Abstract
Biological diversity is getting consideration, as economic benefits from biodiversity could support social goals or individual goals, providing fundamental information for the manufacture of commercial goods but interests on the share of benefits from Natural Genetic Resources collide.
Natural Genetic Resources (NGRs) are genetic resources from the wildlife for nature. It is possible to talk about commercialization of NGRs when they are transferred to make profit from them This commercialization is problematic when no balance exist in the division of the gains from this trade.
Commercialization embraces different examples, which we classify as:- Inequitableness
- Gains on a sacred plant without payment
- Fraude
- Essence of NGR
Conflicts related to utilization Balancing rights and obligations in sharing benefits from Natural Genetic Resources:
Problems, discussions and possible solutions
Unregulated commercialization of NGRs may threaten the natural resource base e.g. over-harvesting. This activity shows the destruction of biodiversity by a non-rational activity.
Intellectual Property Rights (IPRs)
IPRs enable subjects of such rights to claim legal protection.
Patents, one type of IPR is under controversy at the international and national level because the scope of protection of a patent could exclude certain types of intellectual creations or include elements that are not intellectual creations.
1.- Subject protected by IPRs
Traditionally, individuals are protected by IPRs, because they are subjects of law.
Since the scope of the concept of IPRs has to be broadened including types of intelectual creations not protected by traditionals IPRs or exclude protection to certain creations
2.-Scope of legal protection of IPRs
The IPR protection is on intellectual creations, the result from creative, scientific or other process with the mind as basic source for creation. The scope of an intellectual creation is under discussion becuse new forms of intellectual creations might be included or related to traditional IPRs.
But arguments against patentization of NGRs are: - Any living substance in any form should be considered as a ‘product of nature’.
- Patents protects technology not life.
- NGRs do not fulfill requirements for IPRs protection of inventions, like, industrial applicability, novelty, non-obviousness, non-reproducibility.
Knowledge, base of inventions protected by IPRs
Granting protection of IPRs to third parties creates another discussion. Abbot argues that IPRs are only for those that make inventions: a new object in the world. Therefore, those not contributing to this invention are not entitled to claim any right.
However, Dutfield proposes communities´ entitlement to knowledge based on their work (research on the field). Therefore such knowledge has the protection of law, since the work of communities is included in the development of knowledge associated with NGRs.
IPRs as an instrument for policy on sustainable development
IPRs seems to be an instrument for development policy, because IPRs might motivates the creativity of people. Moreover, certain industries can exist only because of IPRs. The publication of the invention, e.g. a patent, will help for new sources of invention, in short, “every invention helps the creation of new inventions”.
However, Abbot points out insuficient scientific evidence regarding benefits of IPRs for development. Surveys on this issue do not bring definitive conclusions and results put forth that IPRs granted in a developing country relates to inventions in developed countries.
The conflict between IPRs and other rights
How to interpret international legal rules related to individual IPRs and other rights?
Several ways of interpretation have been suggested:
-Safeguarding IPRs since these rights can shield any invention including traditional knowledge.
-Recognizing IPRs since communities generate knowledge by researching NGRs.
-Sharing benefits arising from collective IPRs over NGR since the Convention on Biological Diversity (CBD) has established ample guarantees for an equitable sharing of benefits.
Example of this tension is biopiracy: “patents for illegally extracted NGRs”. Four cases were depicted in the first part illustrating a debate related to IPRs. Three main standpoints can be distinguished:- A.- Rejection of biopiracy
IPRs offer sufficient protection of any intellectual creation and the so-called ‘biopiracy problem” is a debate initiated by anthropologists without understanding legal principles. It is not possible to create any new intellectual property right for the protection of community intellectual creations. - B.- Recognition of IPRs and existence of biopiracy
Dutfield and Posey are pleading for protection against patents related to illegally extracted NGRs, because indigenous people have conserved and studied these resources from time immemorial. Indigenous people’s IPRs are recognized in Article 8 (j) of the CBD and in different international declarations. These rights have their origin in the communities’ knowledge of plants and animals. - C.- Beyond biopiracy, sharing benefits as means of resolving tension
According to Sanchez, an obligation to equitably share benefits from NGRs is explicit in the CBD in order to provide some gains from transactions related to IPRs and other intellectual rights. The CBD recognizes individual and collective IPRs as well as property rights and World Summit on Sustainable Development in 2002 encourages an international regime which favors an equitable sharing of benefits.
Conclusion
Discussions on balancing rights and obligations have been developed during the last 10 years and most probably will be developed by academics, politicians, representatives of countries and other discussants in the next decade.
However, a conclusion is not possible because discussions have been developed by authors outside the legal framework, the CBD: Article 15 has developed the procedure and solution to discussions. What has been called lege data, the law as it is, has organized and solved the problem long ago, to be clear in 1994.
|