COMBATING BIOPIRACY: HARMONIZING THE CONVENTION ON BIODIVERSITY (CBD) AND THE WTO TREATY ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS) IN RELATION TO THE PROTECTION OF INDIGENOUS TRADITIONAL KNOWLEDGE AND GENETIC RESOURCES

Marie Yasmin M. Sanchez (JD'12)

ABSTRACT

Biopiracy or the theft of traditional knowledge and genetic resources without just compensation is a global environmental issue related to two international agreements — the Convention on Biological Diversity (CBD) and the World Trade Organization (WTO) Treaty on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The CBD establishes sovereign national rights over biological resources and commits member countries to conserve them, develop them for sustainability, and share the benefits resulting from their use. The TRIPS, on the other hand, aims to promote adequate and effective protection of intellectual property rights (IPRs) to reduce impediments to international trade. However, there are perceived inconsistencies between the two laws, which have been the subject of international debate. While the CBD promotes the right of indigenous or local communities to prohibit IPRs on genetic resources, TRIPS requires the provision of IPRs on these resources. Moreover, the CBD provides that access to genetic resources shall be subject to prior informed consent from these communities, just compensation and equitable benefit sharing. In TRIPS, there are no such provisions, leading some developing countries, communities and authors to believe that TRIPS facilitates biopiracy. Despite this, many countries, including the Philippines, are signatories to both treaties. Generally, when a conflict exists between two treaties dealing with the same subject matter, the applicable rule, as provided for by Article 30 of the Vienna Convention on the Law of Treaties, is that the latter law prevails over the first. Applying this, TRIPS will prevail since it came into force after the CBD. The problem, however, is that the subject matter of the CBD and TRIPS basically differ. CBD deals with the protection of biodiversity, while TRIPS deals with the protection of IPRs. States should thus endeavor to simultaneously implement and harmonize both treaties to fully ratify them and provide greater protection against biopiracy

One way to do this is to allow communities the right to patent their traditional knowledge and genetic resources, in line with the current IPR system. However, a deeper analysis of the CBD, TRIPS and other related laws will show that traditional knowledge and genetic resources do not fit into the current IPR system. For instance, inventions protected by patent law must be new, non-obvious and useful. Indigenous knowledge may be •an invention, but because it is passed down from one generation to another, it may not meet the level of novelty needed for patent protection Moreover, patents are limited in duration and are vested on "inventors." On the other hand, traditional knowledge is normally not attributed to a single "inventor" but is communally held. Finally, maintaining and enforcing a patent can be quite expensive and burdensome for indigenous communities. Thus, the better solution would be to identify a sui generis system of IPRs that will specifically cater to the subject matter. This can be done on the international level through an amendment of the TRIPS, and on the national level, through sui generis laws. This way, the TRIPS and CBD can be harmonized and consequently, greater protection can be afforded to traditional knowledge and genetic resources in order to prevent biopiracy