Your source for expert commentary on IP management issues.
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Editor-in-Chief, Anatole Krattiger
Why This Topic Is Important
It is anticipated that biodiversity and indigenous peoples’ traditional knowledge, as sources of discovery
similar in some ways to research, may be important sources of new technology for the future. While the
underlying dynamics are similar—involving documentation, protection, uncertainty, risk, rights,
investment, partnership, R&D, and marketing—there are legal issues that set these sources of new
knowledge apart. This section discusses approaches, policies, and mechanisms for managing
biodiversity as an input to R&D, within the context of the rapidly evolving international and national legal
frameworks for biodiversity resources and traditional knowledge.
Key Implications and Best Practices: Section 16
Given that IP management is heavily context specific, these Key Implications and Best Practices are intended as starting points to be adapted to specific needs and circumstances.
- Equity is a moral issue that has repercussions with respect to the distribution of benefits and environmental conservation. Thus, equity is in the eye of the beholder.
- The western system of IP rights, and particularly of patenting, is based on the premise that anything that is already known cannot be protected. Indigenous or traditional knowledge (TK) is often communal, has been disclosed, and has been passed on from previous generations. the very nature of indigenous knowledge, therefore, does not meet some of the criteria for intellectual property protection (such as novelty).
- In the longer term, new forms of IP protection that are more amenable to the fundamental characteristics of TK could be created by governments, such as under the aegis of sui generis systems of plant variety protection (PVP), as defined under the TRIPS Agreement.
- Indigenous communities often play a significant role as gatekeepers to a country’s potential biodiversity wealth. They are the regional specialists with respect to the flora and fauna. Their knowledge can often exceed that of leading scientists.
- Patent laws per se do not “create” biopiracy. Rather, biopiracy is a form of misappropriation, unfair acquisition, and inequitable sharing of benefits with respect to biological resources.
- Policymakers ought to formulate methods for equitable access to TK held by indigenous societies and for compensating the TK’s owners. However, this issue involves a delicate balance: access should be granted only via authorized permission, yet the price that is assessed for permission to bioprospect should not be so high that it dissuades companies and individuals from seeking access.
- Countries should consider implementing an access and benefit sharing (ABS) regime that balances equitable access to biological resources, as well as related TK, with opportunities arising from R&D expertise of potential foreign partners in development. Such policies should be grounded in, and consistent with, the Convention on Biological Diversity and the TRIPS Agreement.
- ABS regimes, including the process for obtaining permits, should be transparent and easily available to any scientist or institution that wishes to enter into biodiversity prospecting or collection activities. A complex system discourages foreign bioprospectors and may inhibit national researchers in their activities.
- The commonly held distinction between organic and biotechnology-based agriculture inhibits pragmatic approaches to creating agricultural management systems that build on local conditions, help alleviate poverty, respect local cultures and traditions, and benefit from a successful relationship with science. The world has much to gain by reconciling organic and biotechnology-based agriculture though realizing any gain will have to deal with the “power structures of knowledge,” and overcome limitations imposed by those people who maintain the distinctions.
Access and Benefit Sharing: Understanding the Rules for Collection and Use of Biological Materials
by Carl-Gustaf Thornström
Bioprospecting Arrangements: Cooperation between the North and the South
by Djaja Djendoel Soejarto, C. Gyllenhaal, Jill A. Tarzian Sorensen, H.H.S. Fong, L.T. Xuan, L.T. Binh, N.T. Hiep, N.V. Hung, B.M. Vu, T.Q. Bich, B.H. Southavong, K. Sydara, J.M. Pezzuto, M.C. Riley
Biotechnology Patents and Indigenous Peoples
by Dennis S. Karjala
Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property
by Stephen A. Hansen, Justin W. Van Fleet
Reconciling Traditional Knowledge with Modern Agriculture: A Guide for Building Bridges
by Klaus Ammann