Clearing the Air: Applying the Intellectual Property Framework to National, Community, and Individual Rights in The Convention on Biological Diversity

2012 ◽  
pp. 39-54
Author(s):  
Tomme Young
Keyword(s):  
Intellectual Property ◽  
Biological Diversity ◽  
Convention On Biological Diversity ◽  
Individual Rights ◽  
National Community

Asian Borderlands and the Legal Protection of Traditional Knowledge and Traditional Cultural Expressions

2013 ◽  
Vol 47 (4) ◽  
pp. 1403-1433 ◽  
Author(s):  
CHRISTOPH ANTONS
Keyword(s):  
Intellectual Property ◽  
United Nations ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Legal Protection ◽  
Indigenous Communities ◽  
Cultural Property ◽  
World Intellectual Property Organization ◽  
Convention On Biological Diversity ◽  
Nuanced Understanding

AbstractTraditional knowledge related to biodiversity, agriculture, medicine and artistic expressions has recently attracted much interest amongst policy makers, legal academics and social scientists. Several United Nations organizations, such as the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity under the United Nations Environmental Programme (UNEP), have been working on international models for the protection of such knowledge held by local and indigenous communities. Relevant national, regional or provincial level legislation comes in the form of intellectual property laws and laws related to health, heritage or environmental protection. In practice, however, it has proven difficult to agree on definitions of the subject matter, to delineate local communities and territories holding the knowledge, and to clearly identify the subjects and beneficiaries of the protection. In fact, claims to ‘cultural property’ and heritage have led to conflicts and tensions between communities, regions and nations. This paper will use Southeast Asian examples and case studies to show the importance of concepts such as Zomia, ‘regions of refuge’ and mandala as well as ‘borderlands’ studies to avoid essentialized notions of communities and cultures in order to develop a nuanced understanding of the difficulties for national and international lawmaking in this field. It will also develop a few suggestions on how conflicts and tensions could be avoided or ameliorated.

Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part II

2014 ◽  
Vol 16 (1) ◽  
pp. 3-37
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Convention On Biological Diversity ◽  
Nagoya Protocol ◽  
Trade Law ◽  
International Trade Law ◽  
Traditional Cultural Expressions

Abstract In Part I of this two-part article, we explained why western assumptions built into intellectual property law make this area of law a problematic tool, as a way of protecting traditional knowledge (tk) and expressions of folklore (EoF) or traditional cultural expressions (tce) of indigenous peoples. Part II of this article aims to: 1) provide a brief review of the Convention on Biological Diversity (cbd) and the Nagoya Protocol, and examine the evolution of the intellectual property rights of indigenous peoples from the Agreement on Trade Related Aspects of Intellectual Property (trips Agreement) to the cbd to the Nagoya Protocol; and 2) examine possible core principles, inducted (rather than deduced) from actual practices already in place in the areas of patents, copyrights, and trademarks in relation to protecting tk and EoF. These explorations could allow for discussions regarding indigenous peoples, human rights and international trade law to become less adversarial.

scholarly journals Positive Protection: Protecting Genetic Resources Related to Traditional Knowledge in Indonesia

FIAT JUSTISIA ◽  
2018 ◽  
Vol 11 (2) ◽  
pp. 122
Author(s):  
Rohaini Rohaini ◽  
Nenny Dwi Ariani
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Genetic Resources ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Patent Law ◽  
Intellectual Property Right ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
International Pressure

Genetic Resources is a foundation of human life, as a source of food, industrial raw materials, pharmaceuticals, and medicines. From its utilization may provide a financial benefit to the provider and the user of it. Unfortunately, most of it obtained from developing countries through biopiracy, including Indonesia. Furthermore, in the early 1980s, access and benefit sharing (ABS) to genetic resources became an international issue. It leads to the adoption of the Convention on Biological Diversity (CBD) in 1992. However, since it was approved, the whole ideas of excellence of it could not be implemented, a problem on it still arises. Intellectual property right laws, in certain aspects, are possible for using to protect traditional knowledge from their utilization. However, at the same time, intellectual property regime also becomes “a tool” to legitimate of biopiracy practices. Due to massive international pressure, mostly in developing countries, it proposes two kinds of protections, which are positive protection and defensive protection. This paper will examine one of it, which is positive protection. By using the normative method and qualitative approach, this paper identified at least two kinds of positive protections that we can develop to protect genetic resources related to traditional knowledge, which are optimizing the patent law and developing the sui generis law. Furthermore, it can be done by some revision by adding new substances, an improvement on the articles, or even by doing the deletion on certain articles. Moreover, in order to develop the sui generis law, it identified several minimum elements that shall be contained on it, inter alia: the purposes of protection; scope of protection; criteria of protection; the beneficiaries of protection: the holder of traditional knowledge; the kind of rights to be granted; how the rights acquired; how to enforce it; how the rights lost or expired; and dispute resolution.  Keywords: Positive Protection, Genetic Resources, Traditional Knowledge.

Genetic resources, biotechnology and intellectual property: The current debate and developing a constructive agenda for the South

2006 ◽  
Vol 3 (6) ◽  
Author(s):  
Manuel Ruiz
Keyword(s):  
Intellectual Property ◽  
Genetic Resources ◽  
Biological Diversity ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Current Debate ◽  
The South ◽  
Poor Countries ◽  
The North ◽  
Complex Relationships

AbstractOver the past few years, policy, legal and economic analysis of the complex relationships between genetic resources, biotechnology and intellectual property has multiplied. These relationships are fundamentally based on issues regarding rights over and control of biodiversity and related inventions and innovation. They notoriously confront biodiversity rich countries of the South, with technologically advanced but biodiversity poor countries of the North. Controversies are often captured under the general discussions on access to genetic resources and benefit sharing (ABS), as placed on the agenda by the Convention on Biological Diversity (CBD) after its adoption in 1992.

scholarly journals Intellectual Property Rights (IPR) issues related to access and use of genetic resources

2019 ◽  
Vol 79 (01S) ◽  
Author(s):  
Pratibha Brahmi ◽  
Vandana Tyagi
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Genetic Resources ◽  
Intellectual Property Rights ◽  
Biological Diversity ◽  
Plant Genetic Resources ◽  
Genetic Material ◽  
Convention On Biological Diversity ◽  
Food And Agriculture ◽  
Food And Nutritional Security

Genetic Resources (GR) refer to genetic material of actual or potential value. Use of GR refers to the process of researching their beneficial properties and using them to increase scientific knowledge and understanding, or to develop commercial products. There is continuous search for newer resources to meet the future demands that arise with the emergence of new diseases, abiotic stresses, climate change, and enhanced demand for food and nutritional security. GR are exchanged and searched continuously for specific traits to improve yields and nutritional value in crops and animal genetic resources. Every nation is concerned with acquisition of diverse and superior germplasm for conservation and utilization. The rapid advancements in the fields of molecular biology, biotechnology and bioinformatics, led to the emergence of new legal, political and technological regimes regulating access to GR. Three international negotiations impacted the access to GR, these are the Convention on Biological Diversity (CBD), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as part of the Agreement establishing the World Trade Organization (WTO) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). The regulation regarding access to GR, increasing application of IPRs and the vast potential of biological wealth yet to be tapped through bio-prospecting and genetic engineering, has placed greater demands on nations to adjust to the changing scenario of GR management. Currently access to GR is under the provisions of CBD and access to GR is based on mutually agreed terms (MAT), subject to prior informed consent (PIC). In response to CBD, India enacted the Biological Diversity Act (BDA), 2002 and established the National Biodiversity Authority (NBA) in 2003. Access to PGR from India is therefore regulated by BDA, 2002. The Nagoya Protocol which entered into force from October 2014 defines the international regime within the framework of CBD to promote and safeguard the fair and equitable sharing of benefits arising from the utilization of genetic resources. The paper discusses these agreements in detail with reference to access and use of GR.

Intellectual Property Rights and the Politics of Food

2014 ◽  
Author(s):  
Krishna Ravi Srinivas
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Genetic Resources ◽  
Intellectual Property Rights ◽  
Legal Status ◽  
Biological Diversity ◽  
Plant Genetic Resources ◽  
Convention On Biological Diversity ◽  
Free Access ◽  
Nation States

The legal status of plant genetic resources has been subject to numerous international agreements and laws over the centuries. The “common heritage of mankind” approach enabled free access but proved unworkable because of conflicts over intellectual property rights. The Convention on Biological Diversity (1992) recognized sovereign rights of nations over genetic resources within their territory. The Trade Related Intellectual Property Rights Agreement under auspices of the World Trade Organization mandated intellectual property protection for plant varieties, but synchronizing such rights has proved problematic. Many developing countries have enacted sui generis regimes to comply with TRIPS requirements. The International Union for the Protection of New Varieties of Plants Convention provides models that have changed over time. With the advent of agricultural biotechnology and availability of intellectual property rights for plant components, patents relating to plant genetic resources have increased. As plant genetic resources are subject to many overlapping treaties, the regime governing them is becoming more complex, resulting in inconsistencies and disputes. While the rights of plant breeders and the private seed industry are well protected in formal agreements, the rights of farmers, who have nurtured diversity in plant genetic resources, developed varieties of crops with different traits, and contributed to exchange and conservation of plant genetic resources, are left to the discretion of nation-states. Farmers’ rights are mentioned in many international legal instruments, but no binding treaty or convention mandates protecting and promoting the rights of working farmers.

scholarly journals Traditional medicinal knowledge, recognition and regulation

2021 ◽  
Author(s):  
Nicole Aylwin
Keyword(s):  
Intellectual Property ◽  
Political Institutions ◽  
Biological Diversity ◽  
World Intellectual Property Organization ◽  
World Health ◽  
Convention On Biological Diversity ◽  
The Social ◽  
The World ◽  
Health Organization ◽  
Key Questions

As a number of global legal and political institutions grapple with ways to recognize and integrate TMK into their institutional frameworks, how traditional practices are 'recognized', and what work 'recognition's being asked to do become key questions. Three international frameworks that play a key role in recognizing TMK in the international arena are the Convention on Biological Diversity, the World Intellectual Property Organization and the World Health Organization. By examining the way in which these three bodies have recognized and integrated TMK into their respective regimes, while and drawing on the scholarship of anthropologists, critical legal scholars, intellectual property experts and legal and policy literature, I will argue that the recognition of TMK in the international legal and political arena has led to the creation of complex legal and political spaces where recognizing traditional medicinal knowledge has fragmented it, siphoning off the social, cultural and spiritual aspects of it that remain incompatible with the current neoliberal paradigms. Simultaneously, recognition and integration have been used to co-opt traditional knowledge in order to extend governance regimes that integrate TMK and its holders without challenging the basic, outdated and highly unequal and unethical power relations on discourses of recognition are based.

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