Conference of Parties COP16 Biodiversity will open its doors on 21 October 2024 in Cali, Colombia. This 16th Conference of the Parties to the United Nations Convention on Biological Diversity (CBD) will deal with access to and fair and equitable sharing of benefits arising from genetic resources and traditional knowledge. From May 13th to 24th, 2024, the World Intellectual Property Organisation (WIPO) held its first diplomatic conference on genetic resources and associated traditional knowledge at its headquarters in Geneva. At the end of this conference, a new treaty on intellectual property relating to genetic resources and associated traditional knowledge was adopted, which will enter into force after 15 ratifications.
What relationship have been built between these two institutions, the CBD, whose mission is to protect biodiversity, and WIPO, which deals with intellectual property? None, even where their topics overlap, as in the case of traditional knowledge. Since 1992, the CBD has specified in Articles 15 (access and benefit-sharing) and 8j (traditional knowledge) that national states and the indigenous and local communities they recognise have sovereignty over users’ access to and use of their genetic resources (which characterise biodiversity), without however mentioning the central issue of intellectual property rights, and in particular such as patents on these same resources. Over the past 30 years, this omission has fuelled controversy over the legitimacy of some patents, for example on the neem tree (Azadirachta indica), a natural biopesticide by Grace corporation, and more recently on the Quassia amara from French Guiana by the French Institute for Development Research (IRD).
The Svalbard Global Seedbank, serving as an ex situ conservation facility for the world’s plant genetic resources.
The new WIPO treaty only partially fills this gap. A central measure of this treaty is that for any patent application, the applicant must disclose the country of origin or the source of the genetic resources, and when it is based on traditional knowledge, he must also disclose the indigenous people or the local community that provided this knowledge (art. 3). However, this obligation is not retroactive (art. 4). Article 6 of the new treaty provides for the possibility of establishing information systems such as the one set up by India. No mention is made of the access and benefit-sharing procedures set out in the CBD and its Nagoya Protocol, which has been widely adopted by the signatory states. As a matter of fact, the new treaty makes no provision for conditions of free, prior and informed consent, nor for access or benefit-sharing on mutually agreed terms. In other words, the issue of sovereignty and benefit sharing itself is absent from the forum where it was most eagerly awaited.
But is this issue on the agenda for COP16, which starts in 26 days’ time? Clearly not. Instead, the issue that is occupying the negotiators, as regards access and benefit sharing, is that of the benefits arising from digital sequencing information (DSI). The 2nd meeting of the Ad Hoc Open-Ended Working Group on Benefit-sharing from the Use of Digital Sequencing Information on Genetic Resources (WGDSI-2) was held in Montreal from 12 to 16 August 2024. This important issue is still the subject of much disagreement between States and will be debated in Cali (see Summary report of this meeting here).
Map showing the biodiversity of vascular plants. This is greatest in tropical areas, which are often less industrialised and therefore less wealthier economically.
For our purposes, let us mention the following point of debate:
“Beyond a state vision, it should be emphasised that genetic resources and ISDs are found on many territories of indigenous and local communities. These communities are also claiming their right to enjoy the benefits derived from the ISRs that others draw from their lands. In doing so, COP16 is expected to determine how a portion of the benefits derived from the use of ISD can effectively be returned to these communities, recognising that these communities play a central role in the conservation of nature and its resources.” (translation from a portion of this article).
Canada is preparing to “make data accessible to communities, adapt its legislation and make its private sector more responsible, all depending on the final text that emerges from COP16”. France, which has indigenous communities in its overseas territories, and other countries, should be preparing to do the same. But substantial discussions will first take place in Cali on the final text, most of which is in square brackets, i.e. under discussion. But another subject is also likely to play a major role in the discussions: the coherence and articulation of international instruments dealing with the use and sharing of benefits. The International Treaty on Plant Genetic Resources for Food and Agriculture and the Nagoya Protocol of the CBD are often mentioned, but the new WIPO treaty should also be. Could we imagine this time a set of recommendations from the State representatives participating to COP16 Biodiversity to WIPO on the implementation of their latest treaty, and the addition of provisions referring to the access and benefit-sharing procedures provided for by the CBD?
Références :
- Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge
- My article on the subject in Alternatives Économiques (2024) (French)
- My interview at France24 on biopiracy.
- My book on alternatives to biopiracy, ECLM, 2012 (French).
- The web site of COP16 biodiversity.
