Access to Genetic Resources and Benefit Sharing: Main Aspect of Some Legal Frameworks

Abstract

The norms of intellectual property in force in international law are not appropriate for implementation of Convention on Biological Diversity, and protect autochthonous peoples. The legal framework is, in fact, articulated around multilateral agreements of two international organizations: World Intellectual Property Organization and TRIPS agreement from World Trade Organization (WTO). After the creation of WTO, more than 140 countries must create legal frameworks for intellectual property, much more than before, when just 40 developed countries did. The models for intellectual property related to biodiversity are patents and plant breeder's rights. Developed countries use these more rigid mechanisms to protect microorganisms and plants, causing the accumulation of patents and plant breeder's rights. At the same time, Southern countries use a minimum regulatory framework permitting them to participate in WTO, but not too rigid, because they do not produce patentable technology. If they did, they would pay much more royalties than they would receive, considering a few numbers of countries that will receive some contribution. These norms are mainly the new national legal frameworks, created after the ratification of the 1994 Marrakech Treaty. Thus, they assure patents on transgenic microorganisms, and plant breeder's rights for plants. Ignoring questions about the technological inequality between North and South, these models of intellectual property are injurious for environment, because they stimulate biodiversity impoverishment and they do not offer legal conditions to protect traditional knowledge, because: patents are individual rights; it must be a new knowledge; it is an exclusive right; it has a determined duration. Whereas the plant breeder's rights: are also individual rights; the plant variety must be homogenous; stable and distinguishable; it is an exclusive right; it is conceded during a determined delay of time. An intellectual property system must be more pro-active than the systems existent today, possibly making a intellectual property right: non-exclusive, collective, not-limited on time, but limited in conservation, permitting public authorities to create an inventory; stimulating local communities and indigenous peoples to increase this inventory; non-permitting, in case of varieties of plants to be used as an instrument going through the non-diversity of species