Technological advancement on a global reach has made it possible for humankind to find easier, better livelihoods. It has also led to globalization in many aspects including social trends, communication, trade practices, management of businesses, industrial processes and much more. Inventions are therefore vital processes of human life, thus there is a need to protect the innovativeness of the creators of products or processes from undue exploitation by other people. This was the idea behind the creation of the Intellectual Property Laws: laws that protect the rights of inventors and therefore encourage new ideas and products for social and economic development (Watal 1). The way these new products are used in the society, as well as the procedures controlling their trading, both locally and internationally is incorporated in the agreement called the Trade Aspect of Intellectual Property Rights (TRIPS). However, in the much-needed procedure to protect the rights of inventors or creators, certain elements of the social, environmental and biodiversity wellbeing of humans and other species living on Earth have been compromised. It can be debated, for instance, the significant action between protecting the rights of a drug inventor thereby allowing higher price for it and making the drug affordable to needy populations across the globe who cannot afford it (Parr 109). The convention that advocates for biodiversity conservation as the primary aim of any inventions is called the CBD (Convention on Biological Diversity). This paper will critically discuss the conflicts between the TRIPS and the CBD.
Intellectual Property Rights (IPR)
Intellectual properties are products of the creative ability of individuals for which a set of exclusive rights are granted. The chief aim of the intellectual property rights is to protect the innovative quality of the creator of the property from being exploited by others, thereby allowing the owner to recover the complete social value of the property. This protection encourages more innovations, which in turn add value to society. In the context of its social value, the intellectual property is also granted some value as if it were a real asset. International Bureau of WIPO (16) indicates that such property may be music, software, artistic and literary work, inventions, discoveries, words, phrases, designs and symbols. Intellectual property rights may include copyrights, patents, trademarks, trade secrets and industrial design rights.
The exclusive rights pertaining to the intellectual property rights allow the owner or creator to benefit from the proceeds of the property in the way of financial investment done. In the case of patents, the creator is allowed to be rewarded for research and development costs (Levine, 2008).The World Intellectual Properties Organization (WIPO) gives two primary reasons for the development of Intellectual Property Rights. The first one is to give a statutory statement of the moral and economic rights of the inventors or creators in their work and to indicate the mode and extent of public access to these properties. The second reason is to encourage creativity in the society, which leads to increased economic growth and social development. Arguments from a moral perspective have supported IPR in that it is just to protect the product of one’s intellect, and that it is not right to allow people to misuse others’ ideas (Correa 66).
The Utilitarian-Pragmatic argument is of the view that societies that protect intellectual property advance more than those that do not. Further, it is notable that such protection leads to more security in creativity and, therefore, a more socially and economically progressive society. On a personality perspective Richard (21) argues that a person has the ability to make his freewill into a thing or make something the result of his freewill.
The trade related aspects of the Intellectual Property Rights (TRIPS)
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The Trade Related aspects of Intellectual Property Rights (TRIPS) agreement set the minimum protection level standards for every category of Intellectual Property Rights. These standards are incorporated in the national legislature of each member state of the World Trade Organization (WTO). It was formulated in 1994 after the GATT (General Agreement on Tariffs and Trade) convention in Uruguay (Carvalho 55). This agreement seeks to bring together all member states under a common set of regulations, thereby dealing with setbacks, such as copyright infringements and international piracy in every member state. TRIPS attempt to harmonize the two conflicting aspects of property rights: allowing motivation for research and development while at the same time giving the public access to existing inventions. Under the agreement, IPR extends the period for which a patent runs to 20 years from the date the patent is filed and further time is allowed for the Least Developed Countries (LDCs) (Watal 1).
The TRIPS also lay down the necessary legal and administrative backbone requirements, in certain details, in any of the member states for the proper and sufficient empowerment of rights holders to protect their products. The document also stipulates the correct procedure for disputes resolution whenever a dispute arises amongst the member states subject to the WTO’s dispute settlement procedures. Special arrangements regarding the transitional period granted are given to Least Developed Countries (LDCs), which have not laid down the necessary product patent protection in pharmaceuticals (Bernasconi-Osterwalder 200). However, the members are left to implement the provisions of this agreement on their own. Some of the basic requirements of TRIPS include:
• copyright terms are given a period of 50 years after the death of the owner or creator.
• computer programs are given copyright protection as is given to literary works.
• copyright is given automatically and is not subject to such regulations as renewal of license or registration (Love 204).
• patents are granted in all technology fields and are enforceable by law for at least 20 years. This requires the member states to make patents available for technological inventions, whether in products or processes, as well as the entire technology industry, without discrimination.
• exceptions to these rights are limited unless there is conflict between normal exploitation of the work and normal exploitation of the patent.
• intellectual Property Rights may not favour citizens of one state than they favour citizens of other signatory states as in the National Treatment principle. There are, however, some extremely limited exceptions to this requirement.
Special interest areas of the TRIPS
There are issues within the member states that are given particular consideration or importance by the TRIPS (Correa 65). These are listed below:
Geographical indicators are defined in the TRIPS agreement as those properties or attributes that identify it like original in the territory of its members or a specific region within that territory, where a certain indication or characteristic is attributable to this geographical origin. According to the agreement, it is therefore the responsibility of the members to enforce legal means to prohibit the use of misleading indications as concerns geographical origin especially where the issue of unfair competition may arise (Watal 1)
Members are obliged to protect new or original industrial designs after ascertaining that such designs do not resemble any known or existing designs. An exception to this consideration is if a design has been ordered to meet a specific functional or technical consideration (Parr 113).
Members are obliged to avail patents for new inventions, whether they are processes or products in the technology field (Moore & Yang 31). However, this is subject to the basic tests of inventiveness, novelty and industrial applicability. The exceptions to patents grant is in cases where the product corrupts the moral theme of the public, or cause harm to animal or plant life. The second exception regards to therapeutic or surgical methods for the treatment of humans and animals (Secretariat of the Convention on Biological Diversity 12).
Layout designs for electronic circuits
This article requires members to provide protection for electronic circuit layouts in accordance with the IPIC (Intellectual property in respect of Integrated circuits) treaty. It lays down the period of protection as eight years, and lays down the procedure for dealing with innocent infringers (Grain 1).
Protection of undisclosed information
Undisclosed information may include trade secrets and any other information that has commercial value and that has undergone certain processes aimed at keeping it secret. This information is not treated in the agreement as a form of property and further does not require that any bearer of such information must have the means of protecting it from being accessed by the third parties (Parr 75).
Convention on Biological Diversity
Formed in 1993, the convention was formed with the aim of conserving the biological diversity, aiming for the sustainable use of the components of biodiversity and ensuring fair usage of products arising from the use of genetic resources. The convention sustains some conflicts with the TRIPS especially in its objective of ensuring fair usage of biogenetic products, since fair usage sometimes maybe restricted by Intellectual Property Laws. It has members from countries all over the world and holds periodic meetings (Moore & Yang 32).
This refers to the variety of life on the Earth, including the patterns it forms and the complex way in which species interrelate in order to sustain life. It is a product of billions years of evolution and human influence. It also focuses on the genetic constitution of organisms, as well as the varied ecosystems in which life can be found. The convention is largely seen as the key global policy on sustainable development. Biodiversity guides decision-makers based on the principle that a threat in loss of biological diversity cannot be sufficiently met using the blame of incomplete scientific knowledge, but rather that entire measures must be taken in order to remove or otherwise minimize the danger (Grain 1). It argues that environment conservation and establishment of sound balance in ecosystems will eventually lead to economic and social benefits. Some important concerns in the convention are:
- measures and incentives that lead to conservation of biodiversity
- regulation of access to genetic resources, including the prior informed consent of the source party
- allowing access to technology to the people or the government that offers resources that lead to the technology
- other key concerns are scientific cooperation, impact assessment, public awareness creation, provision of financial support and national reporting on issues of biodiversity treaty implementation.
The Cartagena Protocol on biosafety
The protocol was adopted in year 2000, thus also called as the Biosafety protocol. It seeks to protect the biological diversity from the risks of modified microorganisms that result from modern biotechnology. It asserts that all new technologies should be applied with precaution while allowing developing countries to balance economic gains with the equally weighty agenda of the public health. Therefore, countries are allowed in the protocol to ban imports containing genetically modified materials if the country feels there are no sufficient scientific proofs of safety in the use of such materials. In addition, the global strategy for plant conservation aims at implementing a policy to slow down the extinction of plants due to poor biosafety measures.
The Nagoya Protocol
This protocol was formed in 2010 and aims at ensuring fair and equitable sharing of benefits of genetic resources utilization as a way of conserving and sustainably using biodiversity. Information to be shared includes traditional knowledge as it relates to genetic resources covered by the CBD (Bernasconi-Osterwalder 189).There are other protocols and agreements formed under CBD with the chief aims of biodiversity conservation.
Conflicts between the TRIPS and CBD
It is evident from forgoing discussions that the intellectual property rights are crucial under both the CBD and TRIPs Agreement, although most of the issues are approached differently between the two organisations. Walker (45) indicates that both agreements possess a wide international acceptance and membership that is a strong motivation for development of mutually supportive relationships between the two respectable regimes. Currently, there are some developments, which have been set to establish the methods to be followed for cooperation and consultants among the Secretariats of the CBD and TRIPs Agreement. The Secretariat of CBD posses an observer status in trade and environment organised by the WTO Committee (Busche 44). It is crucial to note that TRIPs Agreement and CBD offer degree of flexibility in the national implementations of their provision, thus there is a considerable extent for implementation of two agreements to continue in a complementary manner. However, the specific policy or legal mechanisms, which can result to effective synergy, have not been well established. Nevertheless, there are a number of areas of policy coherence that has substantially been noted. Generally, the conflicts between the CBD and TRIPs Agreement concerning rights of biodiversity can adequately be sited through both will force parties and treaties to choose which agreement take preference over the other. Watal (1) found out that there are at least three notable’s areas that result to outright contradiction between the two organisations. Some of these areas include systems of rights, objectives and the legal obligations.
The TRIPs and CBD have conflicting objectives
The main intention of the CBD is to strengthen the capacities of developing countries, especially those in Africa, Asia, Asia Pacific and Latin America to use and conserve biological diversities on the long-term basis. This is done while taking into account all the rights over the available resources and comprising rights to enjoy benefits associated with the resource base. As a result of structural imbalances, which exist between countries rich in the biological diversity and the ones having strong legal and technological mechanisms, the South has persistently been overexploited (Busche 40). To rectify and level the playing field for equal participation of the developing countries, the CBD should:
• empower the South, in order to regulate access to its biodiversity.
• conditioning access to biodiversity of the South, through requiring initial informed consents as well as sharing of benefits attained.
• creation of enabling the environment to allow for transfer of technology from the North to the South
• recognize the priority collective rights of the local communities living in the LDCs. This is because they are the main source of traditional knowledge and biodiversity and whose mandates in conservation are currently universally recognized as fundamental (Love 209).
On the other hand, the TRIPs are intended to offer private property rights over the processes and rights, whether they pertain the bio-diversity or not, with an aim of ensuring that the interests of corporate are equally safeguarded globally. Bernasconi-Osterwalder (131) argues that the equal legal regime that TRIPS hope to attain may result to monopoly control, especially to those corporate that claim to have invented new animals, microorganisms, plants or any other use thereof. Simply put the main agenda of the TRIPs is to privatize and not protect the biodiversity (Walker 39).
Conflicting systems of the rights
The rights to intellectual property as stipulated under TRIPs can be recognized based on novelty. On the other hand, the rights of community under CBD are well founded on the basis of the pre-existing rights with regard to biodiversity as well as associated knowledge. IPR on inventions related to biodiversity is considered dependent upon rights of the communities. Downes (14) indicates that by altering the meaning of the novelty to be myopic, a culturally minimized industrial interest, implementation of the TRIPs systematically negates the wider historical contributions that have been made by these communities in the developing countries. This is with regard to global biodiversity as well as substantially undermines their rights. Therefore, it can be seen that the two structures of rights as detailed in the CBD and TRIPs are in complete opposition to each other. As indicated in the forgoing discussions, TRIPs agreement candidly defines the intellectual property rights as private rights. Due to the fact that these rights are subject to general principles of national treatments as set by WTO, implementation of Article 27.3(b) as stipulated by the TRIPs Agreements on biodiversity will result to jurisdictions of the private individual property rights (Love 203). In this regard, global scope of the rights highly destabilizes regime of the national sovereignty as espoused by the CBD that hopes to recognize inherent rights of the local and indigenous communities. In this sense, one can see that the IPRs, which are applied under the TRIPs significantly runs counter to the objectives of convection:
• IPRs prevent the CBD from realisation of the practical and full meaning of the Article 3 that deals with national sovereignty as well as Article 8 is dealing with the rights of the indigenous and local communities.
• conservation of the biological diversity as stipulated by CBD cannot be attained under global regime of the private monopoly rights. This is because conservation of the biological resources signifies enormous responsibilities, which TRIPs have not yet allocated to the ones who benefit from the ownership rights to the available resources.
The private property regimes as established by the TRIPs can undermine implementation of the benefits and accesses sharing provisions of the CBD. Downes (15) indicates that private monopolies start only where community or national sovereignty has been substantially suspended. Under the TRIPs, genetic resources that communities and nations are mandated to control as well as access will be under the controls of the IPR holders. Communities as well as governments will not have any means of regulating control or demand any share of benefits.
Moore & Yang (67) stipulated that the member states of TRIPs and CBD face similar inescapable challenge. The two treaties are extremely binding to the signatories, although their duties pull countries in different directions. In most cases, it can be seen that countries that in all good faith hope to implement the rights of communities under the CBD frame policy can find themselves in serious contraventions of TRIPs Agreements. Downes (13) established that fundamental conflicts between TRIPs and CBD are irreducible and effortless.
• CBD simply recognises the fact that states possess national sovereignty with regard to their biological resources (Commission on Intellectual Property Rights – CIPR 2).
• the TRIPs hope to establish private individual rights over similar issues. Within one given country, the sovereignty takes priority and the framework of CBD may prevail. However, between a sovereign state and a foreign IPR holder, the jurisdiction of a state is limited, thus it can fail to countervail holder of IPR.
• ultimately, the essential contradiction that exists between the TRIPs and CBD will ultimately be seen, unless communities or governments resolve these discrepancies as soon as they occur (Correa 60).
The table below summarizes the existing conflicts between the TRIPs Agreement and CBD.
Nation states possess sovereign public rights on their biological resources
The biological resources ought to be under private Intellectual property rights. Obligatory licensing for national interests must be restricted.
National sovereignty signifies that a country has the rights to forbid IPRs on biological resources. However, TRIPs mostly overlook this right, as it requires provision of the IPR on microbiological, non-biological, patents and microorganism’s protections on plant varieties.
The exploitation or use of biological resources has to rise to equally shared benefits.
Patents ought to be offered for entire field of technologies, thus the exploitation or use of resources should be protected by the IPR.
CBD offers developing countries the legal basis for demanding the shares of benefits. However, TRIPs negate this legal authority.
Access and control to biological resources necessitate prior informed consents of country of origin. Further, it requires involvement and approval of the local and indigenous communities.
There exists no provision that necessitates prior informed consents to access biological resources that may at a times be secured by IPR
Currently, CBD offers states the legal authority, in order to diminish incidences of bio-piracy by demanding prior consents. However, TRIPs disregard this authority, thus promoting bio-piracy.
States ought to promote sustainable and conservation of biodiversity
Safeguarding of the public nutrition and health as well as public interests, should be a subject to private interests of holders of the IPR as seen in provisions set by the TRIPs Agreements.
CBD regards common good and public interests over vested interests and private properties. This is exactly opposite of what TRIPs does.
Resolving the conflict
Downes (12) argues that if the CBD hopes to implement in interests of well-being and survival of the humanity, then there is an urgent need to implement policies, which are extremely objective and are not undermined by narrow agendas of the TRIPs. To achieve this, there is a need for stakeholders to:
• recognize that CBD has the primacy over WTO in regard to areas of biodiversity as well as traditional knowledge systems.
• ensure that review of TRIPs agreements enables sovereign states to prohibit all kinds of life forms as well as related knowledge from the IPR systems.
• urgent recognition of the collective rights of local communities and indigenous people over their knowledge relating to bio-diversity (Grain 1).
From the discussion above one can see that the global societies require invention and need adequate motivation and protection for creators of ideas or products that are socially and economically beneficial to the society (Secretariat of the Convention on Biological Diversity 2). However, it is also extremely necessary to conserve the environment, as well as ensure the establishment and continuity of the much-needed balance in the eco-system as a fundamental step in sustaining life on the Earth. Another need that has emerged is recognizing indigenous knowledge systems and the collective rights of communities. While TRIPS agreement takes on the important mandate of protecting property rights, it needs to be sensitized to nurture biological diversity and recognize fundamental rights of participants in the invention process (International Bureau of WIPO 10).
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