In the mid-1990s when the US Patent and Trademarks Office granted a patent on the wound healing properties of turmeric, India woke up to realize the importance that the global market attached to its traditional knowledge—one based on the rich genetic resources, and passed down from generation to generation, which the country possesses. There was a sense of outrage as traditional knowledge, which has forever remained in public domain, was suddenly turned into private property by sleight of law. “Misappropriation of traditional knowledge” then got firmly entrenched in the popular lexicon. It’s still a problem now, as the background to an upcoming international meeting shows.
The turmeric patent provided the spark for many developing countries to realize the value of their genetic resources and associated traditional knowledge. And as evidence of misappropriation of traditional knowledge started pouring in from several countries, the focus shifted to the patent regime that allowed such patents to be granted. The global community had just completed enforcing the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1995; now, developing countries trained their guns on amending TRIPS to prevent such misappropriation of traditional knowledge.
For many analysts, granting patents based on genetic resources and traditional knowledge was in conflict with another international treaty that was agreed to at the Earth Summit in 1992. The Convention on Biological Diversity (CBD) was endorsed by United Nations (UN) members in response to concerns that overexploitation of the earth’s genetic resource pool had affected the life-sustaining systems of the biosphere and had caused abrupt changes in the climate. The CBD also recognized that genetic resources supported livelihoods and lifestyles in large swathes of the world.
In recognition of these concerns, the CBD gave states the “sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”. Furthermore, states have the responsibility to provide protection to traditional knowledge so as to allow communities using these knowledge systems to maintain their livelihoods and lifestyles in an uninhibited manner.
Viewed in operational terms, the CBD was adopted to meet two sets of mutually supportive objectives. First, ensuring conservation and sustainable use of genetic resources, and, second, ensuring that benefits that arise from the commercial exploitation of the genetic resources are shared in a “fair and equitable” manner—in other words, the users of genetic resources have to pay a price for these resources. The latter set of objectives is critical, for it ensures that overexploitation of genetic resources, which has occurred because of market failures, is avoided in future by assigning a price on these resources.
The states were expected to enact laws to implement these two objectives of the CBD: India has done so by enacting the Biological Diversity Act in 2002. These laws were expected to designate a competent national authority for monitoring access to and use of the genetic resources available within the national boundaries; the authority was also expected to negotiate the benefit sharing arrangements with the potential users of these resources.
Though the CBD was expected to address a global problem of losing genetic resources and misappropriating traditional knowledge, the structure of the treaty made realizing its objectives difficult. This arose from the fact that national authorities vested with the responsibility of realizing these objectives were unable to prevent misuse of the genetic resources and associated traditional knowledge outside their respective jurisdictions. For developing countries, this was a matter of concern: While they held the richest biogenetic resources, the exploitation of these resources was mostly taking place in the biotechnology industries of advanced nations. This implied that if an entity in the US was using the genetic resources of a developing country such as India without having taken prior permission from India’s competent authority to do so, India would have had no legal means to prosecute this entity (its legislation here can’t be applied to the US); and perhaps more importantly, they could not implement the benefit-sharing arrangements with the users of these resources who were operating in foreign jurisdictions. .
After much exertion, developing countries were able to get the contracting parties of the CBD, which include most members of the UN except the US, to agree to negotiations for the inclusion of these extra-territorial issues within the framework of the treaty. The world community initiated negotiations for an International Regime on Access and Benefit Sharing in 2004, when the negotiating mandate was accepted by the highest decision-making body under the CBD, the Conference of Parties (COP). In 2006, the eighth meeting of the COP agreed to conclude the negotiations on the international regime before the 10th COP meeting scheduled to be held in Nagoya, Japan, in October 2010.
The outcome of the negotiations for the international regime remains in the melting pot, less than seven weeks before the Nagoya meeting. For developing countries, the international regime represents a major step in setting right an iniquitous relationship with the same corporate interests that have benefited from exploiting their genetic resources and associated traditional knowledge. For the global community, this regime is a big stride towards addressing the variations in climate caused by the overexploitation of genetic resources.
Biswajit Dhar is director general at Research and Information System for Developing Countries,New Delhi.
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