Panel: Help Needed With IP Implications Of Nagoya Protocol On Genetic Resources

The new international agreement on access and benefit-sharing of genetic resources has many IP implications, according to panellists at an event last week. And at least one United Nations agency is launching an effort to help countries with those IP implications.

The UN Conference on Trade and Development (UNCTAD), which co-organised the event with the International Centre on Trade and Sustainable Development, is launching a programme of work on the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization. The protocol to the UN Convention on Biological Diversity was agreed by CBD members last October in Nagoya, Japan.

According to Kiyoshi Adachi, legal officer and chief of the intellectual property unit at UNCTAD, “one interesting feature of the protocol is the absence of principles guiding the relationship between intellectual property and the access and benefit sharing regime, and the role of patent offices. However, the IP regime, “properly structured” could help further the objectives of the protocol, he said.

The panel on “What Comes After Nagoya? Addressing Developing Country Needs in Intellectual Property Rights and Biodiversity,” took place on 3 March, alongside the Third Intersessional Working Group (IWG 3) of the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The IWG 3 met from 28 February – 4 March, and delivered negotiating language for the next IGC in May (IPW, WIPO, 4 March 2011).

Carlos Correa, director of the Center for Interdisciplinary Studies of Industrial Property Law and Economics at the University of Buenos Aires and a researcher at the Geneva-based South Centre, said the major achievement of the Nagoya protocol is obligations on compliance with national laws and contract terms. But the language on compliance in the protocol would have needed to be more binding to be fully effective, he said.

A key issue in the protocol is the notion of checkpoints, designated collection points for information on prior informed consent, the source of genetic resources, and mutually agreed terms, to support compliance. A key weakness in the provision is the fact that although parties have the obligation to design one or more checkpoints, it is left to each country to choose which checkpoints, Correa said.

Correa said the provision was a step forward but as to the nature and function of checkpoints, it presents an insufficient solution to address problems raised by developing countries. Overall, he said, those problems have not been resolved by the protocol, and developing countries will have to find solutions in other fora such as the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, or WIPO – if its members adopt a binding instrument in the future.

For Pierre du Plessis of the Centre for Research, Information, Action in Africa, the Nagoya protocol is still a step in the right direction. Despite the weak language on checkpoints, the provision on monitoring the utilisation of genetic resources is a positive incentive for countries to start reflecting on their obligations.

Voluntary disclosure of the origin of genetic resources in IP applications is not good enough, du Plessis said, as only ethical operators will comply. Mandatory disclosure is necessary. Technology transfer is an important dimension of the Nagoya protocol, he said, as benefit sharing will be strictly ruled by mutually agreed terms so developing countries will have to negotiate contracts, which will require technical and legal expertise. There is an enormous gap growing in terms of contract negotiations between developed and developing countries, he said, and “it is not clear how it is going to be filled.”

Antony Taubman, director of the WTO IP Division, said the Nagoya protocol had an immediate impact in the last TRIPS Council meeting (IPW, WTO, 2 March 2011).

In his personal capacity, he said that the conclusions of the Nagoya protocol were “heartening,” and showed a significant advance. It also provides a signal of reassurance on the international scene, that “countries can get together” and build consensus.

Discussions on the relationship between the TRIPS agreement and the CBD have led to significant debate and analysis but the key question to date is mandatory disclosure, he said.

There is general convergence on the broader principle on prior informed consent and benefit sharing but the question remains on how best to reach it, Taubman added. Benefit-sharing is not necessarily treating genetic resources as cash crop, but with the view to sustainable development and recognising the need for the conservation of biodiversity, and the protocol has been very helpful to have a better understanding on benefit sharing.

Finding interoperability of legal systems is also an interesting development of the Nagoya protocol, as no system can operate in isolation, Taubman said.

A new book published by GTZ, the German federal agency for international development, was presented at the side event.

The book, titled “Triggering the Synergies between Intellectual Property Rights and Biodiversity,” is intended to open the door for dialogue between forums where the relationship between biodiversity and IP are discussed, such as WIPO, WTO, CBD and the UN Food and Agriculture Organization, according to Susanne Reyes-Knoche of GTZ. She said a new edition of the book should be available at the end of 2011. The book can be downloaded from GTZ’s website.

Discussions on IP rights and biodiversity took place last week during the WTO TRIPS Council meeting (IPW, WTO/TRIPS, 2 March 2011). One of the main issues there is the disclosure of the source of genetic resources and traditional knowledge in patent applications, with a sharp divide between countries, including some countries saying the TRIPS agreement should not be used as a tool to enforce the Nagoya Protocol.

Nagoya as Moving Target

The Nagoya protocol is a “moving target” said Adachi, mainly because much of the language leaves a good deal of policy space, and gives countries the possibility to tailor their system to implement the protocol. The role of IP offices as possible checkpoints, the issue of technology transfer as part of access and benefit-sharing, mutually agreed terms that might include IP references, are all part of the IP implications of the protocol, he said.

UNCTAD’s approach in this context is to offer technical assistance to developing countries, in particular on disclosure requirements, consistent with their international obligations, Adachi said.

On 28 February, Rwanda became the sixth country to sign the Nagoya protocol, according to a CBD press release [pdf]. At least 50 countries must sign it in order for it to enter into effect.