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Biological Resources and Benefit
Sharing - the intersectionbetween Traditional Knowledge
and Intellectual Property
Natalie P. Stoianoff
Sub-DeanFaculty of Law
University of Wollongong
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Introduction
Biological resources and their exploitationare at the centre of global attention.
More specifically, concerns over theexploitation of genetic resources have
precipitated with the entre of the
Convention on Biological Diversity 1992.
This Convention has brought together the
concepts of benefit sharing, traditional
knowledge and intellectual property
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Defining Resources Biological resources include
genetic resources, organisms, parts of organisms,
populations and any other biotic component of an
ecosystem with actual or potential use or value
for humanity (CBD) Genetic resources include
genetic material of actual or potential value
(CBD) Genetic material includes
any material of plant, animal, microbial or other
origin containing functional units of heredity
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The significance of benefit
sharing
The third objective of the CBD: The fair and equitable sharing of the benefits
arising out of the utilisation of geneticresources, including by appropriate access to
genetic resources and by appropriate transfer of
relevant technologies, taking into account all
rights over those resources and to technologies,
and by appropriate funding
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Taking into account all rights
Who are the stakeholders? Sovereign nations
Landowners and Indigenous Peoples
Bioprospectors
Pharmaceutical or Biotechnology companies or
holders of intellectual property
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What is Traditional Knowledge?
Also referred to as Indigenous knowledge,Davis (Research Paper 17 1997-98)
proposes 4 characteristic features:
collective rights and interests held byIndigenous peoples in their knowledge;
close interdependence between knowledge,
land, and other aspects of culture;
oral transmission of knowledge under well
understood cultural principles, and
rules regarding secrecy and sacredness.
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Medicinal Knowledge
Often knowledge of the healing properties
of different plants is restricted to particular
members within an Indigenous community. While such traditional knowledge may be
considered by the Indigenous community as
common heritage, conflict arises when suchinformation is commodified through patents
by scientists, researchers, pharmaceutical
companies etc (Janke 1999).
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Bioprospecting
Bioprospecting is said to be the systematic
search for new sources of chemical
compounds, genes, proteins,microorganisms and other products that
have potential economic value present in our
biotic resources (INBio).
As traditional knowledge often assists the
bioprospecting process it is no wonder the
issue of benefit sharing becomes important.
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Biopatents or Biopiracy?
To quote Vandana Shiva: Biopiracy refers to the use of intellectual
property systems to legitimize the exclusive
ownership and control over biological resourcesand biological products and processes that have
been used over centuries in non-industrialized
cultures. Patent claims over biodiversity and
indigenous knowledge that are based on the
innovation, creativity and genius of the people
of the Third World are acts of biopiracy.
(2001,49)
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Does the CBD provide a way
forward?
Article 8(j) provides opportunities for the
protection of traditional or indigenous
knowledge. See also Art. 10(c), 17.2 & 18.4 Article 16(5) recognises the influence of
patents and other intellectual property rights
and requires that such rights are supportiveof and do not run counter to the objectives
of the CBD.
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Traditional Knowledge and
Patents
Discoveries and naturally occurring genetic
material are not patentable per se as they
are not inventions. Art 27 of TRIPS acknowledges the
patentability of:
Any inventions, whether products or processes,in all fields of technology, provided they a re
new, involve an inventive step and are capable
of industrial application.
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Traditional Knowledge and
Patents continued
There are 2 perspectives here:
Can traditional knowledge about biological
resources be protected under patent law?
Or does traditional knowledge prevent
patentability on the basis that the
information forms part of the prior art basefrom which the criteria of novelty is
judged?
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Traditional Knowledge and
Confidentiality
If the traditional knowledge is secret and
complies with the rules of confidentiality
then it may not form part of the prior artbase.
If the knowledge also forms a significant
component(s) of the invention developed
from the biological resource then the
providers of that knowledge may have a
claim as joint owners of the ensuing patent.
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Traditional Knowledge and
Benefit Sharing
If the holders of the traditional knowledge
have joint ownership of the patents
developed from the biological resources theissue is clear.
If there is no joint ownership what are the
possibilities? sui generis legislation
informed consent and benefit-sharing contracts
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Benefit Sharing Solutions
Straus points out the necessity for a complex network of contractual
arrangements between a variety of institutionsfrom provider and the use countries (1998).
Access agreements and Benefit sharing
agreements go hand in hand if we considerthe Australian solution in the
Environmental Protection and Biodiversity
Conservation Act 1999
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Conclusions
WIPO reports
Proof of source and Patents - the Andean
Pact solution
Getting patent protection right
Getting the mix right.