Friday, 8 February 2013

Kingsley Egbuonu

European Union serious on biopiracy in developing countries?

The protection of genetic resources (GR), traditional knowledge (TK) and expressions of folklore (especially in developing countries with rich biodiversity and traditional cultural assets) under the intellectual property system has been the subject of immense international policy discourse for many years (see some of Afro-IP posts on this here, here, here and here).  

Last year this blog hosted a piece informing us, with caution, about the cooperation between the European Commission and ARIPO to promote the protection of geographical indications (GIs) for food and agricultural products. Today, this Leo learns from an excellent summary by the International Centre for Trade and Sustainable Development (ICTSD) that the European Parliament (legislative arm of the EU) has made its intentions clear, through a resolution (texts A7-0423/2012), for the EU to tackle biopiracy  in developing countries.

The resolution is premised on the recognition of various international legal instruments concerning intellectual property, human rights and development. Below are the sections of the resolution and this Leo has extracted paragraphs which he finds interesting:

I. Genetic diversity and the MDGs
"3.  Underlines the fact that, although there is no generally acceptable definition of the term ‘biopiracy’, it may refer to misappropriating and/or illicitly benefiting commercially from the use of traditional knowledge and genetic resources and stresses that further work must be carried out in order to clarify and consolidate the legal terminology, in particular with a view to a definition of the term ‘biopiracy’ based on authoritative figures;" (Do you fancy section 3 of the Theft Act 1968 in England and Wales? asks Afro Leo)

"13.  Calls on the EU to refrain from pushing developing countries, especially LDCs, through bilateral agreements to accept far-reaching IP standards regarding e.g. seeds and medicines, in line with the EU's Policy Coherence for Development (PCD);" (Also see paragraph 15)

II.  Rights of indigenous and local communities over traditional knowledge
"17.  Points out that three quarters of the world's population depends on natural traditional medicine from plants; believes accordingly that biopiracy means there is a strong case for protecting traditional knowledge, particularly when it is associated with genetic resources of economic value to industry;" (All six paragraphs are worth reading)

III.  Addressing biopiracy – the way forward
"22.  Points out that biopiracy can be attributed to the lack of national regulations and enforcement mechanisms in developing countries and the lack of a compliance mechanism in developed countries, ensuring that GRs have been acquired in accordance with PIC and MAT in compliance with provider countries' national ABS legislation; welcomes, in this context, the draft regulation submitted by the Commission whose objective is to implement the Nagoya Protocol on Access to Genetic Resources and Benefit-Sharing; insists equally upon the importance to provide effective recourse mechanisms in case of disputes and access to justice;" (Also see paragraph 24)

Improving database and disclosure requirements related to genetic resources and traditional knowledge
"26.  Draws attention to the proposal made by developing countries for a binding regulation requiring patent applicants to (a) disclose the source and origin of genetic resources and associated traditional knowledge (ATK) used in inventions, (b) provide evidence of prior informed consent (PIC) from competent authorities in the provider country and (c) provide evidence of fair end equitable benefit sharing, to be certified in an international certificate of origin;"

"28.  Believes that a binding instrument is the surest way to see biodiversity-related measures in the IPR system implemented by user countries; urges that steps be taken to make the granting of patents dependent on compliance with a mandatory requirement to disclose the origin of any GR/TK in patent applications; stresses that such disclosure should include proof that the GR/TK in question has been acquired in accordance with applicable rules (i.e. prior informed consent and mutually agreed terms);" (Again, all six under this subheading are a must-read)

Working towards a coherent global governance system
"32.  Insists that WTO-TRIPS should be compatible with the CBD-Nagoya Protocol, and therefore considers it crucial to establish mandatory requirements on disclosing the origin of genetic resources during patent proceedings, and thus to make it possible to check whether they were acquired legally in accordance with PIC and MAT;"(All five paragraphs a must-read)

This remarkable achievement furthers and strengthens the pro-development discourse in IP. Without mentioning any names, this Leo knows that some NGOs, entities, individuals, developing and least-developing countries (you name it) have put in a lot of work lobbying at domestic and international stage on this matter. This is some good news for them - at least the EU is paying attention. However, (considering supranational politics, bureaucracy etc) he is also aware that this is a mere statement of intent by the European Parliament: it could be taken seriously and forward by the European Council and European Commission or left to accumulate dust. Hopefully, the former happens.

What do you think?

Kingsley Egbuonu

Kingsley Egbuonu

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Tony Kakooza
8 February 2013 at 18:30 delete

This is indeed a positive development, but there are a lot more practical steps that have to be appreciated in envisaging the reality of it all.

I am engaged in research on the value of Traditional Knowledge in the economic development of LDCs, particularly in Africa, and one of the prevalent challenging questions that comes across is: How do we define ownership of culture (within the context of TK practice)? This question will always come back to haunt us when we address the issue of "prior informed consent" before exploiting GR/TK. Essentially, is it the head of an Indigenous Community that grants the consent? In some African jurisdictions, the issue has been effectively resolved by government agencies/authorities coming in to exercise such authority following the Indian model.However, such red tape procedure cannot easily work in all jurisdictions especially where the indigenous community that has a better appreciation of the GR/TK prefers to have direct control over its exploitation.

It also opens up another challenge where the community that hosts such GR/TK is split in between two or more national boundaries (due to colonial history). In such a case, it is not only difficult to protect the traditional knowledge as Geographical Indications (G.I) but, obtaining "prior informed consent and mutual agreement" on the use of the GR/TK becomes a mountainous task.

So, again - mush as this is a step in the right direction, there is still a lot more that has to be addressed such as sui generis legislations on the use of GR/TK and the deeper involvement of Indigenous communities in the use of their GR/TK.