SUBSCRIBE TODAY!
Subscribing entitles a reader to complete stories on all topics released as they happen, special features, confidential documents and access to the complete, searchable story archive online back to 2004.
IP-Watch Summer Interns

IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

Inside Views

Submit ideas to info [at] ip-watch [dot] ch!

We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

Latest Comments
  • So simply put, we have the NABP saying that all ph... »
  • The original Brustle decision was widely criticise... »

  • For IPW Subscribers

    A directory of IP delegates in Geneva. Read more>

    A guide to Geneva-based public health and intellectual property organisations. Read More >


    Monthly Reporter

    The Intellectual Property Watch Monthly Reporter, published from 2004 to January 2011, is a 16-page monthly selection of the most important, updated stories and features, plus the People and News Briefs columns.

    The Intellectual Property Watch Monthly Reporter is available in an online archive on the IP-Watch website, available for IP-Watch Subscribers.

    Access the Monthly Reporter Archive >

    New Biodiversity Benefit-Sharing Protocol Relies On National Rules, Experts Say

    Published on 7 February 2011 @ 6:55 pm

    By , Intellectual Property Watch

    PARIS – The recently agreed international instrument to facilitate access to genetic resources and the equitable sharing of benefits accrued from those resources opened for signature last week, and the text is already getting mixed reviews from stakeholders.

    The text has been considered by many stakeholders as a good starting point but with much left to interpretation, and much left to national level implementation. The issue was discussed by a panel in Paris on 3 February.

    The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity [pdf] was adopted on 29 October 2010, after six years of intense negotiations. Several issues, such as the scope of the protocol, the compliance to the instrument, and the sharing of viruses in the text, were keenly discussed.

    The international seminar, organised by the Institute of Sustainable Development and International Relations, a Paris-based think tank working on development issues, in collaboration with the Agence Française de Développement, gathered academics and civil society representatives long acquainted with the subject. The legal, policy, practical challenges and contributions of the protocol to the sustainable development agenda were discussed.

    According to Claudio Chiarolla, a research fellow on the international governance of biodiversity at IDDRI, the Nagoya Protocol has a broad scope with many overlaps with other international for a such as the United Nations Food and Agriculture Organization’s Commission on Genetic Resources for Food and Agriculture, the International Treaty on Plant Genetic Resources for Food and Agriculture, also under the umbrella of the FAO.

    The protocol also brushes with organisations dealing with intellectual property rights, such as the International Union for the Protection of New Varieties of Plants (UPOV) and its breeders’ exemption, the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, and the World Health Organization with its negotiations on a multilateral system for influenza virus sharing.

    The protocol has the potential to enhance international equity between countries and between countries and indigenous communities, but many practicalities will have to be decided not only within the CBD, but also in other fora and at different levels of governance, Chiarolla said.

    Impact of Protocol on WHO Negotiations

    According to Sangeeta Shashikant, legal advisor for the Third World Network, the ongoing WHO negotiations on pandemic influenza preparedness might be impacted by relevant elements of the Nagoya Protocol.

    The language of Article 8 of the protocol only requires countries to “pay due regard” to “cases of present or imminent emergencies that threaten or damage human, animal or plan health,” she said. But it also requires “expeditious fair and equitable sharing of benefits,” thus indicating that even in the case of emergencies, the CBD requirements remain and do not exclude the need for prior informed consent or mutually agreed terms, she said.

    In relation to other international instruments, Article 4 also “requires due regard to be paid to ongoing work or practices provided such work or practices are supportive of and do not run counter to the objectives of the convention and the protocol,” she said.

    Parties to the CBD are bound by the principles of the convention principles, she said, and these principles are applicable also to pathogens. These principles “are actually the legal foundation blocks that are key to rectifying the inequities prevailing in the WHO sharing scheme,” she said.

    The United States is not party to the CBD.

    Since the WHO negotiations are not complete, “the jury is still out on whether the outcome will be supportive of the legal requirements of the convention and the protocol,” she said, adding that all the WHO outcomes “did not have the same binding status as a treaty.”

    The next WHO intergovernmental meeting on influenza preparedness will take place from 11-15 April.

    Compliance, Temporal Scope Still Open

    Compliance to the protocol has been subject to extensive discussions since before the adoption of the protocol. However, compliance “is not an all or nothing case,” said Veit Koester, external professor at Roskilde University Centre in Denmark, as an incomplete compliance does not mean non-compliance. Sometimes countries do not have the capacity to comply fully with the instrument’s requirements.

    Comparing the compliance mechanisms already in place in other instruments, Koester said that the Nagoya Protocol compliance mechanism could be modelled after the compliance mechanism of the Cartagena Protocol on Biosafety, but it appears unlikely.

    There is grounds for “some degree of optimism” that the establishment of a compliance mechanism will be decided at the first meeting of the Conference of the Parties serving as the meeting of the parties to the protocol to be held in India in October 2012, along with the eleventh meeting of the CBD Conference of the Parties, but the hurdle is that the mechanism has to be adopted by consensus, he said. Major issues that might prevent a consensus are the institutional aspects of constructing a compliance mechanism, how to trigger the non-compliance procedure, and the outcome of a case of non-compliance, he said.

    Submissions asserting non-compliance by parties with respect to other parties are extremely rare, he said. It would be fair, for example, to allow submissions by indigenous and local communities, but it is doubtful that this trigger will be accepted by parties, he said.

    François Meienberg, joint managing director of the non-governmental Berne Declaration, said that one of the implementation problem of the Nagoya Protocol could be the temporal scope and whether there will be prior informed consent (PIC) and mutually agreed terms (MAT) on species acquired before the protocol, as “an incredible amount of genetic resources already left the country of origin,” he said.

    Article 15.1 of the protocol gives no indication that genetic resources acquired before the entry into force of the protocol would be excluded, said Meienberg. Major risks are that the users will examine ex situ collections in their own countries or in countries that are not parties to the protocol, or will check if the resource is available on the open market, A user having illegally accessed a genetic resource in a country of origin could pretend he legally found it ex situ. A correct national implementation is therefore crucial to implement the protocol and the CBD, he said.

    According to Elsa Tsioumani, a lawyer and consultant on international environmental law based in Thessaloniki, Greece, traditional provisions are an important part of the Nagoya Protocol which establishes new obligations for parties and requires protection of traditional knowledge in situ.

    National legislations on the access and benefit sharing mechanism are needed to ensure that benefits reach the local indigenous communities. In answer to a question from the audience, Tsioumani said that a lot depends on national legislations, which at present do not seem entirely favourable to indigenous communities.

    Catherine Saez may be reached at info@ip-watch.ch.

     

    Comments

    1. Tweets that mention New Biodiversity Benefit-Sharing Protocol Relies On National Rules, Experts Say | Intellectual Property Watch -- Topsy.com says:

      [...] This post was mentioned on Twitter by Ipnewswatch, Raquel Gordon. Raquel Gordon said: New Biodiversity Benefit-Sharing Protocol Relies On National Rules, Experts Say: PARIS – The recently agreed int… http://bit.ly/dQ6mGV [...]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
    Your IP address is 54.83.241.88