Can international law promote innovation from genetic resources and benefit sharing while recognizing the rights of traditional knowledge holders?
By Henry de Novion
Indigenous peoples and local communities have been innovating for millennia and contributing to the development of new products and processes. For international law to promote innovation, it is indispensable to promote indigenous peoples and local communities’ rights to prior informed consent, to benefit sharing, and to guaranteeing their territories, culture, and existence.
A Fair Solution for Access and Sharing of Benefits of Digital Sequence Information? Decision for the CBD COP in November 2024
By Viviana Munoz Tellez
A decision is expected from the Conference of the Parties of the Convention on Biological Diversity (CBD) by 1 November 2024 on a solution to the fair and equitable sharing of benefits from the use of digital sequence information (DSI) on genetic resources. There are different forms of non-monetary and monetary benefits from the use of DSI that are being considered. This paper argues that for monetary benefit sharing, the focus should be on when DSI is used commercially, as part of products or services. Calculations should be based on revenue that includes sales and intellectual property licencing.
Decision 15/9 and the Nagoya Protocol: Who should get what in the Multilateral Benefit-Sharing Mechanism?
By Joseph Henry Vogel, Natasha C. Jiménez-Revelles, Xavier A. Maldonado-Ramírez de Arellano
Article 10 of the Nagoya Protocol (NP), “Global Multilateral Benefit-Sharing Mechanism” (GMBSM), asks Parties to consider the distribution of benefits derived from the utilization of genetic resources in transboundary situations. A literature exists which applies the economics of information to genetic resources, when interpreted as “natural information”. The policy implication would incentivize reduction in the drivers of mass extinction, through economic rents in royalty obligations. Fifteen cases become thought experiments on how to share royalty income. A sixteenth case addresses the TP53 gene in elephants, which may revolutionize oncology. In parallel to Article 10 of the NP is Decision 15/9 of the fifteenth Conference of the Parties to the Convention on Biological Diversity. That Decision establishes a “multilateral benefit-sharing mechanism from the use of digital sequence information on genetic resources”. Redundancy with the GMBSM is only apparent. The Decision omits rents and thus renders its mechanism inefficient, unfair and inequitable.
Understanding the New WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge
By Nirmalya Syam and Carlos M. Correa
A new WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge was adopted on 24 May 2024. The treaty creates an international obligation for patent applicants to disclose the source or origin of genetic resources (GRs) and associated traditional knowledge (TK) in patent applications. This development marks a significant step towards mitigating the misappropriation of GRs and TK, particularly benefiting developing countries that have long advocated for such a framework. While the treaty establishes minimum standards for disclosure and sanctions, it permits contracting parties considerable flexibility in implementation and opens avenues for future expansion of its scope to address emerging technologies and derivative products.
The WIPO Diplomatic Conference for a Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge
By Viviana Muñoz Tellez
A new international legal instrument is set to be concluded under the auspices of the World Intellectual Property Organization (WIPO) in May 2024. Its legal nature should be that of an international treaty, given that a Diplomatic Conference, the last treaty making stage, will be held for its conclusion. The purpose of the instrument (hereinafter “the Treaty”) is to create an international minimum standard for patent applicants to provide information concerning the origin or source of the genetic resources or traditional knowledge associated with genetic resources as part of the patent application process. This Policy Brief provides an overview of the rationale for the Treaty and of the process and substantive issues to be negotiated, and advances recommendations towards ensuring a successful conclusion of the Diplomatic Conference.
The Protection of Traditional Knowledge, Traditional Cultural Expressions, Expressions of Folklore and Genetic Resources Within the African Continental Free Trade Area – Alignment with International and Regional Developments
By Caroline B. Ncube
The adoption of the Protocol on Intellectual Property Rights under the Agreement on the African Continental Free Trade Area presents an opportune moment to consider a continental framework for the protection of Traditional Knowledge, Traditional Cultural Expressions, Expressions of Folklore and Genetic Resources. This SouthViews considers lessons which can be drawn from national laws, using South Africa as an example, for the relevant Annex to be negotiated under the protocol.
Identifying Legal Challenges for Farmers’ Innovation
By Saurav Ghimire
On 9 October 2023, an expert workshop on “Identifying Legal Challenges for Farmers’ Innovation” was organised at the Centre for Private and Economic Law, Vrije Universiteit Brussel, in collaboration with the South Centre and Université Catholique de Louvain. The hybrid event gathered experts to discuss the challenges for farmers’ innovation, particularly those emerging from regulatory regimes. The workshop brainstormed policy and regulatory hindrances to farmers’ involvement in plant breeding, namely, in access to breeding materials, access to the market and reward/protection for the innovation.
The expert workshop was organised as a part of a joint research project, “Farmers as Plant Breeders: Legal Mechanisms to Foster Farmers’ Innovation”, led by Prof. Christine Frison (Université Catholique de Louvain), Prof. Kim Van der Borght (Vrije Universiteit Brussel), and Prof. Carlos Correa (South Centre). The research project is funded by the Research Foundation Flanders (FWO).
The WHO CA+ Discussions on Pathogen Access and Benefit Sharing: State of Play
By Nirmalya Syam
This brief explores the scope of a World Health Organization (WHO) pathogen access and benefit-sharing (PABS) mechanism as a possible outcome of the negotiations ongoing in the WHO Intergovernmental Negotiating Body (INB) for a WHO Convention, Agreement or other Instrument (WHO CA+) for pandemic prevention, preparedness, response and recovery (PPRR). After seven sessions of the INB, substantial differences remain between developed and developing countries on the PABS system. While the text contains specific obligations on rapid sharing of pathogen material and genetic sequence information reflective of the primary interest of developed countries to get such access outside the framework of the Nagoya Protocol to the Convention on Biological Diversity through a specialized WHO instrument such as the PABS system under the WHO CA+, the current text continues to be weak in terms of effectively operationalizing fair and equitable-benefit sharing. To that end, it is critical that detailed provisions on standard material transfer agreements, data access relating to their genomic sequence information and specific obligations on monetary and non-monetary benefit-sharing by recipients of pathogen material and sequence information are included in the provisions establishing the PABS system. Therefore, it is important that the proposals that have been made in this regard by developing countries are incorporated in the draft negotiating text.
South Centre Statement to the 64th WIPO General Assembly (2023)
The South Centre, the intergovernmental organization of developing countries, actively promotes balancing public and private interests in the IP system. In accordance with the mandate of the 2007 Development Agenda (DA) and the Sustainable Development Goals (SDGs), which WIPO as a UN specialized agency must contribute to, development, sustainability and human rights should be at the core of WIPO’s activities. WIPO should remain a Member State-driven, development-oriented organization.
The South Centre remains available to all developing countries’ delegations to provide further information and support on these matters, during and after the Assemblies.
South Centre Statement to the Resumed session of the fifth meeting of the Intergovernmental Negotiating Body (INB) to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response
12 June 2023
The South Centre appreciates the opportunity to address this INB. We remain available, here in Geneva or online, to present our views on specific draft provisions.
We recognise the work advanced so far.
In the Bureau text, not all options are yet on the table. All Member State proposals, existing and new ones as they come, should receive proportionate consideration, inclusion and discussion.
The consolidated text of February should remain complementary to the Bureau text.
There must be balance in providing options under various articles and in the approach for legal language under them. The Bureau text as it stands now would not deliver on equity.
The INB is moving towards consensus on principles of equity, solidarity, common but differentiated responsibilities, transparency and respect for human rights. We also support the proposal for a principle on global public goods. The INB needs now to better translate these principles into concrete legal provisions in the text.
The drafting group during this session of the INB could focus discussion on Articles 9 to 13 of the Bureau text, also drawing from the consolidated text.
The United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas and the Right to Seeds in Africa
Geneva Academy Briefing No. 22
By Karine Peschard, Christophe Golay and Lulbahri Araya
Pursuant to the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP), the African Union and African states should ensure that their regional & national laws & policies, as well as international bodies to which they are party, lead to effective protection of peasant rights, including their right to seeds.
The Geneva Academy acknowledges the support of the South Centre for the production of this publication.
