Introduction

For the past two decades, benefit-sharing has been a consistent topic of debate in international conferences, acquiring increasing importance in international law, the medical profession, and political philosophy. Although, despite this increasing significance the concept of benefit-sharing is not free from controversies regarding its definition and enforcement through different tools, e.g. TRIPS. Hence, this article aims at examining the definition and vital tools for the enforcement of benefit sharing.

What is Benefit Sharing?

Benefit-sharing finds its root in the Convention on Biological Diversity (CBD) (United Nations Convention on Biological Diversity, 1992) and Nagoya Protocol, 2011. It is an international public law system, the main objective of which is to equitably distribute benefits derived from genetic resources between the genetic resource users (such as biotech companies or universities) and the country that provides the genetic resources. For example, the latex of a tree from Calophyllum species, found in the Malaysian rainforest is used for the development of compounds called Calanolides, which is used as a potential treatment for HIV (type 1) and certain types of cancer by many pharmaceuticals companies. Therefore, the benefits arising from that compound are to be distributed fairly between the regulatory authorities of Malaysia and the pharmaceuticals companies.

Benefit-sharing includes sharing the results of research and development carried out on genetic resources. It may also involve monetary benefits if the product based on genetic resources is commercialized.

TRIPS: A tool for enforcement of Benefit Sharing? 

The main objective of CBD, along with the conservation of biodiversity and sustainable use of biological resources, is the enforcement of fair and equitable sharing of the benefits deriving from the utilization of genetic recourses. However, as directed by the terms of the TRIPS Agreement, granting of intellectual property rights over biological diversity has been the subject of a worldwide dispute. The role of Intellectual Property Right in the application of value sharing is unclear and there is a variation in the objectives of TRIPS agreement and CBD.

In fact, Article 16(5) of the CBD acknowledges that IPRs can have a negative impact on the application of provisions of CBD and therefore urges the parties to cooperate to ensure that IPRs are approving of CBD objectives and do not restrain those objectives.

Following are the necessary matters where TRIPS Agreement may and will impede the CBD:

• Conflict of rationale, origins and overall foundation

There are evident distinctions in origins, rationale, and overall foundation of the CBD and the TRIPS Agreement. The CBD was established mainly because of the increasing concern over the quick loss of biodiversity all around the globe, to uphold the rights of local communities that preserve and develop the knowledge, to regulate the sharing of value arising from the conservation and sustainable use of biodiversity. On the other hand, TRIPS is based on commercial objectives that mainly profit strong private firms.

• National sovereignty vs. IPR holders rights

CBD has enshrined the principle of national sovereignty in which countries are entitled to govern the access of biological resources and knowledge to foreigners, and to determine benefit-sharing arrangements. However, TRIPS allows foreign institutions to patent a country’s biological resources. TRIPS facilitates the implementation of conditions for misappropriation of ownership or rights over living organisms, knowledge and processes relating to the exploitation of biodiversity and developing countries’ sovereignty over their resources and over their right to exploit or use their resources, as well as to determine the arrangements for access and benefit-sharing, is undermined.

• Community rights vs. Individual rights

It is recognized in the preamble of TRIPS that “intellectual property rights are private rights”. Patents grant the proprietor exclusive rights to prohibit the production, use, offering for sale, sale, or import of the patented product by third parties and prevent the use by third parties of the patented process. According to TRIPS, IPRs confer private ownership over the rights to produce, sell or use the product or use the process. This makes it an offense for others to do so, except with the permission of the owner, which is usually only granted upon license or royalty payment.

Therefore, IPRs have the impact of forbidding the free exchange of information as well as the use or production of knowledge items. This system of private and exclusive rights is in distinction with the conventional social and economic system in which local communities nurture, create, and use biodiversity.

• Arrangements for Value & Benefit Sharing

CBD acknowledges states’ sovereign rights over their information and biodiversity. This helps the state to impose its rights over value-sharing agreements. Where the access is granted, it shall be on mutually agreed terms (Article 15.4), which shall be subject to prior informed consent      (Article 15.5) and it is also stated that countries providing the resources should participate in the scientific research( Article 15.6). On the other hand, in TRIPS, there is no requirement for the patent holder to share benefits with the state or populations in the countries of origin for claims relating to biological resources or to relevant information. Indeed, there is nothing that a country of origin can do to enforce its benefit-sharing rights recognized in the CBD if an individual or company were to obtain a patent in another country based on a biological resource or related information from the country of origin. Therefore, in accordance with TRIPS, there is nothing that can be done by the country of origin to ensure that there is no bio-piracy or that a remedy can be sought if it happens when the laws relating to patents, the administration of permits, or the courts of a particular country work in a context favorable to the issuance of such patents.

Conclusion

In the light of the information mentioned above, it can be concluded that to be a vital tool for the enforcement of Benefit Sharing, the TRIPS agreement has a long way to go as it puts profit of private firms, private rights, and commercialization over community rights, national sovereignty and sustainable use of biodiversity.

In the review of TRIPS, changes should be made to bring the scope of the exclusion of biological materials and processes in line with environmental and ethical considerations. There is a need to prevent bio piracy, and to interpret the possibility of sui generis for plant varieties to include the protection of traditional knowledge. Therefore, with these amendments TRIPS will be more in line with the spirit of the CBD and will not run counter to its objectives.