Stockholm Conference on
This paper seeks to examine ways in which considerations of differential treatment in relations between developing and developed countries and considerations of equity in the relations between natural and legal persons inform the existing legal framework for the regulation of genetic resources. It focuses in particular on the question of benefit sharing which has been and still is the object of significant attention not only in the context of the Biodiversity Convention but also in the World Intellectual Property Organisation. It further examines the question of sui generis protection of (traditional) knowledge which constitutes one of the ways in which the existing international legal framework could be made more responsive to the justice and equity needs of traditional knowledge holders as well as differential treatment considerations in favour of developing and least developed countries.
Access to and use of genetic resources have become increasingly contentious at the national and international levels over the past couple of decades. The importance of genetic resources in law and policy debates in recent years has been largely linked to their new-found economic importance in the context of the development of agricultural and pharmaceutical biotechnology. As a result, questions concerning transfers of and trade in genetic resources as well as questions concerning the protection of genetic resources or their by-products have been given a lot of attention by policy-makers.
This has resulted in a flurry of new rules and regulations fostering the use of genetic resources, for instance, as a raw material for biotechnology products. Some of the fields of law where significant new genetic resource related developments have taken place include intellectual property and trade. In particular, the use of genetic resources in transgenic products has been encouraged by the progressive introduction in most countries of patents on life forms under the guise of the implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
While legal incentives for the use of genetic resources in industrial applications have rapidly developed over the past couple of decades, much less has been done with regard to the protection of the rights and interests of the holders of genetic resources and associated knowledge concerning their useful characteristics. Nevertheless, a number of initiatives have been taken in different contexts. The Biodiversity Convention has been one of the focal points for addressing some of the concerns related to access to and use of genetic resources. Rules and principles, such as prior informed consent, concerning transboundary movement of genetic resources have been introduced. Further, in the context of Article 8(j) of the convention, the specific concerns of indigenous peoples with regard to genetic resources have been debated, such as the sui generis protection of individuals and groups’ knowledge related to genetic resources. Finally, the convention has been one of the most active frameworks where the question of benefit sharing has been debated leading to the decision to prepare the first binding legal instrument on access and benefit sharing by 2010.
The question of the development of rules concerning access to genetic resources, concerning the sharing of benefits arising from the use of genetic resources and associated knowledge by different actors in different countries and the question of the asymmetric protection of knowledge in law which only grants protection to the most technologically advanced knowledge all raise a number of issues concerning the fairness of existing legal frameworks.
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