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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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The international framework for access and benefit sharing of genetic resources and associated traditional knowledge

The focus of this handbook is legislation at the international level (treaties) and how that affects national policymaking and legislation mainly from the perspective of the provider countries. In this regard, treaties are agreements that have been negotiated between States, stipulating the terms, conditions, rights and obligations which the signatories must abide by. They may be bilateral, meaning that the agreement binds two States, or multilateral, meaning that the agreement binds more than two States. Multilateral treaties may cover a region (the European Union (EU)) or a sub-region (the Mekong countries); they may be between regions (EU-African, Caribbean and Pacific (ACP) countries) or global in scope (the Patent Cooperation Treaty, the Agreement on Trade-related Aspects of Intellectual Property Rights (the TRIPS Agreement)). A number of formalities may be needed for a treaty to become effective, including, for example, ratification. In many cases, treaty provisions will need to be implemented through national legislation, which may call for either establishing new laws or changing existing ones to fully comply with a treaty. Finally, established treaties may be amended or be further elaborated by means of additional or supplementary treaties such as protocols. This chapter examines the multilateral treaty framework for access and benefit sharing (ABS) of genetic resources and associated traditional knowledge (TK).

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