Intellectual property rights and traditional knowledge: biopiracy or bioprospecting ?

Intellectual property rights and traditional knowledge: biopiracy or bioprospecting ?

The imbalance between TRIPS and CBD: possible solutions

"Biopiracy" is a problem that may be tackled in two international treaties, the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement and the Convention on Biological Diversity (CBD). However, the two legal agreements have different goals. The CBD focuses on protecting biological diversity, while the TRIPS promotes private ownership. This working paper deals with the friction regarding how to interpret international contracts with embedded biopiracy.

The paper questions the right of corporations in developed countries to own biological samples of the traditional knowledge of people in developing nations. This phenomenon, depending on the parties’ respective standpoint, has been referred to as biopiracy or as bioprospecting.

Intellectual Property Rights (IPR) is the central point in this area. The paper notes that private entities may obtain permission from the respective governments under the TRIPS agreement. However, there is no guarantee that the benefit will reach the holders of traditional knowledge. Conversely, the CBD considers that biological resources are only to be transferred with the prior informed consent of the holder of knowledge.

This contradiction around IPRs may lead to a direct conflict, especially where the IPR holder is a foreign entity. The paper presents two study cases as examples:

  • the Rosy Periwinkle is an evergreen shrub species endemic to Madagascar. The plant was traditionally used as a treatment against diabetes. Nonetheless, An American firm applied for patent and made huge revenue from drugs derived from the plant. The Malagasies, however, never received any compensation
  • the Hoodia Cactus is a South African plant that has been used by local people for centuries to block feeling of hunger. A governmental organization got the patent and sold the licensing rights to a foreign company. The endogenous community was unaware about what was going on
In order to treat the imbalance between TRIPS and CBD, The paper suggests some solutions:
  • preventing exploitation of traditional knowledge by keeping it secret. Nevertheless, it is virtually impossible to qualify traditional knowledge as a legally valid trade secret
  • collecting traditional knowledge on a publicly accessible database. This would allow patent offices to determine the real source of the knowledge
  • protecting traditional knowledge through requiring the patent applicant to disclose the source of her biological material. This would help to prevent the misappropriation of genetic material
  • striking deals with corporations that want to exploit a country’s genetic resources. This would let the state be sure of obtaining some compensation for the use of genetic resources