Trade Policy Note Final-rev08 - Development
Trade Policy Note Final-rev08 - Development
Trade Policy Note Final-rev08 - Development
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esearch and breeding (the prevalent practice in developing countries). 90 They should<br />
incorporate the concept of Farmers Rights as embodied in the International Treaty on<br />
Plant Genetic Resources, and draw on the experiences of those developing countries<br />
which have drawn up legislation on these matters.<br />
Another concern is the possible conflict between the TRIPS Agreement and the<br />
Convention on Biodiversity (CPD), which stresses the sovereignty of States over their<br />
genetic resources, and respect for the innovations, knowledge and practices of<br />
indigenous and local communities. The focus has been on the need to prevent biopiracy,<br />
defined by the CPD as “unauthorized access to use of biological resources or<br />
traditional knowledge of the indigenous peoples by third parties without<br />
compensation and without necessary authorization”. In addition, patents derived from<br />
such genetic material may not involve significant innovation or novelty. National laws<br />
should be drawn up to prevent bio-piracy containing obligations such as declaring the<br />
country of origin, and demonstrating its prior consent, or of a particular indigenous<br />
community if applicable, and to compensate such communities for the development<br />
of new varieties, based on material that they have supplied. 91 Such laws should also<br />
raise the threshold of plant variety protection so that protection is limited to<br />
significant innovations or inventive steps deemed socially beneficial. 92 Many<br />
documented cases of bio -piracy have been submitted by developing countries in<br />
support of their proposal 93 aiming at the inclusion in the TRIPS Agreement of an<br />
obligation to require the disclosure of the origin of genetic resources and/or associated<br />
traditional knowledge, 94 which they consider necessary for the effective application of<br />
such laws.<br />
GIs and Traditional Knowledge<br />
Developing countries are using a variety of legal mechanisms to protect traditional<br />
knowledge. Geographical indications (GIs) may provide one effective means to this<br />
end. 95 Unlike patents and trade marks GIs are community owned, cannot be sold and<br />
do not expire. They empower indigenous communities by providing recognition and<br />
90 For detailed suggestions as to how IPR legislation can make use of the flexibilities in the TRIPs<br />
Agreement in pursuit of the MDGs and development friendly outcomes see Correa, Carlos M.,<br />
Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and <strong>Policy</strong><br />
Options (Zed books: London/New York, 2000) (www.zedbooks.co.uk).<br />
91 See Carlos Correa, “Reviewing the TRIPS Agreement ” in A Positive Agenda for Future <strong>Trade</strong><br />
Negotiations, op.cit..<br />
92 See recommendation by the Commission on Intellectual Property Rights, “Integrating Intellectual<br />
Property Rights and <strong>Development</strong> <strong>Policy</strong> ” (London: 2002)<br />
(www.iprcommission.org/graphic/documents/final_report.htm ).<br />
93 See submission from Brazil, Cuba, Ecuador, India, Peru, Thailand and Venezuela IP/C/W/420 on<br />
www.wto.org.<br />
94 For example, the case of camu-camu recently submitted by Peru in WTO document IP/C/W458<br />
describes in detail how a traditional product native to Peru’s Amazon region had served as a basis for<br />
patents in developing countries without the knowledge or consent of Peru (www.wto.org).<br />
95 The TRIPS Agreement (Article 22:1) defines GIs as “indications which identify a good as<br />
originating in the territory of a member , or a region or locality in that territory, where a given quality<br />
,reputation or other characteristic of the good is essentially attributable to its geographical origin”.<br />
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