Legal Protection of Ecuadorian Biodiversity and Traditional Knowledge: The Existing Intellectual Property Rights System vs. a sui generis System

Abstract

OF THE DISSERTATION LEGAL PROTECTION OF ECUADORIAN BIODIVERSITY AND TRADITIONAL KNOWLEDGE: THE EXISTING INTELLECTUAL PROPERTY RIGHTS SYSTEM VS. A SUI GENERIS SYSTEM By Sophia Espinosa Coloma Juris Scientiae Doctoris Washington University School of Law Saint Louis, Missouri 2010 Professor Charles McManis, Chairperson Legal protection of traditional knowledge and access to genetic resources is a complex topic that involves different issues that range from legal aspects to social, spiritual and financial concerns. An adequate treatment of this topic will allow biodiversity rich countries to enhance their economy and living conditions of their people while preserving biodiversity and traditional practices of local and indigenous communities. On the other hand, industrialized countries will be benefitted from the access to genetic resources and traditional knowledge, which constitute valuable assets within the scientific, medicinal, agricultural, environmental and biotechnological fields. The apparent opposite interests of biodiversity rich and developed countries results in a highly ideological and political debate, raising historical fears and disagreements between the North and the South and precluding conciliation and reasonable treatment of this matter. As a result, despite the elaboration of international treaties tending to facilitate the access to genetic resources and traditional knowledge within equitable conditions; the international community has not found an effective mechanism to protect and manage this issue. Therefore, this dissertation explores the economic, legal and social aspects involved in the protection and management of traditional knowledge and genetic resources in order to understand all the dimensions that this topic comprises. It also explores the different legal treaties developed by the international community that have an impact within the treatment of this topic. Furthermore, it analyzes different models and proposals elaborated by specific countries and regional organizations regarding this subject and, finally, it evaluates whether the creation of a sui generis system is necessary. As a result, this dissertation shows that, under the current circumstances, the use of existing intellectual property rights is the key element to provide an effective and equitable legal protection as well as conserve traditional knowledge and genetic resources. Finally, it demonstrates that the application of the principles of access and benefit-sharing is possible and that can work in benefit of users and providers of traditional knowledge and genetic resources.