Intellectual property rights and biological diversity : an international legal analysis.

Abstract

Biological diversity is defined in Article 2 of the Convention on Biological Diversity as the variability among living organisms from all sources including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part. This, includes diversity within species and of ecosystems. Biological diversity and its components is valuable in meeting the social, economic, scientific, educational and other human needs. Biological diversity is also important for revolution and maintaining of life sustaining systems of the biosphere. For many years biological resources were treated as coon heritage of mankind; free access was consequently accepted. Most of the genetic resources used for developing new products originated from developing countries in the South; on the other hand research and development in respect of new technologies is carried out mostly by firms in developed countries in the North. New products resulting thereof are subsequently protected by the intellectual property rights (IPR). It is now recognised that new products using biological resources benefit directly or indirectly from indigenous knowledge. Such knowledge is of significant value for the understanding of the natural environment and for sustainable use of natural resources. However, the contribution made by these communities does not receive the same recognition or protection as products which benefit from their knowledge. Existing IPR systems were not designed to extend benefits to indigenous knowledge. Changes in this area were necessitated by concerns about the significant reduction of biological diversity due to certain human activities. These concerns coupled with the recognition that issues of conservation of biological resources cannot be dealt with without addressing issues of equity in access to and sharing of both genetic resources and technologies, recognition of the role of indigenous and local communities, eradication of poverty and international co-operation among others. The Convention on Biological Diversity entered into force in 1993 as a global effort into addressing these issues. It is recognised in the Convention that access to and transfer of technology among members are essential elements for the attainment of its objectives. Parties are therefore called upon to facilitate access and transfer technologies that are relevant to conservation and sustainable use. Protection to IPR holders is provided by the requirements that access to and transfer of technology which is subject to patents and other IPR is to be provided on terms which recognise and are consistent with the adequate and effective protection of IPR. The relationship between environmental protection and IPR is thus made an important issue which may influence implementation of the Convention. This thesis focuses on the study of national and international IPR regimes and their role in implementation of the provisions of the convention. Limitations of these regimes are identified, recent developments in addressing these limitations are analysed and possible alternatives are proposed. This study purports to supplement global efforts to effectively implement provisions of the Convention.