Negotiations to protect and preserve biodiversity are in a delicate place, as proponents of stronger protection attempt to navigate parallel discussions at different intergovernmental agencies.

This year’s deadline for finalising an international protocol on access to genetic resources and related benefit-sharing under the UN Convention on Biological Diversity is fast approaching, and those trying to maintain the negotiation’s momentum will have to solve continuing disagreements over its scope and measures for enforcement, members of a panel said today.

Meanwhile, delegates at another UN agency – the World Intellectual Property Organization – have a mandate to negotiate an international legal instrument for the protection of traditional knowledge, traditional cultural expressions and genetic resources but have yet to agree on how to do so.

And at the World Trade Organization, the majority of members support a move to negotiate on proposed changes to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement to bring it into line with the CBD, but getting a mandate to for such negotiations is unlikely with no resolution on the horizon in the long-stalled Doha Round of trade liberalisation talks that could dislodge opponents to negotiating on CBD.

The International Centre for Trade and Sustainable Development organised the event on biodiversity issues in trade on 22 April.

Those looking for new international norms on biodiversity protection are in a delicate position with these parallel negotiations, as they try to ensure that discussions within one body do not interfere with progress in others.

The issue of biodiversity is so huge it is hard to confine it to one organisation, said Sunjay Sudhir of the Indian mission to the WTO, adding that as a result “coherence is essential.”

The Need for New Laws

Seventeen years after the CBD was negotiated, there are still only limited ways to stop bad patents, said Hartmut Meyer of German development organisation GTZ (Gesellschaft für Technische Zusammenarbeit).

Illegal patents can be searched for and annulled individually, as Peru was able to do last year for several products using Peruvian traditional knowledge, but this is done at the expense of the patent’s challenger, he explained.

And, he added, there are no means to stop bad use of genetic resources – for example where a patent is technically okay but does not follow the rules of prior informed consent. Even where a patent does not exist, a product can still be marketed.

This is where an access and benefit-sharing regime could be of use, Meyer said. A working group under the auspices of the CBD has been working to finalise such a regime, with a deadline at the October 2010 decision-making conference of the parties to the CBD in Japan.

At the most recent working group meeting in Cali, Colombia in March, delegates managed come up with a draft text for the regime. But outstanding disagreements stalled the meeting and required the scheduling of an extra negotiating session this summer (IPW, Biodiversity/Genetic Resources, 6 April 2010).

At this stage, however, delegates are still trying to agree on what the scope of the protocol will be, said Susanna Chung of the South African mission, who also negotiates at the CBD. Also at issue are compliance measures, how to handle products derived from biological resources, and whether and how to differentiate between continued and new uses of genetic resources, she added.

There is a pattern in dealing with traditional knowledge in the draft protocol, said Meyer, which is that it does not appear in articles which deal with the interlinkage between biodiversity and the IP system.

Some developed countries have interpreted the mandate at WIPO as reason to prevent further discussions of intellectual property and related issues within the context of the CBD protocol, despite the CBD having a mandate to discuss IP and biodiversity, Chung said.

This is a place where negotiations broke down in Cali, Meyer added: developed countries are still largely after a weak compliance system, where the like-minded megadiverse countries are after something stronger.

Traditionally, developed countries have argued in international fora for strong intellectual property protection as a key way to preserve innovation. But on the issue of IP provisions over genetic resources and traditional knowledge, they have largely reversed this position out of a preference to leave matters to the national level.

Differences exist among government and across institutions, and can lead to conflicting agreements.

Contradictions already exist between TRIPS and the CBD, meaning they cannot be implemented in a mutually supportive manner, Sudhir said. For example, TRIPS is indifferent to acts of biopiracy – or the unfair use of biological resources – whereas the CBD requires equitable benefit sharing for use of such resources.

And some agreements might ease the way for others. If the CBD protocol goes through as it is meant to, then the role of WIPO is in how to implement the CBD protocol within its own work, such as by amending the WIPO Patent Cooperation Treaty to include disclosure requirements, said Chung.

Some Businesses See Opportunity

Outside the public sector, some businesses are realising that it can be to their benefit to have good practices regarding biodiversity, said Maria Julia Oliva of the Union for Ethical BioTrade. Surveys done of consumers, she said, indicate they not only know and care about biodiversity, but are also willing to stop purchasing brands when they find that companies’ materials are being sourced irresponsibly.

Disclosure of origin is already a common practice in some sectors, such as cosmetics, Oliva said (IPW, Biodiversity/Genetic Resources/Biotech, 21 April 2010), adding that a lot of the companies the Union is working with think the international regime will be a lowest common denominator, and are already looking beyond it.

The next meeting of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore is scheduled for 3-7 May. The next meeting of the working group on access benefit sharing at the CBD is expected in June.