The biodiversity of the rainforest is a resource as real as any precious metal. Consider the language that has developed around it, with so-called ‘bio-prospectors’ seeking commercially valuable resources. Such agents are not always seen as benign. Activists see ‘bio-piracy’ as a new crime of our times – that of companies which abuse their power in seeking to obtain patents or other forms of intellectual property protection over inventions involving resources or traditional knowledge that belong by rights to their respective communities.

Special responsibility
As the world’s biggest trading partner, the European Union (EU) has a special responsibility to respond to the issues that biodiversity raises. The legitimacy of the world trading system is at stake in a debate that one could caricature as pitting the technology-rich North against the biodiversity-rich South. That is why I believe the current Doha Development Round of negotiations, under the auspices of the World Trade Organization (WTO), must address developing countries’ legitimate concerns, while developing intellectual property protection that can and should benefit everyone with a stake in the issue.

The EU signed the Convention on Biological Diversity, which came into force in 1993 as a result of the Earth Summit in Rio de Janeiro. This aims to conserve biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. The EU’s aim is to foster its implementation in all respects, with technical assistance to enhance the capacity of developing countries to do so if necessary. This can, I believe, be done while pursuing negotiations within the WTO framework.

The Trade-Related Intellectual Property Rights (TRIPS) Agreement, which came into force in 1995, aims to create minimum standards of intellectual protection that all WTO Members must recognize; to ensure states make available procedures for holders to enforce their intellectual property rights; and to provide a disputes procedure.

I am aware that many countries fear that the TRIPS Agreement may undermine the aims of the Convention on Biological Diversity, or may not support them enough. Some are concerned that it does nothing to ensure that those seeking patents for inventions based on genetic resources respect the Biodiversity Convention’s principles on benefit-sharing. They argue that the absence of information on the geographical origin of bio-material used in inventions makes it difficult for them to keep track of the commercial use of these resources or to check whether bioprospectors have respected the principles of the Biodiversity Convention.

Material benefits
Indigenous or local groups in developing countries are right to expect to benefit materially if their traditional knowledge is applied in ways that are shared via commercial initiatives and trade. This is why the EU is working on ways of helping developing countries rich in traditional knowledge to identify it and prevent it being undervalued or abused.

To move the discussion forward, the EU has contributed a Concept Paper for discussion at the WTO’s TRIPS Council in Geneva (1). This explores the relationship between the TRIPS agreement and the Biodiversity Convention, and recognizes developing countries’ legitimate concerns to ensure that the agreement encourages those seeking patents over biotech inventions to respect the Convention’s basic principles.

As the world’s biggest trading partner, the EU has a special responsibility to respond to the issues that biodiversity raises

The key proposal in the paper is a means of obliging applicants for patents who have used the fruits of bio-prospecting for new products to disclose the geographical origin of any biological material used in biotech inventions. At present, there is no such obligation. The paper also supports the idea of providing better protection for traditional knowledge, and recognizes the right of subsistence farmers in developing countries to re-use and exchange seeds, even those covered by intellectual property rights via so-called farmers’ exemptions. Larger-scale commercial farmers would stay subject to more stringent rules.

The EU’s paper argues that if we use the tools at our disposal, TRIPS and the Biodiversity Convention – far from being in conflict – are compatible and can mutually reinforce each other, both at the national level and internationally. To this end, the EU welcomes the work of a new World Intellectual Property Organization (WIPO) Intergovernmental Committee on traditional knowledge. This may result in a new international model for the legal protection of this important knowledge: with it we could focus attention on the extent to which such protection can be included in the TRIPS Agreement.

There will be practical problems on the way, as many countries that might benefit in the long run do not yet have legislation in place on access to genetic resources. We must welcome the will of Like-Minded Megadiverse Countries meeting in Cancun in February 2002 to make progress with a united front on this issue.

(1) EC Communication to the TRIPS Council on the review of Article 27.3(b) of the TRIPS Agreement; the relationship between the TRIPS Agreement and the Convention on Biological Diversity and the protection of traditional knowledge and folklore, September 2002 (http://europa.eu.int/comm/trade/miti/intell/contrib.htm).