Distr GENERAL
CONVENTION ON BIOLOGICAL DIVERSITY
UNEP/CBD/COP/3/Inf. 20
20 September 1996
ORIGINAL: ENGLISH
CONFERENCE OF THE PARTIES TO THE CONVENTION ON BIOLOGICAL DIVERSITY
Third meeting
Buenos Aires, Argentina
4 to 15 November 1996
BIOLOGICAL DIVERSITY AND INTELLECTUAL PROPERTY RIGHTS:
ISSUES AND CONSIDERATIONS
Submission by the Government of Australia
1. INTRODUCTION
1. Pursuant to Decision II/12 on "Intellectual
Property Rights" of the second meeting of the Conference
of the Parties to the Convention on Biological Diversity, Australia
submits this paper on the relationship between intellectual property
rights and the overall objectives of the Convention on Biological
Diversity (CBD) relating to the conservation of biological diversity,
the sustainable use of its components and the fair and equitable
sharing of the benefits arising out of the utilisation of genetic
resources.
2. The paper aims at identifying relevant issues
and considerations which may need to be addressed in determining
the role of intellectual property rights in advancing the CBD's
overall objectives. It should be noted that the various issues
and considerations set out in the paper should not be interpreted
as representing an official Australian position.
3. The paper is divided into three parts: Part I
sets out Australia's basic approach to intellectual property rights;
Part II considers the relationship between the objectives of the
CBD and the World Trade Organisation (WTO) Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS); and Part III
examines the possible roles of intellectual property rights in
the conservation and sustainable use of biodiversity and the sharing
of benefits arising from the use of genetic resources, including
in relation to the contributions of indigenous and local communities.
4. The paper is not intended to exhaust all the issues
which may arise in the context of biodiversity and intellectual
property rights, but to provide some insight into those issues
which have been or are being reviewed in Australia. Australia
hopes that the paper may be of some help in identifying relevant
issues and possibilities requiring further consideration so as
to progress consideration of these in the CBD.
5. Intellectual property rights may be relevant to
facilitating the implementation of the CBD. Areas where they appear
most relevant are in relation to technology transfer and the sharing
of benefits deriving from the utilisation of genetic resources.
However, the issues are difficult and complex. Intellectual property
rights cannot be considered in isolation. They are only one aspect
of a broader inter-related fabric of political, economic, legal
and social factors and may not necessarily be the most important
element in achieving the successful transfer of technology or
sharing of benefits. Another issue that requires acknowledgement
is the fact that funding for technology transfer is primarily
a matter for the commercial sector. The challenge for governments
is to create the national conditions for commercial transfers
of technology and private sector driven technological development.
6. It should be noted that intellectual property
and environment issues are being addressed in an increasing number
of international fora. Australia considers that it is important
for the Parties to the CBD to be abreast of all relevant work
in progress in other fora and for duplication of work to be avoided.
7. Thus, while intellectual property rights may be
relevant to achieving the objectives of the CBD, the Conference
of the Parties (COP) may not be an appropriate body to make decisions
on the appropriateness of standards of protection afforded by
intellectual property rights. An appropriate role for the COP
could be to make recommendations on options for consideration
at the national level or in other relevant fora.
8. In considering the role of intellectual property
rights in relation to furthering the objectives of the CBD, it
may be useful to set out at this point some important factors
that help shape Australia's approach to the conservation and sustainable
use of its biodiversity, including:
a) a large stock of biodiversity - Australia is in
a unique position in being the only industrialised country among
those countries to have been identified as possessing a large
stock of biological resources (we are "biologically megadiverse");
b) an advanced scientific community (both domestic
and international) which accesses and uses our biological resources
to develop new technologies;
c) strong agricultural, pharmaceutical and other
industries which use and rely on technology developed from both
local and foreign biological resources; and
d) a large number of indigenous communities, all
interested in protecting and benefiting from their traditional
knowledge. This includes knowledge which may assist in the conservation
of biodiversity in Australia. Australia's indigenous communities
have an important role to play in contributing to Australia's
pursuit of the CBD's objectives.
PART I: AUSTRALIA'S GENERAL APPROACH TO INTELLECTUAL
PROPERTY RIGHTS
9. Australia notes that the general rationale for
protecting intellectual property rights is that they provide an
opportunity for owners to benefit from their intellectual activity
and thus to encourage innovation, technological development and
creative activities. This rationale is reflected in Australia's
domestic legislative regime governing the protection of intellectual
property rights.
10. Generally speaking, modern intellectual property
rights laws around the world are fundamentally similar, reflecting
the influence of international treaties in shaping national intellectual
property rights laws. "Intellectual Property" is generally
accepted to include all copyright and related rights, all rights
in relation to inventions (including patent rights), plant varieties,
registered and unregistered trademarks (including service marks),
geographical indications , registered designs, confidential information
(i.e. protection of undisclosed information in a commercial context,
including trade secrets and know how) and circuit layouts, and
all other rights resulting from intellectual activity in the industrial,
scientific, literary or artistic fields.
11. Australian intellectual property laws are based
on the well-established premise that economic development and
the well-being of society will be advanced through the creation
and dissemination of new products, processes and services. This
objective will be served, and an incentive given to invention
and creativity, if the creators of intellectual property (or their
employers, assignees, heirs or successors in title) are entitled
to an opportunity to gain, for a limited time, exclusive economic
rights, for example, the right to exploit an invention and to
authorise another person to exploit the invention (patents) or
the right to reproduce a work or to authorise another person to
exploit a work (copyright). These rights allow creators to secure
a return on their investment in original creative activity. Because
intellectual property rights are personal to the owners of those
rights, it is generally up to them to use, protect and enforce
them, for example, by instituting infringement actions in the
courts.
12. It is generally accepted that the maintenance
of such a regime has served to attract state-of-the-art technology
and access to overseas copyright works, which has helped enhance
Australia's economic and cultural development and the fostering
of Australian creative talents. Intellectual property rights can
therefore be viewed as an important instrument in promoting the
dissemination of new ideas, technologies and creative endeavours.
13. In a trading context, Australia's interests in
intellectual property are fundamentally affected by the fact that
Australia is a net importer of technology and intellectual property
products. Various reviews have found that adequate protection
of intellectual property rights has been a factor in Australia's
ability to gain access to new technologies and overseas creative
products. However, the creative activities of Australians are
playing an increasingly important role in Australian exports,
a trend which is expected to continue. Protection of Australian
intellectual property rights, domestically and in both existing
and potential export markets, is of growing significance to Australia.
14. Australia notes that it, along with the more than 120 other Members of the WTO, has accepted the intellectual property right standards set out in TRIPS as constituting an adequate degree of protection of those intellectual property rights specified in TRIPS (i.e. copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs (topographies) of integrated circuits, and protection of undisclosed information).
PART II: RELATIONSHIP BETWEEN THE OBJECTIVES OF
THE CBD AND THE TRIPS AGREEMENT
15. The objectives of the CBD are the conservation
of biological diversity, the sustainable use of its components
and the fair and equitable sharing of the benefits arising out
of the utilisation of genetic resources. Intellectual property
rights are explicitly referred to in Article 16 of the CBD which
deals with access to and transfer of technology. Article 16.5
states that the Contracting Parties, recognising that patents
and other intellectual property rights may have an influence on
the implementation of the CBD, "shall cooperate in this regard
subject to national legislation and international law in order
to ensure that such rights are supportive of and do not run counter
to its objectives".
16. The TRIPS Agreement aims to provide a multilateral
framework for promoting effective and adequate protection of intellectual
property rights both to reduce distortions and impediments to
international trade and to ensure that measures and procedures
to enforce intellectual property rights do not themselves become
barriers to trade. Article 7 of the Agreement states that "the
protection and enforcement of intellectual property rights should
contribute to the promotion of technological innovation and to
the transfer and dissemination of technology, to the mutual advantage
of producers and users of technological knowledge and in a manner
conducive to social and economic welfare, and to a balance of
rights and obligations".
17. A number of issues would seem to deserve consideration
in looking at the relationship between the objectives of the CBD
and the TRIPS Agreement:
(a) the promotion of environmentally-sound technology
and access to and transfer of this technology;
(b) the provision of incentives for the conservation
and sustainable use of biological resources and the equitable
sharing of the benefits of this use, including in relation to
the traditional knowledge, innovations and practices of indigenous
and local communities;
(c) the handling of technology that may adversely
affect the environment.
18. Article 16 of the CBD states that both access
to and transfer of technology among Contracting Parties are essential
elements for the attainment of the Convention's objectives. It
provides for Contracting Parties to provide and/or facilitate
access to and transfer to other Contracting Parties of technologies
relevant to the conservation and sustainable use of biological
diversity. Article 16 also provides for access to and transfer
of technology to developing countries to be provided and/or facilitated
under fair and most favourable terms. In the case of technology
subject to patents and other intellectual property rights, such
access and transfer "shall be provided on terms which recognise
and are consistent with the adequate and effective protection
of intellectual property rights".
19. Article 16.3 of the Convention addresses the
issue of access to and transfer of technology which makes use
of genetic resources to those countries, particularly developing
countries, which provide the genetic resources. It provides for
parties to take measures to provide access to and transfer of
such technology on mutually agreed terms. The issue of access
to genetic resources is dealt with in Article 15 which also draws
attention to the aim of sharing in a fair and equitable way, and
upon mutually agreed terms, the results of research and development
and the benefits arising from the commercial and other utilisation
of genetic resources with the party providing such resources.
20. The TRIPS Agreement seeks to balance the objectives
of promoting technological innovation and facilitating access
to and transfer of technology through the provision of appropriate
standards of intellectual property protection. A properly functioning
system protecting intellectual property rights can provide a positive
environment for investment in the development and transfer of
technology. TRIPS also reinforces the right of governments to
adopt measures to prevent the abuse of intellectual property rights
by rights holders or practices which adversely affect technology
transfer (Article 8). At the same time, there is nothing in the
TRIPS Agreement preventing governments or international financial
mechanisms from providing financial assistance to promote technology
transfer. Technology transfer is important not only for the promotion
of environmentally friendly technologies but also in encouraging
the development of technologies that help the conservation and
sustainable use of biological diversity, as specifically prescribed
in Article 16 of the CBD.
21. Provisions of the TRIPS Agreement which may be
relevant in considering the relationship between it and the generation
and transfer of environmentally-sound technology are Article 8
(right to adopt appropriate measures consistent with the provisions
of the TRIPS Agreement to prevent the abuse of intellectual property
rights or practices which adversely affect international technology
transfer), Article 30 (right to provide limited exceptions to
patent rights), Article 39 (obligation to protect undisclosed
information) and Article 40 (right to adopt appropriate measures
to protect or control restrictive practices associated with intellectual
property rights which impede the transfer and dissemination of
technology).
22. The CBD explicitly notes that intellectual property
rights may have an influence on its implementation in respect
of access to and transfer of technology. It has been suggested
that intellectual property rights and the TRIPS Agreement may
also be relevant to a number of other aspects of the CBD. In particular,
there has been interest in the possible impact of the TRIPS Agreement
on providing incentives for the conservation and sustainable use
of biological diversity and in the possible role of intellectual
property rights in recognising the contribution of the traditional
knowledge and practices of indigenous and local communities.
23. It is important to note that the TRIPS Agreement
only obliges Members to meet its minimum standards while they
are free to grant more extensive protection. This means that the
TRIPS Agreement would not preclude any WTO Member from developing
additional intellectual property rights that it might consider
appropriate means of addressing the concerns of indigenous and
local communities. However, Article 3 may be relevant here as
it (and the Paris (industrial property) and Berne (copyright)
Conventions) generally requires that any intellectual property
protection afforded to nationals in one country must be afforded
to nationals of other member countries. In addition, Article 4
requires that "any advantage, favour, privilege or immunity
granted by a Member to the nationals of any other country shall
be accorded immediately and unconditionally to the nationals of
all other Members".
24. An aspect of the TRIPS Agreement which may be particularly relevant to the objectives of the CBD is Article 27.3(b). This allows Members to exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members are required to provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. These provisions are to be reviewed in 1999 and deserve careful consideration for their possible relevance to the objectives of the CBD. It is likely that this review will look at whether to maintain these existing exclusions or reduce the scope for exclusions.
25. An effective sui generis system may be a means
of addressing concerns that have been raised, for example, about
the possible implications of intellectual property rights for
practices such as farmer-exchanged and farmer-saved seeds which
may be important in promoting conservation and development of
biological diversity as well as in addressing equity concerns.
One possibility is that cultivated plants may be subject to a
specialised form of protection, Plant Breeders Rights, established
under the International Union for the Protection of New Varieties
of Plants. Australia, which became a member of UPOV in 1988 and
enacted the Plant Breeder's Rights Act in 1994, considers that
certain rights should be given to plant breeders to encourage
the genetic improvement of plant species and the release of elite
varieties in Australia. However, the Australian legislation also
strengthens the public interest provisions. This includes the
recognition of the concept of "farmers privilege" which
allows farmers to save the seeds from a protected variety for
next year's crop without paying further royalties to the breeder.
In 1991 the UPOV Convention was amended to, among other things,
extend the rights of breeders.
26. Another issue which could be explored in examining
the relationship between the objectives of the CBD and the TRIPS
Agreement is the treatment of technology that may adversely affect
the environment. The TRIPS Agreement does not affect the right
of governments to restrict research or development or the use
of technology on the grounds of protecting the environment. Article
27.2 of the Agreement specifically provides that a WTO Member
may exclude from patentability inventions whose use would seriously
prejudice the environment.
PART III: INTELLECTUAL PROPERTY RIGHTS AND THE
OBJECTIVES OF THE CBD
27. There is general recognition that complex issues
arise when examining the role of intellectual property rights
in pursuing the conservation, sustainable use and equity objectives
of the CBD. Intellectual property rights are only one aspect of
a broader inter-related fabric of political, economic, legal and
social factors and may not necessarily be the most important one.
Other considerations which could affect access to and the transfer
of technology, including technology relevant to the objectives
of the CBD, include the extent of funding for research in the
public domain, access to finance to purchase privately-owned technologies,
the investment environment, and the state of technological and
infrastructure facilities in the countries receiving technology.
It may therefore be difficult to isolate the particular role of
intellectual property rights in relation to the CBD's objectives
without also examining the role that other factors may play. The
full range of issues involved in facilitating and promoting the
transfer of technology needs to be considered in looking at ways
to advance the objectives of the CBD.
28. Effective intellectual property rights regimes,
including enforcement, can make a positive contribution to facilitating
technology transfer and furthering the objectives of the CBD.
Further work could be aimed at identifying this contribution as
well as any gaps which may exist.
29. Article 15 of the CBD, while affirming national
sovereignty, requires parties to endeavour to facilitate access
to their genetic resources for environmentally sound uses and
allows for parties to obtain a fair and equitable share of benefits
arising from the use of their genetic resources by other parties.
30. Ways in which a share of the benefits can be
obtained include through access to and transfer of technology,
including biotechnology developed from the genetic resource provided.
Another way in which providers of genetic resources may seek benefits
is through access to products derived from the provided resources,
for example, an improved plant variety. Under article 27 of TRIPS
Members shall provide for the protection of plant varieties by
patents and/or an effective sui generis system. This raises the
question as to what constitutes an effective system. The TRIPS
Council is due to consider the UPOV sui generis system in 1997.
Other systems are available and may more closely match the needs
of indigenous peoples. This would appear to be an area where more
study could usefully be done.
31. The relationship between access to genetic resources and benefits arising from their utilisation raises fundamental questions about the status and ownership of genetic resources. There have been calls for legal regimes for intellectual property rights to be extended to cover the owners of these resources in recognition of the intellectual input they have made to their conservation, sustainable use and genetic improvement. Under current intellectual property rights regimes, any ownership right to the original resource is not an intellectual
property right because there has been no intellectual
input as such. Ownership could also be very difficult to establish
in some cases, along with the degree to which indigenous and local
communities embodying traditional lifestyles have actually contributed
intellectually to genetic improvement through deliberate breeding.
Intellectual property rights arise from the products and processes
derived from those resources through scientific research and which
may subsequently be commercialised.
32. The contribution of indigenous peoples and local
communities in furthering the objectives of the CBD is recognised
in CBD articles 8(j) and 10(c). Such recognition has been identified
as important both on equity grounds and in view of the role which
such communities have played, and continue to play, for example,
in using, conserving, improving and making available biological
resources.
33. The issue of recognising the contribution of
local and indigenous communities in relation to the conservation
and sustainable use of biological resources has been, and continues
to be, considered in Australia. This has included consideration
of advancing the CBD's objectives in relation to articles 8(j)
and 10(c) by examining possible measures that could act as incentives
for protecting and encouraging customary use of biological resources
in accordance with traditional cultural practices that are compatible
with conservation and sustainable use requirements.
34. Australia's experience in addressing this issue
has confirmed that it is a difficult and complex issue which will
require considerable time and effort to resolve. Australian Indigenous
peoples' organisations have expressed a number of concerns in
relation to the protection of their traditional knowledge, including:
(a) the need for recognition of both the commercial
and non-commercial value of knowledge systems and innovations;
(b) inherent in that, recognition of the cultures,
social life and belief systems of indigenous communities which
embody the knowledge and practices supportive of biodiversity;
(c) the need to address fundamental differences in
protection between innovations protectable by existing intellectual
property rights and traditional knowledge of and uses of biodiversity;
and
(d) the reality that, for indigenous communities,
priorities include the need for equitable benefit sharing, not
merely for its own sake but also to avoid the damage that results
within a community where there is a sense of unauthorised use
or misappropriation of knowledge.
Possible options for protecting indigenous knowledge
35. Intellectual property rights are only one of
a range of mechanisms that have been raised as possible means
for addressing the concerns of local and indigenous communities
in relation to protecting their knowledge, innovation and practices
and sharing in the benefits arising from the utilisation of such
knowledge, innovation and practices. Possible mechanisms for additional
protection of indigenous knowledge which have been suggested in
consideration of this issue at various international fora include:
(a) operating within existing intellectual property
regimes;
(b) the creation, through legislation or other means,
of new forms of intellectual property rights;
(c) funding mechanisms;
(d) an equitable sharing of the benefits arising
from the contributions, including elements of using traditional
knowledge, made by indigenous and local communities;
(e) contractual agreements such as material transfer
agreements;
(f) codes of conduct;
(g) rights in relation to cultural products and expressions,
including cultural property;
(h) greater reliance on the laws of unconscionable
behaviour and unjust enrichment.
36. Further work is clearly needed on exploring the
relative merits or disadvantages of each of these mechanisms and
any other mechanisms which may be identified. The possible role
of intellectual property rights in recognising the knowledge and
practices of indigenous and local communities cannot be considered
in isolation from the other mechanisms that have been identified,
as these may prove to be more appropriate mechanisms. It is possible
that a combination of several mechanisms may be needed to recognise
the contribution of indigenous and local communities in the conservation
and development of biodiversity and to promote the fair and equitable
sharing of the benefits arising out of the utilisation of their
knowledge, innovations and practices.
37. For example, more formalised arrangements governing
access to genetic resources may provide an important avenue for
recognising the contribution of the knowledge, innovations and
practices of indigenous and local communities, and ensuring an
equitable sharing of the benefits. Such codes of conduct could
be complemented by, or involve, contractual arrangements such
as material transfer agreements setting out conditions for the
transfer and use of genetic materials.
38. While Australia's indigenous peoples can use
the existing intellectual property system to protect specific
products and processes and unique works, the extent to which it
can meet other concerns, such as providing protection for traditional
knowledge or biological resources is limited. The main factors
limiting the scope of current intellectual property right systems
are:
(a) intellectual property rights are the result of
creative or inventive endeavour by an individual or individuals
creating an original product;
(b) there must be an identifiable creator or owner
(e.g. patentee, author, etc) of the intellectual property, since
the laws do not recognise collective or community ownership under
customary law of a creation or product except for a corporate
body under company law;
(c) intellectual property rights are of limited duration
after which the work or product falls into the public domain.
39. Existing intellectual property rights would not
protect traditional knowledge as such, including uses of plants
and other natural resources, against unauthorised commercial exploitation
(unless the knowledge was recorded in some way). Contractual law
may be an appropriate mechanism to provide some level of redress.
For example, indigenous communities could withhold their knowledge
except under licensing contracts providing for confidentiality,
appropriate use and the sharing of economic benefits with the
originators of that knowledge. The viability and utility of this
option has not been explored completely in Australia.
40 It may be argued that some traditional knowledge,
such as the herbal remedies used by traditional healers for centuries,
can be protected as confidential information. Such knowledge would
be regarded as unpatentable since it lacks the requisite "new"
character for patentability. This is so notwithstanding the considerable
effort that indigenous communities may have made in developing
traditional knowledge. This effort may have involved centuries
of observation and experimentation with naturally occurring species.
However, confidential information as a form of protection (e.g.
the formula for Coca Cola) can often be more valuable than other
forms of intellectual property rights.
41. Clearly, however, traditional knowledge can also
have economic value. For example, traditional knowledge may be
utilised by the biotechnology industry to select plants for laboratory
analysis, in a way which significantly reduces the cost of developing
new commercial products. Thus, while traditional knowledge itself
may not be patentable, it can provide a significant asset for
others to obtain patents for inventions based on that knowledge.
42. The TRIPS Agreement also provides for the protection of undisclosed information. While the WTO has not considered in detail whether this area of TRIPS may be relevant to the protection of indigenous knowledge, some work is being undertaken in Australia in relation to the scope of the action of confidential information. In October 1994 a paper titled "Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples", currently under consideration, examined the copyright protection available for indigenous cultural expression in Australia. It noted a case where the publication of sacred-secret materials has been successfully prevented in Australia using a breach of confidence action, where copyright infringement was not applicable. The case involved information revealed in confidence by an Aboriginal community to an anthropologist. Such a case suggests that principles of confidential information can be used in Australia to protect indigenous knowledge, however, each situation would need to be considered in light of the strict common law principles which apply to the law of confidential information. The basic principles in brief are: the information is sufficiently confidential and not public knowledge; the information was provided in circumstances imparting an obligation of confidence; and there was an unauthorised use of that information causing detriment to the party communicating it. Many of these requirements may be difficult to establish in the case of use of indigenous knowledge.
43. It is clear that the existing intellectual property
rights framework is limited and may not be the most effective
way to protect indigenous knowledge and practices. Ultimately,
the effective protection of this knowledge and these practices
may require the creation of a new class of proprietary rights
for traditional knowledge, or the creation of new classes of transfer
agreements. Alternatively, or in addition, some protection could
be afforded through greater reliance on common law principles
of unconscionable behaviour and unjust enrichment, or other areas
of law such as contract or licensing arrangements.
44. The concept of "Farmers' Rights", which
is being addressed in the FAO Global System on Plant Genetic Resources
for Food and Agriculture through the International Undertaking
on Plant Genetic Resources for Food and Agriculture, is also of
possible interest to indigenous communities. The exact nature,
scope and purpose of these rights have yet to be clearly defined.
Approaches To Access To Australia's Genetic Resources
45. In 1992 a task force was established to report
on the implications and manner of implementation of the CBD in
Australia. In relation to access to Australia's biological resources,
it found that under existing legislation and guidelines it is
possible to access and export a large range and volume of genetic
resources for use in overseas research and development without
appropriate returns to Australia.
46. Australia is currently in the process of examining
matters related to national policy on managing access to Australia's
biological resources. In the Australian federal system, responsibility
for the management of indigenous biological resources, including
their conservation and sustainable use, is shared by the State,
Territory and Commonwealth governments. This reflects the fact
that under Australia's constitutional arrangements, the Commonwealth
has primary responsibility in areas such as trade and commerce
with other countries and intellectual property protection, while
the States and Territories have traditionally managed matters
relating to conservation and land management.
47. A Commonwealth-State Working Group (CSWG) on
Access to Biological Resources was established in May 1994 to
investigate options for a national approach to access to biological
resources in Australia. The work of the CSWG is concentrating
on developing a nationally consistent approach to managing access
to Australia's biological, including genetic, resources. More
specifically, it is required to identify the benefits for the
Australian community of a national approach; to develop principles
to be applied in the assessment of mechanisms and in negotiations
concerning grant of access; and to develop mechanisms which may
be employed to govern access to and collection, processing, development
and export of Australia's biological resources.