in the Intellectual Property and International Trade Law Forum Special Issue 2007 10th Anniversary.