Appropriate technologies will be transferred to developing countries to preserve biodiversity. At its first meeting, the panel was unable to draw conclusions about the role of intellectual property rights in the implementation of access and benefit sharing. However, the granting of intellectual property rights to biodiversity is controversial around the world, as stipulated in the provisions of the TRIPS agreement. In this regard, we believe that the panel must recognize that there are parallel international processes and instruments that have an impact on access to genetic resources and benefit sharing; WTO and the TRIPS agreement. It is essential that the panel examine the impact of the TRIPS agreement on the objectives and functioning of the CBD agreement and address the conflict between the TRIPS agreement and the CBD. It would indeed be irresponsible if the large group of experts gathered here did not do so. The CBD aims to strengthen the capacity of developing countries to preserve and exploit biodiversity in the long term, taking into account all rights over these resources and in particular the right to exploit the benefits of this resource base. Because of the structural imbalances between countries rich in biodiversity and those heavily affected by technological and legal instruments, the South has been systematically exploited. These programs and policies must be implemented to promote conservation and sustainable use, as well as sharing the benefits of using biological resources. By distorting the importance of novelty to short-sighted and culturally limited industrial interests, the implementation of TRIPS will systematically destroy the broader historical contribution of developing country communities to the planet`s biodiversity and undermine their rights.
The two rights systems described in the TRIPS and the CBD are therefore in complete contradiction. On the other hand, TRIPS aims to guarantee private property rights over products and processes, whether based on biodiversity or not, to ensure that the company`s interests are protected in the same way at the global level. The uniformity of the legal order of TRIPS would offer monopoly control to those who claim to have “invented” new plants, animals, microorganisms or their uses. Agencies, businesses and governments that believe that millions of dollars can be drawn from tropical forests and farmers` fields are effectively trying to co-opt the CBD and use it as a tool to derail the Community`s rights and resources. Not a week goes by without an international conference on what Gurdial Singh Nijar of the Third World Network calls “ABS syndrome”: the exchange of access and fund-sharing agreements to facilitate biodiversity trade. The distribution of benefits cannot be reduced to financial compensation, as it allows companies to access collectively held biological resources and knowledge and access to monopolistic rights. These are inalienable elements of the legacy of inheritance. The sharing of benefits simply cannot be done in the context of monopoly rights. The rules established by UPOV depend on genetic uniformity as a precondition for monopoly rights. They also demand payments from farmers, a source of biodiversity on which livestock is based. Under this provision, biodiversity is firmly covered by TRIPS legislation.
Plant varieties must now be patentable or open to an “effective sui generis system” to protect the iram. The exact meaning of the “effective sui generis system” is unknown. Most people conclude that plant breeding protection (PVP) – a “flexible” type of patent system for agriculture – would meet this requirement. However, the protection of plant varieties has proven to be a legal incentive to promote uniformity and restrict the rights of farmers and local communities working with biodiversity.