Sharpening the Legal Tools to Overcome Biopiracy in Africa Through Pro-development Implementation of Normative International Standards: Lessons from Brazil, South Africa and India
| Pages | 447-466 |
| Date | 01 October 2013 |
| DOI | 10.3366/ajicl.2013.0072 |
| Published date | 01 October 2013 |
The African Centre for Biosafety has expressed concerns about the continued plundering of Africa's rich biological resources and traditional knowledge by foreign organisations, and the seeming complicity of the international intellectual property system in this brazen act.
African Centre for Biosafety,
International businesses, institutions, and other players have created profitable private monopolies over African patrimony by staking out patent claims on Africa's genes, plants, and related traditional knowledge. The patent claims are not only economically unjust, but are a moral affront to the many generations of Africans who have cared for, and created the continent's rich genetic and cultural diversity.
This statement aptly sums up the inequity currently being faced by African communities and others whose richness in biological resources and traditional knowledge has turned them to victims in the hands of multinational pharmaceutical and biotechnological companies that secure the grant of property rights over their traditional knowledge and resources. It also brings to the fore the injustice inherent in an international intellectual property system which permits, albeit tacitly, such misappropriation of the resources, knowledge and efforts of others.
The situation is aggravated by the globalisation of the intellectual property system, which has, over time, evolved from the territorial period,
This was a period when national patent systems evolved in Venice, Britain and other European countries. See for example the British Statute of Monopolies 1624, section 6.
through the international era,This period witnessed increasing interest in international cooperation through, among others, the Paris Convention for the Protection of Industrial Property 1883, as well as the Berne Conventions for the Protection of Literary and Artistic Works 1886.
Increasingly, the global system is being seriously supplemented by bilateral and multilateral agreements between countries, notably free trade agreements (FTAs).
Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994.
TRIPS Agreement, article 27(1).
See P. Torremans and J. Holyoak,
See for example the Patents and Designs Act, Cap P2, Laws of the Federation of Nigeria 2004, section 1(3).
The system has, however, been subjected to criticism as one which negatively impacts access of the poor to patented products, including products touching on human health and welfare such as pharmaceutical products.
Judy Rein, ‘International Governance through Trade Agreements: Patent Protection for Essential Medicines’, 21
This traditional knowledge, most of which has evolved over generations, does not, however, qualify as a ‘new’ invention, within the definition of patentability, while the communal nature of its development is also at variance with the largely individualistic Western system. Nevertheless, the traditional knowledge system is increasingly contributing valuable input into the modern biotechnological, pharmaceutical and cosmetic industries, resulting in new nature-based products. The challenge, however, is that the contribution of traditional knowledge holders remains largely unacknowledged and unrewarded under the prevailing intellectual property system, which is responsible for determining which creative and scientific output is deserving of legal protection and incentive.
Over time, attention has been focused in different international fora on possible ways to redress the imbalance, with varying degrees of success. Thus, while international environmental standards have evolved to uphold the rights of countries as well as relevant local communities to regulate access to biological resources and knowledge, and to determine benefit-sharing arrangements, the same cannot be said for intellectual property frameworks, where over a decade of negotiations have failed to yield tangible outcomes. While negotiations continue, however, some national and regional systems have evolved peculiar protective and defensive mechanisms, including the creative deployment of intellectual property provisions, to wage the war against biopiracy.
Against this background, this paper examines developments in three countries – Brazil, South Africa and India – representing three continents that share in common with many African countries, the endowments of a rich biodiversity and traditional knowledge system, while also falling within the group of developing countries. These countries therefore have a stake in ensuring the availability and utilisation of effective measures to curtail the incidence of biopiracy. The objective of this paper is to ascertain what lessons may be learned from initiatives in the three jurisdictions to strengthen the protection of biological resources and traditional knowledge. In particular, this paper undertakes a comparative analysis of the deployment of positive and/or defensive protection mechanisms under
Under the umbrella of the United Nations Environment Programme (UNEP), fundamental and far-reaching developments concerning the protection of biodiversity have been achieved. These include the Convention on Biological Diversity (CBD),
Convention on Biological Diversity 1992.
the Johannesburg Plan of ImplementationThe Johannesburg Plan of Implementation was developed pursuant to the mandate given at the World Summit on Sustainable Development (WSSD) in Johannesburg, South Africa, in 2002.
The Nagoya Protocol to the CBD on Access and Benefit-Sharing, adopted by the Conference of Parties to the CBD on 29 October 2010 in Nagoya, Japan.
See generally the CBD, article 15.
These provisions are strengthened by the Nagoya Protocol, which requires member countries to take legislative, administrative or policy measures, as appropriate, in order that the benefits arising from the utilisation of traditional knowledge associated with genetic resources are shared in a fair and equitable way with indigenous and local communities holding such knowledge.
Nagoya Protocol, article 5. Towards the achievement of this objective, article 12 of the Protocol enjoins the development of measures such as model contractual clauses for benefit-sharing.
With regard to the issue of access, article 7 enjoins the taking of measures, as appropriate, toTo continue reading
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