The Need for a "TRIPS PLUS" Regime
P. Balakrishna
Keywords:  Consultative Group on International Agricultural Research (CGIAR); Convention on Biological Diversity (CBD); Patent law; India; Access to genetic resources; Germplasm conservation; Indigenous Knowledge.
Correct citation: Balakrishna, P. (1998), "The Need for a "TRIPS PLUS" Regime." Biotechnology and Development Monitor, No. 36, p. 8.

The Convention on Biological Diversity (CBD) has three major goals: conservation of biodiversity; sustainable use of biodiversity; and equitable sharing of benefits arising out of such use. While there is considerable progress with reference to the first two goals, initiatives relating to equitable sharing of benefits have been inadequate.

Subsequent to the implementation of the CBD, the World Trade Organizationís (WTO) Agreement on Trade Related Intellectual Property Rights (TRIPS) has also come into force. Under the agreement, "Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof". With the strengthening and widening of the Intellectual Property Rights (IPR) regime, industrialized countries have been attempting to patent materials based on traditional knowledge and genetic strains particularly obtained from developing countries. For example, traditional medicinal crops such as neem and turmeric have been subjected in recent years to IPR claims in the industrialized countries. Even plant materials of well established geographical identity such as basmati rice grown in Pakistan and India, has been subjected to IPR claims.
Other IPR claims have led the Consultative Group on International Agricultural Research (CGIAR) to call for a moratorium on IPR claims on seeds held in trust in their gene banks such as the International Crops Research Institute for the Semi-Arid Tropics (ICRISAT) in India and the International Rice Research Institute (IRRI) in the Philippines. Moreover, Non-Governmental Organizationís (NGOs) such as Indiaís Research Foundation for Science, Technology and Ecology and the Rural Advancement Foundation International (RAFI) of North America are against patenting of genetic resources as this will be detrimental for resource poor farmers in developing countries. RAFI has played a crucial role in exposing the unjustified IPR claims on CGIAR germplasm.
There is an urgent need to harmonize the provisions of TRIPS with the equitable benefit sharing and Prior Informed Consent (PIC) provisions of the CBD. There is a need for a new global trade and transactions order, a "TRIPS Plus". The "Plus" refers to equity and ethics in IPR claims. Since the same governments are members of both the WTO and the CBD, there is a need for coordinated action in matters relating to biodiversity. In this context, the World Intellectual Property Organization (WIPO) has been considering the recognition of traditional knowledge systems and informal innovations. In November 1997, the WIPO established a Global Intellectual Property Issues Division (GIPID) to examine newly emerging IPR issues. This includes the traditional knowledge which was originally not with WIPOís mandate.
One of the ways in which new insights can possibly be achieved could be through the development of local, national and international codes of conduct to address the issue of integrating equity provisions into the "TRIPS Plus" Regime. This could be of immediate necessity for several countries who are members of both the CBD and WTO.
There are several significant voluntary initiatives such as the Tropical Botanic Garden Research Institute (TBGRI) of India. In this model, the TBGRI has developed a voluntary mechanism of re-appropriating the commercial benefits of the sale of an anti-fatigue drugs called "Jeevani" to the local Kani Tribes, whose traditional knowledge has led to the development of that drug. Another example is the US University of California who offers scholarships for people from developing countries. The scholarship is funded from the royalties of the use of Xa 1 gene from rice. These experiences provide valuable lessons for developing transparent and implementable procedures for ensuring equity and ethics in the use of traditional knowledge and genetic resources. Such voluntary example may prove to be more useful as compared to national legislation such as the Philippine Executive Order No. 247 relating to access to genetic resources which almost stopped any form of collaboration with the Philippines.
The CBD marks a transition from an exploitative and inequitable relationship between the source of biodiversity and the "outsiders" seeking to use such biodiversity. One of the first steps to ensure equity in the TRIPS principles in relation to genetic resources will be the disclosure of country of origin of the germplasm and an agreement to provide compensation for input of traditional knowledge, product development and use of resources. The initiative by the CGIAR to use Material Transfer Agreements (MTA) is a good step in this direction. In addition, there is also a need to develop an Information Transfer Agreement (ITA) and a Knowledge Transfer Agreement (KTA).
P. Balakrishna

M. S. Swaminathan Research Foundation, Third Cross Street, Taramani Institutional Area, Chennai 600113, India. Phone (+91) 44 235 1698; Fax (+91) 44 235 1319; E-mail MDSAAA51@giasmd01.vsnl.net.in; URL www.mssrf.org

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