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| Sunday, 11 April 2004 |
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| News Business Features Editorial
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Biodiversity under threat - Part II (Continued from 28.03.04 page 41) by Avanthi Weerasinghe As mentioned before CBD is aimed at conservation, sustainable use, access and benefit sharing of biological resources while taking into account the imbalances between northern countries and developing countries in terms of technology and biodiversity. Before the enactment of the CBD natural resources were considered as a common heritage of mankind. In complete contrast to the above concept CBD recognizes the sovereign rights of a state over its biological resources. Accordingly the CBD has recognized the sovereign rights of states all over their biological resources and the contribution made by indigenous communities in conserving and improving them. Under the CBD states are required to respect, preserve, and maintain knowledge, innovations and practices of indigenous and local communities and to protect and encourage customary use of biological resources. Further the states are obliged to act according to national law to develop and use traditional and indigenous technologies and to adopt economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biological diversity. It is said that the cumulative effect of these provisions is to make it mandatory for Member States to enact a law which recognizes indigenous and local community knowledge including the knowledge, innovations and practices of the farming communities. Further it is claimed that the CBD rectifies the imbalance between the North and the South by empowering the South to regulate access to its biodiversity with the prior informed consent of the indigenous communities and by facilitating transfer of technology from North to South. On the other hand TRIPS is aimed at granting private property rights over all new innovations including the products and processes which are based on biological resources. Hence TRIPS would facilitate privatizing biological resources as opposed to conserving it. Further the provisions in the CBD which requires equitable sharing of benefits in the use or exploitation of traditional knowledge, innovations and practices relevant to the use of biodiversity is said to be in direct conflict with the requirement of TRIPS to grant patents to all new innovations including innovations based on the biodiversity in the absence of any mechanism to share benefits between the patent holders and the donors of material from which the invention is derived.
Moreover although under CBD access to biological resources requires the prior informed consent of the country of origin and the approval and involvement of local communities in giving access to biological resources in the absence of a similar provision in TRIPS it promotes biopiracy. Hence the TRIPS agreement by enabling commercial breeders to patent genetic material developed over generations by indigenous communities including local farmers has overlooked the role that had been played by them as conservers of biological resources and as breeders who had bred successful varieties over centuries. The injustice of this is further aggravated by Article 28.1 of the TRIPS agreement which prevents third parties in to which category local farmers have been relegated to from 'making, using, offering for sale, selling or importing' patented products. These patents have enabled the MNCs to get patent protection to traditional knowledge and biological resources without compensating the "gees that laid the golden eggs". Further it is believed that the sovereignty member states have over its biological resources as embodied in CBD gives them the discretion to prohibit IPR on life forms. In complete contrast Article 27 (3) b of the TRIPS makes it mandatory for member states to provide private property rights over some of the life forms through either patents, plant breeders rights, or a sui generis system of law. Possible latent risks It is submitted that while the objectives of the CBD could be heralded as quite salutary developing countries have to be somewhat wary in implementing the access and benefit sharing provisions of the CBD.The access and benefit sharing occur between large corporations in the developed world who would be the recipients of the biological material and Governments of the developing countries who would be the providers while local communities sit on the side lines. The access is given to these profit oriented corporations for commercial purposes and invariably there is a inherent danger in doing so as nothing much can be expected from the altruistic impulses of the profit oriented large corporations. Article 15 of the CBD deals with access to genetic resources. According to Article 15(2) parties shall endeavour to create conditions to facilitate access to genetic resources and not to impose restrictions that run counter to the objectives. Hence it is clear that the objective of the CBD is not to deny access to biological resources of a country totally but to provide for national laws which regulate access. Article 15(4) says that access should be on mutually agreed terms. This implicitly states that they encourage bilateral agreements where the two parties namely the country which provide biological resources and the recipient of it deciding on the terms. However, this practice of having mutually agreed terms and conditions in a bilateral agreement dealing with biological resources is nothing new given the existence of the Material Transfer Agreements between countries. In fact the Plant Genetic Resource Centre of the Department of Agriculture of Sri Lanka is in the practice of exchanging genetic material through MTAs. These MTAs are based on a exchange of biological resources as and when the need arises rather than on a predetermined benefit sharing scheme. It is submitted that such a scheme benefits both parties. Under such MTAs the exchange of germplasm is done under the following conditions". 1. Not to claim ownership or property rights over the germplasm material received/accessed and its related information. 2. Not to use the material or its derivatives for commercial purposes or profit making what so ever, without written approval from the supplier. 3. Not to distribute or transfer samples of the materials to any other party except those directly engaged in research under the receiver's supervision without written prior approval from the supplier. But giving access to MNC could lead to a situation where patents and Plant Breeders Rights (PBR) could be included in the agreement to drive away competition. Prior consent According to Article 15(5) of the CBD access to genetic resources should be subjected to the prior informed consent of the party of the provider. However according to the CBD parties means countries. Consequently consent would be given by officials of the states. There is no mechanism to assess whether the state has got the prior informed consent of the indigenous communities who in fact hold such biological resources. This lacuna has negated the effect of Article 8(j) and Article 10 (c ) of the CBD which imposes an obligation on the part of the Government to respect and preserve the traditional knowledge. This would give leeway for corrupt officials to give prior informed consent on behalf of the holders of indigenous knowledge and biological resources. For instance the Sri Lankan draft dealing with recommendations on new legislation to facilitate access and benefit sharing has provided for the establishment of an Inter Agency Committee to decide on the prior informed consent for the purpose of granting access to genetic resources. This committee comprises of Government officials apart from the two members of the NGO community who will be appointed by the Minister. The pressure exerted by the developed world on the governments of the developing countries would further dilute the concept of "prior informed consent". Article 16 of CBD deals with the access and transfer of technology, which is one of the benefits that could be given to the provider of materials. According to Article 16(1) technologies include bio technologies. Bio technologies use genetic material as the raw material to produce genetically modified organisms. According to article 16(2) access to and transfer of technologies covered by patents and other intellectual property rights to developing countries should be provided on terms which recognize and are consistent with adequate and effective protection of intellectual property rights. Further it states that the application of Article 16(2) should be consistent with Article 16(4) and 16(5). According to Article 16(4) parties should take legislative, policy, or administrative steps as appropriate with the aim that the private sector facilitates access to and transfer of technology. The provisions in Article 16(5) says that contracting parties have to recognize that patents and other intellectual property rights may have an influence on the implementation of the CBD, and parties shall cooperate in this regard, subject to national and international laws in order to ensure that such rights are supportive of and do not run counter to the objectives of CBD. This Article has left the issue as to whether CBD is contrary or supportive of patenting of Biological resources. Although it has not expressly sanctioned patenting of life forms the absence of any express prohibition to that effect could lead one to the conclusion that Article 16(2) of CBD sanctions patenting of life forms. According to Article 16(2) a country that wants access to technologies should provide adequate legal protection to them in their countries. Article 16(3) strengthen this further by saying that parties should take legislative and policy measures as appropriate to protect intellectual property rights. This means that a country that needs such technologies in exchange will have to change their intellectual property laws to grant protection to living things as well.22 This view becomes apparent by Article 01 (objectives) which says that access to genetic resources and appropriate transfer of relevant technologies should take in to account all rights over those resources and technologies. For instance most of the genetic engineering technologies have been patented and some patents even cover the genetically modified organisms which are produced through genetic engineering. In the above context a developed country who gets access to these bio technologies should take steps to protect these patents. This would invariably lead to providing patent protection to living organisms. It is submitted that this goes far beyond the TRIPS agreement in facilitating patent protection even to genetically modified plant varieties. As one could see under Article 27(3)b of the TRIPS agreement the member states have the discretion to provide protection to new plant varieties either under a patent system or a sui generis system of law. Hence under TRIPS the member states has the ability to enact a country specific law which serves the interests of the country. Another associated risk in providing such patent protection to certain parties through an enabling legislation drafted under CBD is that these laws run the risk of being considered as trade laws and coming with in the purview of TRIPS. Once this law becomes a trade law countries have to abide by Article 3 (national treatment) and Article 4 (Most favoured Nation treatment) of the TRIPS agreement. In this scenario countries would have to allow all other WTO members the same facilities to patent genetic material. This would allow countries like United States who has not ratified the CBD to get patents over their products and processes in other countries. However Article 22 of CBD provides a saving grace in stating that the CBD shall not affect the rights and obligations of any Contracting party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. States can use this provision to make sure that enabling legislation under TRIPS is not contrary to CBD. However the possibility of utilizing this provision to prevent patenting of bio logical resources remains a grey area yet to be resolved. As the discussion in the preceding sections of this paper reveal neither TRIPS nor CBD taken in isolation could serve the interests of developing countries like Sri Lanka which are rich in bio diversity. It is imperative that our policy makers and legislators have a correct perception of the implications of these conventions. This could be achieved through critical appraisal of these conventions while not blindly and slavishly adhering to any of these international regimes. Like the six blind men who tried to describe an elephant forever while emphasizing just one aspect while obscuring the other, an extreme adherence to either of these conventions would lead to bio piracy. While CBD cannot be an alternative to TRIPS salutary provisions of CBD on recognizing the contribution made by indigenous communities in preservation of biological diversity and benefit sharing could be embodied in a sui generis plant variety protection law drafted under the TRIPS agreement. Further Sri Lankan policy makers could utilize article 825 of the TRIPS agreement in drafting its PBR laws to protect the rights of farmers to save, exchange and use seeds of varieties protected by PBR laws and to prevent the PBRs putting a halt on breeding activities of the Department of Agriculture. This could be justified under article 8 of TRIPS as a measure to protect public health and nutrition which is dependent on the food security of the country and as a measure to promote public interest in agro bio diversity and agriculture as these are sectors of vital importance to the socio economic development of the country in order to make the PBR law a sui generis system of law in its true sense. Concluded |
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| Editorial | Security Produced by Lake House |
The proponents of IPRs argue that IPRs increase allocative efficiency
as resources are directed towards the creation and technology transfer of
new high value products and fulfils a coordinating function of allocating
rents among those contributing inputs into the innovation chain. However
it is submitted that in order to achieve the latter objective the IPRs
should recognize the contribution made by rural communities in preserving
and improving biological resources including existing plant varieties. It
is submitted that in the absence of such a recognition the present IPR
regime over agriculture has failed in fulfilling its coordinating
function.
