A New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge

Abstract

Among the most contentious practices within a globalized and corporatized economy is allegations of so-called ‘biopiracy’. This refers to the taking of genetic resources and associated traditional knowledge without either free, prior and informed consent or any mechanisms for benefit-sharing with the community that provided the resource. Attempts to revise the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) to bring it more in compliance with the Convention on Biological Diversity (CBD) have not led to concrete results. The article analyzes CBD provisions, binding protocols and non-binding guiding documents, and two less known treaties of the United Nations. The World Intellectual Property Organization (WIPO), that joined the United Nations in 1974, has – after negotiating for almost 15 years – adopted the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. The article demonstrates how this WIPO Treaty is embedded in the ‘defensive strategy’ of traditional knowledge protection, enabling patent examiners to reject a patent as the alleged invention does not represent new and applicable knowledge. The alternative, termed ‘positive strategy’, is witnessed primarily in India’s Plant Variety and Farmers’ Rights Act, which has resulted in more grants of certificates for so-called ‘farmers’ varieties’ compared to all other varieties together. Other United Nations treaties include elements of such protection, but not on the level of specify and subsequent implementation as found in India. The negotiations of what became the WIPO Treaty has generated increased awareness of indigenous peoples’ traditional knowledge and should be easy to ratify as it aligns with existing legislation.

Keywords: India’s Plant Variety and Farmers’ Rights Act, traditional knowledge, TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge