3/2/2006 Intellectual Property Watch
posted by Tove Iren S. Gerhardsen @ 9:13 pm
GRANADA, Spain - After intensive negotiations here this week, negotiators at a United Nations Convention on Biodiversity (CBD) conference adopted three draft documents recommending a new international regime for the use of genetic resources.
The recommendations, if adopted by the signatory nations of the 1992 CBD, could enhance the rights of indigenous and local communities to benefit when genetic resources or traditional knowledge from their areas are used in the development of products such as pharmaceuticals. The recommendations also could increase certainty for companies working in those areas.
While developing countries and the CBD secretariat welcomed the fact that a specific proposal for such a regime had been put forward, most developed countries and the industry were not welcoming the move.
“We are happy, but not satisfied with the outcome. But we are happy that we got something,” Desh Deepak Verma of the Indian Ministry of Environment and Forests and head of the CBD “like-minded mega-diverse” countries group told Intellectual Property Watch.
But Alan Oxley of the Australian APEC (Asia-Pacific Economic Cooperation) Study Centre, said the whole draft process had been irregular and too speedy because of the “lack of time given to countries to form a position.” If the draft would be continued to be pushed through and parties asked to sign it, it would end up being a “bad result” for all parties, he said. It is a “forced process” and on paper “it looks like a protocol” without an agreement that a protocol should be discussed, Oxley said.
The 30 January-3 February meeting, hosted by the CBD and the United Nations Environment Programme, was the fourth gathering of an ad hoc open-ended working group on access and benefit-sharing of genetic resources, which includes plants, animals and micro-organisms.
The CBD secretariat was “all smiles” at the decision to move ahead, according to one source. A spokesperson for the secretariat said that “we made headway with an international regime,” welcoming that the meeting ended with something specific instead of just being a discussion of all the options.
He said that they had made progress with a proposal to require certificates of origin but taken “one step backwards” on issues related to disclosure of origin in patent applications, referring to a number of brackets in the text. Disclosure requires indicating the country of origin in applications, and ensuring people who are sharing the resource have received prior informed consent and will share fairly in any benefits.
The Path Ahead
Spanish Chairwoman Margarita Clemente told Intellectual Property Watch that she was very pleased with the meeting and now the work could start as a path had been staked out with the draft. “As you walk you are staking out, making the way,” she said.
There is a main draft submitted by the chair and two draft recommendations developed by a focus group that worked in parallel with a “friends of the chair” group on 2 February. The focus group discussed a possible certificate of origin and measures to ensure compliance with prior informed consent and mutually agreed terms (disclosure issues).
A delegate from Brazil said that there was a still a lot of work to be done at the next CBD meeting on measures including disclosure.
Richard Kjeldgaard of Pharmaceutical Research and Manufacturers of America said that industry was present because if a treaty was formed they had to understand what this would mean for their companies as it could have some effect. As for disclosure, Kjeldgaard said it was “hard to tell in what direction it is going,” noting that the debate was premature as there was not even consensus on what disclosure was.
At a meeting two years ago of the countries that have ratified the CBD – the biannual Conference of the Parties – a mandate was given to develop an international regime which would regulate the access of genetic resources and associated traditional knowledge and benefit-sharing between providers and users of these resources.
The draft texts will now be forwarded to the next Conference of the Parties meeting which will take place in Curitiba, Brazil on 20-31 March. This meeting will have the power to adopt the drafts formally if so agreed. The meetings are separate which is why it was “adopted” here, although it is only a draft recommendation.
An official from the Malaysian government, which is currently heading the CBD, said the regime drafts contained all the core elements such as benefit-sharing, compliance and enforcement, and disclosure requirements. He also welcomed that it spells out that the meeting in Brazil should establish a timetable for the negotiations, that the work towards adoption and conclusion of a regime should be fast, and that the work on a study on the present regulations in this area to identify what is missing (referred to as “gap analysis”) should be done in parallel and not hold up the work on the regime.
When the first draft of the regime was presented earlier in the week a number of developed countries said it was too early to discuss this and called for further gap analysis to be carried out first (IPW, Biodiversity, 1 February).
In general, the developed countries were against such a draft at this meeting, with Australia, Austria (speaking on behalf of the European Union), Canada and New Zealand taking the lead.
But a developing country official said that with all the brackets these countries had not objected to the draft as that would have made them “look bad.”
Apparently there was some disagreement within the European Union, with the French position of “putting the brakes on” dominating, according to two Swedish sources.
They said the European Union wanted disclosure but had put forward a proposal at the World Intellectual Property Organisation. Sweden was positive to the proposal of certificates of origin and requiring disclosure of origin in patents, they said, supporting the Norwegian position which favours disclosure of origin and prior informed consent in patent applications.
Click below to access the CBD documents:
Draft international regime