The United Nations Bio-Diversity Convention

The United Nations Convention on Biological Diversity, known as the Biodiversity Convention, was enacted in Rio de Janeiro in June 1992. The Convention was signed by 157 Governments and more have signed since then. At present, the Convention has been ratified by 127 States, including the European Community and its Member States, Canada, Japan, and the Russian Federation. The United States signed with reservations and has not yet ratified the Convention.

The prime purposes of the Convention are to ensure conservation of biological diversity, sustainable use of its components, and the fair and equitable sharing of the benefits arising out of their utilisation (Article 1). The Convention recognises that conservation must be balanced with development, particularly in developing countries.

Genetic resources have in the past been declared 'a common heritage of mankind to be preserved, and to be freely available to all, for use for the benefit of present and future generations' (United Nations Food and Agriculture Organisation (FAO) Conference, November 1989). This declaration is consistent with the application of scientific research to genetic resources to utilise their potential for the improvement and development of medicine and agriculture. Such research gives rise to the likelihood of innovation, especially in the fields of traditional plant breeding and plant genetic modification through the methods of biotechnology.

Innovative developments flowing from research on genetic resources add to the stock of previous knowledge and practice in medicine, agriculture and food technology. These developments contribute new assets without removing existing ones, and are capable of legal protection as intellectual property e.g. plant breeders' rights and patents.

The term 'genetic resources' signifies the totality of the germplasm of existing plants and animals in public use or otherwise in the public domain throughout the world, e.g. in public germ banks. The question of rights deriving from the ownership of source material, e.g. human cells from an individual person or plant tissue from a particular geographical location, is not addressed directly by patent law. Patent law is essentially concerned with inventions which are the outcome of research carried out on or with the source material. The source material itself, in its natural state, cannot be patented, but the isolation of an active principle or a genetic component of the natural material leading to a new and useful application, e.g. medical or agricultural, can be the subject of a patent.

The Convention recognises the sovereign rights of States over their natural resources. Therefore National Governments have the authority to determine access thereto (Article 15 (1)). The Convention provides that, in return for providing access to its genetic resources, a donor country should benefit through any of three mechanisms:-

• articipation in research, Article 15(6);
• sharing in the results of research and proceeds of commercial exploitation, Article 15(7); and
• access to and transfer of derived technology, Article 16(1).

According to Article 15(4), (5), and (7) access and sharing are to be dealt with 'on mutually agreed terms' and 'subject to prior informed consent'. Therefore access to genetic resources must be preceded by negotiation as to the form in which benefit to the donor country is to be achieved.

According to article 16(1) and (2) of the Convention, access to and transfer of technology among the Contracting States is necessary both for the conservation of biological diversity and for the use of genetic resources. Article 16(3) requires Contracting Parties (National Governments) to 'take legislative, administrative, or policy measures' to achieve this objective, particularly where a developing country provides the genetic resources. Also, by Article 16(4), such measures must have the aim that the private sector facilitates joint development with, and technology transfer to, governmental institutions and the private sector of developing countries.

However laudable these objectives may be, it is not immediately apparent how to implement them in the private enterprise systems which predominate in industrially developed countries. Governments will need to consult with all sectors and interests, private and public, to determine acceptable forms of co-operation in specific industries. In advance of this, initiatives have already been taken by industry and at other non-governmental levels to devise mutually beneficial contractual arrangements for the supply of plant materials from developing countries for investigation of their potential (Material Transfer Agreements). These arrangements are working satisfactorily but the benefits are inevitably long-term.

Technology transfer may be achieved by a variety of mechanisms. It will usually include the licensing of some form of proprietary right obtained either under an established statutory form of intellectual property or deriving from the possession of secret know-how and/or proprietary biological material. In Article 16(3) and (5) the Convention recognises that the technology to be transferred may be the subject of patents and other intellectual property rights.

Statutory intellectual property provides a basic framework for the structure of the licence which can be supplemented and reinforced by provisions based on the supply of know-how and other factors which may be less tangible and less easy to define. In biotechnology, patents are usually the most significant form of statutory protection. Patent law demands clear definition of the protected technology and thereby establishes the scope of the rights of the innovator, identifies what is transferred to a licensee, and allows for the corresponding freedoms of third parties to be assessed.

The existence of an adequate system of intellectual property rights in the donor country will not of itself ensure that technology transfer takes place. However, as it provides an orderly method of achieving such transfer and of controlling unlicensed and unfair competitive activity, it will offer a strong inducement to the whole process of investment in research and development of the genetic resource and in the subsequent exploitation of the derived technology.

Farmers' Rights are not part of the Biodiversity Convention but are seen as a related concept in public debate on the broad issues covered by the Convention. These rights were first formulated in Resolution 5/89 of the FAO Conference mentioned above. In this resolution, `Farmers' Rights' means "rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly those in the centres of origin/ diversity ..."

Farmers' Rights are not to be confused with the so-called Farmer's privilege which stems from existing national laws on Plant Variety Rights. These laws, being restricted in protective scope to commercial dealing in the reproductive material of the new variety e.g. seed, allow a farmer to save seed from a first crop for planting a second crop on the same farm (without further recompense to the owner of the variety right).

It is not presently clear how Farmers' Rights are to be given practical expression in a formal legal system It is virtually impossible to envisage this type of right as grafted on to intellectual property law and it will almost certainly require the creation of a new legal system for its own special purpose. With Developing Countries in mind, special forms of legal system (sui generis) for plant and animal varieties are envisaged under Article 27(3) of the GATT (TRIPS) Agreement of April 1944, although these have not yet been defined or detailed.

The Chartered Institute of Patent Attorneys broadly supports the Biodiversity Convention insofar as its terms and implementation do not negate or hinder the legitimate use of intellectual property rights. The Institute favours the devising of freely-negotiated and mutually beneficial arrangements as between Contracting States and the private sectors in order to achieve the objectives of the Convention.