New CBD Head: IPR Still Key To Nagoya Protocol On Access And Benefit-Sharing

NEW DELHI – The “Nagoya Protocol,” an international agreement on benefit-sharing for biological resources struck in the Japanese town of Nagoya in October 2010, has nearly 100 signatory countries, and is a major talking point in the international discourse on biodiversity. But ratification by the governments of these countries remains painfully slow, and the process towards it fraught with daunting challenges, as was evident last week during a key inter-governmental meeting in the Indian capital New Delhi. And in an interview with Intellectual Property Watch, the new head of the UN Convention on Biological Diversity had much to say about intellectual property rights.

Though intellectual property rights were not explicitly discussed at the Second Meeting of the Intergovernmental Committee for Nagoya Protocol on Access and Benefit Sharing (ICNP-2) held in New Delhi on 2-6 July, the interface between IP rights and biodiversity remains one of the fractious issues stalling agreement.

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 – its full name – was adopted on 29 October 2010, during the last summit of the United Nations Convention on Biological Diversity. It will enter into force 90 days after the fiftieth country ratifies it.

The protocol’s evident objective is the fair and equitable sharing of benefits arising from the utilization of genetic resources, thereby contributing to conservation and sustainable use of biodiversity. The Nagoya Protocol, a supplementary agreement to the Convention on Biological Diversity (CBD) signed by 150 world leaders at the 1992 Rio Earth Summit, lays out a grand vision to use the genetic material in plants, animals and microbes for food, medicines, industrial products, cosmetics and other applications in a fair and equitable way so that both “users” and “providers” can benefit.

To date, it has been signed by 92 countries but ratified by only five – Mexico, Seychelles, Rwanda, Gabon and Jordan. An Ethiopian delegate attending ICNP-2 told Intellectual Property Watch that his country is at the final stages of the process towards ratification.

The CBD press release from New Delhi is available here [pdf].

Interview with New CBD Executive Secretary

On the sidelines of ICNP-2, Braulio Ferreira de Souza Dias, the new executive secretary of the CBD, told Intellectual Property Watch that the issue of “compliance” as laid down in the Nagoya Protocol had indeed proved to be a difficult one – and relates to IP rights (IPRs).

“There are a number of issues we need to clarify on compliance,” he said. “Underlying all this talk of compliance mechanism is of course IPR. We have made a good start on discussions about compliance measures, but there are still several difficult issues which we have to solve.”

“We are requesting that at COP11 in Hyderabad, countries agree to organise a third meeting of the intergovernmental committee on Nagoya Protocol so that we can continue discussion on this and other issues before the first COP MOP [the Conference of the Parties serving as the Meeting of the Parties to the Protocol].”

The next CBD summit, or Conference of the Parties, – COP11 – is scheduled in the southern Indian city of Hyderabad this October. Event link is here.

The problem, Dias said, is that “private companies are concerned about disclosure of information on the origin of materials.”

“It is a delicate issue for them because they do not want to lose competitiveness,” he said. “They do not want their competitors to know where they are aiming their investments. At the same time, we need assurances that the rights of provider countries and their indigenous communities are respected. The challenge is how we do that so we can provide the necessary confidentiality but at the same time we need to make sure that what is agreed is enforced.”

For many governments, another problem is that, “Currently, the IPR regime does not take on board the Nagoya Protocol but what will happen is that probably countries will have to revise some of their IPR rules,” if they ratify, Dias said. “Several countries have already done that. India and Brazil have rules that say that the patent office can agree to concede new patents if the genetic resources and traditional knowledge that were utilised for the products respect the legal requirement.”

“Companies ask why they should be subject to these requirements in some countries and not in others,” he said. “The Nagoya Protocol is important because we establish a level playing field at the international level so that all companies will have to agree to these rules.”

On the issue of access to genetic resources (Article 6), the protocol states: “In the exercise of sovereign rights over natural resources, and subject to domestic access and benefit-sharing legislation or regulatory requirements, access to genetic resources for their utilization shall be subject to the prior informed consent of the Party providing such resources that is the country of origin of such resources or a Party that has acquired the genetic resources in accordance with the Convention, unless otherwise determined by that Party.” In UN language, a party means a country or a group like the European Union that has ratified the instrument.

The protocol seeks to “establish clear rules and procedures for requiring and establishing mutually agreed terms. Such terms shall be set out in writing and may include, inter alia: (i) A dispute settlement clause; (ii) Terms on benefit-sharing, including in relation to intellectual property rights; (iii) Terms on subsequent third-party use, if any; and (iv) Terms on changes of intent, where applicable.” The Protocol also lists “Joint ownership of relevant intellectual property rights” in the context of monetary and non-monetary benefits.

IPRs are an integral part of the discussion on access to genetic resources and sharing the benefits accrued from their use between users and original producers – what is called access and benefit sharing (ABS) by the experts. That makes IPR very much a part of the Nagoya Protocol.

But it was not explicitly discussed by the over-500 delegates from government, academia, UN agencies, civil society organisations and indigenous and local communities at ICNP-2 last week because “we did not want to reopen matters of substance, we wanted to discuss procedural issues,” according to a CBD official.

Nevertheless, there is every possibility that the issue will flare up again this October at Hyderabad.
Most delegates that Intellectual Property Watch spoke to said that ratification of the Nagoya Protocol is critical but ratification without national preparedness would be bad.

Dias: Hyderabad Will Not Be a ‘Lame Duck’

Dias said in the interview that early ratification will give momentum to the Nagoya Protocol but the small number of countries that have ratified the protocol does not mean that COP11 at Hyderabad will be a lame-duck affair.

A key objectives of COP11 is resource mobilization, he said. “Of course, it is difficult to mobilise new funding sources during this time of financial crisis. We will have to be very creative.”

“It would be a very bad message if we fail to make progress in discussing how to mobilise those resources,” Dias added. “Hopefully, countries will agree that each country can enhance the funds available for biodiversity by tapping on existing sources. For example, there are a number of sources in each of our countries that could be utilised for biodiversity. There is a lot that can be done by adjusting the subsidy regime.”

Dias said ICPN 2 had made “good progress in agreeing on a strategy to promote capacity building for countries to implement the Nagoya Protocol, a strategy for better awareness and forging agreement on the pilot phase of the Clearing House mechanism.”

The Access and Benefit-Sharing Clearing House and Information-Sharing Mechanism is one of the key instruments of the Nagoya Protocol and the CBD secretariat is working toward kickstarting the pilot phase.

“It will start before COP11 but it will take us an year and half to fully deliver this pilot phase of the Clearing House,” said Dias. “This should facilitate Parties as they move on to ratify the Nagoya Protocol. We will provide clear information about, for example, models for international certificates.”

Nagoya Two Years from Entry into Force?

ICNP-2 ended after adopting eight recommendations. These related to: modalities of operation of the ABS clearing-house; measures to assist in capacity building, capacity development and strengthening of human and institutional capacities in developing countries; measures to raise awareness of the importance of genetic resources and associated traditional knowledge; and cooperative procedures and institutional mechanisms to promote compliance with the Protocol and address cases of non-compliance.

It also includes: the need for, and modalities of, a global multilateral benefit-sharing mechanism (Article 10); guidance for the financial mechanism; guidance for resource mobilization for the Protocol’s implementation; and future work in preparation for the first meeting of the Conference of the Parties serving as the Meeting of the Parties to the Protocol (COP/MOP 1).

Most delegates said the Nagoya Protocol’s entry into force is expected to take at least another two years. The Delhi meet and the side events, however, provided a platform for many countries to showcase what they said were significant legislative and policy developments.

India: Good Progress Was Made

Host India expressed satisfaction with the “good progress” made on several issues and its bureaucrats felt that the conference had moved efficiently and made substantial advancement.

India issued a press release after the meeting that stated: “The first ever discussions on Article 10 (of the Nagoya Protocol) on Global Multilateral Benefit Sharing Mechanism helped in paving the way forward on this complex issue. On Article 30, relating to compliance, the pace though rather slow yielded good results. India welcomed the recommendations to CoP-11 to consider the outstanding issues of its work plan in another meeting of ICNP. India was of the view that the progress made in this meeting had set the ground for further work in preparation for the Protocol’s implementation and early entry into force. This would contribute in catalyzing the pace of ratifications of the Protocol.”

“Everybody has got something they wanted,” Dr Balakrishna Pisupati, chairman of India’s National Biodiversity Authority (NBA), told Intellectual Property Watch. “India has much to share. There are good examples and many countries in the developing world are looking to us for training. We will be soon holding consultations with the SAARC nations as well as ASEAN countries.”

At ICNP-2, Indian environment ministry officials said that 100 ABS agreements have already been signed by the government through the NBA. These, they said, were in line with India’s efforts towards strengthening its domestic ABS procedures and institutional mechanisms.

The officials said the benefits of these agreements are now reaching the communities which had safeguarded these biological resources for centuries. However, there is much more to do. Some Indian environmental activists say that implementation is patchy; in many cases, state biodiversity boards exist on paper, that many ABS agreements are difficult to enforce and cases of biopiracy still occur.

“Brazil is both a provider and a user country and we are committed to the three objectives of the CBD. We have national legislation on ABS and we are trying to take everyone on board in our national discussion on this,” Maria Cecilia Vieira, a Brazilian delegate, told Intellectual Property Watch.

The Need to Accelerate

How to accelerate the momentum towards ratification of the Nagoya Protocol was clearly a major concern at the Delhi meet. At a side event last week, an Ethiopian delegate pointed out that while an access and benefit sharing law at the national level is a significant step forward, it does not stop biopiracy and illegal movement of genetic resources. This is because there is still no binding agreement on biopiracy and such illegalities continue with the movement of visitors, researchers and traders.

“The one big takeaway from this meeting is that ratification (of Nagoya Protocol) is complicated for everyone,” a European Union delegate at ICNP-2 told Intellectual Property Watch. “Both users and providers of genetic resources and traditional knowledge need to have structures. Countries like Brazil and India which are both providers and users of GR [genetic resources] and TK [traditional knowledge] need to have double regimes. To implement the protocol, you need money, staff, structure and political will. As for ABS rules, there are many countries where there is little or nothing in place.”

On the issue of compliance, the EU delegate said, “There are different philosophies of compliance.” The EU, he said, is likely to make public its proposal for ratification of the Nagoya Protocol around September this year.

Prof. Alfred Oteng-Yeboah, chairman of Ghana’s National Biodiversity Committee, told Intellectual Property Watch that more ratifications from Africa are likely between now and the end of next year and that ICNP-2 had “provided a basis for better understanding of the Protocol.” Oteng-Yeboah said lack of capacity in implementing the protocol remains a serious barrier.