Paper by six WTO members for TRIPs Council on relationship between Agreement and Convention on Biological Diversity (link)

November 21, 2005

Geneva, 18 November 2005

Council for Trade-Related Aspects of Intellectual Property Rights
THE RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY (CBD) AND THE PROTECTION OF TRADITIONAL KNOWLEDGE TECHNICAL OBSERVATIONS ON THE UNITED STATES SUBMISSION IP/C/W449
BY BOLIVIA, BRAZIL, COLOMBIA, CUBA, INDIA AND PAKISTAN

Document number: IP/C/W/459 18 November 2005 (05-5450)

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The following communication, dated 21 October 2005, is being circulated at the request of the Delegations of Bolivia, Brazil, Colombia, Cuba, India and Pakistan. Colombia has been added as a cosponsor in accordance with its request dated 2 November 2005.

A. CONFLICT BETWEEN TRIPS AND THE CBD

1. The United States, in all its submissions, has argued that there is no conflict between TRIPS and the CBD. In its most recent submission, the United States in fact reiterates the same positions and arguments it put forward several years ago, in document IP/C/W/257. Comparing Article 1 of the CBD and Article 7 of the TRIPS, it argues that the objectives of the two documents do not run counter to each other and are mutually supportive. The United States, however, focuses its analysis on an excessively narrow interpretation of both treaties, which does not take into account their spirit and objectives. It is well accepted that the CBD does not address the resource depletion issue alone. Instead, it highlights this issue as a result of the extensive piracy of biological resources of the countries rich with genetic resources. It is an accepted fact that the gene and biochemical hunt over the components of biological diversity is largely driven by their use, value or the knowledge associated with those resources, without which bio prospecting loses much of its content. This knowledge associated with the biological resources is also a product of the human intellect, which is recognized under the CBD as deserving of protection. Hence, the protection of the components of biodiversity and associated traditional knowledge from bio piracy must be integrated within the framework of the TRIPS Agreement. The TRIPS Agreement as it stands today, whilst promoting the granting of patents to products based on genetic resources and associated traditional knowledge, contains no effective provisions to protect those resources and associated knowledge from misappropriation and theft. It is the absence of such provisions in the TRIPS Agreement that may generate conflicts between its implementation and that of the CBD. On the other hand, the inclusion of provisions in TRIPS to protect genetic resources and associated traditional knowledge from misappropriation would, in practice not only support fulfilment of the objectives of the CBD, but would also be in line with the fundamental objectives of TRIPS.

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