The impact of the Nagoya Protocol on the balancing of rights between the TRIPS Agreement and the Convention on Biological Diversity

ABSTRACT:

Historically genetic resources were considered and acknowledged as part of common heritage of mankind. However, the development of technologies and the heightened North - South divide over the issue of sovereign right over natural resources the developing nations became extremely concerned with the exploitation of biological and Genetic resources. Two international instruments, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the Convention on Biological Diversity (CBD), expose the dividing lines between developing countries rich in biodiversity and industrialized countries with high technologies. The TRIPS Agreement advocates stronger patent protection whereas the CBD stands to promote fair and equitable sharing of biological resources. The Nagoya Protocol on Access and Benefit-sharing is a supplementary agreement to the CBD by providing a transparent legal framework for the effective implementation of access to benefit sharing, which is a cornerstone of the CBD. This paper analyses the protection of access and benefit sharing under the Nagoya Protocol and its role in the balancing of rights between the TRIPS Agreement and the CBD.

Keywords: the Nagoya Protocol, the TRIPS Agreement, the Convention on Biological Diversity.

1. Introduction

The increasing importance of biodiversity associated traditional knowledge (TK) and generic resources (GR) has ignited severe tension between the developed and developing countries as well as between multinational corporations and indigenous communities that related to intellectual property rights (IPRs). At the centre of the biodiversity associated debates are two international instruments, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Convention on Biological Diversity (CBD), that attempt to resolve the concerns of both developed and developing nations[1]. Besides, the adoption of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (the Nagoya Protocol) had created encourages the advancement of research to conserve and sustainably use genetic resources and thereby enhances the contribution of biodiversity to development and human well-being. This article examines the impact of the Nagoya Protocol on the balancing of rights between the TRIPS and the CBD, focusing in particular on three following issues: i) Intellectual property and the CBD; (ii) Intellectual property and the TRIPS and iii) The implementation of the Nagoya Protocol through property protection.

2. Intellectual Property and the Convention on Biological Diversity

The CBD is aimed towards the conservation of biological diversity, protection of the traditional knowledge of the indigenous or local communities associated with genetic resources and equitable sharing of the benefits arising out of the utilization of genetic resources.[2] In other words, the need to recognize, protect and enforce the rights of indigenous communities to have continued access to biological resources is quite related to the principle of sustainable management and use of biological diversity.[3]

The CBD’s approach is first of all based on the fundamental premise that nation-states have sovereign rights over the biological diversity within their territory.[4] The CBD also recognizes that states have the authority to determine access to genetic resources in areas within their jurisdiction.[5] Parties also have the obligation to take appropriate measures with the aim of sharing in a fair and equitable way the benefits arising from the utilization of genetic resources.[6] The CBD’s Article 15 is a compromise between two opposing propositions. One group, representing mainly developed countries argued for the recognition of biodiversity resources of the world as “common heritage of mankind” and should be freely available without an exclusive claim of ownership by any country. The other group, representing mostly developing countries where most of these resources are located argued for the recognition of the sovereign rights of States over their natural resources.[7] Two principles established under the Article 15 of the CBD are that “access to genetic resources must be obtained with the ‘prior informed consent’ (PIC) of the CBD party, and on mutually agreed terms”.[8] While mandating facilitation of access to genetic resources, the Convention further obligates each contracting party to take legislative, administrative and policy measures for the sharing in a fair and equitable way the result of research and development and benefits arising from the commercial and other utilization of the genetic resources with the party providing such resources.[9] This provides the basic legal framework under the Nagoya Convention for Access and Benefit-sharing (ABS) arising from the utilization of genetic resources. So, it is clear from the work of the CBD that the linkages between IPRs and access and benefit-sharing are significant. Consequently, the evolution of IPRs systems, including those required by the TRIPS may therefore have significant implications for the achievement of the CBD’s objectives.[10]

In addition, the protection of TK, innovations and practices of indigenous and local communities (ILC) are closely related to the CBD’s provisions on the ABS. For example, the long-term selective breeding of food crops, and knowledge of medicinal plants provides an important source of information for the sustainable management of biological diversity, and for the development of new, socially beneficial products.[11] The CBD calls on arties to ‘respect, preserve and maintain knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biodiversity’[12]. Thus, is that to remain consistent with the CBD, IPRs should not be used to undermine efforts to protect the equitable sharing of benefits, and the preservation and respect for the knowledge, innovations and practices of indigenous and local communities.[13]

On the other hand, the Article 15 is not an independent provision. It is further buffered by the provision of the Article 16 that serves as the principal basis for technology transfer, requiring parties to ‘provide and/or facilitate’[14] access to and transfer of technologies that are relevant to the conservation and sustainable use of biodiversity or make use of genetic resources and do not cause significant damage to the environment.[15] It requires parties to transfer technology to developing countries on “fair and most favourable terms”,[16] including on concessional and preferential terms where mutually agreed.[17] The CBD recognises that the development and transfer of technology will be affected by IPRs. Where technology is IPRs protected, the provision and/or facilitation of access and transfer must be carried out in a manner that is consistent with those rights’ adequate and effective protection.[18] Moreover, parties are obliged to take appropriate measures for their private sectors to facilitate access to the above-described technologies for the benefit of both the governmental institutions and the private sectors of developing states.[19] The relationship between IPRs and technology transfer under the CBD is multifaceted. IPRs should be evaluated for their effect on the nature of technology developed from genetic resources, and on the transfer of these technologies. IPRs will also need to be evaluated to ensure that they do not “run counter” to the objectives of the CBD.[20]

3. Intellectual Property and the World Trade Organization Agreement of Trade-Related Aspects of Intellectual Property Rights

In an effort to solve the problem of varying levels of intellectual property protection across country borders, members of the World Trade Organization (WTO) adopted the TRIPS Agreement. The TRIPS Agreement is designed to “promote effective and adequate protection of intellectual property rights” and to “reduce distortions and impediments to international trade” resulting from the enforcement of IPRs.[21] The legitimacy of the TRIPS Agreement and the international intellectual property (IP) system more generally rests upon the ability of each nation to realize their development objectives. The Article 7 and the Article 8 of the TRIPS Agreement are of vital importance in this regard. These provisions provide express recognition for policy objectives that are fundamental to international IP protection. Not only do they identify the goals of technological innovation and dissemination, they also acknowledge the wider public interest agenda behind the TRIPS Agreement.[22] The Article 7 requires that IP protection and enforcement promote social and economic welfare, achieve a balance of rights and obligations and be advantageous to both producers and users of technological knowledge. With these objectives in mind, the Article 8.1 acknowledges that member states may need to adopt measures ‘”necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development”.[23]

Concerns have been raised in many the CBD's member countries, mainly diversity rich developing nations, that the full realization of the objectives of the Article 15 may effectively be undermined by the TRIPS Agreement. It has been argued that the CBD and the WTO/TRIPS “are in conflict with one another”.[24] The debates on this perceived conflict center primarily on the lack of recognition of the objectives of the CBD by some members and that they are encouraged and emboldened in this respect by the text of the Article 27.3(b) of the TRIPS Agreement itself which appear to give precedence to the private right over public rights and allows the recognition of patents and other IPRs using genetic resources and traditional knowledge without PIC and benefit-sharing and without the due recognition given to owners of such traditional knowledge.[25]

Owing to continued tussle between the developed and developing nations, the DOHA Ministerial Meeting of the WTO reached and made the decision in December 2001 where member countries agreed to examine, inter alia, the relationship between the TRIPS Agreement and the CBD, the protection of traditional knowledge and forklore, and other relevant new developments raised by members pursuant to the Article 71.1.[26] It was also agreed that in undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in the Article 7 and the Article 8 of the TRIPS Agreement and shall take fully into account the development dimension.[27]

On the other hand, in reference to patents, such as those on pharmaceutical products and processes, the TRIPS Agreement entitles a patent owner to have its exclusive rights of production, use, sale, and importation protected when dealing with another member country[28] and and sets forth the provisions that must be followed should countries decide to grant compulsory licenses.[29] Consequently, countries presenting poor, or lacking of, pharmaceutical manufacturing capacities were indirectly prevented from procuring for cheap and affordable generic drugs.[30] To tackle this problem, members of the WTO recognized the difficulties which less-developed countries had to face when resorting to compulsory licensing and entrusted the TRIPS Council to find a solution.[31]

On August 2003, the TRIPS Council adopted the “Waiver Decision”, which and established the “Paragraph 6 System” consisted in the notification by an eligible importing country - WTO Member to the TRIPS Council of its intention to import a generic pharmaceutical product in order to manage a public health crisis, and only for the lapse of time necessary to control the situation.[32] On the basis of a decision by the TRIPS Council on the 6^th of December 2005, the WTO General Council adopted a protocol that amended the TRIPS Agreement. The main innovation was the introduction of Paragraph 6 system under new the Article 31bis TRIPS Agreement. However, only few countries have notified the TRIPS Council about the incorporation of the Paragraph 6 system within their domestic law in order to provide for the legal basis to become either an importing or an exporting country.[33] Surprisingly, since the adoption of the Waiver Decision in 2003, only Canada as the exporting country, and Rwanda as the importing country have notified the Council their intention to resort to Paragraph 6 in order to make generic ARVs available in the African country.[34] This proves how difficult it is to import generic drugs under the Waiver Decision scheme, as developed countries have continually hindered the effective use of the compulsory licensing system.[35]

It can be submitted that with the developed countries partaking majorly in the TRIPS negotiation that the TRIPS Agreement intended balance between private gain and public good had the scale tipped in favor of the former which is clearly disadvantageous to developing and least developing countries who are arguably deficient both technologically and knowledge-wise as opposed to developed countries who are technologically sufficient, making it more likely for the benefits of the TRIPS Agreement to be enjoyed by the latter to a greater extent.[36] In other words, the TRIPS Agreement is unclear where it profits the developed nations and clear where it works against the developing nations.[37]

4. The implementation of the Nagoya Protocol through property protection

The Nagoya Protocol is a supplementary agreement to the CBD by providing a transparent legal framework for the effective implementation of one of the three objectives of the CBD namely the fair and equitable sharing of benefits arising out of the utilization of genetic resources.[38] Achieving this objective requires appropriate access to genetic resources by ‘users’ as well as appropriate transfer of relevant technologies to “providers”. Recognition must be given to all rights over genetic resources and technologies.[39]

However, it should be pointed out that “the protocol neither attempts to specify what is meant by “fair and equitable” in a substantive manner nor does it establish any procedural standards to this effect.[40] The reference to mutually agreed terms (MAT) thus makes the acceptable level of benefit-sharing completely relative to any level to which the provider and user agree”.[41] Developed countries demanded that questions relating to the ABS should be regulated as access standards by supplier countries.[42] For their part, developing countries demanded that controls should also be carried out at the other end of the line, at patent and customs offices and research institutes in developed countries, to check that their researchers had acquired samples legally. In the end, the developed countries accepted the principle of integrated resource control and monitoring procedure being implemented.[43] At least theoretically, a link has been established between legislation in different states: user state were made responsible for checking that their nationals had properly observed the standards of the supplier country.[44]

Besides, the provisions related to TK have been considered one the major achievements of the protocol by some of the commentators.[45] The protocol underscores the need for genuine understanding on the part of the providing community of the rationale and goals underlying access to TK[46] and grants indigenous peoples two sui generis rights in respect of their traditional knowledge: first, the right to obtain free, prior and informed consent for the use of their traditional knowledge under the Article 7, and second, the right to equitably share benefits arising from the use of traditional knowledge under the Article 5(5).[47] Thereby, ensuring that TK associated with genetic resources held by the ILC is preserved, accessed based on their approval and the use of such knowledge should lead to the equitable sharing of benefits.

In addition, one of the first measures suggested in order to achieve mutual supportiveness between the CBD and intellectual property systems (in particular, the WTO/TRIPS)  was the disclosure of the origin of genetic resources or associated TK in the IPRs applications, particularly in patents.[48] Some countries (mainly developing countries) proposed that the TRIPS Agreement be amended so as to require that patent applicants disclose, as a condition to patentability; that would help to support compliance with the CBD provisions on access to genetic resources and benefit-sharing[49] as well as would strengthen the mutual supportiveness between the WTO’s IPRs system and the CBD and the protocol.  Opponents of this proposal (primarily developed countries) argued that such a modification is not necessary to implement the CBD requirements as they should be implemented through corresponding contracts at the national level and that the TRIPS Agreement is not the appropriate instrument to regulate the ABS. In their view, new patent disclosure requirements would be ineffective in promoting compliance with the ABS requirements and would introduce uncertainties into the patent system. Some developed countries and private sector representatives favored alternative mechanisms to address concerns regarding misappropriation.[50]

The protocol did not adopt the compliance mechanisms advocated by developing countries. Instead, the Nagoya Protocol addresses compliance with the ABS requirements from the Article 15 to the Article 17 that seeks to prevent misappropriation of genetic resources or associated TK by requiring user countries to comply with the domestic legislation and regulation of provider countries.[51] It is clear that every country can be act as a possible or user and provider of genetic resources and be obliged by these provisions of the Nagoya Protocol to enact appropriate user measures. Thus, in lieu of mandating compliance through the IPRs regime, the protocol gives user countries the flexibility to design compliance measures, leaving to each country the determination of the checkpoints as well as the sanctions for the failure to submit (or the false submission of) the information requested.[52]

Hence, the Nagoya Protocol is a genuine compromise text, satisfying both supplier and user states, in which responsibilities have been balanced and some concepts perceived as dangerous such as retroactivity or derivatives have been avoided.[53] In addition, it can be argued that the field of application of the CBD has been expressly broadened. The use of genetic resources is defined as conducting research and development on the genetic and/or biochemical composition of genetic resources[54] is in line with industrial and commercial realities, research practices, and at the end of the day, the demands of the developing countries.[55]

However, it would appear that unless and until further clarification is added at a national level, the Nagoya Protocol cannot address the practical questions which may be raised by users.[56] For instance, where is the limit between the use of resources in the context of the ABS (research and development) and the creation of added value on the basis of commodities which are traded daily in large quantities? There is also some questions of the impact of the Nagoya Protocol on legal frameworks that have already been developed on the basis of a certain interpretation of the CBD as well as whether the leeway granted in a number of cases by States following assessment of the implications of certain scientific activity could be compromised. It is not possible when based on the basis that it will be up to States to decide.

5. Recommendations

To ensure that the CBD and TRIPS Agreement work in a mutually supportive way with respect, the parties to the CBD should consider further case studies and empirical evidence, such as: additional comments on the role of intellectual property in access and benefit-sharing, the experience of the impact of IPRs on technology transfer relevant to the CBD, and further case studies on the impacts of IPRs on the conservation and sustainable use of biodiversity. Besides, to ensure that the TRIPS promotes and does not interfere with the ability of governments to implement their obligations under the CBD, members of the WTO should consider revising the requirements for patent applications to help prevent misappropriation of knowledge regarding genetic resources and to ensure consistency with access and benefit-sharing regimes pursuant to the CBD as well as avoiding disputes from arising in relation to IPRs, and the provision of the CBD and the TRIPS Agreement.

6. Conclusion

The TRIPS Agreement advocate stronger patent protection whereas the CBD stands to promote fair and equitable sharing of biological resources. The article had highlighted the impact of the Nagoya Protocol on the balancing of rights between the TRIPS Agreement and the CBD by showing the Protocol manages to implement CBD and to be consistent with relevant international law on intellectual property, providing greater legal certainty and transparency for both providers and users of genetic resources. Then, it helps to ensure benefit-sharing, in particular when genetic resources leave the providing country, and it establishes more predictable conditions for those wanting to access genetic resources.[57]

FOOTNOTES:

[1] A. Kothari and V. Anuradha (1999). Biodiversity and intellectual property rights: Can the two co-exist?. Journal of International Wildlife Law and Policy, 2(2),  204, 223.

[2] W. Talaat (2013). Protection of the associated traditional knowledge on genetic resources: beyond the Nagoya Protocol. Procedia - Social and Behavioral Sciences, 91, 673- 678.

[3] A. Latiff, and A. H. Zakri (2004). “Biodiversity and Traditional Knowledge: The Malaysian Experience” in Sophia Twarog and Promila Kapoor. Protecting and Promoting Traditional Knowledge: Systems, National Experiences and International Dimensions. United Nation: New York and Geneva, 305.

[4] CBD (n 2) Preamble and Art 15(1).

[5] Ibid.

[6] Ibid, Art 15(7).

[7,9] W. Talaat, N. M. Tahir and M. L. Husain (2012). Traditional knowledge on genetic resources: Safeguarding the cultural sustenance of indigenous communities. Asian Social Science, 8(7), 184-191.

[8] Ibid, Art. 15(4), (5).

[10] P. Singh (2006). Perspectives in Plant Ecology and Environmental Biology . Jodhpur: Scientific Publishers.

[11] C. Monagle (2000). Biodiversity & Intellectual Property Rights: Reviewing Intellectual Property Rights in Light of the Objectives of the Convention on Biological Diversity: Joint Discussion Paper (WWF 2001); G Dutfield, The public and private domains: Intellectual property rights in traditional knowledge. Science Communication, 21(3) 274, 295.

[12] CBD (n 2) Art 8(j).

[13] P. Singh (n 13) 160.

[14] For the interpretation of this term see CBD MYPOW ‘Legal and Socio-economic Aspects of Technology Transfer and Cooperation’ (2003) UN Doc UNEP/CBD/MYPOW/5, para 8.

[15] CBD (n 2) Art. 16(1).

[16] For an interpretation of this term see CBD SBSTTA, ‘Ways and Means to Promote and Facilitate Access to, and Transfer and Development of Technology, Including Biotechnology’ (12 August 1996) UN Doc UNEP/CBD/SBSTTA/2/6, para 13.

[17] CBD (n 2) Art. 16(2) making reference to CBD arts 20–21. Pursuant to CBD Decision III/8 (1996), the Global Environment Facility (GEF) serves as the financial mechanism of the Convention.

[18] Ibid.

[19] Ibid, Art. 16(4).

[20] TRIPS (n 2), Art. 15(5).

[21] Ibid, Preamble.

[22] A. Slade (2011). Articles 7 and 8 of the TRIPS Agreement: A Force for Convergence within the International IP System. Journal of World Intellectual Property, 14(6),  413-440.

[23] TRIPS (n 2), Art. 8(1).

[24] S. Sahai (2003). “Indigenous knowledge and its protection in India” in B Christophe, D Graham, and R Meléndez-Ortiz. Trading in knowledge. Development perspectives on TRIPS, trade and sustainability. London/Sterling: Earthscan Publication Ltd, 166.

[25] TRIPS (n 2) Art. 27.3(b): Patentable Subject Matter 3).

[26] DOHA Declaration] para 19.

[27] Ibid.

[28] TRIPS (n 2) Art. 28.

[29] Ibid, Art. 31.

[30] G. Ghidini, R. Peritz and M. Ricolfi (2004). TRIPS and Developing Countries: Towards a New IP World Order?. Cheltenham: Edward Elgar Publishing, 110.

[31] DOHA Declaration (n 30) para 6.

[32] The Council of TRIPS, ‘Decision removes final patent obstacle to cheap drug imports’ (30 August 2003) Press/350/Rev.1, para 1.

[33] J. Campoy Rubio (2015). The Impact of the TRIPS Agreement on the Access to Antiretroviral Therapy in Sub-Saharan Africa. LLM Disertation, University of Derby.

[34] G. Ghidini, R. Peritz and M. Ricolfi, (n 34) 111, 112.

[35] J. Campoy Rubio (n 37), 29.

[36] C. Correa (2005). ‘The Trips Agreement and Developing Countries’ in P Macrory and M Plummer, The World Trade Organization: The Legal, Economic and Political Analysis (SVNY 2005), 2010-2046.

[37] R. Wade (2003). What strategies are viable for developing countries today? The world trade organization and the shrinking of development space. Review of international political economy, 10(4), 621-644.

[38] Nagoya protocol (n 5) Art. 1.

[39] C. Medaglia, F. Perron-Welch, and K. Phillips (2004). Overview of national and regional ABS measures in the light of the Nagoya Protocol (Centre for International Sustainable Development Law, 2004); T Greiber et al., An explanatory Guide on the Nagoya Protocol (IUCN 2012).

[40] S. Oberthur, and K. Rosendal (2013). Global governance of genetic resources: Access and benefit sharing after the Nagoya Protocol. UK: Routledge.

[41] See W Tvedt (2014). ‘Beyond Nagoya: Towards a legally functional system of access and benefit sharing’ in S. Oberthur and K. Rosendal Global Governance of Genetic Resources: Access and Benefit-Sharing after the Nagoya Protocol . UK: Routledge.

[42] M. Buck and C. Hamilton (2011). The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity. Review of European Community and International Law, 20 , 47- 61.

[43] Nagoya protocol (n 5) Art.12

[44] C. Aubertin, and G. Filoche (2011). The Nagoya Protocol on the use of genetic resources: one embodiment of an endless discussion. Sustentabilidade em Debate, 2(1), 51- 63.

[45] K. Koutouki and R. Bieberstein (2012). The Nagoya Protocol: Sustainable Benefits-Sharing for Indigenous and Local Communities. Vermont Journal of Environmental Law, 13, 513; G. S. Nijar (2010). Incorporating traditional knowledge in an international regime on access to genetic resources and benefit sharing: problems and prospects. European Journal of International Law, 21(2),  457-475.

[46] J. C. Medaglia (2015). Access and Benefit-Sharing: North-South challenges in implementing the convention on biological diversity and its Nagoya Protocol. IELGS, 192- 213.

[47] S. Lim (2019). The Nagoya Protocol: A Sui Generis Approach to Traditional Knowledge Protection. Retrieved from: https://blog.jipel.law.nyu.edu/2019/08/the-nagoya-protocol-a-sui-generis-approach-to-traditional-knowledge-protection/.

[48] J. Cabrera (2009). Study on the relationship between the ABS International Regime and other international instruments which govern the use of genetic resources: The WTO; the WIPO; and the Union for the Protection of New Varieties of Plants (UPOV). Montreal: CBD Secretariat.

[49] T. Henninger (2010). Disclosure requirements in patent law and related measures: a comparative overview of existing national and regional legislation on IP and biodiversity. Retrieved from: https://silo.tips/download/triggering-the-synergies-between-intellectual-property-rights-and-biodiversity.

[50] J. C. Medaglia (n 50) 210.

[51] S. Alam, S. Atapattu, C. G. Gonzalez and J. Razzaque (2015). International environmental law and the global south.  UK: Cambridge University Press.

[52] Ibid.

[53] C. Aubertin, and G. Filoche (n 48) 59.

[54] It including through the application of biotechnology as defined in Article 2 of the CBD (Art. 2c), and broadening out from the field of genetics in the strict sense of the term to that of biochemicals.

[55] C. Aubertin, and G. Filoche (n 48) 60.

[56] Ibid.

[57] S. Alam, S. Atapattu, C. G. Gonzalez and J. Razzaque (n 54) 195.

REFERENCES:

1. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
2. Convention on Biological Diversity (CBD)
3. CBD MYPOW (2003). Legal and Socio-economic Aspects of Technology Transfer and Cooperation. UN Doc UNEP/CBD/MYPOW/5.
4. CBD SBSTTA. (1996). Ways and Means to Promote and Facilitate Access to, and Transfer and Development of Technology, Including Biotechnology. 12 August 1996, UN Doc UNEP/CBD/SBSTTA/2/6
5. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the 1992 Convention on biological Diversity, Nagoya, 29 October 2010.
6. The Council of TRIPS. (2003). Decision removes final patent obstacle to cheap drug imports (30 August 2003) Press/350/Rev.1
7. The Doha Declaration on the TRIPS Agreement and Public Health, adopted by the WTO Ministerial Conference, 14 November 2001.
8. Alam S., Atapattu S., Gonzalez C. G. and Razzaque J. (2015). International environmental law and the global south. UK: Cambridge University Press.
9. Correa C (2010). The Trips Agreement and Developing Countries’ in P. Macrory and M. Plummer. The World Trade Organization: The Legal, Economic and Political Analysis (SVNY 2005).
10. Ghidini G., Peritz R. and Ricolfi M. (2004). TRIPS and Developing Countries: Towards a New IP World Order? Cheltenham: Edward Elgar Publishing.
11. Greiber T et al. (2012). An explanatory Guide on the Nagoya Protocol (IUCN 2012). Retrieved from: https://portals.iucn.org/library/sites/library/files/documents/EPLP-083.pdf.
12. Jorge C. (2014). An overview of national and regional legislation in the light of the Nagoya Protocol. 3^rd Canada: Center for International Sustainable Development Law.
13. Latiff A., and Zakri A. H. (2004). Biodiversity and Traditional Knowledge: The Malaysian Experience’ in Sophia Twarog and Promila Kapoor, Protecting and Promoting Traditional Knowledge: Systems, National Experiences and International Dimensions. United Nation: New York and Geneva.
14. Medaglia C., Perron-Welch F. and Phillips F. (2004). Overview of national and regional ABS measures in the light of the Nagoya Protocol. Canada: Centre for International Sustainable Development Law.
15. Monagle C. (2001). Biodiversity & Intellectual Property Rights: Reviewing Intellectual Property Rights in Light of the Objectives of the Convention on Biological Diversity: Joint Discussion Paper (WWF 2001). Switzerland: WWF – World Wide Fund For Nature.
16. Oberthur S., and Rosendal K. (2013). Global governance of genetic resources: Access and benefit sharing after the Nagoya Protocol. UK: Routledge.
17. Sahai S (2003). “Indigenous knowledge and its protection in India” in Christophe B, Graham D, and Meléndez-Ortiz R, Trading in knowledge. Development perspectives on TRIPS, trade and sustainability. London, UK: Earthscan Publications Ltd.
18. Singh P. (2006). Perspectives in Plant Ecology and Environmental Biology. Jodhpur: Scientific Publishers.
19. Tvedt W. (2014). Beyond Nagoya: Towards a legally functional system of access and benefit sharing’ in S Oberthur and K Rosendal Global Governance of Genetic Resources: Access and Benefit-Sharing after the Nagoya Protocol. UK: Routledge.
20. Aguilar G. (2001). Access to genetic resources and protection of traditional knowledge in the territories of indigenous peoples. Environmental Science and Policy, 4(4-5), 241.
21. Aubertin C. and Filoche G. (2011). The Nagoya Protocol on the use of genetic resources: one embodiment of an endless discussion.Sustentabilidade em Debate, 2(1),
22. Buck M. and Hamilton C. (2011). The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity. Review of European Community and International Law, 20, 47.
23. Koutouki K. and Bieberstein R. (2012). The Nagoya Protocol: Sustainable Benefits-Sharing for Indigenous and Local Communities.Vermont Journal of Environmental Law, 13, 513.
24. Cabrera J. (2009). Study on the relationship between the ABS International Regime and other international instruments which govern the use of genetic resources: The World Trade Organization (WTO); the World Intellectual Property Rights Organization (WIPO); and the Union for the Protection of New Varieties of Plants (UPOV). Montreal: CBD Secretariat.
25. Dutfield G. (2000). The public and private domains: Intellectual property rights in traditional knowledge. Science Communication, 21(3), 274.
26. Henninger. (2010). Disclosure requirements in patent law and related measures: a comparative overview of existing national and regional legislation on IP and biodiversity. Retrieved from: https://silo.tips/download/triggering-the-synergies-between-intellectual-property-rights-and-biodiversity.
27. A. Kothari and V. Anuradha (1999). Biodiversity and intellectual property rights: Can the two co-exist?. Journal of International Wildlife Law and Policy, 2(2), 204,
28. C. Medaglia (2015). Access and Benefit-Sharing: North-South challenges in implementing the convention on biological diversity and its Nagoya Protocol. IELGS, 192- 213.
29. G. S. Nijar (2010). Incorporating traditional knowledge in an international regime on access to genetic resources and benefit sharing: problems and prospects. European Journal of International Law, 21(2), 457-
30. A. Slade (2011). Articles 7 and 8 of the TRIPS Agreement: A Force for Convergence within the International IP System. Journal of World Intellectual Property, 14(6), 413-4
31. Jolly. (2015). Access and benefit sharing under Nagoya Protocol and sustainable development-A critical analysis. Agora International Journal of Juridical Sciences, 38.
32. Talaat. (2013). Protection of the associated traditional knowledge on genetic resources: beyond the Nagoya Protocol. Procedia - Social and Behavioral Sciences, 91, 673- 678.
33. Talaat, N. M. Tahir and M. L. Husain (2012). Traditional knowledge on genetic resources: Safeguarding the cultural sustenance of indigenous communities. Asian Social Science, 8(7), 184-191.
34. R Wade (2003). What strategies are viable for developing countries today? The world trade organization and the shrinking of development space. Review of international political economy, 10(4), 621-644.
35. J. Campoy Rubio. (2015). The Impact of the TRIPS Agreement on the Access to Antiretroviral Therapy in Sub-Saharan Africa. LLM Disertation, University of Derby.
36. S. Lim. (2019). The Nagoya Protocol: A Sui Generis Approach to Traditional Knowledge Protection. Retrieved from: https://blog.jipel.law.nyu.edu/2019/08/the-nagoya-protocol-a-sui-generis-approach-to-traditional-knowledge-protection/.

TÁC ĐỘNG CỦA NGHỊ ĐỊNH THƯ NAGOYA

ĐỐI VỚI VIỆC CÂN BẰNG CÁC QUYỀN

GIỮA HIỆP ĐỊNH TRIPS VÀ CÔNG ƯỚC VỀ ĐA DẠNG SINH HỌC

TS. NGUYỄN NHƯ HÀ¹

ThS. TRẦN HOÀNG MINH²

 ¹ Trưởng Khoa Luật Kinh tế, Học viện Chính sách và Phát triển - Bộ Kế hoạch và Đầu tư

² Giảng viên, Học viện Chính sách và Phát triển - Bộ Kế hoạch và Đầu tư

TÓM TẮT:

Nguồn gen là di sản chung của nhân loại. Hai công cụ pháp lý quốc tế quan trọng là Hiệp định về các khía cạnh liên quan đến thương mại của quyền sở hữu trí tuệ (TRIPS) và Công ước về Đa dạng sinh học (CBD) đã vạch ra ranh giới phân chia giữa các nước đang phát triển giàu đa dạng sinh học và các nước phát triển mạnh về khoa học công nghệ. Hiệp định TRIPS ủng hộ mạnh mẽ việc bảo hộ bằng sáng chế trong khi Công ước CBD ủng hộ việc chia sẻ hợp lý và công bằng các nguồn tài nguyên sinh học. Nghị định thư Nagoya năm 2010 là một thỏa thuận bổ sung cho Công ước CBD bằng cách cung cấp một khung pháp lý minh bạch nhằm thực hiện hiệu quả việc tiếp cận để chia sẻ lợi ích. Bài báo phân tích việc bảo vệ quyền tiếp cận và chia sẻ lợi ích theo Nghị định thư Nagoya và vai trò của nó trong việc cân bằng các quyền giữa TRIPS và CBD.

Từ khóa: Nghị định thư Nagoya, Hiệp định TRIPS, Công ước về Đa dạng sinh học.

[Tạp chí Công Thương - Các kết quả nghiên cứu khoa học và ứng dụng công nghệ, 

Số 20, tháng 8 năm 2021]