What are TRIPS – Tool for Enforcement of Benefit-Sharing?

Introduction

At its first meeting, the Panel of Experts was not in a position to draw any conclusions on the role of intellectual property rights in the implementation of access and value sharing. However as mandated by the terms of the TRIPS Agreement, a worldwide dispute has been raging over the granting of intellectual property rights over biological diversity. In this regard, we believe that the Panel must understand that international parallel mechanisms and instruments exist which have implications for access to and benefit-sharing of genetic resources in particular the WTO and the TRIPS Agreement. It is important that the Panel of Experts discusses the implications of the TRIPS Agreement for the goals and functioning of the CBD, and that the disagreement between the TRIPS Agreement and the CBD is resolved. Indeed, with the eminent group of experts assembled here, it would be irresponsible not to do so.

Inherent contradictions arise between the awarding of TRIPS intellectual property rights and the goals of the CBD. In fact, Article 16(5) of the CBD acknowledges that IPRs have a negative impact on the implementation of the provisions of the CBD and thus, calls on the Parties to cooperate in order to ensure that IPRs are supportive and do not interfere with the objectives of the CBD.

Vital matters for the consideration of the Jury, with regard to the manner in which the CBD can and will be compromised by the TRIPS Agreement

• Conflict of rationale, origins, and overall structure

The rationale, origins, and overall structure of the CBD and of the TRIPS Agreement vary. TRIPS is a trade deal with commercial aims that are largely favorable to strong private companies. The development of the CBD, on the other hand, was motivated primarily by increasing concern about the rapid global loss of biodiversity, awareness of the important role of traditional knowledge and the rights of local communities that establish and preserve knowledge, and the need to control access to and sharing of benefits stemming from the conservation and sustainable use of biodiversity.

• National Sovereignty vs. IPR Holders' rights

Countries have the right, on the basis of the concept of national sovereignty enshrined in the CBD, to control the access to biological resources and expertise of foreigners and to establish benefit-sharing arrangements. TRIPS allows individuals or organizations to patent the biological resources or information relating to those resources) of a nation in countries outside the country of origin of the resources or knowledge concerned. TRIPS thus promotes the conditions under which misappropriation of ownership or rights over living species, information, and processes relating to the use of biodiversity occurs. Developing countries' control over their resources and over their ability to exploit or use their resources, as well as to decide the arrangements for access and benefit-sharing, is undermined.

• The Rights of the Community vs. Private, individual rights

It is known that "intellectual property rights are private rights" in the preamble of TRIPS. Patents give the proprietor exclusive rights to prohibit third parties from making, using, offering for sale, selling, or importing (for these purposes) the patented product and to prevent the use of the patented process by third parties (and from using, selling, or importing the product obtained from the patented process). The award of IPRs on goods or processes in TRIPS confers private control over the rights to manufacture, sell or use the product or use the process (or sell the products of that process). This makes it an offense for anyone to do so, but with the permission of the owner, which is typically only granted upon authorization or royalty payment.

Therefore, IPRs have the effect of prohibiting the free exchange of information, as well as the use or creation of knowledge items. This system of exclusive and private rights is in contrast with the conventional social and economic system in which biodiversity is used and created and nurtured by local communities. For instance, within the group, seeds and information about crop varieties and medicinal plants are generally freely shared. Knowledge is not limited or exclusive to persons, but collectively exchanged and kept, passed on, and added from generation to generation, as well as from locality to locality.

• Arrangements for Value & Benefit Sharing

A crucial feature of the CBD is that it acknowledges states' sovereign rights over their biodiversity and information, thus granting access control rights to the state, and this, in turn, helps the state to enforce its rights over benefits-sharing agreements. Entry, if provided on mutually agreed terms (Article 15.4), is subject to prior informed consent (Article 15.5), resource-providing countries are required to engage completely in scientific research (Article 15.6) and most significantly, each country is required to take legislative, administrative or policy action with a view to 'sharing the results of research in a fair and equitable manner' Such sharing is subject to mutually agreed terms.

Under TRIPS, for claims concerning biological resources or relevant information, there is no requirement for the patent holder to share benefits with the state or populations in the countries of origin. Indeed, if an individual or company were to obtain a patent in another country based on a biological resource or related information of the country of origin, there is nothing that a country of origin can do to enforce its benefit-sharing rights recognized in CBD). Although it is possible to mount a court challenge, such legal cases are prohibitively costly. Even if a state has the resources in another country to legally challenge a patent, it does not have the resources to track and challenge any patent that it considers to be a case of bio-piracy against it, nor is there a guarantee of success. Therefore, whether the laws relating to patents, the administration of permissions, or the courts of a particular country work in a context favorable to the issuance of such patents, there is nothing that can be done by the country of origin to guarantee that there is no bio-piracy or that a remedy can be sought if it happens.

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Ankita Rathi