Initial report on the technical study on disclosure requirements related to genetic resources and traditional knowledge

Geneva, 28 Nov 2002

Document prepared by the Secretariat
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

Full text

[...] II. INTRODUCTION

3. Among the tasks proposed for the Committee at its inception was consideration of intellectual property (IP) questions related to genetic resources, including:

- Contractual agreements for access to genetic resources and benefit-sharing;
- Legislative, administrative and policy measures to regulate access to genetic resources and benefit-sharing;
- Protection of biotechnological inventions, including certain related administrative and procedural issues; and
- Multilateral systems for facilitated access to genetic resources and benefit-sharing.1

4. The Committee's work on IP issues concerning genetic resources has focussed on IP-related provisions in licensing and contractual agreements concerning access to genetic resources and benefit-sharing. The Committee has also received reports on related developments and policy discussions in other fora, such as the adoption of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) under the auspices of the Food and Agricultural Organization (FAO)2 and certain decisions of the COP of the CBD, which include the adoption of the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization ('the Bonn Guidelines').3

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The growing importance of biotechnology and the increasing number of patents granted to biotechnology-related inventions 7 highlight the potential value of genetic resources and associated TK as source material for some biotechnology inventions. At the same time, there have been significant international developments in the legal framework that applies to genetic resources and associated TK, especially the implementation of the CBD and the recent negotiation of the FAO ITPGR. These developments have combined to sharpen concerns that appropriate mechanisms should be established and effectively implemented to regulate access to genetic resources and associated TK, and in particular to provide for prior informed consent regarding access, and to promote the equitable sharing of benefits from the use of these resources and knowledge. At the same time, these developments have underscored the need for effective use of the IP system to promote benefits from the use of genetic resources and TK in line with the international legal and policy framework.

10. There are, in general, distinct national (and in certain cases regional) laws that establish and regulate IP rights and that govern access to genetic resources. These distinct legal systems correspond to distinct international legal frameworks – on the one hand, the CBD and the FAO ITPGR, and on the other, the set of international conventions concerning IP. Yet the two regulatory systems do interact in practice. For instance, IP rights such as patents can be used to generate benefits from the use of genetic resources, and can help define how benefits are shared. Hence concerns about access and benefit-sharing can translate into a debate about the interaction between the IP system and the regulation of genetic resources and associated TK.

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