CHAPTER IV TRIPS VERSUS CBD: TOWARDS A FRAMEWORK FOR INTELLECTUAL PROPERTY PROTECTION OF BIODIVERSITY

Transcription

1 CHAPTER IV TRIPS VERSUS CBD: TOWARDS A FRAMEWORK FOR INTELLECTUAL PROPERTY PROTECTION OF BIODIVERSITY 4.0. Introduction The increasing importance of Biodiversity associated Traditional Knowledge sparked by the advent of New Generic Technologies has ignited severe tension between the developed and developing countries as well as between multinational corporations and indigenous communities. On the other hand, conflicting provisions in the Agreements, Declarations and other legal instruments governing access to and control over biodiversity seem to have exacerbated disputes over control of local bio-resources and knowledge. At the centre of the biodiversity associated Traditional Knowledge debates are two International instruments, Trade Related intellectual Property Rights (TRIPS) and Convention on Biological Diversity (CBD),that attempt to resolve the concerns of both developed and developing nations. The Agreement on TRIPS and CBD expose the dividing lines between the biodiversity rich developing countries and technology rich industrialized countries. The TRIPS Agreement advocates stronger patent protection whereas the CBD stands to promote fair and equitable sharing of biological resources. While the CBD is an International Convention for the conservation of biological diversity and mostly nonenforceable the TRIPS is an Agreement the provisions of which are enforceable through the WTO. This chapter examines the background and circumstances that lead to the adoption of the CBD, its major principles and salient features vis-à-vis the background, features and principles of the TRIPS. In addition, efforts have also been made in this chapter, to trace the developments leading to TRIPS Plus, grey areas in the implementation of the CBD with a view to assess the implications of the same to various stakeholders

2 Chapter IV The Convention on Biological Diversity (CBD) As we discussed in the previous chapter, the Convention on Biological Diversity (CBD) is probably the most encompassing international agreement ever adopted. It seeks to conserve the diversity of life on earth at all levels; genetic, population, species, habitat, and ecosystem and to ensure that this diversity continues to maintain the life support systems of the biosphere overall. It recognizes that setting social and economic goals for the use of biological resources and the benefits derived from genetic resources is central to the process of sustainable development, and that this in turn will support conservation. The CBD, concluded on 5 June 1992, was the result of discussions at the Rio de Janeiro 1992 United Nations Conference on Environment and Development towards a strategy for sustainable development, following negotiations that had commenced in November 1990 under the United Nations Environment Programme (UNEP) (Adair, 1997). The CBD, administered by UNEP, establishes principles for the protection of the environment while ensuring ongoing economic development, emphasizing conservation of biodiversity, sustainable use, and fair and equitable benefit sharing of that use of genetic resources. The importance of the challenges of sustaining biodiversity in the face of increasing human impact was universally acknowledged at the Earth Summit held in Rio de Janeiro where the Convention on Biological Diversity was opened for signature by national governments. This treaty was the first global agreement on the conservation and sustainable use of all components of biodiversity, including genetic resources, species and ecosystems. It was also the first to define biodiversity in the context of social, economic, and other environmental issues (Gross & Johnson, 2006). In ratifying the Convention, the Parties have committed themselves, in general terms, to undertaking national and international measures aimed at achieving three explicit objectives: the conservation of biological diversity, the sustainable use of its components and the equitable sharing of benefits arising out of the utilization of genetic resources

3 Trips Versus CBD: Towards A Framework (according to CBD the genetic material is, any material of plant, animal or other origin containing functional units of heredity and defines genetic resources as genetic material of actual or potential value). These are three objectives are translated into binding commitments in the provisions contained in Articles six to twenty. Central purpose of the CBD has been to promote sustainable development, and the underlying principles of the Convention are consistent with those of the other Rio Agreement. The CBD stresses that the conservation of biological diversity is a common concern of humankind, but recognizes that nations have sovereign rights over their own biological resources, and will need to address the overriding priorities of economic and social development and the eradication of poverty issues (Gross & Johnson, 2006). The CBD recognizes that the causes of the loss of biodiversity are depletion in nature, and mostly arise as a secondary consequences of activities in economic sectors such as agriculture, forestry, fisheries, water supply, transportation, urban development or energy, particularly, activities that focus on deriving short-term benefits rather than long term sustainability. Dealing with economic and institutional factors is therefore the key to achieving the objectives of the convention. For the first time in an international legal instrument, the Convention recognized the importance of traditional Knowledge, the wealth of knowledge, innovations and practices of indigenous and local communities that are relevant for the conservation and sustainable use of biological diversity. The adoption of the Convention on Biological Diversity marks an important juncture in the debate on the disposition rights to genetic and biological resources, since it, for the first time, specifies in a legally binding document that biological diversity of each and every country is the possession of that country (Art. 3 and 10). As such, the nation states for the first time receive all rights of disposition over their biological resources. The most important principles of the Convention include (Gross & Johnson, 2006);

4 Chapter IV 100 The contribution of the peoples of developing countries to the entire world s biodiversity is of great importance; Biodiversity is not a gift of nature, but the result of community activities where women in particular have always played a vital role; Biodiversity is intrinsically co-dependent with diverse cultures, knowledge systems, and lifestyles which generate and maintain it; In situ (local) conservation of biological resources is more sustainable than ex situ (gene bank conservation); Rights for local communities, as well as states, are necessary to protect biological resources and to encourage preservation; Programs and policies must be implemented to promote conservation and sustainable use, as well as the sharing of benefits arising from the use of biological resources issues. On the other, following points may be identified as the most important obligations arising on the part of the signatory nations to the Convention (Gross & Johnson, 2006): Recognition of the sovereign rights of states over their biological resources. The stipulation that access to biological resources of a given state can only occur with the prior and informed consent of that state. The requirement that signatories protect and promote the rights of communities, farmers and the indigenous peoples vis-a-vis their biological resources and knowledge systems. The establishment of access to the biological resources of developing countries on a quid pro quo basis with technology transfer from the industrialized countries. The requirement of an equitable sharing of benefits arising from the commercial use of communities biological resources and local knowledge. The assurance that intellectual property rights do not conflict with the conservation and sustainable use of biodiversity.

5 Trips Versus CBD: Towards A Framework Bonn Guidelines on Access to Genetic Resources The CBD came into force in 1993 and it is only with the adoption of Bonn Guidelines that the CBD provisions became operative. The Bonn Guidelines a are voluntary Guidelines for state parties to the CBD. The guidelines assist parties, government and other stakeholders in developing overall access and benefit sharing strategies and in identifying the steps involved in the process of obtaining access to genetic resources and benefit sharing. It serves as inputs when developing and drafting legislative, administrative or policy measures on access and benefit sharing with particular reference to provisions under Article 8(j), 10 (c), 15, 16 and 19 of CBD and contracts and other arrangements under mutual terms of access and benefit sharing (Jung Ni, 2011). Paragraph nine of the CBD defines the scope of the guidelines and it states that all genetic resources and associated TK, innovations and practices covered by the CBD and the benefit arising from the commercial and other utilization of such resources should be covered by the guidelines, with the exclusion of human genetic resources. According to the guidelines, Access and Benefit Sharing systems should be based on an overall access and benefit sharing strategy at the country or regional level. This Access and Benefit Sharing strategy should aim at the conservation and sustainable use of biological diversity and may be the part of a national biodiversity strategy and action plan and promote the equitable sharing benefits. The Important Objectives of the Guidelines are: To contribute to the conservation and sustainable use of biological diversity; To provide Parties and Stakeholders with a transparent framework to facilitate access to genetic resources and ensure fair and equitable sharing of benefits; To provide guidelines to Parties in the development of access and benefit sharing regimes; a See more details, Decision VI/24 Access and Benefit Sharing as Related to Genetic Resources, Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity, Un Doc. UNEP/CBD/COP/6/20 (2002).

6 Chapter IV 102 To inform the practices and approaches of stakeholders in access and benefit sharing arrangements; To provide capacity building to guarantee the effective negotiations and implementation of access and benefit sharing arrangements especially to developing countries in particular least developed countries and small island developing states among them; To promote awareness on implementation of relevant provisions of the CBD To promote the adequate and effective transfer of appropriate technology to parties providing access, especially to developing countries, in particular to least developed countries; To promote the provision of necessary financial resources to access providing countries; To strengthen the clearing house mechanism as a mechanism for cooperation among Parties in access and benefit sharing; and To contribute to the development by Parties of mechanisms and access and benefit sharing regimes that recognizes the protection of traditional knowledge, innovation and practices of indigenous and local communities, in accordance with domestic laws and relevant international instrument. According to the Guide lines, access and benefit sharing systems should be based on an overall access and benefit sharing strategy at the country or regional level. This access and benefit sharing strategy should aim at the conservation and sustainable use of biological diversity and may be part of a national biodiversity strategy and action plan and promote the equitable sharing benefits. It also demands that in accordance with Article 15, of the Convention on Biological Diversity, access to genetic resources shall be subject to prior informed consent of the contracting party providing such resources (Jung Ni, 2011) The CBD Principles

7 Trips Versus CBD: Towards A Framework The CBD recognises several broad principles that seek to define the nature of rights of a state over its genetic resources and the legal framework it can establish for regulating accesses to such resources specifically (Jung Ni, 2011); Every state shall have sovereign rights over the biological and genetic resources within its territory and can establish laws to regulate access to those resources (CBD Art. 15). Accesses to such resources should be on mutually agreed terms and should incorporate the principals of Prior Informed Consent of the resource provider. Moreover, it recognises an obligation to ensure fair and equitable sharing of benefits arising from access and use of resources (CBD Art. 15). Every contracting party of the CBD shall make efforts to develop and carry out scientific research based on genetic resources provided by other Contracting Parties with the full participation of and to the extent possible, with in the countries supplying material (CBD Art. 15). Contracting Parties should adopt legislative, administrative and policy measures that could ensure effective participation in biotechnological research activities by those Contracting Parties, especially developing countries, which provide the genetic resources for such research and where feasible in such Contracting Parties (CBD Art. 19). Contracting Parties should take legislative, administrative and policy measures as appropriate, with the aim that Contacting Parties in particular those that are developing countries, which provide genetic resources are provided accesses to an transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights (CBD Art.16). Each Contracting Party shall take legislative, administrative policy measures, as appropriate, with the aim that the private sector facilitates access to joint development and transfer of technology for the benefit of both governmental institutions and the private sector of developing countries (CBD Art.16).

8 Chapter IV 104 States should (i) Respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity. (ii) promote their wider application with the approval and involvement of the holders of such knowledge, innovation and practices and (iii) encourage the equitable sharing of benefits arising from utilization of such knowledge, innovation and practices (CBD Art. 8(j)). Patents and other intellectual property rights may have an influence on its implementation and urges that such rights are supportive of and do not run counter to the objectives of the CBD (CBD Art. 16.5) (Caillaux, 1994) Salient Features of the Convention on Biological Diversity (CBD) Presently, the CBD is the most dynamic international legal system for promoting the protection of Traditional Knowledge, although its mandate is confined to the context of biodiversity related areas. The salient features of the CBD for the protection of Traditional Knowledge and biodiversity is as follows: Access to and the Fair and Equitable Sharing of Benefits arising from the Utilization of Genetic Resources The CBD encourages the parties to provide access to and to equitably share the benefits arising from the utilisation of genetic resources, as also the CBD seeks to establish incentives to conserve biodiversity. b The CBD approach is first of all based on the fundamental premise that nation states have sovereign rights over the biological diversity within their territory (Preamble and Article 15(1)). The CBD also recognises that national governments have the authority to determine access to these resources in accordance with national legislation (Article 15(1)). It provides that access to genetic resources must be obtained with the Prior b See more Details official website

9 Trips Versus CBD: Towards A Framework Informed Consent (PIC) of the CBD party, and on mutually agreed terms (Article 15(4) and (5)) (Adhikari, 2004). The CBD envisages the use of legal measures that could feasibly include IPRs (Article 15(7)), by calling on Parties to take legislative, administrative or policy measures to ensure the benefits arising from research, development and commercial use of genetic resources are shared in an equitable way with the provider of the genetic resources. The Conference of the Parties (COP) has established a number of subsidiary bodies to consider access and benefit sharing. First, it has established a Panel of Experts on Access and Benefit Sharing whose role is to develop a common understanding of basic concepts and to explore all options for Access and Benefit Sharing on mutually agreed terms including guiding principles, guidelines, and codes of best practice for Access and Benefit- Sharing arrangements (Adhikari, 2004) Preservation and Respect for the Knowledge, Innovations, and Practices of Indigenous and Local Communities Closely related to the CBD s provisions on access and benefit sharing are those regarding the preservation of and respect for the knowledge, innovation and practices of indigenous and local communities. This traditional knowledge has often been conserved by indigenous and local communities through informal, collective processes extending across generations. The CBD calls on Parties to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biodiversity in Article 8(j) (Adhikari, 2004) Transfer of Technology In addition to encouraging Access and Benefit Sharing (ABS), and the protection of traditional knowledge, IPRs may influence the nature of technologies developed from genetic resources, and how those technologies are transferred and used. The development and transfer of appropriate technology is important

10 Chapter IV 106 for the successful realisation of the CBD s objectives. The CBD refers to technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment. It requires Parties to transfer technology to developing countries on fair and most favourable terms, including on concessional and preferential terms where mutually agreed (Article 16(2)). The CBD recognises that the development and transfer technology will be affected by IPRs. Where technology is IPR protected, it requires access to be provided on terms that are consistent with the adequate and effective protection of those rights (Article 16(2)). It also requires that, where a developing country has provided access to genetic resources, that country should be provided with access to technology that makes use of those resources (Article 16(3)). The CBD requires Parties to co-operate, subject to national legislation and international law, to ensure that IPRs are supportive of and do not run counter to the CBD s objectives (Article 16(5)) (Adhikari, 2004) Conservation and Sustainable Use of Biological Diversity An overarching objective of the CBD is encouraging the conservation and sustainable use of the components of biological diversity. The CBD requires Parties to integrate considerations relating to conservation and sustainable use into national decision-making (Article 10). It requires its Parties to adopt measures relating to the use of biological resources to avoid or minimise adverse impacts on biological diversity (Article 10(b)). Further, Parties are encouraged to integrate the conservation and sustainable use of biological diversity into relevant sectoral or crosssectoral plans, programmes and policies (Article 6(b)). Parties are responsible for identifying the processes and categories of activities that have or are likely to have significant adverse impact on biological diversity and monitoring their effects (Article 7(c)) (Adhikari, 2004) Recognition of Traditional Knowledge

11 Trips Versus CBD: Towards A Framework Article 8(j) of the CBD requires parties; as far as possible and as appropriate, and subject to its national legislation to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovation and practices. And at the same time the CBD itself did not create any new intellectual property rights for indigenous or traditional peoples, or place governments under obligation to do so. Therefore, the existing models in the WTO and the World Intellectual Property Organization (WIPO) will be the basis on which any new intellectual property rights are developed (Caillaux, 1994) The Conference of the Parties (COP) and the Working Group on Article 8(j) The Convention establishes an institutional structure to monitor the implementation and the on-going development of the Convention. The Conference of the Parties (COP) is the governing body of the CBD process. It comprises all the Parties to the Convention and meets every two years, or as needed, to review progress in the implementation of the Convention, consider amendments and the adoption of Protocols to the Convention, and adopt programmes of work to achieve its objectives. It may establish such subsidiary bodies as may be required. Meetings are also attended by observers representing other governments (i.e. of countries that have not yet ratified the Convention) and international, non governmental and community organizations, representative of many sectors of civil society, including indigenous and local communities, academia and the private sector. COP plays a significant role in assisting Contracting parties to carry out their obligations. The primary mission of this working group is to provide the COP

12 Chapter IV 108 with advice relating to the implementation of such provisions. Based on the structure of the elements proposed in the Madrid Workshop Report, the Working Group formulated a programme of work on Article 8(j), which was subsequently adopted at the COP-5 in May 2000, held at Nairobi, Kenya (Zerbe, 2002). The programme of work aims to help Parties fulfill their commitments under Article 8(j) by highlighting a number of elements under which further specific tasks are listed. The programme constitutes of a blueprint for the implementation of TK protection within the CBD context, considering the indispensable role of indigenous peoples and local communities in TK protection. The work programme places the full and effective participation of those groups at all stages and levels of its implementation as its key objective. The Working Group was requested to explore the possibility of developing technical guidelines for recording and documenting TK, and to analyze the potential threats posed by documentation to the rights of TK holders. Further, in order to facilitate and assist Parties and governments in the fulfilment of their commitments under Article 8(j) and related provisions, the Working Group has been assigned to engage in the elaboration of several sets of guidelines. The regulations to ensure fair TK access, one of the focal points of the programme has been the development of guidelines to ensure the utilization of TK with the consent of the holders and to ensure they can obtain an equitable share of benefits arising from the utilization. To effectively protect such interests, the Article 8(j) Working Group's programme emphasizes prevention measures regarding the misappropriation of TK (Jung Ni, 2011) Article 8(j) The COP-3 agreed on the need to develop national legislation and corresponding strategies for the implementation of article 8(j) in consultation with representative of their indigenous and local communities (CBD Secretariat, 1997).

13 Trips Versus CBD: Towards A Framework Pursuant of this, the CBD secretariat arranged a Workshop on Traditional Knowledge and biodiversity in Madrid, 1997 and was attended by representatives of government and 148 indigenous and local community organizations. The Report of the Workshop suggested the following options for recommendations for elements of work plan for future elaboration under the framework of the CBD (Dutfield, 2000): Participatory mechanisms for indigenous and local communities; Status and trends in relation to Article 8 (j) and related provisions; Traditional cultural practices for conservation and sustainable use; Equitable sharing of benefits; Monitoring elements and Legal elements Access and Benefit Sharing (ABS) The COP agreed to establish a regionally balanced panel of experts appointed by governments, composed of representatives from the private and the public sectors as well as representatives of indigenous and local communities. The mandate of the panel is to develop a common understanding of basic concepts and to explore all options for access and benefit sharing on mutually agreed terms including guiding principles, guidelines and codes of best practice for access and benefit sharing arrangements. Such options might address the following elements set out an annex to this decision as follows (Dutfield, 2000); Prior Informed Consent in provider countries for access to genetic resources and research and development. Clear, established mechanisms to provide such consent, including, interalia, legislative, administrative and policy measures, as appropriate; Reference to the country of origin, where available, in relevant publication and patent application; Mutually agreed terms including on benefit sharing and intellectual property rights and technology transfer,

14 Chapter IV 110 Efficient permitting and regulatory procedures that avoid burdensome procedures involving high transaction costs, Incentive measures to encourage the conclusion of contractual partnerships The Nagoya Protocol on Traditional Knowledge Responding to the call of the 2002 World Summit on Sustainable Development c, the CBD has been engaging in the elaboration and negotiation of an international regime with a view to strengthening the enforcement of ABS requirements under the CBD. A preliminary draft on the regime was formulated and revealed at the eighth meeting of the COP in According to the draft, the scope of the international regime is in line with the Bonn Guidelines and applies both to genetic resources and associated TK. The draft clearly seeks to enforce the interests of TK holders d. In effect, the 2006 draft proposes to contain measures to ensure compliance with the prior informed consent of TK holders. The inclusion of measures to prevent misappropriation and unauthorized access and use of TK is also under deliberation. The draft further requires that Parties take enforcement measures, such as sanctions, to prevent uses of TK that fail to comply with provisions of the international regime. At its ninth meeting in 2008, the COP adopted a more detailed agenda on the negotiations of the international regime. Regarding the protection of TK in the context of the ABS system, the agenda provides components to be negotiated, which fulfil and elaborate the mandate of ABS disclosed in Article 8(j). However, it should be noted that Article 8(j) actually does not use identical terms as those in Article 15 of the CBD. To expand and apply the ABS regime originating in Article 15 to cover TK protection requires further study and political will. In order to assist the ABS Working Group, the COP decided to establish a group of technical and legal experts on genetic resourcec World Summit on Sustainable Development, Aug 26-sept 4, available at d See more details, CBD Website,

15 Trips Versus CBD: Towards A Framework related TK to study and examine relevant issues, such as the definition of associated TK, the applicability of ABS in Article 15 to TK and the legal basis of prior informed consent for TK holders(jung Ni 2011). The result of the seventh meeting of the Working Group on ABS reveals more specific elements on TK's ABS device, which elaborates and amplifies Article 8(j) and the Bonn Guidelines in this regard. It manages to define clearly the rights and obligations of both TK holders and national authorities. The draft tends to promote the status of indigenous and local communities with regard to TK access by confirming their right to be consulted by authorities, including on the matters of prior informed consent, mutually agreed terms in benefit sharing, and effective participation. To allow them to actively and meaningfully engage, Parties hosting TK are required to provide capacity building, to ensure appropriate participation, and to provide assistance in giving prior informed consent and forming mutually agreed terms Trade Related Intellectual Property Rights (TRIPS) As we discussed in the previous chapter the Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international Agreement between the member nations of World Trade Organization (WTO). The TRIPS Agreement was the first of its kind an International Agreement governing the protection of intellectual property. Historically patents had been governed solely by national law. While the World Intellectual Property Organization (WIPO) coordinated divergent national legislations and mandated national treatment e, the exact nature of the rights afforded under patent legislation, including patent requirements, restrictions, and rights, were left to national jurisdiction. f Consequently, there was a great deal of disparity between countries in e The principle of national treatment with regards to intellectual property is spelled out in Article 2 of the Paris Convention on the Protection of Industrial Property (1883), which mandates that nationals of any signatory to the convention should enjoy the same protection and remedies against infringement as nationals of the host country. In essence, it ensures that foreign and domestic patent holders receive the same protections and rights under national law, but does not specify the scope or nature of protections extended. f The World Intellectual Property Organization (WIPO) administers international treaties covering intellectual property, including the Paris Convention on the Protection of Intellectual Property (1883), the Berne Convention for the Protection of Literary and Artistic Works (1886), the Rome Convention for the

16 Chapter IV 112 terms of protections extended. While the developed countries usually afforded strong intellectual property protections, the developing world frequently afforded only circumscribed protections (Rao & Guru, 2003). TRIPS Agreement is aimed at harmonizing the Intellectual Property related laws and regulations worldwide. The Agreement accomplishes this motive by setting minimum standards for protection of various forms of IP. The nations that are signatory to the TRIPS Agreement have to abide by these minimum standards in their national laws related to IP. The TRIPS generally sets out the minimum standards regarding the grant of rights to the owner of IP, enforcement requirements in the national laws, and settlement of disputes and remedies to those whose IP rights get infringed. The coverage of the TRIPS Agreement encompasses the various areas of IP including patents, trademarks, copyrights, geographical indications, industrial designs, etc. The objective of the TRIPS Agreement is to ensure the protection and enforcement of Intellectual Property Rights (IPR) to contribute to the promotion of technological innovation, transfer and dissemination of technology, mutual advantage of producers and users of technological knowledge in a manner that is conducive to social and economic welfare, and balance of rights and obligations, worldwide (IP Pro, 2008). In 1944, for the first time an International Agreement was reached upon to govern the international monitory policy. This was called the Bretton Woods Agreement. The Bretton Woods Agreement created two institutions to govern the International Monitory Policy: International Bank for Reconstruction and Development (IBRD, World Bank) in 1945 and the International Monetary Fund (IMF) in These were called the Bretton Woods Institutes. Subsequently, the General Agreement on Tariffs and Trades (GATT) was established in 1947 to harmonize the trade between various nations (IP Pro, 2008). Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), and the Treaty on Intellectual Property in respect of Integrated Circuits (also known as the Washington Treaty) (1989).

17 Trips Versus CBD: Towards A Framework GATT was the only multilateral instrument governing international trade from 1948 until the establishment of WTO in In all, eight rounds of negotiations were held under GATT. These rounds were held for refining the international trade and tariff rules. The first five rounds exclusively concentrated on the tariffs. The sixth round included discussion on anti-dumping measures as well which included provisions for member nations to control the dumping of goods into their territory by other nations which can affect the member nation s economy. Further, the seventh round discussed tariff and non-tariff measures. The last GATT round was the Uruguay Round ( ). The Uruguay Round, for the first time introduced discussions on trade related to agriculture, services and IPR. After long discussions and complex negotiations finally in 1994 WTO was established. g WTO deals with the rules of trade between nations at a global or near-global level. The objective of WTO is to provide the common institutional framework for the conduct of trade relations among its member nations in matters related to the agreements and associated legal instruments. WTO is responsible for negotiating and implementing new trade agreements, and is in charge of monitoring member countries' adherence to all the WTO agreements, signed by the majority of the world's trading nations. Under the provisions of WTO, many new agreements, regulations, treaties and conventions were introduced to provide the framework for implementation, administration and operation of the multilateral trade agreements between member nations. All these agreements, treaties, conventions and regulations were based on two principles, namely: 1. Most Favoured Nation Treatment (MFN) : Equal treatment for nationals of all Trading Partners in the WTO; 2. National Treatment: Treating one s own nationals and foreigners equally. g Thadikkaran, Raju, K. (1993). Dunkel Proposal and its Implications to India, Labour AIBCA Vol.15.No.5, October.

18 Chapter IV 114 TRIPS Agreement has emerged as the most widely impacting agreement post WTO leading to harmonization of IP related laws and regulations among member states (IP Pro, 2008) TRIPS Principles The TRIPS Agreement takes a major step towards harmonization of the norms and standards of intellectual property protection. It requires members to comply with a defined set of minimum standards for the protection of intellectual property rights covered in it. The main TRIPS principles follow, (IP Pro 2008): It mandates countries to provide patents for products and process in all fields of technology, subject to the tests of novelty, inventiveness and industrial use (TRIPS Art. 27.1). It mandates patenting of micro-organisms and non-biological and microbiological processes (TRIPS Art.27.3 (b)). Members are allowed to make limited exclusions from patentability are permitted on the grounds of public order or morality, and in respect of protection extended to human, animal and plant life or health (TRIPS Art 27.2) it also gives states the option for protecting new plant varieties through patents or through any other effective sui generis system (TRIPS 27.3 (b)). It recognizes as one of its objective that the protection and enforcement of intellectual property rights should contribute to the promotion of technological knowledge and in a manner conductive to social and economic welfare and to a balance of rights and obligation (Rao & Guru, 2003) TRIPS Major Provisions The TRIPS Agreement negotiated under the Uruguay Round introduced intellectual property rules for the first time into the multilateral trading system. The Agreement, while recognizing that intellectual property rights are private rights, establishes minimum standards of protection that each government has to give to intellectual property right in each of the WTO member countries. The TRIPS Agreements is, by its

19 Trips Versus CBD: Towards A Framework coverage, the most comprehensive international instrument on IPRs, dealing with all types of IPRs. IPRs covered under the TRIPS Agreements are; Copy Right and Related Rights Copyright protects literary works and other forms of works that constitute expression of ideas. Under the provision of Article 10, Computer Programs, whether in source or object code, are protected as literary works under the Berne Convention (1971). The term of protection for such kind of works under the Agreement is calculated based on the life of a natural person. Term of protection for copyright is not less than up to 50 years from date of end of calendar year of making of such a work (Rao & Guru, 2003). The related rights regarding Protection of Performers, Producers of Phonograms (Sound Recordings) and broadcasting organizations mentioned in Article 14 grants the producers of phonograms the right to authorize or prohibit the direct or indirect reproduction of their phonograms. These rights grant the broadcasting organizations the rights to prohibit the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same (IP Pro, 2008) Trade Marks Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, is capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, are eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, member nations may make registrability to depend on distinctiveness acquired through use. Member nations may require, as a condition of registration, that signs be visually perceptible. For initial registration, and each renewal of registration of a trademark a term of protection is no less than seven years. The registration of a trademark is renewable indefinitely (IP Pro, 2008) Geographical Indications

20 Chapter IV 116 As per the Agreement, Geographical Indications are indications which identify certain goods as originating in the territory of a member nation, or a region or locality in that territory. Geographical Indications are used to protect those goods whose quality, reputation or other characteristics are essentially because of their geographical origin. Under the provisions of the Agreement, a member nation can prohibit other member nations from the use of any designation or presentation of any goods that indicates or suggests that those goods originate from a geographical area other than the true place of origin in a manner which misleads the public(ip Pro, 2008). The term of protection for Geographical Indication is eternal Patents Article 27 of the TRIPS Agreement deals with patentable subjects matters. The patentable subject matter according to the Agreement constitutes any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. However, the member nations may exclude from patentability, diagnostic, therapeutic and surgical methods for the treatment of humans or animals. Further, plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes may also be excluded from patentability. Under the provisions of the Agreement the member nations have to provide protection for plant varieties either by patents or by an effective Sui generis system or by any combination thereof. The term of protection available is usually twenty years counted from the filing date of the patent application (IP Pro, 2008). Under provisions of Article 21 of the Agreement, member nations may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties. Article 31 of the Agreement has provisions for allowing the grant a compulsory license for pharmaceuticals by the government of a

21 Trips Versus CBD: Towards A Framework member nation without the consent of the patentee in certain conditions. Compulsory license may be allotted particularly in following conditions: Normally the person or company applying for a license has to have tried to negotiate a voluntary license with the patent holder on reasonable commercial terms. Only if that fails can a compulsory license be issued, and even when a compulsory license has been issued, the patent owner has to receive payment; According to TRIPS Agreement the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization, but it does not define adequate remuneration or economic value. Compulsory licensing must meet certain additional requirements as well Industrial Designs Member nations have to provide for the protection of independently created industrial designs that are new or original. Member nations may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Member nations may provide that such protection will not extend to designs dictated essentially by technical or functional considerations. The term of protection for industrial designs is 10 years from the creation of the industrial design (IP Pro, 2008) Lay-Out Designs for Integrated Circuits Under the provisions of the Agreement, member nations are obliged to provide protection to the layout-designs (topographies) of integrated circuits in accordance with the Treaty on Intellectual Property in Respect of Integrated Circuits. The member nations have to provide for protection of not less than 10 years from the date of filing of application for lay-out designs, however, member nations may limit the duration of protection up to fifteen years from the date of creation of the lay-out design (Rao & Guru, 2003) Protection of Undisclosed Information Undisclosed information is also called Trade Secret. The member nations are obliged to offer protection for trade secrets as per the provisions of the Agreement. The

22 Chapter IV 118 undisclosed information is considered as trade secret, if: It is secret in the sense that it is not generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; It has commercial value because it is secret; and It has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret (IP Pro, 2008) Enforcement of Intellectual Property Rights The Agreement was not only aimed at providing minimum standards for protecting IPR but was also aimed at providing the enforcement of the same. The Agreement provides minimum standards for the enforcement of IPR that allows right holders to protect most of their interests through civil court or administrative proceedings. It is not required for a WTO member nation to establish special or separate courts for IPR, or specially allocate resources, like man power, special enforcement offices. Part III of the Agreement on Enforcement of IPR sets out the obligations of member nations to establish administrative and judicial mechanisms through which IPR holders can seek effective protection of their interests. The general obligation of member nations to provide enforcement mechanisms requires that enforcement procedures should be available under their national law so as to permit effective action against any act of infringement of IPR covered by the Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. Member nations are obligated to ensure that enforcement procedures are fair and equitable, and not unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays. Regarding the civil administrative procedures and remedies, the Agreement provides for equal rights for both the defendant and complaining parties (Rao & Guru, 2003). The Agreement permits member nations to exclude the grant of injunctions in circumstances involving compulsory licenses and other uses. The Agreement obligates member nations to make provision for the ordering of prompt and effective provisional measures to prevent entry of infringing goods into channels of commerce and preserve evidence against such infringing goods and their traders. This means that the IPR

23 Trips Versus CBD: Towards A Framework holder will be entitled to seek a prompt action against the infringement, whether or not the party alleged to be acting in an infringing manner can be notified and given opportunity to be heard(ip Pro, 2008). The Agreement requires member nations to allow certain right holders to prevent release by customs authorities of infringing goods into circulation especially, with respect to counterfeit trademarks and pirated copyright goods. The Agreement also provides for certain Criminal Measures (penalties) for trademark counterfeiting and copyright piracy on a commercial scale (IP Pro, 2008). Main Dates in the Application of the TRIPS Agreement Final Act of the results of the Uruguay Round Entry into force of the WTO Agreement Special arrangements for pharmaceuticals and agricultural chemical products not protected in a member country as of the date of entry into force of the Agreement (Art ) a) Means for filing applications b) Criteria for patentability (to be applied as of the time that the patent protection has become available in the country in question) c) Exclusive marketing rights for five years (to be applied once all conditions of Article 70.9 are met Entry into force of TRIPS Agreement (Art.65.1) National treatment principles applicable lo all countries Most-favoured-nation treatment applicable to all countries (An.4) Review of issue of patentability of plants and animals other than microorganisms (Art.2 7.3(b)) Transitional arrangement for developing countries (Art. 01.0l

24 Chapter IV ) Transitional arrangement for economies in transition, but only if conditions of article 65.3 are met Review and amendment by Council of TRIPS Agreement (Art.71.1 i Transitional arrangement for developing countries concerning product patent protection - to technologies not previously protected by product patents (Art. 65.4) Transitional arrangements for least developed countries (Art. 66.1) Transitional arrangements (or least developed countries concerning patent protection for pharmaceutical products and legal protection of undisclosed test data submitted as a condition of approving the marketing of pharmaceuticals (Declaration on the TRIPS Agreement and Public Health) Source: United Nations Conference on Trade and Development (UNCTAD) available the full text at, see more details at < The TRIPS Plus In a general sense, TRIPS-plus refers to commitments which go beyond what is already included or consolidated in the TRIPS Agreement (Vivas, 2003). More precisely, it can be defined as a concept which refers to the adoption of multilateral, bilateral, regional and national IP rules and practices which have the effect of reducing the ability of developing countries to protect the public interest. It increases the level of protection for right holders beyond that which is given in the TRIPS Agreement and exceptions under the TRIPS Agreement Musungu & Dutfield, 2003). FTAs, at the regional and bilateral level, are the most well known vehicles for TRIPS-plus obligations for developing countries. IP is one of the most contentious issues in FTAs negotiated by the United States with Thailand and with SACU countries. However, TRIPS-plus also occur in international fora such as the WIPO (Vivas, 2003). The draft Substantive Patent Law Treaty (SPLT) is

25 Trips Versus CBD: Towards A Framework an illustration of how WIPO s norm-setting activities could result in TRIPS-plus standards for developing countries, particularly as there have been attempts to focus the negotiations on a limited number of provisions, favored by developed countries, and thus excluding the proposals by developing countries aiming at safeguarding their public policy flexibilities. At the national level, TRIPS-plus provisions obligate developing countries to amend national legislation to implement TRIPS Agreement particularly in areas of undisclosed information or copyright. There is a rationale for the acceptance by developing countries of TRIPS-plus obligations in the context of FTAs at the regional and bilateral level but it is not clear what kind of incentive induces them at the multilateral level or at the national one(rao & Guru, 2003) The Doha Mandate The Doha Declaration of 2001 (WTO2001) involves an instruction to the TRIPS Council to look at the relationship between the TRIPS and the CBD and the issue of traditional knowledge, particularly in relation to bio-piracy and the patenting of biotechnology. The Declaration also instructs the TRIPS Council to examine the protection of traditional knowledge in relation to biotechnology (TRIPS Art 27.3 (b)). Doha is a technical mandate that requires review of TRIPS within the existing international framework. Provisions in the TRIPS leave to the discretion of member states the treatment of the patenting of plant and animal materials, in Article 27.3(b). Furthermore, there are no requirements for disclosure of the source of material that might end up in a patent, such as biological material that may have been prospected from traditional communities. The CBD represents an affirmation of state sovereignty over native biological resources. The CBD gives the State authority to determine the rules governing principles of Prior Informed Consent, mutually agreed terms, and equitable sharing with respect to the use of traditional knowledge and resources (Jung Ni, 2011).