Intellectual Property Rights and Biodiversity

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Intellectual Property Rights and Biodiversity

• Fernando Latorre
• FIELD

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Overlapping International Agreements
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CBD

• Objectives (Art. 1)
• conservation of biological diversity,
• sustainable use of its components, and
• fair and equitable sharing of the benefits
  arising from the utilization of genetic
  resources.
• Principle (Art. 3)
• Sovereign right of States to exploit their
  natural resources.

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CBD (2)

• Art. 15 access to be determined by national
  goverments, subject to prior informed consent
  (PIC) and on mutually agreed terms (MAT)
  including benefit sharing provisions (BS).
• Art. 8(j) calls on Parties to, subject to their
  national legislation, maintain knowledge,
  innovations and practices of indigenous and local
  communities, promote their application with their
  approval and involvement, and encourage benefit
  sharing.

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CBD (3)

• Interface with TRIPS
• Article 16.5 IPRs subject to national
  legislation should not run counter to the
  objectives of the CBD.
• TRIPS provisions comprise to a certain extent
  components of biological diversity (Art. 27.3(b)
• TRIPS sets general framework for protection of
  IPRs while CBD covers IPRs for conservation and
  sustainable use of biodiversity.
• IPRs derived from use of genetic resources (Art.
  15 CBD) MAT, PIC and BS.

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FAO - ITPGRFA

• Origin
• IT results from revision of 1983 IU to be brought
  into harmony with CBD.
• Under IT, PGRFA are no longer the common
  heritage of mankind but subject to the sovereign
  right of States over their natural resources
  (Art. 10.1).
• Objective (Art. 1.1)
• conservation sustainable use of PGRFA.
• fair and equitable sharing of the benefits
  arising out of their use for sustainable
  agriculture and food security.
• Rationale food security and interdependence of
  countries on PGRFA.

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ITPGRFA (2)

• Multilateral System to facilitate access to
  PGRFA and to share the benefits from its
  utilization (Art. 10.2).
• MS covers 35 crops and 29 forages - Annex I.
• Access only for research, breeding and training.
  Not chemical, pharmaceutical nor non-food/feed
  industrial use (Art. 12.3(a)).
• Subject to Material Transfer Agreement.
• No IPRs that limit the facilitated access to the
  PGRFA/genetic parts/components, in the form
  received from the MS (Art.12.3(d))

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ITPGRFA (3)

• Benefit Sharing Mechanisms
• exchange of information, access to and transfer
  of technology, capacity-building and sharing of
  benefits from commercialisation.
• Share of benefits
• from commercialisation products incorporating
  material accessed from MS paid into mechanism
  to be established by the Governing Body (Art.
  13.2(d)(ii)).

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ITPGRFA (4)

• Article 9 - Farmers Rights
• It acknowledges the rights of farmers to save,
  use, exchange and sell farm-saved
  seed/propagating material.
• (More restrictive under UPOV - no right to sell)
• But leaves its implementation to national
  governments.

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UPOV 1991

• plant variety protection (PVP or Plant Breeders
  Rights) to encourage development of new
  varieties .
• UPOV 1991 Act is being promoted by TRIPs as the
  efficient sui generis system under Art. 27.3(b)
  of TRIPS.

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UPOV 1991 (2)

• PBRs confer exclusive rights to produce and
  reproduce material, offering it for sale, its
  sale, export, import and storage (Art. 14.1).
• Eligibility - plant variety must be new,
  distinct, uniform and stable. No further or
  different conditions are allowed (Art. 5.2).

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UPOV 1991 (3)

• Exemptions - PBRs may be restricted
• to permit farmers to use for propagating, on
  their own holdings, the product of the harvest
  obtained by planting, on their own holdings, the
  protected variety (Art. 15.2). - ie. the
  Farmers right or privilege.NBnot sale/offer
  for sale.
• to acts done privately for non-commercial
  purposes or acts for experimental purposes or
  acts for breeding other varieties - ie. Breeders
  exemption (Art. 15.1) .

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Linkages
TRIPS
CBD
ITPGRFA
UPOV

WIPO?
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What next?

• Possible next steps
• Prepare options for national implementation.
• Look at how national legislation conforms to
  international obligations, ie. OAU Model Law
• Continue to study interlinkages with other
  organisations, mainly WIPO.
• Provide support for participation in specific
  meetings/organisations/forums.

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