In recent decades the world has experienced a fast technological development in the area of biotechnology. New, cost effective and efficient technological methods make it easier for industry and scientists to research, develop and discover, inter alia, new pharmaceutical, agricultural and cosmetic products based on genetic materials and/or associated traditional knowledge. However, the steady advance of biotechnological innovation raises difficult questions of different natures. At large extent, biotechnological innovations involve access to genetic resources, which itself raises some of the most challenging issues for global environmental governance. Central to the governance of access to genetic resources is the issue of property rights. Who owns genetic resources and/or associated traditional knowledge? Are these resources, public, private, collective property.
Broadly said, three different property rights characterize governance of genetic resources: intellectual property rights; sovereignty of stats; and property rights of indigenous and local communities. The governance of these property rights is reflected at the international level in many instruments. These are, inter alia, the Convention on Biological Diversity (CBD), The Bonn Guidelines on Access to Genetic Resources and The Fair and Equitable Benefit Sharing and the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPs). Broadly said, each of these instruments includes different aspects and different approaches toward the relationship between property rights and genetic resources. The CBD recognizes the sovereignty of states on their genetic resources and aims with its third objective to achieve the fair and equitable sharing the benefits arising out of the utilization of genetic resources. The Bonn Guidelines include non-binding measures suggested to parties on how to regulate and mange access to genetic resources and the fair and equitable benefit sharing. In addition, both the CBD and the Bonn Guidelines include different measures on the rights of indigenous and local communities, relevant for their property rights. Furthermore, the TRIPs Agreements constitutes the key international document on the regulation of all (private) intellectual property rights in all technological fields including biotechnology, hence including intellectual property rights on genetic resources and/or associated traditional knowledge.
The relationship between the concepts of CBD and the TRIPs Agreement is a complex issue, and has been researched from different approaches and disciplines. At the international level these instruments adopt different languages, concepts, and approaches on property rights and genetic resources and raise many legal and political controversial questions. At the national level, these instruments have been translated into national legislations. Against this background, my study focuses on the relationship between the TRIPs Agreement and the CBD and to how existing international property rights concepts can contribute to the achievement of the objective of fair and equitable benefit sharing at the national level. Based on three case studies conducted in Brazil, India and Tanzania, this study aims to provide insights into the two regimes in the national context.