The Convention on Biological Diversity and Intellectual Property Rights: The Challenge of Indigenous Knowledge

Abstract

The Convention on Biological Diversity provides for the use of intellectual property rights in the furtherance of its cardinal objectives. Not being an intellectual property convention, it offers no practical or independent scheme on how to use intellectual property rights in the pursuit of its said goals. Instead, it relies on the international intellectual property system. The principal instrument of that system is the TRIPs Agreement, which prescribes formal intellectual property rights for global application. Exploring conventional patent and trade secret regimes of intellectual property rights, this paper argues that the Trips Agreement constitutes an obstacle to the realization of the conceptual objectives of the Convention on Biological Diversity with regard to the knowledge of indigenous and local communities. Thus, a global intellectual property order capable of enhancing the objectives of the Convention on Biological Diversity should not ignore Indigenous Protocols and jurisprudence on knowledge protection. This lingering review of the TRIPs Agreement's Article 27 provides the opportunity to move that instrument in the direction of a cross-cultural approach to intellectual property rights that has already been endorsed by the Convention on Biological Diversity and the World Intellectual Property Organization.

Keywords: biological, diversity, biodiversity, intellectual property, law, legal, international, TRIPS, convention, patent, trade secret, indigenous, native, local, knowledge, tradition, protection, cross-cultural, World Intellectual Property Organization, WIPO