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The Convention on Biological Diversity and the Nagoya Protocol: Intellectual Property Implications

A Handbook on the Interface Between Global Access and Benefit Sharing Rules and Intellectual Property

image of The Convention on Biological Diversity and the Nagoya Protocol: Intellectual Property Implications
The Convention on Biological Diversity and the Nagoya Protocol: Intellectual Property Implications addresses how the global rules on access and benefit sharing (ABS) of genetic resources and associated TK should work in tandem with an area that is mentioned minimally in the 2010 Nagoya Protocol, i.e., IP. Specifically, this handbook is designed to show the complexity of relevant IP policies that have an impact on various aspects of the Convention on Biological Diversity (CBD) and the Protocol, particularly from the provider country perspective. It is all too easy and simplistic to see IP as a stream of cash rents that derive from certain granted exclusive rights that could potentially be shared as benefits. The view of IP is necessarily much broader, examining when it is (and when it is not) appropriate to grant such rights, how the application process can generate important information that could assist in the implementation of the ABS rules, when such rights are subject to important exceptions and limitations on policy grounds, and when traditional IP instruments such as patents may not make much sense for protecting certain intellectual or creative endeavours.

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Protection of traditional knowledge

Chapter 1 described the extent to which the Convention on Biological Diversity (CBD) and the Nagoya Protocol laid down new rules concerning access and benefit sharing (ABS) over, inter alia, TK associated with genetic resources. Article 7 of the Protocol requires that access to traditional knowledge (TK) associated with genetic resources must be based on prior informed consent (PIC) and that benefit sharing must take place in the event that such TK is accessed. The benefit sharing need not be directly linked to the TK, however, and may be made by means, for example, via a contribution to a pooled fund. The Protocol leaves it up to national legislation to define what TK is associated with genetic resources, as well as the type and modalities of benefit sharing that can take place. It requires only the sharing of benefits from research and development (R&D), and not necessarily from commercialization. For associated TK, there is no corresponding mutually agreed terms (MAT) requirement, as Articles 5 and 6 of the Protocol deal with genetic resources only. Articles 5 and 6 would nonetheless apply if an indigenous/local community (ILC) were legally responsible for a genetic resource being accessed within a geographic area for which it has autonomy.

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