[Pirateninfo] BRIDGES Trade BioRes, Vol. 3 No. 20 14 November, 2003

[Martin Sundermann]

BRIDGES Trade BioRes, Vol. 3 No. 20    14 November, 2003

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Intellectual Property Rights
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FACILITATING ACCESS AND BENEFIT-SHARING AMONG USERS OF GENETIC RESOURCES

At the initiative of the United Nations University's Institute for
Advanced Studies and the Institut du Développement Durable et des
Relations Internationales  (IDDRI), government officials and experts met
on 6-7 November in Paris, France, to discuss ways of implementing access
and benefit-sharing (ABS) objectives of the Convention on Biological
Diversity (CBD) among users of genetic resources, particularly developed
countries and the private sector. 


International ABS governance

Participants noted that there already exists an extensive body of hard
and soft law instruments, which together constitute the existing system
of international ABS governance. These include the CBD, the CBD's Bonn
Guidelines on ABS for genetic resources, intellectual property, human
rights and health and phytosanitary instruments, as well as national and
regional ABS and intellectual property regulations. Many participants
highlighted the need for developing measures to ensure compliance with
existing ABS obligations under the CBD, in particular with relation to
technology transfer to providers of genetic resources. Participants also
recognised the need for complementarity between 'user' and 'provider'
measures to encourage countries where the genetic resources are located
-- usually in the developing world -- to facilitate access to their
resources while ensuring that users observe their ABS obligations. 


Disclosure of origin

Requiring the disclosure of origin of genetic resources in patent
applications was one of the possible user measures discussed -- a
measure that has attracted increasing support at the WTO and the World
Intellectual Property Organization (WIPO) from a range of developing
countries and, more cautiously, from the EC and Switzerland (see BRIDGES
Trade BioRes, 13 June 2003,
http://www.ictsd.org/biores/03-06-13/story1.htm). Many participants
welcomed the Swiss proposal to the WTO, which suggested an amendment to
WIPO's Patent Cooperation Treaty that would enable countries to
implement a disclosure requirement for the source of both genetic
resources and traditional knowledge. It was noted that the Swiss
proposal would not require compulsory disclosure of origin or of
evidence of prior informed consent and the limitations of such a
voluntary approach was also debated. Several questions arose during the
discussion regarding the practicality of such a disclosure requirement,
including its legal status (voluntary or mandatory), the appropriate
legal instrument, how to determine the "origin" of a genetic resource,
and consequences of non-compliance. Some noted that the answers to these
questions would depend on the objective behind disclosure, which could
include information provision, legal certainty or compliance with the
CBD's ABS objectives.

Participants also considered the relative merits of a system of
'certificates of origin' and discussed whether such a system should
focus on the origin, source or legal provenance of genetic material. It
was recognised that further investigation of the practicality and
feasibility of such a system would require investigation of its utility
in different industry sectors.

In the EU, Directive 98/44/EC on the legal protection of biological
inventions encourages member states to require patent applicants to
include information on the geographical origin of biological material
(Recital 27). However, only Denmark has so far implemented this
requirement, with Germany, Sweden, Belgium, Portugal, Switzerland and
Norway in the process of setting up their regulations. The Norwegian
proposal goes one step further by also requiring the provider country to
be specified (if it is different from the country of origin) and
evidence of prior informed consent. The country is also in the process
of developing rules to govern the access to genetic resources in Norway.


Other user measures: Technology transfer, access to justice

Participants stressed the need to broaden the debate around user
measures beyond disclosure requirements, in particular for genetic
resources that would not be covered by intellectual property rights.
Other possible measures comprise the transfer of technology, including
through non-market mechanisms, such as the movement of persons,
imitations and spill-overs of activities of foreign companies.
Participants stressed the importance of broader policies and the
appropriate enabling environment to support technology transfer,
including incentives for users of genetic resources to transfer the
technology, measures to support the commercialisation of research in
developing countries, and market access opportunities for the recipients
of the technology. Participants noted the absence of guidelines on
technology transfer in the Bonn Guidelines and some suggested that such
guidelines might prove a useful tool in particular for enhancing
compliance with the technology transfer obligations of the CBD set out
in Articles 16(3) and 19(1). 

Participants also raised the as yet little discussed issue of access to
justice (i.e. the ability to seek redress in the event of infringement
of ABS obligations). One speaker noted the need for a comprehensive
approach, which covered access to information, opportunity for
participation, capacity building and access to legal redress. Possible
measures discussed included arbitration -- possibly within the CBD
context -- or the designation of an ombudsman to investigate potential
infringements.


Additional resources

User Measures: Options for Developing Measures in User Countries to
implement the access and Benefit-Sharing Provisions of the Convention on
Biological Diversity, UNU-IAS.
http://www.ias.unu.edu/binaries/UNUIAS_UserMeasuresReport.pdf

For further information on the UNU-IAS project on ABS, see
http://www.ias.unu.edu/binaries2/UNU_ABSbrochure.pdf.

Directive 98/44/EC: 
http://europa.eu.int/eur-lex/pri/en/oj/dat/1998/l_213/l_21319980730en001
30021.pdf

ICTSD reporting.



Other Forthcoming Events

1- 4 December, Berlin, Germany: MEETING ON THE SUSTAINABLE USE AND
CONSERVATION OF BIOLOGICAL DIVERSITY: A CHALLENGE FOR SOCIETY. Organised
by the German Federal Ministry of Education and Research. At national
and international levels, no strategies exist that help resolve the
conflict between conserving biological diversity and, simultaneously,
using diversity in a sustainable manner. The symposium is intended to
intensify the dialog between decision makers, users and scientists, and
to foster national and international research cooperation on these
issues. For further information, contact: the Ministry, tel: (+49 22)
8819-9611; fax: 8819-9640; email: meltem.cosar at dir.de; Internet:
http://www.biodiversity-symposium.de.

4-5 December, Brussels, Belgium: RISK PERCEPTION: SCIENCE, PUBLIC DEBATE
AND POLICY MAKING. Organised by the European Commission. Building on
previous European Commission conferences on risk management and European
governance the event incorporates a stakeholder forum on risk perception
looking at genetically modified (GM) crops and GM food. The conference
will focus both on understanding the process of risk perception and on
practical ways in which governance can be improved and the public’s
trust in science based regulation can be increased. For further
information, contact: tel: (+32 2) 344-6232; fax: (+32 2) 344-7564;
email: Risk-perception at jk-events.com; Internet:
http://europa.eu.int/comm/food/risk_perception/index.htm



Resources

PLANT VARIETY PROTECTION AND FARMERS' RIGHTS IN INDIA - TOWARDS A
BROADER UNDERSTANDING. By P. Cullet and R. Kolluru. Published by the
International Environmental Law Research Centre, 2003. This article
looks at some of the reasons for the introduction of PVP, in particular
the links between PVP and food security. The authors survey the
measures, which have been proposed internationally and examine the
regime in India. The article argues that the new regime in India has
been driven by it's desire to satisfy international obligations under
TRIPS and has neglected measures, particularly farmers rights, of
increasing importance to food security. For further information, see:
http://www.ielrc.org/Content/A03041P.pdf 

IN SEARCH OF BIOSECURITY: CAPACITY DEVELOPMENT ON ACCESS TO GENETIC
RESOURCES, BENEFIT-SHARING, AND BIOSAFETY IN CENTRAL ASIA AND MONGOLIA.
By United Nations University and the Institute of Advanced Studies,
2003. This report is based on the proceedings and findings of a
workshop". In Search of Biosecurity: Capacity Development on Access to
Genetic Resources, Benefit-Sharing, and Biosafety in Central Asia and
Mongolia", held by UNU/IAS, June 2002. It contains a regional and
national overview of the state of biodiversity in Central Asia and
Mongolia and its importance to sustainable development and the principal
pressures on genetic and biological resources in the region, namely
fragile arid and semi-arid ecosystems, limited resources and economic
development, and the international context and multilateral instruments
relevant to these issues. For further information, see:
http://www.ias.unu.edu/binaries/UNUIAS_CentralAsiaReport.pdf

WWF'S PRELIMINARY RECOMMENDATIONS TO THE EU FOLLOWING THE FAILURE OF THE
FIFTH WTO MINISTERIAL. By WWF and the Centre for International
Environmental Law, October 2003. This discussion paper flags impacts of
potential WTO GATS negotiations and subsequent negotiated rules on water
resources and the environment, and offers recommendations on how
problematic areas can possibly be avoided and mitigated. The paper can
be accessed at:
http://www.panda.org/downloads/policy/wwfrecommendationstoeuontrade.pdf,
or obtained in hard copy by sending an e-mail to: sgranger at wwfint.org. 

REGIONALISM AND THE MULTILATERAL TRADING SYSTEM. By the Organisation for
Economic Co-operation and Development, 2003. This study examines how
regional trade agreements are undermining and/or contributing to global
trade agreements governed by the World Trade Organisation. The chapter
on intellectual property argues that the TRIPS-plus deals supported by
Washington, Brussels and other economic powers are not only multiplying,
but they are seen to be setting new international IPR standards. For
further information see:
http://www1.oecd.org/publications/e-book/2203031E.PDF. 

ENVIRONMETAL AND SOCIAL STANDARDS IN EXPORT CREDIT. By Ecologic. This
study focuses on the incorporation of environmental and social standards
into export credit agencies' lending practices. Commissioned by the
Deutsche Gesellschaft für technische Zusammenarbeit (GTZ), it surveys
the environmental guidelines of eight OECD member states' export credit
agencies. Special emphasis was given to the support of large dams; in
this context, the study evaluates to what extent the recommendations
made by the World Commission on Dams were reflected in the environmental
and social guidelines. The study concludes with a series of suggestions
as to how the WCD recommendations can be better integrated into the
lending practices of ECAs. The study is available at:
http://www.ecologic.de/modules.php?name=News&file=article&sid=829. 


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"Wir brauchen keine Bio-Terroristen, wenn wir Gentechniker haben."
Independent Science Panel (www.indsp.org)
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