COP-10 gives Intellectual Property Rights New Meaning
17 November 2010
The tenth meeting of the Conference of the Parties to the Convention on Biological Diversity (COP-10), held from 18 to 29 October in Nagoya, Japan made commitments that will change the way patent rights are approached.
A mandate created by the 193 participating nations, of which the United States is not a part, has reinforced national economic sovereignty by ensuring that countries will now have full jurisdiction over their genetic resources, and the resulting profits.
The COP-10 reinforced its commitment at the Nagoya Conference to the Access and Benefit Sharing (ABS) protocol that requires countries and indigenous communities to be paid for the use of their genetic resources and traditional knowledge.
“[D]eveloping countries have something at stake because biodiversity is owned by them, and therefore it is in the interest of the world to assist developing countries to protect it. By assisting them, we are assisting ourselves. So I think it is a major partnership that we are talking about,” said Convention on Biological Diversity (CBD) Executive Secretary Ahmed Djoghlaf to MediaGlobal.
Countries will be able to collect compensation or royalties on any product made from a genetic resource within their borders. This will have tremendous implications for the developing world, whose rainforests and ecologies hold more than 50 percent of the world’s species. Of these species, only one percent has been scientifically catalogued.
This genetic variety means that developing countries will now have both an economic and environmental incentive to keep their rainforests protected and productive.
“What we’re talking about now is the way people access the services and the goods of nature,” said Francisco Bozzano-Barnes, director of New York-based consulting firm Tenure & Ecology. “Tenure is the actual access to resources.”
The ABS protocol will help to create a new international tenure system by which communities will be able to legally manage how their land and resources are used. Bozzano-Barnes has worked with the United Nations and national governments to help identify the best management strategies for sustainable land usage.
“Clearly there is need of development of international enforcement mechanisms and the growth of treaties and arrangements such as the [Nagoya Conference] in terms of shared use of land,” Bozzano-Barnes told MediaGlobal.
Drug companies have already worked in concert with countries toward this goal, helping to catalogue their genetic resources. Merck began this trend in 1991 when they contributed $1 million to the National Biodiversity Institute of Costa Rica (INBIO) to help catalogue and screen potential specimens. Those that showed promise were sent to Merck labs for further study, and Costa Rica was guaranteed royalties for any drug that was developed. Bristol-Myers Squibb made a similar deal with Suriname, as have many companies looking for the next “wonder drug.”
“And as you know, the brand of any company is so crucial to the future of the company,” said Djoghlaf. “So those who will be implementing the ABS protocol will be seen as companies that are very careful in promoting biodiversity in the world, and will therefore make a good business.”
But these arrangements have been the exception to the rule until now. Often, companies operating within resource-rich and fragile ecosystems will practice what is called biopiracy, or the taking of a resource without consent or due compensation.
Monsanto was denounced in 2004 for hijacking the Indian wheat strain Nap Hal and pursuing an international patent. In many countries the patent was denied for its questionable legality, but the ABS protocol now gives countries a tool to both prevent and seek restitution for acts of biopiracy.
While blanket liability laws are still in discussion by the CBD, the ABS protocol will give communities a precedent to protect their genetic resources. The concern for biodiversity that has been growing over the past decade also means that companies will face consumer outcry and capital divestment should their practices be seen as damaging.
“The major investment banks, the major provider of resources, are deliberately refusing to lend money for companies that are mining natural resources without protecting the environment because it’s a major risk for them,” Djoghlaf said.
Mainstream companies such as JPMorgan Chase have already structured their investment strategies around supporting companies that practice sustainable development and business. These practices have become more common in the wake of the public fallout that crippled oil giant BP.
The Nagoya Conference made substantial progress toward supporting the economic sovereignty of developing nations, but its global effectiveness was undercut by the reluctance of the only non-signatory country on the planet; the U.S.