The Convention on Biodiversity and the Nagoya Protocol: Intellectual Property Implications
The conservation of biological diversity 1 and the ability to continue to use biological resources sustainably are amongst the most pressing issues that the world currently faces.
Balancing the protection of ecosystems, which involve a plethora of animal, plant and microbial species, with sustainable development objectives demands a systematic response at the international, regional, national and sub-national levels by a myriad of actors. The effective preservation of biodiversity cannot be met through environmental protection laws alone.
A critical problem is one of in coherence - i.e., the situation where laws, policies and regulations designed to protect biodiversity and to encourage its sustainable use and development are not established in a consistent and mutually supportive manner with laws, policies and regulations in other domains, such as industrial policy or intellectual property (IP), that have an impact on biodiversity.
In order to address the linkage between biodiversity conservation and its sustainable use, the Convention on Biological Diversity (CBD) introduced as one of its three objectives the fair and equitable sharing of the benefits arising out of the utilization of genetic resources with those providing such resources.
The inclusion of access and benefit sharing (ABS) as an objective of the CBD was based on the premise that biodiversity has been used by public institutions and private entities to produce new knowledge and products that brought various benefits to its new users, but not necessarily for its original owners or custodians.
It is the ABS aspect that entails the greatest interface between IP rights and biodiversity issues. Clear, fair and equitable rules on ABS are critical to prevent the misappropriation of genetic resources and associated traditional knowledge (TK), a situation also sometimes referred to as 'bio-piracy'.
Narrowly defined, misappropriation refers to access to and use of genetic resources without prior informed consent and/or mutually agreed terms pursuant to the national access legislation of the country providing the genetic resources and applicable international rules on access and benefit sharing. 2
This publication has been developed as a handbook aimed at better understanding the intellectual property implications of the 1992 Convention on Biological Diversity and the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization.
The handbook is intended to fill the gap in understanding where the treaty text has chosen to remain silent. The Convention on Biological Diversity and the Nagoya Protocol: Intellectual Property Implications addresses how the global rules on ABS of genetic resources and associated TK should work in tandem with an area that is mentioned minimally in the 2010 Nagoya Protocol, i.e., IP.
Specifically, this handbook is designed to show the complexity of relevant IP policies that have an impact on various aspects of the CBD and the Protocol, particularly from the provider country perspective.
1 According to Article 2 of the CBD, 'Biodiversity/Biological Diversity' consists of the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic systems and the ecological complexes of which they are part; this includes diversity within species (genetic), between species and ecosystems. Biodiversity is a term describing variability, whereas 'ecosystem' describes a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.
2 This view is based on the definition proposed by Switzerland for WG-ABS 9 on 18 February 2010 regarding the need for definitions in the lead up to COP 10 at Nagoya, Japan.