The Convention on Biological Diversity (CBD) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) have significant implications for the nexus of Intellectual Property Rights (IPRs), biodiversity, and associated knowledge systems. CBD requires parties to safeguard biodiversity and the traditions and knowledge of the indigenous and other local communities associated with this biodiversity. It also lays down the basic elements for access to biodiversity resources and associated knowledge systems. The TRIPS Agreement obliges member states to modify their national IPR regimes to meet much-enhanced international standards, which can have significant implications for biodiversity and the associated knowledge systems. It is often said that there is a direct conflict between TRIPS and CBD. It needs to be checked whether the two threaten each other or work hand in hand.
Objectives of the Agreements
The TRIPS Agreement
The main objectives of the TRIPS Agreement are:
- Establishing adequate and effective levels of protection for IPRs; and
- Reducing distortions and impediments to international trade from differing standards of protection.
The TRIPS Agreement lays down minimum standards for Intellectual Property (IP) protection in several areas. As to inventions, Article 27.1 requires Member Countries to grant patents in all areas of technology without discrimination. Article 27.2 provides a general exception to this. A WTO Member need not grant patents for inventions objected to as being contrary to public order or morality, which includes inventions that would damage the environment.
Nevertheless, such objections must be serious enough to make it necessary to ban the exploitation of the inventions in the Member’s territory. Article 27.3 further allows exceptions for plants, animals, and essentially biological processes. However, TRIPS requires some effective protection for plant varieties, whether by patents or otherwise (‘Sui Generis’ protection, such as plant breeders’ rights under UPOV).
The main objectives of CBD are:
- Protecting the biodiversity;
- Promoting its sustainable use; and
- Sharing the benefits of such use equitably between providers and users.
CBD recognizes that some genetic resources have commercial potential. The Convention’s measures go further than encouraging benefit-sharing. They are designed to vigorously promote activities (including co-operation in research and development and private investment to develop genetic resources) needed to create the products or technologies that will give rise to benefits to be shared. Thus, the Convention includes provisions that are based on voluntary co-operation and voluntary licensing of rights and which require respect for IPRs (i.e., Article 16).
The Convention also explicitly recognizes and supports “adequate and effective protection” for IPRs (Article 16.2). It reflects the understanding reached during CBD negotiations, as per which, in technology transfers under CBD, IP must be respected. CBD was explicitly tailored to avoid a conflict with the other major instruments dealing with IP Protection, namely, the then-nascent TRIPS agreement.
Areas of Conflict
The primary area of conflict is that while CBD assigns sovereignty in biological resources to the countries that possess them, TRIPS allows these resources to be patented. Within one country, the state’s sovereignty takes precedence, and the CBD framework may prevail. But between a foreign IPR holder and a sovereign state, the state’s jurisdiction is limited and cannot countervail the IP rights holder. It is, therefore, argued by many that TRIPS takes away rights that are given by CBD. Furthermore, the concern is that patenting of genetic resources encourages unsustainable use and also encourages ‘biopiracy.’
Also, TRIPS states that patents must be provided for all fields of technology; therefore, the use or exploitation of biological resources must be protected by IPRs. There is no mechanism for sharing benefits between a patent holder in one country and the donor of material in another country from which the invention is derived. CBD, on the other hand, gives developing countries a legal basis to demand a share of benefits. TRIPS does not have any provision requiring prior informed consent for access to biological resources, which may subsequently be protected by an IPR. CBD gives states the legal authority to diminish the incidence of biopiracy by requiring prior informed consent. TRIPS ignores this authority and thus promotes biopiracy.
The safeguarding of public health and nutrition, and the public interest in general, shall be subject to the private interest of IP rights holders as reflected in the provisions of the TRIPS Agreement. Parallelly, CBD places the public interest and common good over private property and vested interests. TRIPS is directly contradictory to this.
Resolving the Conflict
IP protection per se does not contribute to the preservation of biological diversity (except perhaps in a few instances where the deposit of biological material for patent purposes helps to preserve ex situ what subsequently becomes lost in situ). However, it seems beyond doubt that it can help to encourage uses, including sustainable uses of biological material, in the same way as IP protection helps to encourage all novel uses. Above all, it can contribute to equitable sharing of the benefits of such use. Economists tell us that most of the benefits of innovation (particularly agricultural innovation) go ultimately to consumers. IPRs provide a method of recovering some of these benefits from consumers by way of higher prices. These benefits are then available, at least in principle, not only for paying for research and development but also for sharing with the providers of essential biological materials. Without IP protection, such benefits cannot be recovered.
Finally, it should be noted that if any of the provisions of CBD and the TRIPS agreement were found to conflict, it would be the TRIPS Agreement that controls for state parties to both treaties. Under the Vienna Law on Treaties, the agreement either later (in time) or clearer and more specific on the issue will control. In the case of the TRIPS Agreement and CBD, both factors would result in the TRIPS Agreement controlling for state parties to both treaties.
TRIPS and CBD can work as partners in the long run. For ensuring that both the agreements work hand in hand, the following best practices need to be followed:
- Recognize that CBD has primacy over the WTO, specifically in biodiversity and traditional knowledge systems.
- Ensure that the review of the TRIPS Agreement allows sovereign states to exclude all life forms and related knowledge from IPR systems.
- Urgently recognize a priori collective rights of indigenous people and local communities over their biodiversity and related knowledge.