New Horizons in Environmental and Energy Law series
Chapter 17: Access and Benefit Sharing
1. INTRODUCTION Access to, and benefit sharing from, biodiversity is currently one of the largest preoccupations of the international community in the area of conservation law. However, resolution in this area is far from likely in the short term as two contradictory trends are colliding. On the one hand, there is a very strong trend within the international community for the protection of intellectual property. On the other hand, there is a push, in the alternative direction, that certain types of biodiversity should be public property. The trend for the protection of intellectual property is most obvious through the work of the World Intellectual Property Organization (WIPO), International Convention for the Protection of New Varieties of Plants (UPOV) and the World Trade Organization (WTO). Although the CBD suggests that biodiversity is to be utilized in a way consistent with intellectual property, the idea that key genetic aspects of biodiversity may become private property (and thereby restricted, and not necessarily shared equitably) does not sit easily. This was originally so with the collation of seed banks of international importance, the concept of Farmers’ Rights, and most notably, the Treaty on Plant Genetic Resources for Food and Agriculture. In all of these three, the push is for biodiversity as common, not private, property. Such a conflict means that at present, a somewhat ad hoc, and not necessarily consistent, framework over the private or public ownership of biodiversity exists. 2. THE AGE-OLD TRANSFERS OF THE BIOLOGICAL MATERIAL, LAWFUL AND OTHERWISE Humanity has been...
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