RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/130/Add.1
16 March 1999
(99-1056)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
Information from Intergovernmental Organizations
Addendum
SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY
As agreed by the Council, at its meeting of 1 and 2 December 1998, the Secretariat has
contacted the FAO, the Secretariat of the Convention on Biological Diversity and UPOV, to request
factual information on their activities of relevance.
The present document reproduces the information that the Secretariat has received from the
Secretariat of the Convention on Biological Diversity.
_____________
The request that was extended to certain intergovernmental organizations was for "factual
information on their activities of relevance", presumably to the review of Article 27.3(b) of the TRIPS
Agreement.  Rather than the Secretariat for the C onvention on Biological Diversity seeking to take a
view on which of its activities might be consider ed by the Members of the TRIPS Council to be so
relevant, the approach that has been taken in the information supplied has been to describe activities
under the CBD of relevance to intellectual property matters, leaving it to the Members of the Council
for TRIPS to decide which of these activities they would consider to be particularly more relevant to
the review of Article 27.3(b).
Consideration by the Conference of the Parties to the CBD
(a) Consideration of intellectual property rights under access and benefit-sharing
The Conference of the Parties to the Convention on Biological Diversity (CBD) addressed
policy, legislative, or administrative measures related to intellectual property rights as provided in
Article 16 of the Convention at its second mee ting and adopted Decision II/12.  The Decision
requested the Executive Secretary to, inter alia,
"[l]iaise with the Secretariat of the World Trade Organization to inform it of the goals and the
ongoing work of the Convention on Biological Diversity and to invite the Secretariat of the
World Trade Organization to assist in the preparation of a paper for the Conference of theParties that identifies the synergies and relationship between the objectives of the Convention
on Biological Diversity and the TRIPS Agreement".
The Secretariat of the CBD prepared a background document, "the Convention on Biological
Diversity and the Agreement on Trade-Related Intellectual Property Rights (TRIPS):  RelationshipsIP/C/W/130/Add.1
Page 2
and Synergies" (UNEP/CBD/ COP/3/23) for the third meeting of the Conference of the Parties.  In
addition, the Secretariat prepared another document on related subjects, "the impact of intellectual
property rights systems on the conservation and sustainable use of biological diversity and on the
equitable sharing of benefits from its use" (UNE P/CBD/COP/3/22).  Subsequently, the Conference of
the Parties adopted several decisions addressing the relationship with the TRIPS Agreement.  In itsDecision III/15 on access to genetic resources, the Conference of the Parties requested the Executive
Secretary to cooperate closely with the World Trade Organization through the Committee on Trade
and Environment to explore the extent to which there may be linkages between Article 15 and
relevant articles of the Agreement on Trade-Related Aspects of Intellectual Property Rights.  By its
Decision III/17, the Conference of the Parties inst ructed the Executive Secretary to transmit the
relevant decisions of the third meeting of the Conference of the Parties as well as the documents
placed before it.  In paragraph 8 of this decision, the Conference of the Parties further stated that it:
"[r]ecognizes that further work is required to help develop a common appreciation of the
relationship between intellectual property rights and the relevant provisions of the Agreement
on Trade-Related Aspects of Intellectual Property Rights and the Convention on Biological
Diversity, in particular on issues relating to technology transfer and conservation andsustainable use of biological diversity and the fair and equitable sharing of benefits arising out
of the use of genetic resources, including the protection of knowledge, innovations and
practices of indigenous and local communities embodying traditional lifestyles relevant for
the conservation and sustainable use of biological diversity".
Subsequently, the Secretariat called for submissions from the Parties and governments on
information regarding the impacts of intellectual property rights on the achievement of the objectives
of the Convention, including relationships between intellectual property rights and the knowledge,
practices and innovations of indigenous and lo cal communities embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity.
To date, the Secretariat has received several submissions regarding access and benefit-sharing
arrangements, which are relevant to the consideration of Article 27.3(b) of the TRIPS Agreement.
These case studies are explained below.
At the fourth meeting, held in Bratislava, Slovakia, from 4-15 May 1998, the Conference of
the Parties considered the relationship with the World Trade Organization, in particular the TRIPSCouncil, under the agenda item 12.3:  relationship with other international conventions.  The
consideration of this item is reflected in Decision IV/15 on the relationship of the Convention on
Biological Diversity with, inter alia,  other international agreements of relevance.  In addition,
Decision IV/8 on access and benefit-sharing also contains relevant guidance.  In particular, in
paragraph 9 of Decision IV/15, the Conference of the Parties:
"[s]tresses the need to ensure consistency in implementing the Convention on Biological
Diversity and the World Trade Organization agreements, including the Agreement on Trade-
Related Aspects of Intellectual Property Rights, with a view to promoting increased mutual
supportiveness and integration of biological diversity concerns and the protection ofintellectual property rights".
The Conference of the Parties "invites the World Trade Organization to consider how to
achieve these objectives in the light of Article 16, paragraph 5 of the Convention, taking into account
the planned review of Article 27, paragraph 3(b), of the Agreement on Trade-Related Aspects ofIntellectual Property Rights in 1999".
Furthermore, the Conference of the Parties reiterates paragraph 8 of Decision III/17
mentioned above (Decision IV/15, paragraph 10).  In paragraph 1 of Decision IV/8, the Conference ofIP/C/W/130/Add.1
Page 3
the Parties requests the inter-sessional meeting on operation of the Conversion to be held from
28-30 June 1999 to start work on this issue as well as to explore options for access and benefit-sharing
mechanisms.
(b) Consideration under the implementation of Article 8(j) and related provisions
Article 8(j) of the Convention stipulates that, subject to its national legislation, each
Contracting Party shall, as far as possible and as appropriate:
"respect, preserve and maintain knowledge, innovation and practices of indigenous and local
communities embodying traditional lifestyles relevant for the conservation and sustainable
use of biological diversity and promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices and encourage theequitable sharing of the benefits arising from the utilization of such knowledge, innovations
and practices".
The protection of knowledge, innovation and practices of indigenous and local communities
embodying traditional lifestyles relevant for the conservation and sustainable use of biologicaldiversity is within the scope of this article.
In accordance with the medium-term programme of work for the Conference of the Parties for
1996-1997 (Decision II/18), the Conference of the Pa rties considered knowledge, innovations and
practices of indigenous and local communities at its third meeting.  A background document(UNEP/CBD/COP/3/19) was prepared for the mee ting.  The Conference of the Parties adopted
Decision III/14 at this meeting, which established an inter-sessional process, including a five-day
workshop, to advance further work on the implementation of Article 8(j) and related provisions.  For
the preparation of the workshop, it requested the Executive Secretary to prepare a background
document containing specified topics, including linkages between Article 8(j) and intellectualproperty rights.  The same decision also requested the Executive Secretary to remain informed on the
relevant international processes and bodies, including, inter alia , the World Trade Organization.  The
Conference of the Parties also invited governments, international agencies, research institutions,
representatives of indigenous and local communities and non-governmental organizations to submit
case studies to the Executive Secretary, which highlight the key areas of consideration on the
implementation of Article 8(j).
Following this decision, the Workshop on Tradit ional Knowledge and Biological Diversity
was held in Madrid, Spain from 24 to 28 November 1997, at the invitation of the Government of
Spain.  The report of the Workshop is contained in document UNEP/CBD/TKBD/1/3 (also submitted
to the fourth meeting of the Conference of th e Parties as UNEP/CBD/COP/4/10/Add.1).  In the
recommendation for elements for the formulation of a work programme contained in Annex 1 of the
document, the Workshop included such items as:
- to develop standards and guidelines for the protection, maintenance and development
of indigenous knowledge in consultation and participation with indigenous peoples;
and
- to develop standards and guidelines for the prevention of biopiracy, the monitoring of
bioprospecting and access to genetic resources.
In options for recommendation for elements of a workplan for future elaboration, the
Workshop included several options relevant to current topics under equitable benefit-sharing as well
as under legal element.  These options are found in Annex II of the document.IP/C/W/130/Add.1
Page 4
The fourth meeting of the Conference of the Parties considered the report of the Workshop as
well as the synthesis of case studies submitted to the Executive Secretary.  The latter is contained in
document UNEP/CBD/COP/4/10.  In the section of intell ectual property rights, it is stated that "some
countries are currently undertaking detailed review of their legislation and policies and examining a
range of options to protect traditional knowledg e", citing a submission from Australia.  From
submissions from some indigenous and local co mmunities and institutions, it was found that
community-level efforts were being made in rais ing community awareness and developing strategies
to enable them to both protect and benefit from their knowledge.  There were also some submissions
on activities of non-governmental organizations in reviewing intellectual property protection regimes
and informing indigenous and local community groups on their strategies to secure at least some
protection for their traditional knowledge.  One report (submission by Canada), through a number of
case studies, examined the use of existing mainstream intellectual property rights laws by indigenouscommunities.  This report noted that, while indigenous peoples in that country are increasingly using
existing systems, these tended to be the less t echnical forms (copyright and trademark).  The more
complex regimes (patents) appeared not to be resorted to for products of indigenous knowledge.
The Conference of the Parties adopted Decision IV/9 at its fourth meeting, which establishes
an ad hoc open-ended inter-sessional working group.  The mandate of this working group includes,
inter alia :
"[t]o provide advice as a priority on the application and development of legal and other
appropriate forms of protection for the knowle dge, innovations and practices of indigenous
and local communities embodying traditional lifestyles relevant for the conservation and
sustainable use of biological diversity".
The same decision further invites submissions from governments, international agencies,
research institutions, representatives of indigenous and local communities and non-governmentalorganizations case studies and relevant information on specified topics, including, inter alia:
"[t]he influence of international instruments, intellectual property rights, current laws and
policies on knowledge, innovations and prac tices of indigenous and local communities
embodying traditional lifestyles relevant for the conservation and sustainable use of biological
diversity".
The information so submitted will be used as background information for the working group.
This working group is scheduled to meet from 24 to 28 January 2000.
Relevant case studies so far submitted
While the Secretariat has not received any specific case studies on the impacts of IPRs on
biological diversity, several case studies and information received touches on the issue of the
protection of knowledge, innovation and practices of indigenous and local communities embodying
traditional lifestyles relevant for the conservation and sustainable use of biological diversity.  Case
studies submitted for access and benefit-sharing theme can be found in the Secretariat's web-site
(http://www.biodiv.org).
(a) Access legislation
Based on the submissions that the Secretariat so far received, document
UNEP/CBD/COP/4/23, "Review of national, regional and sectoral measures and guidelines for the
implementation of Article 15" observes that the scope of the law often includes "traditional","intangible", "indigenous" and "local" knowledge associated with genetic resources or its derived
products, citing the Andean Pact regime as an example.  In earlier document UNEP/CBD/COP/2/13,IP/C/W/130/Add.1
Page 5
"Access to genetic resources", the Secretariat reported on the Andean Pact Common System on
Access that its Article 7 of Chapter II states that the "member countries … recognize the value and
rights and decision-making capacity of indigenous, Afro-American and local communities with regard
to their traditional practices, knowledge, and innovations connected with genetic resource and their
derivatives."  Other examples could be found in th e draft Fijian Sustainable Development Bill and the
Philippines Executive Order and Implementing Regulations, as well as the Indigenous Peoples' Rights
Act and the Traditional and Alternative Medicines Act.
(b) Community registers
Community registers seek to document the knowledge of occurrence, practices of
propagation, sustainable harvests and conservation, as  well as economic uses of biological resources
that are found within communities.  The most well-known efforts are being made in India where, as ofearly 1998, approximately 60 peoples' biodiversity registers have been completed or are nearing
completion in nine Indian states (IUCN, 1998).  All information accumulated in the register can be
used or distributed only with the knowledge and co nsent of the local community; thus, it represents a
mechanism for a decentralized regime on access to biological resources and associated knowledge
(Anuradha, 1997).  The submission from Koisaan Koubasanan Kadazandusun, Sabah, also reportedthat they had undertaken a project to list indigenous multi-purpose plants that are still alive within the
living memories of the current elder generation of their people.
(c) Know-how licences
A know-how licence is a contractual legal instrument applied to the intellectual property
embodied in, for example, biotechnology or co mputer software.  Know-how licences allow
knowledge to be used without actually passing title to it (Tobin, 1997).  The case study on the
International Cooperative Biodiversity Groups (ICBG) Programme submitted by J. P. Rosenthal of
the National Institute of Health describes the case of Peru ICBG Programme, which is collaborating
with the Aguaruna people of the lowland Andean rainforest of Northern Peru.  In this programme, theAguaruna peoples and Searle Pharmaceutical Co. is reported to be negotiating a know-how licence
that outlines Searle's use of the traditional knowledge and specific benefits associated with that use.  It
states that the use of a know-how licence for ethno-medicinal knowledge in the context of
bioprospecting is an innovation that was suggested by the legal counsel for the Aguaruna, Brendan
Tobin of the Sociedad Peruana de Derecho Ambiental.  The study found that, while the application of
a know-how licence to indigenous knowledge was not without legal complications, it offered a
potentially powerful tool to provide indigenous and other local people's recognition and protection ina type of contract that was familiar to the commercial sector.
Recognition in other bodies
The close relationship between the provisions of the Convention and the TRIPS Agreement
has been noted by several other bodies.  At its 53
rd Session, for example, the United Nations General
Assembly welcomed Decision IV/15 regarding th e relationship between the Convention and the
TRIPS Agreement mentioned above and reaffirmed the importance of developing both instruments in
a harmonious manner (A/RES/53/200).
__________