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Intellectual Property Rights and Biodiversity

Intellectual Property Rights and Biodiversity. Fernando Latorre FIELD. Overlapping International Agreements. 2 of 14. CBD. Objectives (Art. 1): conservation of biological diversity, sustainable use of its components, and

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Intellectual Property Rights and Biodiversity

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  1. Intellectual Property Rights and Biodiversity Fernando Latorre FIELD

  2. Overlapping International Agreements 2 of 14

  3. CBD • Objectives (Art. 1): • conservation of biological diversity, • sustainable use of its components, and • fair and equitable sharing of the benefits arising from the utilization of genetic resources. • Principle (Art. 3): • Sovereign right of States to exploit their natural resources. 3 of 14

  4. CBD (2) • Art. 15: access to be determined by national goverments, subject to prior informed consent (PIC) and on mutually agreed terms (MAT) including benefit sharing provisions (BS). • Art. 8(j): calls on Parties to, subject to their national legislation,maintain knowledge, innovations and practices of indigenous and local communities, promote their application with their approval and involvement, and encourage benefit sharing. 4 of 14

  5. CBD (3) • Interface with TRIPS: • Article 16.5: IPRs subject to national legislation should not run counter to the objectives of the CBD. • TRIPS provisions comprise to a certain extent components of biological diversity (Art. 27.3(b) • TRIPS sets general framework for protection of IPRs while CBD covers IPRs for conservation and sustainable use of biodiversity. • IPRs derived from use of genetic resources (Art. 15 CBD): MAT, PIC and BS. 5 of 14

  6. FAO - ITPGRFA • Origin: • IT results from revision of 1983 IU to be brought into harmony with CBD. • Under IT, PGRFA are no longer the “common heritage of mankind” but subject to the sovereign right of States over their natural resources (Art. 10.1). • Objective (Art. 1.1) : • conservation & sustainable use of PGRFA. • fair and equitable sharing of the benefits arising out of their use for sustainable agriculture and food security. • Rationale: food security and interdependence of countries on PGRFA. 6 of 14

  7. ITPGRFA (2) • “Multilateral System” to facilitate access to PGRFA and to share the benefits from its utilization (Art. 10.2). • MS covers 35 crops and 29 forages - Annex I. • Access only for research, breeding and training. Not chemical, pharmaceutical nor non-food/feed industrial use (Art. 12.3(a)). • Subject to Material Transfer Agreement. • No IPRs “that limit the facilitated access to the PGRFA/genetic parts/components, in the form received from the MS” (Art.12.3(d)) 7 of 14

  8. ITPGRFA (3) • Benefit Sharing Mechanisms: • exchange of information, access to and transfer of technology, capacity-building and sharing of benefits from commercialisation. • Share of benefits • from commercialisation products incorporating material accessed from MS paid into “mechanism” to be established by the Governing Body (Art. 13.2(d)(ii)). 8 of 14

  9. ITPGRFA (4) • Article 9 - Farmers’ Rights: • It acknowledges the rights of farmers “to save, use, exchange and sell farm-saved seed/propagating material”. • (More restrictive under UPOV - no right to sell) • But leaves its implementation to national governments. 9 of 14

  10. UPOV 1991 • plant variety protection (PVP or Plant Breeders’ Rights) to encourage development of new varieties . • UPOV 1991 Act is being promoted by TRIPs as the “efficient sui generis system” under Art. 27.3(b) of TRIPS. 10 of 14

  11. UPOV 1991 (2) • PBRs confer exclusive rights to produce and reproduce material, offering it for sale, its sale, export, import and storage (Art. 14.1). • Eligibility - plant variety must be: new, distinct, uniform and stable. No further or different conditions are allowed (Art. 5.2). 11 of 14

  12. UPOV 1991 (3) • Exemptions - PBRs may be restricted: • “to permit farmers to use for propagating, on their own holdings, the product of the harvest obtained by planting, on their own holdings, the protected variety” (Art. 15.2). - ie. the Farmers’ right or “privilege”.NB:not sale/offer for sale. • to acts done privately for non-commercial purposes or acts for experimental purposes or acts for breeding other varieties - ie. Breeders’ exemption (Art. 15.1) . 12 of 14

  13. Linkages TRIPS CBD ITPGRFA UPOV WIPO? 13 of 14

  14. What next? • Possible next steps: • Prepare options for national implementation. • Look at how national legislation conforms to international obligations, ie. OAU Model Law • Continue to study interlinkages with other organisations, mainly WIPO. • Provide support for participation in specific meetings/organisations/forums. 14 of 14

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