Roger J. Marzulla and Laura M. Reifschneider*
Efforts to limit access to natural resources and markets, to diminish
existing intellectual property rights protection that, traditionally,
has encouraged research, development and innovation, and to alter
the economic balance between the developed and developing countries
of the world are growing in intensity and visibility. These efforts
are taking place primarily under the Convention on Biological Diversity,
a multilateral environmental agreement launched at the 1992 United
Nations Conference on Environment and Development in Rio de Janeiro.
Ensuring continued access to natural resources and the existence
of a reasonable international regulatory scheme that does not impose
prohibitive transaction costs or undermine protected intellectual
property rights ("IPRs") requires ongoing monitoring of
developments in the international regulatory process by the private
sector, including pharmaceutical, biotechnology, biomedical, and
The Convention on Biological Diversity "(CBD)" is an
international agreement governing the conservation and use of the
world's biological resources, whether or not they are endangered
or threatened. Its stated goals are threefold:
(a) the conservation of biological diversity;
(b) the sustainable use of its components; and
(c) the equitable sharing of the benefits
arising out of the utilization of genetic resources, including
appropriate access to resources and transfer of relevant technologies.
The CBD therefore impacts access to natural resources, use, handling,
and genetic modification of resources, and dictates certain key
financial components of business arrangements between countries
and their citizenry concerning use and ownership of benefits deriving
from such resources.
The CBD entered into force on December 29, 1993, when it was ratified
by a threshold number of countries, and has now been ratified by
at least 134 countries. The Bush Administration refused to sign
the CBD in 1992 in Rio, citing, among other things, dissatisfaction
with the protection afforded intellectual property rights under
the final text of the Convention.
President Clinton signed the CBD on June 5, 1993, however, the
United States Senate has not yet ratified it. Lack of protection
of intellectual property provisions of the CBD remains one of the
primary grounds for Congressional and industry objections to ratification
of the Convention. Richard J. Blaustein, Convention on Biological
Diversity Draws Attacks, The National Law Journal, October 28, 1996,
at C-39. American companies remain affected by the CBD, however,
to the extent they are doing business with other countries that
are member parties or seek access to resources located outside of
the United States. Further, the Clinton Administration has declared
that ratification of the CBD will be one of its top foreign policy
and environmental goals in the President's second term. Address
by Warren Christopher, Stanford University, April 9, 1996, U.S.
Department of State, at 3.
The CBD, unlike its predecessors, takes a comprehensive, as opposed
to sectoral, approach to conservation, meaning that it will consider
problems in the context of entire ecosystems. The Convention also
rejects the tradition of viewing the earth's biodiversity as the
"common heritage of mankind" and, instead, emphasizes
sovereign rights over biological resources, while simultaneously
recognizing that conservation of biological diversity is a "common
concern" of mankind. The text of the CBD provides that access
to resources and transfer of technology shall be provided on terms
consistent with the "adequate and effective" protection
of intellectual property rights. Indeed, protection of intellectual
property rights often is justified as providing the necessary incentive
for investment in creative activities and to promote research and
development and technology transfer. Affording such protection has
been opposed, however, on the grounds that protection of IPRs is
at odds with the purposes and goals of the Convention. In seeking
to establish the "equitable sharing of benefits" from
the earth's biological diversity, the CBD threatens to trample intellectual
The first meeting of the Conference of the Parties, known as "COP-I,"
was held in Nassau, Bahamas in 1994. COP-I and subsequent conferences
of the Parties to the CBD have been attended by as many as 800 to
1,000 individuals, including governmental ministers and officials,
international and regional bodies, and non-governmental organizations.
Decisions are being made at these gatherings concerning the proper
role of intellectual property rights when in conflict with environmental
goals and a variety of other issues affecting business such as to
access to and use of natural resources. Parties and organizations
have objected at these meetings that IPRs reward human ingenuity
but ignore the value of the raw material as well as the contribution
of indigenous and local peoples in maintaining and developing natural
resources. IUCN The World Conservation Union, A Guide to the Convention
on Biological Diversity 3 (1994). Private sector representation,
unlike that of the environmental community, however, remains quite
IPRs are secured both under national legislation and under international
law, primarily, the Agreement on Trade-related Aspects of Intellectual
Property Rights Agreement (the "TRIPs Agreement") concluded
as part of the Uruguay Round of the General Agreement on Trade and
Tariffs ("GATT"). The TRIPs Agreement requires countries
to enact national legislation which, among other things:
(1) Extends patenting to microorganisms and "modified"
(2) Provides patents or other forms of protection to plant varieties;
(3) Extends patent rights over pharmaceutical products;
(4) Increases the duration of protection for patents to 20 years
from the date of the application; and
(5) Makes importation of a product equivalent to local working
of an invention.
The TRIPs Agreement is seen by many in the Third World and indigenous
peoples groups, however, as a "strategy to foster a form of
technological protectionism," or a method of "freezing"
the comparative advantages of the developed countries vis-a-vis
the developing world. World Wildlife Fund for Nature, The Biodiversity
Convention & Intellectual Property Rights 8. Another major objection
to TRIPs is that the Agreement fails to recognize and protect the
contribution of indigenous peoples, farmers and local communities
to the innovation or product patented. Commonly cited examples include
an exclusive license to insecticides "derived" from the
Neem tree in India and a patent on a genetically engineered sweetener
"derived" from the thaumatin plant in West Africa.
In response to these concerns, the World Wildlife Fund (WWF), for
example, has urged a moratorium on (a) the extension of patents
to biotechnological innovations; and (b) the grant of patents where
the invention appears to be clearly based on genetic resources found
in ex-situ collections until the question of ownership of these
resources is resolved. Id. at 3-4. WWF also has proposed modifying
the TRIPs requirements so that patent applications in all countries
would require disclosure of the country of origin of biological
samples, the role that local, rural or indigenous peoples' knowledge,
innovations or techniques played in the development of the product
and notice to the country and communities concerned in order to
provide them with the opportunity to oppose the patent. Id. at 2.
Under the WWF proposal, patents would be denied for inventions and
processes that "have, or may have, a harmful ecological effect
on biodiversity conservation and sustainable development."
Id. at 3. Other groups advocate the adoption of a resolution that
would, in every case, establish the supremacy of the CBD and its
goals over TRIPs and other intellectual property rights agreements.
At the second meeting of the CBD, convened in Jakarta, Indonesia
in November 1995 ("COP-II"), the parties decided that
a study was needed to analyze the relationship between the Convention's
goal of "fair and equitable" sharing of benefits from
natural resources and intellectual property rights. The results
of this "study," a paper prepared by CBD Secretariat staff
which poorly represented the key elements of and need for intellectual
property protection, was presented to the parties at COP-III in
Buenos Aires in November of 1996.
At COP-III, the Indigenous Peoples Forum called upon the parties
to the CBD to establish an alternative system of intellectual property
rights. Claiming that 80 per cent of the world's population cures
itself based on native knowledge of medicinal plants and that 50
per cent of all medicines sold by pharmaceutical companies are based
on "usurped" native knowledge, the group demanded the
creation of a system that would protect the knowledge of indigenous
peoples and revived WWF's 1996 call for a moratorium on collection
of "ethnobotanical" resources in areas inhabited by indigenous
peoples. Indigenous Peoples Demand Role In Treaty as Traditional
Custodians of Biodiversity, 19 Int'l. Envtl. Rep. (BNA) No. 23,
at 1003 (Nov. 13, 1996). In response to this and other statements
and argument, the parties decided that case studies should be prepared
on the impact of the existing IPR regimes on the CBD's objectives,
including benefit sharing with indigenous and local communities.
Case studies will also focus on the possibility for creating an
alternative system for intellectual property protection consistent
with the goals of the CBD.
In the coming years the CBD may continue to complicate the international
practice of Intellectual Property Rights law. All aspects of international
trade could be affected, especially those sectors dealing with developing
economies. As we move towards the next COP, we should take steps
to ensure that the protection of Intellectual Property Rights, essential
to the advancement of science, remains. Without such protection,
those incentives necessary for progress might disappear.
*Roger Marzulla is a partner at Akin, Gump, Strauss, Hauer &
Feld, LLP, in Washington, D.C., where he heads their Environmental
Section. Laura Reifschneider is an associate in that section.