Food for Thought: Intellectual Property Rights, Food, and Biodiversity. (International Law)

By Tansey, Geoffrey | Harvard International Review, Spring 2002 | Go to article overview
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Food for Thought: Intellectual Property Rights, Food, and Biodiversity. (International Law)


Tansey, Geoffrey, Harvard International Review


Conflict over property--such as land, gold, or oil--is nothing new. But today an in tangible kind of property invented in the legal system of the Western world is becoming as valuable and contested as the tangible property of old. Intellectual property rights (IPRs), which include copyright, patents, and trademarks, have become strategic resources in economic development. Like other resources, IPRs are unevenly distributed, and the rules governing them have caused major debate in trade circles for decades. This dispute is now spreading. Last November, for example, developing and developed countries clashed at the World Trade Organization Ministerial meeting in Qatar over the effects of international patent rules on public health. While most public debate has been on patents and health, other issues, such as the effects the new set of global IPR rules will have on biodiversity and food security, are equally important. These recent developments in IPRs are likely to affect all people over the coming years.

What has catapulted discussion of obscure, legally complex rules on intellectual property into the public eye? Major technological developments in communications, information, and bio-technologies are significantly responsible. These phenomenal developments parallel those of the 19th century, a time when IPRs were greatly extended in response to the industrial revolution. Corporations' need to operate profitably in a global market has also played a role. These changes led to pressures in the 1980s to revise the regulatory framework governing biological resources. Three agreements are central to this: the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Convention on Biological Diversity (CBD), and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR). The CBD is a framework agreement that leaves parties free to implement it through their own legislation. The ITPGR, which was concluded in November 2001, renegotiated an existing international und ertaking to bring it into harmony with the CBD and to regulate access and benefit-sharing specifically for plant genetic resources for food and agriculture.

The Convention on Biodiversity

The CBD's three objectives are the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits of genetic resources. The CBD has formally brought genetic resources into the realm of national sovereignty. It requires countries to take measures to achieve its three objectives and makes access to these resources subject to prior informed consent--of the state rather than of the community involved. It also relies on an envisioned series of bilateral deals to reach these goals.

The CBD developed from a mentality that equated the riches to be found in the molecular compounds of plants with the riches of minerals in the ground. Some developing countries felt they had underestimated the value developed countries and industries place on natural biodiversity. Pharmaceutical companies, for example, had been making use of biologically diverse resources in extremely profitable patented products. Indeed, some accuse companies in industrialized countries of "biopiracy," arguing against the way they acquire resources and traditional knowledge from developing countries, use them in their research and development (R&D) programs, and acquire patents and other IPRs, all without compensating the provider countries and communities.

In the CBD, which the United States has signed but not ratified, members agree to undertake to provide or facilitate access and transfer of technologies to other parties under fair and most favorable terms. Such technologies include biotechnologies and others "that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment.

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