حفاظت و اشتراک گذاری از تنوع زیستی و دانش سنتی: ابزار های دارنده و کاربر

The present paper deals with the question how legal protection of biodiversity and traditional knowledge can be accommodated and how the results from the use and exploitation of biodiversity and traditional knowledge can be shared. The aim is to cast the various contributions in this volume in a wider framework, by describing and evaluating current intellectual property (IP) protection systems, intellectual property-similar regimes and protection and sharing initiatives outside intellectual property.

The present paper deals with the question how legal protection of biodiversity and traditional knowledge can be accommodated and how the results from the use and exploitation of biodiversity and traditional knowledge can be shared. The aim is to cast the various contributions in this volume in a wider framework, by describing and evaluating current intellectual property (IP) protection systems, intellectual property-similar regimes and protection and sharing initiatives outside intellectual property. The term protection in the current survey should be understood in the common sense it is given in an intellectual property law context and does not refer to the concept of protection in environmental law, nor to the concept of preservation. The paper first addresses some of the major concepts used in the current debate: biodiversity, (traditional) knowledge, holders and users (Section 2). The paper then embarks on a wide and in-depth tour d'horizon of the legal instruments which can serve to protect biodiversity and traditional knowledge, seen from the perspective of biodiversity and traditional knowledge holders (Section 3). Next, the legal tools are explored which can be helpful in sharing the benefits resulting from biodiversity and traditional knowledge, from the perspective of responsible users (Section 4). After this expansive survey of the various legal initiatives, the paper closes with some conclusions and recommendations (Section 5). 2. Major concepts In the search for new pharmaceutical, biotechnological or agricultural products, two different but closely related components have to be distinguished: the use of a tangible element, biological material, and the appropriation of an intangible component, traditional knowledge. The World Intellectual Property Organisation (WIPO) takes the view that the term ‘traditional knowledge’ refers to both tangible and non-tangible components: the tangible component of traditional knowledge mainly refers to genetic resources, whereas the intangible component of traditional knowledge mainly refers to the knowledge ( WIPO, 2001). However, for clarity's sake and in view of the differing applicable IP regimes, it is better not to plug the notion ‘biodiversity’ into the notion of traditional knowledge, but to address them as two closely related, but different concepts.

The legal protection of biodiversity and traditional knowledge and the equitable sharing of their benefits have gained wide concern in civil society. It has triggered stakeholders, government officials, politicians and scholars to screen various existing instruments and to develop new lines of thought. Our purpose in the second section was to analyze the major concepts surrounding this debate. We learned that some concepts are well clarified and are based on a reasonably wide consensus (‘traditional knowledge’, ‘holder’, ‘user’ ), whereas others concepts remain unclear in nature and scope (‘biodiversity’, ‘scientific knowledge’) and call for further study. In the third section we embarked on a tour d'horizon of the legal instruments which can serve to protect biodiversity and traditional knowledge, seen from the perspective of biodiversity and traditional knowledge holders. The term ‘protection’ was defined in its strictest sense, thus referring to intellectual property (IP) protection and property-similar regimes. To protect biological resources, mainly two IP regimes came in sight: patents and plant breeder's rights. The potential of the patent system is rather limited. Biological material of plant or animal origin does not always qualify as an invention. Moreover, the conditions of novelty, inventive step and industrial applicability are often hard to meet in developing provider countries with limited technological capacities. Patent law is definitely out of reach in those provider countries which have opted for using the flexibilities of TRIPs and have principally excluded biological material from their patent laws. The potential of the UPOV type plant breeder's rights system to protect biological resources is rather limited for provider countries as well. Plant breeder's rights protection is only available for plant varieties, not for the plant world at large. Furthermore, protection is only available if the standard conditions of distinctness, uniformity, stability and (commercial) novelty are met and although this threshold is significantly lower than the patent one, conditions have to be fulfilled. Plant breeders' rights law is completely beyond reach in the many provider countries which do not offer plant breeder's rights protection in their territory. Next to patents and plant breeders' rights, biological systems have been evolved which have the same monopolistic effects as IP regimes: genetic use restriction technologies (GURTs). This type of protection regime is not a real option, either. It is probably out of reach for many provider countries, since highly advanced techniques are necessary to insert GURTs in plant material, and many provider countries do not dispose of the expertise or the infrastructure to do so. Besides, GURTS have triggered wide criticism and resentment, since they run counter to the traditional right of farmers to save seed. Access and benefit sharing (ABS) systems as elaborated in the Bonn Guidelines have also been screened. ABS measures are not an IP tool in the strict sense, but they offer a very valuable alternative. However, one demerit is that such measures place the burden upon the government and can only be successful in practice if the national government involved is willing to espouse the interest of the indigenous/local peoples involved and protect such rights for them. Last but not least, contracts were discussed. Agreements have great potential in establishing access and equitable sharing. However, well-balanced contracts might remain beyond reach of provider countries lacking the necessary negotiation skills, although the situation is improving. To protect traditional knowledge, mainly two approaches can be observed: a so-called “positive protection” route and a so-called “defensive approach” route. Various systems have been suggested as a positive protection system for traditional medicinal knowledge: patent law, copyright protection, database protection, geographical indications, sui generis systems, liability regimes, contracts and ABS systems. The potential of the patent system is very restricted, since traditional knowledge hardly fits in the conventional patent concepts and prerequisites. The copyright system might offer some limited protection in terms of co-authorship. Database protection is a very valuable tool, since it combines two different objectives: preservation of knowledge and IP protection of data collections. Protection through geographical indications seems promising and should be subject to further investigation. The same is true for sui generis systems, ABS regimes and compensatory liability regimes. Contracts have great potential as well, but might turn out adversely for providers lacking negotiating expertise—an international biocollecting regime might be the optimal solution here. A second approach, the so-called “defensive” one, aims at the protection of indigenous knowledge, mainly in an effort to protect these assets against illegitimate acquisition and exploitation by third parties. The major route here is in documenting traditional knowledge. This route deserves full support, since it combines two different, but important objectives: dissemination (and thus, indirectly, preservation) of knowledge and prevention of unauthorized acquisition of IP rights. The third section of the present contribution aimed at taking stock of what is currently available for protecting biodiversity and traditional knowledge and at pointing to some areas of debate. A realm of old and new tools has appeared. This abundance of differing instruments might puzzle the reader who is not familiar with this field. A few observations might help to guide the reader through this jumble of tools. The multitude of tools triggers a need to list the various tools in order of merit. The major objective set out at the start of the paper was how to accommodate IP or IP-like protection of biodiversity and traditional knowledge. The underlying assumption was that IP protection might be a way to protect the fruits of labour of biodiversity and traditional knowledge holders and that IP protection is important to safeguard the rights of biodiversity and knowledge holders in view of commercial exploitation and benefit. It has become clear that some instruments have, if any, limited potential in this regard. One only has to remind oneself of patents, UPOV type plant breeders' rights and GURTs. Other regimes hold great promise. One simply has to think of sui generis regimes such as CCIPRs or TIPRs, ABS regimes, contracts, databases, geographical indications and compensatory liability regimes. An additional objective which might be helpful in getting priorities right, is the preservation of biodiversity and traditional knowledge. If one considers both protection and preservation to be equally important objectives, than database systems and geographical indication regimes hold a prominent place for the future. Further research should prove how those systems should be developed or optimized to tailor them to a biodiversity context. The prioritizing of tools might lead to some preferential tools. It has to be underlined that the various instruments are not mutually exclusive. Whenever possible, all tools can and should be used in addition to one another: IP instruments and non-IP instruments, legally binding instruments and non-binding instruments. A fully effective regime to protect biodiversity and traditional knowledge will depend on a number of complementary instruments: IP related tools and non-IP related instruments (Cottier and Panizzon, 2004). The debate on the protection of biodiversity and traditional knowledge and the right tools is by far not over yet. Besides, various of the proposed tools are still in an embryonic state and show all the symptoms of law in making. The fourth section explored the legal tools which can be helpful in sharing the benefits resulting from biodiversity and traditional knowledge, from the perspective of responsible users. A first series of tools aims at establishing sharing mechanisms through adjustments in patent law, either in the pre-grant or in the post-grant phase. In the pre-grant phase the reassessment of the novelty regime by patent offices and the introduction of additional requirements for the grant of a patent–in particular the incorporation of a disclosure of origin and a prior informed consent requirement–seem valuable options. All these adjustments are currently finding their way into patent practice and (patent) legislation. However, current legislative proposals show a difference with regard to the legal implications of not fulfilling the additional requirements. However difficult it may seem from a TRIPs point of view, the disclosure of origin and prior informed consent requirements need to be implemented as substantial patentability requirements, or at least as self standing regulations with substantial regulatory penalties. In the post-grant phase, one tool was recorded, notably the introduction of humanitarian use restrictions. This type of tool has been successfully used in various countries already. A second series of tools aims at sharing the results of biodiversity and traditional knowledge through alternative measures. Attention has been drawn to self-standing regulations, voluntary codes of conduct, voluntary certification, doctrine of unclean hands, unjust enrichment and import and expert regulations. It has to be admitted that some of those tools have a rather weak legal basis (e.g. unclean hands, unjust enrichment). They should not be viewed as real, compelling instruments, but merely as sincere attempts to challenge current legal thinking and open up some theories for new applications.