India has taken the lead in seeking to revive WTO discussions on issues related to preventing theft of traditional knowledge. Government of India, along with the Centre for WTO Studies, Indian Institute of Foreign Trade and the South Centre (an inter-governmental organisation based in Geneva), are organising an International Conference on TRIPS- CBD Linkage in Geneva on 7-8 June 2018.
Brazil and South Africa are some of the other countries that have joined hands with India on this crucial initiative. The international conference will bring together indigenous people/local communities in developing and developed countries, internationally acclaimed academicians working on the subject, Geneva-based negotiators and capital based experts. They will brainstorm on the options for energising negotiations on this subject in the WTO. Resource persons, stakeholders and experts from a large number of countries, including Brazil, China, India, Indonesia, Peru, Philippines, New Zealand, South Africa, Switzerland, and the US, would participate in the international conference.
The Convention on Biological Diversity is a multilateral agreement on sustainable development and fair and equitable sharing of benefits arising out of the utilisation of genetic resource. It has membership of 196 countries.
The Doha Ministerial Declaration in 2001 had tasked the TRIPS Council of the WTO to examine the relationship between the TRIPS Agreement and the Convention on Biological Diversity, and the protection of traditional knowledge and folklore. It also mandated that while doing so, the Council should be guided by the objectives and principles set out in the TRIPS Agreement and should fully take into account the development dimension. While there has been considerable debate and deliberations on the subject no common understanding has yet been reached at the WTO.
TRIPS CBD Linkage is important for India and other developing countries because it seeks to address bio-piracy. It has been a long standing demand that patents should not be granted for existing traditional knowledge and associated genetic resources. Further, it has also been argued that where traditional knowledge forms a basis for further scientific developments that are sought to be patented, there should be a mechanism to ensure disclosure of information in this regard. This is considered essential not only from the point of view of addressing information asymmetry at the patent office but in also enabling better assessment of the inventive step involved.
The developing countries seek an amendment in the TRIPS Agreement to make disclosure of source or origin of genetic resource by patent applicants, submission of evidence of prior informed consent of local communities and evidence of fair and equitable sharing of benefits under the relevant national regimes mandatory.
In 2008, developing countries garnered the support of the European Union to form a coalition of 109 countries (which included the African and Caribbean and Pacific Countries) for the above proposal seeking amendment of the TRIPS Agreement to enable mandatory disclosures in patent applications. The last major proposal along similar lines but incorporating the mechanism agreed to under the Nagoya Protocol to the Convention on Biological Diversity was submitted by India, Brazil along with other like-minded countries in 2011. After this, the discussions appear to have lost steam.
The Nagoya Protocol to the Convention on Biological Diversity on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their utilisation came into effect in 2014. The protocol provides a legal framework for the fair and equitable sharing of benefits arising out of the utilisation of genetic resources for research and commercialisation purpose. At present, more than 100 countries have acceded to the protocol. This makes its mandatory for them to set down an access and benefit regime in compliance with the protocol.
India is optimistic that during the forthcoming international conference on TRIPs CBD issues the proponents will agree on a clear roadmap for pursuing this issue at the WTO.