Thailand Law Journal 2009 Spring Issue 1 Volume 12

The ambiguities in the text allow developing countries to avoid having to develop full IPR laws covering plant varieties. Each Member is free to adopt the term of protection as it sees fit. The sui generis system provided for in Article 27.3(b) may be implemented by including Farmers’ Rights into the system. The concept of Farmers’ Rights adopted by the Food and Agriculture Organisation (FAO) has an aim of compensating farmers who have been conserving plant genetic resources for the past centuries and thereby have contributed to the development of plant varieties.¹¹ In other words, the sui generis system may be aimed at promoting not only the creation of new varieties of plant but also the conservation and encouragement of the agricultural practices in the country.

Although a sui generis system for protection of plant varieties and TK can be legally adopted by WTO Members, such a system is still essentially territorial as would be the rights of the indigenous and local communities. Other countries, both WTO and non-WTO Members would not have an obligation to provide similar protection in their countries.

On 6 August 1999, Venezuela proposed to WTO General Council that the next review of TRIPS inter alia should “establish on a mandatory basis within the TRIPS Agreement a system for the protection of intellectual property, with an ethical and economic content, applicable to the traditional knowledge of local and indigenous communities, together with recognition of the need to define the rights of collective holders.” A joint proposal for a legal framework on TK was subsequently submitted with the General Council by Bolivia, Colombia, Ecuador, Nicaragua, and Peru in October 1999.¹² When a Ministerial Declaration was adopted at the third meeting of WTO Ministerial Conference at Doha in November 2001, Paragraph 19 mandates the Council for TRIPS as follows:

1.3 Compatibility between CBD and TRIPS

There are three approaches being raised at the TRIPS Council regarding compatibility between CBD and TRIPS. First, it has been argued by some developing countries that an inherent conflict arises between the two treaties and there is a need to reconcile CBD and TRIPS as part of the review of Article 27.3(b). According to this line of argument, the two treaties have different objectives. CBD was adopted for conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the use of genetic resources. It recognises the sovereign rights of its Contracting Parties over their own genetic resources.¹³ The TRIPS Agreement, on the other hand, 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.¹⁴ While TRIPS considers IPRs as a necessary step towards protecting the rights of the IPR owner and provides for the possibility of private proprietary rights over biological resources, CBD views IPRs as a means to achieve the end of sustainable development. Articles 16.2 and 16.5 of the CBD, for example, recognise the significance of IPR protection but urges Contracting Parties to ensure that IPRs are supportive to the CBD.

The second argument comes from some developed countries, including the US, Japan and the EU. It is viewed that CBD and TRIPS do not conflict with each other. The two treaties can be implemented in a mutually supportive way. Although no provisions in TRIPS refers to the CBD principles with regard to ABS and PIC, the Agreement does not prevent Parties from adopting a sui generis regime or any system providing the sharing of the benefits or the protection of TK. As far as CBD is concerned, the treaty does not prohibit patents on inventions using genetic material but recognise the rights over innovations incorporating genetic resources or TK.

The third approach being debated at the TRIPS Council is that, while CBD and TRIPS do not conflict with each other from a legal perspective, there can be a problem with the implementation of both agreements. Therefore, there is a demand for some modifications within the TRIPS provisions, particularly Articles 27.3(b) and 29, to incorporate some of the elements of CBD. For example, where patentable inventions are based on biological material, the patent applicant should be required to disclose the source of material utilised in the inventions or the obtaining of PIC of the country of origin of the material.

II Key Emerging Issues

The protection and promotion of TK may rely on a set of legal instruments: e.g. IPRs, contracts, PIC, or other non-legal mechanisms such as community-controlled databases. In seeking to recognise rights of traditional rural communities and to protect TK and biological resources, the followings issues may arise.

13 CBD, Article 1.
14 TRIPS Agreement, Article 7.

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.