New Horizons in Environmental and Energy Law series
Chapter 9: Access and benefit sharing measures
Developing countries have taken a two-pronged approach in their efforts to protect rights over their natural resources and traditional knowledge, and to prevent their misappropriation. These two approaches have been classified as positive and defensive measures. Positive measures seek to put in place a system which ensures that the countries providing such resources are assured firstly, of a voice in how and to what extent they are accessed, and secondly, of a fair share in the benefits derived from them. This approach is implemented by means of mechanisms which regulate access to genetic resources by those seeking to exploit them for commercial purposes. These measures will be discussed in this chapter. The other form of positive measures to protect such rights is the systems of plant variety protection which countries are required to put in place by the TRIPS Agreement. This is done either by way of patents or by sui generis legislation. These systems will be discussed in the next chapter. Defensive mechanisms of plant variety protection refer to pre-emptive measures intended to prevent the misappropriation and propertization of plant genetic resources for food and agriculture (PGFRA) and traditional knowledge, rather than to enable provider countries to gain any benefits from them. These measures will be considered separately in succeeding chapters. Both the CBD and the FAO Treaty have been informed by the ongoing debate on germplasm flows from the southern to the northern hemisphere, and the inequities of access to, and sharing of the benefits arising out of these resources.
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