The intersection between TRIPS and CBD has been a subject of significant debate in recent years, particularly regarding the protection of traditional knowledge and genetic resources. The TRIPS agreement, which is enforced by the World Trade Organization, sets out minimum standards for the protection and enforcement of intellectual property rights, including patents, trademarks, and copyrights.
The CBD, on the other hand, is a global treaty that aims to promote the conservation and sustainable use of biodiversity and the fair and equitable sharing of benefits arising from the use of genetic resources. It recognizes the importance of traditional knowledge and calls for its protection and preservation.
One of the key areas of contention between TRIPS and CBD is the protection of traditional knowledge and genetic resources. Traditional knowledge is often held by indigenous and local communities and is passed down from generation to generation. Genetic resources, meanwhile, refer to the genetic material of plants, animals, and microorganisms that are used for research and commercial purposes.
Under TRIPS, intellectual property rights may be granted for inventions that are new, non-obvious, and capable of industrial application. This includes products and processes that are derived from genetic resources and traditional knowledge. However, the CBD recognizes the rights of indigenous and local communities to their traditional knowledge and genetic resources and seeks to protect them from exploitation and misuse.
As a result of these differing approaches, there are several emerging issues and challenges that arise from the intersection between TRIPS and CBD. These include issues related to the ownership and control of traditional knowledge and genetic resources, the regulation of access to and use of these resources, and the fair and equitable sharing of benefits arising from their use.
To address these issues, it is important to undertake further research and analysis to understand the implications of the intersection between TRIPS and CBD and to develop effective strategies for reconciling the differing approaches to the protection of traditional knowledge and genetic resources. This could involve exploring alternative models for the protection of traditional knowledge and genetic resources, such as community-led approaches that prioritize the rights and interests of indigenous and local communities.
I suggest you follow up on the Waitangi Tribunal report on native fauna and flora in Aotearoa New Zealand (it's referred to as WAI262), which addresses Maori IP rights. Moreover, there is a large literature in reaction to that report.
The protection of Traditional Knowledge is an an issue that the global IP community has been grappling with this issue for many years.
In fact, the CBD and Nagoya Protocol do protect TK. The CBD recognizes the sovereign rights of countries over their natural resources; and the Nagoya Protocol requires that traditional knowledge associated with genetic resources can be accessed only if mutually agreed terms have been established. Those ownership rights of genetic resources and TK represent a form of intellectual property. They provide an intrinsic value, which is the basis for the provider country benefits under the CBD. Patent protection can add to that value.
There have been suggestions to protect TK by considering it as a community secret. Keeping TK confidential is indeed one way to protect it; and is used in some countries. But there are some problems with that approach. First, it is very difficult to keep information confidential, when it is shared amongst a community.
Secondly, it would hinder the mechanism of gaining benefits under CBD/Nagoya mentioned above. Thus, if local Traditional Knowledge is publicly available, it can be used as a starting point for research. The intention is that research will generate new knowledge, which will be different from, and therefore patentable over, the original TK. It may lead to a commercial product, returning benefits to communities where the TK originated. Keeping TK confidential would destroy the value of that avenue of research.
Another way to protect TK is to collect it in a database and make that database public and searchable. Such a system is in place in India and does prevent people trying to patent things that were already known and used locally - the classic example being a fungicide from the Neem tree.
But that system is not perfect either. It can have unintended consequences, by encouraging communities to register - and hence publish - as much information as possible. And too much information will deter research.
No simple solution
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