ACCESS AND BENEFIT SHARING: A BRIDGE BETWEEN IPR AND

BIODIVERSITY

ABSTRACT:

“Either we leave our descendants an endowment of zero poverty, zero fossil-fuel use,
and zero biodiversity loss, or we leave them facing a tax bill from Earth that could wipe them
out.’’ - Johan Rockstrom

Although we may not realise it, our very existence on Earth is in crisis. The amount of
damage that humans have inflicted upon biodiversity is unfathomable. Preservation of
biodiversity is essential to ensure ecological stability. A study conducted by the World
Wildlife Fund demonstrated that between the years of 1970 and 2010, we have lost more than
52% of our total biodiversity.1 Though we cannot erase the past, we can work towards a
better future for biodiversity.

Biodiversity includes all ecosystems, species and genetic material and represents the
variability among them. Intellectual property rights grant a monopoly to the owner of the
invention for a limited period. These rights can be granted even in respect of inventions
relating to biodiversity as decided in Diamond v. Chakrabarty 2 where it was held that even
micro organisms are patentable subject matter. This cemented the view that anything made by
humans, which was not already present in nature is patentable.

This research paper aims to explore the nexus between IPR and biodiversity. It studies the
impacts of IPR upon biodiversity, both positive and negative. Further, it covers the role of
international treaties such as TRIPS Agreement and the CBD in conserving biodiversity. It
also provides insight into the working of relevant legislations at present and a brief discussion
on the subject matter of the Nagoya Protocol. Finally, it aims to establish an alternative
approach that will bring a balance between formal Intellectual Property Rights and
sustainable aspects of biodiversity.

Keywords: Biodiversity, IPR, TRIPS, CBD, Access and Benefit Sharing.

1
http://goodnature.nathab.com/wwfs-living-planet-report-2014-we-now-have-less-than-half-the-biodiversity-of-
just-forty-years-ago/ (Last accessed on 04/09/2018)
2
447 U.S. 303 (1980)
INTRODUCTION:

The Earth's biodiversity is declining at an alarming rate. In fact, two thirds of

the terrestrial species that exist today are estimated to be extinct by the end of the 21 st
century. Previously in India, trees and wildlife were revered and treated as highly esteemed
objects requiring proper conservation. But now, the protection over these plants and animals
has reduced. A tremendous spurt in human population has in turn caused an unpropitious
effect upon biodiversity. It is estimated that this loss of biodiversity will continue
exponentially in the 21st century.

It is important for humans to realise the detrimental impact of their actions

upon the environment. The impact caused will remain for centuries and will affect future
generations. Therefore, it is the fundamental duty of every citizen “to protect and improve the
natural environment, including forests, lakes, wildlife and rivers and to have compassion for
living creatures” as laid down in the Indian Constitution. 3 The Government of India has
enacted laws in this respect such as the Biodiversity Act, 2002. These laws must be integrated
into environmental policies for the conservation of biodiversity, sustainable use of its
components and fair and equitable benefit sharing which arises out of the use of genetic
resources provided as the three main objectives of the Convention on Biological Diversity.4

Countries have come together to draft international laws such as the

Convention on Biological Diversity, Trade Related Aspects Of Intellectual Property Rights
(TRIPS), International Convention for the Protection of New Varieties of Plants and various
protocols for protecting Biological Diversity.

Article 2 of the Convention on Biological Diversity defines Biological

diversity as follows ‘’Biological diversity means the variability among living organisms
from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the
ecological complexes of which they are part; this includes diversity within species, between
species and of ecosystems.’’ Thus Biodiversity includes all ecosystems, species and genetic
material.

Intellectual property rights refer to the legal rights granted to protect the
intellectual labour of an inventor in multiple fields. It encompasses patent, trademark,
3
Article 51 A (g), The Constitution of India.
4
Article 1, Convention On Biological Diversity,1992
https://www.cbd.int/doc/legal/cbd-en.pdf
copyright, trade secret and other rights. It grants a monopoly to the owner of the invention for
a limited period. These rights can be granted even in respect of inventions relating to
biodiversity.

HISTORY:

Though the history of intellectual property rights such as copyrights and

trademarks are quite old, the history of IPRs in biodiversity is a relatively new concept. It
began in 1930 when the US Plant Patent Act was enacted. Whoever invents or discovers and
asexually reproduces any distinct and new variety of plant is entitled to a patent under the
Act.5

In 1961, the International Convention for the Protection of New Varieties of

Plants established the International Union for the Protection of New Varieties of Plants
(UPOV). Their mission is to promote an effective system of plant variety protection and to
encourage the growth of new varieties of plants for the benefit of society. 6 India has also
enacted the Protection of Plant Varieties and Farmer’ Rights Act, 2001 to give rights to
farmers and plant breeders and to encourage Plant Variety Protection.

It was the decision given in Diamond v Chakrabarthy7 which changed the usual
course of rights granted in biodiversity. Anand Chakrabarthy, a microbiologist, was granted a
patent over a genetically engineered bacterial strain. This strengthened the view that any
human made invention which is not found in nature was patentable. Later, the question arose
whether only micro-organisms and plants are patentable or whether animals can be included
as well? The Oncomouse was given a broad protection after the Harvard Oncomouse case in
1988.8 The court granted a patent as it was a transgenic non-human mammal. Later, this
patent was granted in many countries but remains a non patentable matter in Canada. [1]

Aim:

This paper aims to explore the interface between intellectual property rights and bio diversity.
The primary objective is to analyse the implementation of international agreements such as
the Convention on Biological Diversity (CBD) and Agreement on Trade Related Aspects of
Intellectual Property (TRIPS) and the National IPR protection frameworks. It analyses the

5
35 US Code 161
6
http://www.upov.int/export/sites/upov/about/en/pdf/pub437.pdf (Last accessed on 10/12/2018)
7
Diamond v Chakrabarthy, SC of US, 16 June 1980, 100 S Ct 2008
8
US Patent No 4736866, Transgenic Non-Human Mammals,12 April 1988
ramifications of IPR on biodiversity. It also examines the concept of access and benefit and
sharing with reference to Nagoya and Cartagena protocol.

Hypothesis:

Conservation of biological diversity and sustainable use of its components is feasible by

complying with the national and international legislations in this dimension and by
administering the access and benefit sharing regimes which may possibly promote a
productive outcome towards sustainable development.

How is this action research going to help your institution /State/Region?:

Through this action research project, the authors aim to help our institution and state by
raising awareness on biodiversity and its interface with IPR. The paper also analyses
legislative enactments and the overall impact upon the nation’s biodiversity which will help
in educating the community and ensure involvement in conserving and protecting
biodiversity and its components.

RELATIONSHIP BETWEEN IPR AND BIODIVERSITY:

There is always a degree of uncertainty whether intellectual property rights and

biodiversity can coexist. In an ideal state of affairs, both IPR and biodiversity would be given
equal importance. Intellectual Property Rights and Biodiversity could coexist safely without
any cause for dispute. However, we have to consider the circumstances where one would take
precedence over the other. If IPR is given priority, it would lead to absolute monopoly in
biodiversity, with the want for innovation surpassing the need for conservation. On the other
hand, if biodiversity is given prime importance, it might discourage inventors as their labour
would not be adequately rewarded. Therefore, it is necessary to achieve a balance between
both fields.
To fully perceive the relationship between biodiversity and IPR, we must analyse the
legislative enactments in these fields. The cardinal international agreements regulating IPR
and biodiversity are the TRIPS Agreement and the Convention on Biological Diversity
respectively. CBD was enacted in the year 1992, followed by TRIPS in 1995.

INTERFACE BETWEEN TRIPS AND CBD:

 In 1988, the United Nations Environmental Program (UNEP) convened an Ad Hoc
Working Group of experts on biodiversity to explore the imminent need for an agreement in
this field. In May 1989, the UNEP established another group of technical and legal experts to
prepare an agreement embodying the importance of sustainable use and conservation of
biodiversity. During their meetings, the experts were required to take into account the need to
share benefits between developing and developed member countries as well as methods of
supporting innovation by the residents of member nations. The work of these committees
resulted in the Nairobi Conference in May, 1992. The Convention was left open for
signatures at the Rio Earth Summit. It entered into force in December, 1993.9

The Convention on Biological Diversity is a remarkable addition to the laws on

biodiversity as it addresses conditions in both developing and developed countries. It is a
legally binding convention with 196 parties.

CBD gives special focus to the conservation and sustainable use at biodiversity as it is
stressed repeatedly throughout the Convention. States are mandated to develop national
strategies, plans and programs for the same.10 This is an area of conflict with IPR because it
primarily encourages laws in biodiversity. If given full effect, it could hinder implementation
of IPR related laws.

Each nation is also required to identify and monitor components for conservation of
ex situ and in situ conservation of biodiversity as specified under Annex I. This includes
ecosystems and habitats with a high level of biodiversity, species and communities which are
threatened by endangerment as well as genomes and genes of economic, scientific and social
importance. They are also required to monitor processes which may have an adverse impact
upon existing biodiversity.11 Granting of IPRs could also be a process which might have such
an impact on biodiversity.

Every nation also has a duty to rehabilitate and restore degraded ecosystems and
encourage the recovery of threatened species through effective management strategies.12
Nations are required to control risks associated with the use and release of living modified

9
https://www.cbd.int/history/ (Last accessed on 14/12/2018)
10
Article 6, Convention on Biological Diversity, 1992.

11
Article 7(c), Convention on Biological Diversity, klj 1992.
12
Article 8(f), ibid
organisms which are products of biotechnology if they are likely to have an adverse impact
on the environment.13 This provision might hinder the growth of IPR, especially genetically
modified plant varieties if extremely stringent measures are taken to control the risk of living
modified organisms. It also gives importance to developing countries in respect of in situ
conservation. Other nations are to cooperate in providing financial and other support
particularly to developing countries.14

One of the most important provisions of the convention is one that requires traditional
knowledge, innovations and practices of local and indigenous people to be maintained. If
they are not maintained, they could get destroyed or disappear due to a lack of caution and
usage. Hence the looming need for such a provision was satisfied by CBD.15

Despite it being a legally binding agreement, the CBD is incongruous in some areas
with the TRIPS agreement, which is an equally binding treaty. Its provisions on IPR overlap
with some areas of the Convention on Biological Diversity. For instance, Article 27(2) of the
TRIPS Agreement gives members the right to exclude certain inventions from being
patented. They may be excluded from patentability if the invention causes danger to human,
animal or plant life or if it causes serious prejudice to the environment. This part of the article
is in consensus with CBD as it protects the environment from harmful inventions. However,
the other part of this Article says that an invention can be excluded from patentability if it is
against public order or morality. If an organism created is beneficial to the ecosystem but is
unacceptable according to moral standards set by human beings, it will not receive protection
in the form of a patent. Restrictions such as ‘public order and morality’ are necessary, but the
extent to which it can interfere in patentability must be properly determined and established
as a standard which can be followed in case of a conflict.

Under Article 27(3), microorganisms are a patentable matter. Further, members must
provide for the protection of plant varieties either by patents or through an effective sui
generis system or any other acceptable combination.

An area that IPR fails to protect is that of traditional knowledge in biodiversity. This
can be seen even under Section 3(p)16 of The Patents Act, 1970. The existing laws leave
space for the misappropriation of traditional knowledge. Local communities are not given
13
Article 8(j), ibid
14
Article 8(m), ibid
15
Article 10(j), Convention on Biological Diversity, 1992.
enough protection for their traditional knowledge. If traditional knowledge is not passed on, it
can lead to this knowledge being lost forever. Copyrights, geographical indications and
trademarks can be used to protect traditional knowledge, but it is possible only to a limited
extent.17

ACCESS AND SHARING OF GENETIC RESOURCES:

Genetic resources are an important source of information for us to understand the

world around us. They are the product of extensive research and development and can bring
potential benefits if utilised properly. However, these resources are not evenly distributed
throughout the world. They are scattered in certain places, leaving other places devoid of
these resources. Furthermore, the plants, animals or microorganisms in which they are found
together make up a delicately balanced ecosystem which might be endangered or in danger of
extinction. The way in which these genetic resources are utilised could potentially bring
about better or worse effects upon our biodiversity. Thus arose the need for access and
benefit sharing. It is the way by which genetic resources may be accessed and how the
benefits which are derived may be shared between countries using these resources and the
providers of these resources.18

Currently, a huge amount of the knowledge that we possess has been derived from
traditional knowledge of local and indigenous communities. It has been passed down for
generations. While using traditional knowledge, it must be properly appropriated and the
rights of these local communities must also be considered while evaluating the concept of
access and benefit sharing. Access and benefit sharing is directly linked with national and
international regulations.

In the national level, the Biodiversity Act 2002, Biodiversity Rules, 2004 and the
Patents Act, 1970 and Guidelines on ABS 2014 which was recently enforced contains
provisions relating to access and benefit sharing.

Biodiversity Act 2002

16
Section 3(p), Patents Act, 1970 reads as follows: An invention which in effect, is traditional knowledge or
which is an aggregation or duplication of known properties of traditionally known component or components. It
is a non patentable subject matter.
17
https://www.ciel.org/Publications/tripsmay01.PDF (Last accessed on 10/12/2018)
18
https://www.cbd.int/abs/infokit/brochure-en.pdf (Last accessed on 10/12/2018)
This act lays down the same objectives as prescribed in the International Convention of
biodiversity. Further the Indian act have elucidated about the role of State Biodiversity Board
and National Biodiversity Board in regulating the process of access and benefit sharing in
India. However, the Patent act, 1970 remains silent on this matter. The Biodiversity rules
2004 deals with the procedural aspects of access and fair and equitable benefit sharing by the
parties.

Guidelines on ABS, 2014

The absence of a working system for ABS puts governments of biodiversity- rich countries at
the risk of not being able to claim their “benefits;” which is also how ABS rules and
regulations are justified by states to their domestic constituencies.19
The (NBA) and the Ministry of Environment, Forests and Climate Change notified the
“Guidelines on Access to Biological Resources and Associated Knowledge and Benefits
Sharing Regulations” on 21 November 2014. The government’s new guidelines on access
and benefit sharing notified in 2014 have only marginally added to what the act and its rules
lay down. The only area where the guidelines introduce something new is a category of
access that allows an Indian researcher or government institution to carry or send Indian
biological resources for basic research. This is only possible in emergency situations. The
2014 guidelines broadly convey that sharing of benefits may be done either through a
monetary and/or nonmonetary mode.20
In the international level, the Nagoya and Cartagena protocol, Convention on Biological
Diversity, International Treaty on Plant Genetic Resources for Food and Agriculture and
Bonn Guidelines deal with the concept of equitable sharing of benefits from utilisation of
genetic resources.

INTERNATIONAL REGIME:

CONVENTION ON BIOLOGICAL DIVERSITY

19
Framework for Benefit Sharing Guidelines for India - Research by MS Suneetha - 2009,
http://www.ris.org.in/images/RIS_images/pdf/article4_v11n2.pdf
20
Section 12 deals with Mode of benefit sharing for transfer of accessed biological resource and/ or associated
knowledge to third party for research/ commercial utilization.—
(2) Applicant (transferor) shall pay to the NBA 2.0% to 5.0 % (following a sectoral approach) of any amount
and/
or royalty received from the transferee, as benefit sharing, throughout the term of the agreement.
(3) In case the biological resource has high economic value, the applicant shall also pay to the NBA an upfront
payment, as mutually agreed between the applicant and the NBA.
 The three main objects given under Article 1 of the Convention include fair and
equitable sharing of benefits arising from the utilisation of genetic resources. To promote and
safeguard the fair and equitable sharing of benefits, during a conference was held in 2004,
Article 15 and 8(j) were discussed to elaborate the international regime on access and benefit
sharing. After 6 years, a meeting was held in Nagoya, Japan and thus the Nagoya Protocol on
Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from
their Utilisation was adopted.

Article 3 of CBD explains that every state has the sovereign right to exploit their own
resources pursuant to their own environmental policies. But these activities must not be
detrimental to other states. The Convention also gives national Governments the final
authority to determine access to genetic resources in accordance with national legislation. It
also states that access may be given only with ‘prior informed consent’ of the party on
‘mutually agreed terms’. These are compulsory requirements. Consent and mutually agreed
terms are important for access and benefit sharing. It has also established subsidiary bodies to
monitor and regulate access and benefit sharing.

Article 5 of the Nagoya Protocol was added in accordance with Article 15 of CBD. It
explains that benefits which arise from genetic resources, subsequent applications and
commercialisation must be shared in an equitable manner with the state providing these
resources as well as the country in which these resources originate. These benefits may be
monetary or non monetary. Parties are also required to take legislative, administrative or
policy measures to further these provisions in an effective manner for indigenous and local
communities. Article 10 of the Nagoya Protocol elucidates about the Global Multilateral
Benefit Sharing mechanism to support the conservation of biological diversity and the
sustainable use of its components globally.

Bonn Guidelines:

The Sixth Conference on Parties to the Convention on Biological Diversity was held
in Hague in April 2002. 21 The Bonn Guidelines on Access to Genetic Resources and the Fair
Secretariat of the Convention on Biological Diversity (2002), Bonn Guidelines on Access to Genetic
21

Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, World trade centre,
ISBN: 92-807-2255-7
and Equitable Sharing of Benefits arising out of their Utilisation was adopted in the context
of the Biodiversity Convention. These guidelines not only help in the development of
national measures but also are considered as the primary step towards the implementation of
the provisions relating to access and benefit sharing in the CBD and to expand transparency
and certainty in access procedures.

The guidelines identify two main aims which include recognizing the Prior Informed
Consent (PIC) from both, the party seeking access and the party granting access based on
Mutually Agreed Terms (MAT). Furthermore, it defines the roles and responsibilities of users
and providers22, the basic elements required for PIC and MAT and the list of monetary and
non-monetary benefits that arises from the use of genetic resources. 23Though these guidelines
are non-binding in nature, the result is that it is adopted unanimously by 180 countries and
thus has an undisputed authority.

International Treaty on Plant Genetic Resources for Food and Agriculture’s Regime
(ITPGRFA):

This international agreement was concluded within the framework of Food and
Agriculture Organisation (FAO) of the United Nations 24 in FAO conference in 1983. The
treaty ensures the conservation and sustainable use of plant genetic resources for food and
agriculture and the fair and equitable sharing of the benefits arising out of their use which
reflects the objectives of CBD. The treaty also includes a provision necessitating the
contracting parties to adopt legal measures that promotes sustainable use of plant genetic
resources for food and agriculture.25 The concept of multilateral system of access and benefit
sharing is also enshrined under this treaty.26 Case: Wheat vs. Corn27

NATIONAL REGIME:

India has also enacted various legislations with regard to IPR and biodiversity giving
reference to access and benefit sharing. These Acts include the Biodiversity Act, 2002 and
22
Chapter II , Bonn guidelines (Roles And Responsibilities In Access And Benefit-Sharing Pursuant to Article
15 of The Convention On Biological Diversity)
23
Appendix II , Bonn guidelines, https://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf
24
Article XIV of FAO constitution 1945, http://www.fao.org/3/a-mp046e.pdf, Volume I and II, 2017 edition
25
Article 6, ITPGRFA,http://www.fao.org/3/a-i0510e.pdf
26
Ibid, Art.10 to 13
27
http://nationalaglawcenter.org/wp-content/uploads/assets/crs/R41091.pdf Pg no. 3, (Last accessed on
10/12/2018)
Protection of Plant Varieties and Farmers' Rights Act, 2001. They provide for access and
benefit sharing with similar provisions to international laws.28But the Indian Patents Act,
1970 has remained silent on this matter leaving scope for misappropriation of biological
resources patented under this Act. The ratification of the Convention on Biodiversity paved
the way for enforcement of the Biological Diversity Act 2002. The act comprises of the same
objectives as laid down in the convention under its Preamble. The main focus of the act is
concerning the issue of access to biological resources by foreigners. The act puts stringent
limits on foreigners for access to biological resources or knowledge associated with it and
ensures a equitable sharing of the benefits arising out of accessed biological resources 29.
Further, to get access for research, commercial utilisation, bio-survey or bio-utilisation, they
must seek prior approval from National Biodiversity Authority.30 In case of its nationals
(Citizen of India) they should make prior intimation to obtain biological resources to State
Biodiversity Board but this provision gives exception to the people who lives in the area
where resources are produced.31 In addition to the above, the act also indirectly provides the
Intellectual Property rights on any biological resources in India32 and empowers the Authority
to oppose the grant concerning biopiracy or any other issue. 33 The act also gives several types
of benefits such as identification to the benefit claimers and monetary benefits, where the
sum is deposited under National Biodiversity Fund but delegates the discretionary power to
the authority whether to pay the monetary compensation to the claimers directly or to the
biodiversity fund.

IMPACT OF IPR ON BIODIVERSITY

The impact of intellectual property rights on biodiversity is significant and requires a

great deal of consideration. The influence upon biodiversity has a vast difference in
developed and developing nations. For developed nations with greater capacity for research
and development, but a lack of biological resources, the impact is primarily positive.
However, in developing countries with limited research and technology possessing a treasure
trove of biodiversity, the impact of IPR upon biodiversity is not always positive. The impact
upon biodiversity may not always be uniform as it is not possible to generalise in order to
28
Section 26, Protection of Plant Varieties and Farmers' Rights Act, 2001
29
Section 21(1), Biological Diversity Act, 2002 (Published by Professional Book Publishers, Delhi)
30
Ibid, Section 3
31
Ibid, Section7
32
Ibid, Section 6
33
Ibid,Section 18 (4)
arrive at a conclusion.34 But the social and economic impacts till date may be analysed as
follows:

Growth of Biodiversity:

The most evident positive impact is the growth of biodiversity. When protection is
guaranteed by law, existing biodiversity flourishes. Inventions of new species, genetic
resources and microorganisms will enter the environment. This will lead to an increase in
existing biodiversity.

However, the growth of biodiversity is not always appreciated. In some situations, the
newly created organisms may be harmful to the environment. There are provisions which
prevent patents being granted over inventions which are harmful to plant, human life or the
environment. But the long term impacts of new organisms cannot be truly measured to deny
it of a patent. Further, whether the organism can coexist with other living organisms
peacefully or will cause damage to existing species is a cause for concern. Thus, patents over
biodiversity always require a serious examination to check its impacts upon existing ecology.

Misappropriation of Traditional Knowledge:

Traditional knowledge is not a protected subject matter under IPR. However, inventions
derived from traditional knowledge receive protection. The most pertinent issue that arises is
that of ownership. What was once freely accessible knowledge belonging to a certain
community becomes the basis of an invention where only the ‘true’ inventor is given credit.
This brings about an indirect shift in the ownership of the rights over this property unless it is
adequately shared. This will lead to biopiracy of traditional knowledge. The patents granted
over turmeric, neem and basmati rice are examples of biopiracy. Existing products from
developing nations which possessed knowledge about the product were treated as a new
product in developed nations.

Further, the introduction of IPR in biodiversity brings the commercial aspect out. Inventors
will be more interested in those areas of traditional knowledge that can be easily converted
into an invention for magnanimous profits.

Access and Benefit Sharing:

34
Sanjaya Lall. Indicators of the Relative Importance of IPRs in Developing Countries. Draft. UNCTAD /
ICTSD Capacity Building Project on IPR and Sustainable Development. November, 2001.
The TRIPS Agreement undermines the concept of access and benefit sharing. IPRs are often
granted to individuals from genetic resources obtained from other countries. If the provisions
of the Bonn Guidelines are followed, access to genetic resources will be granted only on
mutually agreed terms with prior informed consent to ensure equitable sharing with
indigenous and local communities. The true reality, however, is far from it. Thus, the current
system of IP Laws does not give adequate importance to equitable sharing of benefits arising
from genetic resources.

CONCLUSION AND SUGGESTIONS:

Biodiversity plays an indispensable role for all the living organisms on the earth. Loss
of biodiversity threatens human well-being. With the advent of modern era and technological
advancement, minimum consideration is given for the conservation of biodiversity and the
sustainable use of its resources.  Several laws have been enacted at the national and
international sphere. Therefore, the policy makers are obliged to ensure that all the rules and
regulations enforced in different countries relating to IPR, conservation of bio diversity,
access and benefit sharing and protection of traditional knowledge are in consonance with
one another.

Lack of specificity of Access and Benefit Sharing schemes requires separate

legislative enforcement. These are issues of great significance which should not be left up to
the discretion of individual nations to create laws. Specific legally binding international
regimes must be enacted to properly address these issues. Unless these issues are properly
resolved, both biodiversity and intellectual property rights cannot coexist peacefully. The
interface between TRIPS and CBD will be hampered and this could result in an irrecoverable
loss to our biodiversity.

Paragraph 19 of the Doha Declaration, 2001 also has directed to enhance mutual

supportiveness between the TRIPS agreement and the Convention on Biological Diversity.
Ten years later, in 2011, a draft decision to enhance mutual supportiveness between TRIPS
and CBD was created. This communication was sent from Brazil, China, Columbia, Ecuador,
India, Indonesia, Peru, Thailand, the ACP group and the African group. Through the
agreement, the member countries desired to insert a new Article 29(b) in the TRIPS
agreement. The contents of the proposed article were regarding the origin of genetic
resources and/ or associated traditional knowledge. The addition of this provision would have
definitively improved the interface between existing legislations. But even after the great
efforts taken to draft it, there has been no effective implementation.

The body responsible for administration of the TRIPS Agreement is the TRIPS
Council. It has left the relationship between TRIPS and CBD to be examined on its standing
agenda. However no action has been taken yet.

’When one tugs on a single part of nature, he finds it attached to the rest of the world.’
All living creatures need other organisms to survive. Biodiversity must be preserved to
maintain the wonderful diversity that we have in our ecosystem. Maintaining biologically
diverse ecosystems will help secure the salient ecosystem services that are often taken for
granted.