Combating Bio-Piracy with Disclosure: The Proposals for Disclosure of Origin and Traditional Knowledge

Abstract

Genetic Resources and Traditional Knowledge will continue to be important for both humans and the environment. It enables indigenous people to remain self-sufficient, acts as a preserver of biodiversity and can provide a source of income. Most of these resources subsist within developing countries which has led to bio-prospecting activities by the pharmaceutical and biogenetic industries. This has spawned allegations of bio-piracy where valuable genetic resources and traditional knowledge have been illegitimately appropriated without having obtained prior informed consent or equitable benefit sharing from the source country or community. Such pre-acquisition requirements are mandated by the CBD. However, the TRIPS Agreement does not require compliance with the CBD which causes a potential inconsistency between the two agreements. Since then, most developing countries have adopted additional disclosure requirements within patent laws requiring disclosure of origin and traditional knowledge used and evidence of prior informed consent and equitable benefit sharing. In addition, developing countries have also proposed amendments to the TRIPS Agreement to require such disclosure across all patent applications. This raises issues on whether such disclosure is consistent with the provisions of the TRIPS Agreement with is the primary document governing intellectual property rights. Accordingly the focus of this paper is to analyse the consistency of the proposed disclosure requirement. The paper concludes that while it may be permissible to require compliance with the proposed disclosure requirement (subject to limitations on sanctions available), there is a general uncertainty as to whether the proposed disclosure requirement will be adopted into the TRIPS Agreement, which would depend on the voting conditions within the World Trade Organisation.