Biology Reference
In-Depth Information
3.2.4 TRIPS and the CBD
The TRIPS Agreement was negotiated in the 1986-94 Uruguay Round of multi-
lateral trade negotiations by members of the World Trade Organization (WTO)
and took effect on 1 January 1995. Essentially, it demands that standard types
of intellectual property (trade marks, designs, copyrights, patents, plant breeder
rights, geographic indications, trade secrets and circuit layout rights) be rec-
ognized and effectively protected through national law, whether the intellec-
tual property right holder is a resident citizen or a foreigner within the country
concerned. The aim of TRIPS was to provide strong intellectual property rights
protection for innovators across the globe. Developed countries had one year to
effect the necessary changes to national laws, developing countries and transi-
tion economies were given five years, and least-developed countries were allowed
eleven years. In 2001, a further exemption was given, namely that least-developed
countries had until 2016 to effect intellectual property legislation for pharmaceu-
tical patents.
Benefit sharing is one of the main areas of contention between the CBD and the
TRIPS Agreement. This was discussed in November 2001 at a ministerial confer-
ence of WTO members in Qatar. The resulting Doha Development Agenda required
the Council for TRIPS to review the relationship between the two instruments
(WTO n.d.: paragraph 19). The views of WTO members have differed significantly
when it comes to assessing this relationship. The analysis from the WTO Secretariat
(WTO
2006
) identified four different groupings into which these views can be
classified.
The main non-signatory to the CBD, the USA, sees no conflict between the
TRIPS Agreement and the CBD and argues that the two are mutually supportive,
provided national measures are taken to implement their mandates.
4
Other countries, including India, South Africa, Brazil and Kenya, argue that
there is an inherent conflict between the two, and that there is a need to review the
TRIPS Agreement so as to remove conflicting provisions.
5
These countries have
demanded that the TRIPS Agreement be amended to reflect the spirit and commit-
ments of the CBD. In order to achieve this, it is recommended that disclosure of
source and country of origin of any biological resource or traditional knowledge
used in an invention be made mandatory while a patent application is being filed.
The disclosure suggestion has been debated for more than ten years at the WTO,
and strong opposition from a group of industrialized countries led by the USA has
not diminished.
Between these polar positions on the relationship between the CBD and TRIPS
are views that see no inherent conflict between the two, but believe that some form
4
United States (IP/C/W/434). See also proposals from Australia, (IP/C/W/310) and Japan (IP/
C/W/236). (Sources referred to in these notes with numbers commencing 'IP/C' are working
documents of the Council for TRIPS.)
5
African Group (IP/C/W/404); Kenya (IP/C/M/47); Brazil, India, Pakistan, Peru, Thailand and
Venezuela (IP/C/W/429/Rev.1); India (IP/C/W/198).
