Environmental Engineering Reference
In-Depth Information
bene
t-sharing regime that may also require explicit statement on disclosure of origin,
5
while the USA and others have suggested exploring options within the existing IPR
system, preferably through bilateral contracts between traditional knowledge holders and
the companies or persons wishing to access and use that knowledge.
6
Some APEC
members have also suggested relying on a market-oriented approach based on clear delin-
eation of property rights to undertake bioprospecting in developing countries and devel-
oping a market whereby such rights can be freely traded.
7
As these issues are being
debated at multilateral fora, another major concern emerging is the TRIPs Plus regime
taking place through various FTAs led by the USA. This has posed a major challenge not
only to the spirit and intention behind the Convention on Biological Diversity but has
also gone far beyond the TRIPs agreement.
In this chapter we discuss some of these issues. The next section provides details of the
various international treaties governing the IPR regime and access to genetic resources and
IKS. A further section looks into the prevailing impasse at the WTO, followed by a
case study of the Kani tribe that assesses the viability of ABS. The last section draws
conclusions.
fi
Framework of international treaties
The issues related to access to biodiversity and sharing of resultant bene
ts have been
part of the debate on biodiversity resources and IPR protection since the early 1990s. At
the Rio Summit, the issues related to the contribution of the indigenous community, par-
ticularly their knowledge, occupied the centre stage. The CBD re
fi
ected several elements
of this debate, as did some other international treaties, such as ITPGRFA. However, at
the same time the TRIPs appeared at the WTO, and later the Substantive Patent Law
Treaty (SPLT) was proposed. The provisions of these agreements and treaties gave an
impression that they were in con
fl
fl
ict with the CBD. In this section, we look into some of
these issues.
Convention on Biological Diversity
The CBD was adopted by more than 150 governments at the Rio Earth Summit in 1992.
One of the three objectives of the CBD was to achieve equitable sharing of the bene
ts
arising out of the utilization of genetic resources, for example by appropriate access and
by appropriate transfer of relevant technologies. Article 15 of the Convention sets out a
framework to achieve this objective. It recognizes the sovereign rights of respective coun-
tries over their natural resources and suggests that the national agencies/authority should
set the conditions for determining access. There is a categorical recognition that access to
genetic resources should be subject to PIC and that the national authorities should ensure
that mechanisms are in place for sharing of bene
fi
ts, in a fair and equitable way, arising
from the commercial and other utilization of genetic resources. CBD Article 8(j) encour-
ages national governments to develop such mechanisms in respect of the bene
fi
ts arising
from the utilization of knowledge, innovations and practices of indigenous and local
communities embodying traditional lifestyles relevant for conservation and sustainable
use of biological diversity.
The CBD, through its Conferences of Parties (CoP), has been discussing various
issues related to ABS. Since the adoption of CBD eight such conferences have already
been organized. At these meetings e
fi
ff
orts have been made to assess user and provider
