36 Pages Posted: 14 Jun 2006
Do intellectual property rights promote or inhibit legal efforts to protect endangered species and ecosystems? According to the conventional narrative on biopiracy, biodiversity and biotechnology can scarcely coexist. Placing the debate in its proper environmental context demonstrates that both the global south (home to most of earth's threatened and endangered species) and the global north (the source of the capital and technology needed to develop this natural wealth) have overstated the significance of commercial development. Saving biodiversity's hot spots promises far more environmental benefit. Nevertheless, to the extent that bioprospecting can overcome perverse economic incentives to consume natural resources with greater, long-term value, it behooves us to examine biotechnology's impact on biodiversity and the legal framework that regulates this relationship. After examining intellectual property through three conceptual filters - genotypes versus phenotypes, genes versus memes, and pharmaceutical versus agricultural applications of biotechnology - this article reviews the relevant provisions of the Convention for Biological Diversity, the annex on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the International Convention for the Protection of New Varieties of Plants (UPOV). If the developing world intends to obtain access to northern capital and technology, it is likelier to do so through TRIPS and UPOV than the Biodiversity Convention. This article concludes by urging a reduction in the vehemence of the debate over biodiversity and biotechnology. The attention lavished on clever ways to exploit individual species should yield to a reinvigorated commitment to funding cooperative conservation efforts under the aegis of the Convention on Biological Diversity.
Keywords: biodiversity, biopiracy, biotechnology, bioprospecting, intellectual property, patents, trade secrets, traditional knowledge, ethnobiological knowledge, genetic resources, Convention on Biological Diversity, Trade-Related Aspects of Intellectual Property Rights, TRIPS, UPOV, genes, memes
JEL Classification: O13, O34, Q20
Suggested Citation: Suggested Citation
Chen, James Ming, Diversity and Deadlock: Transcending Conventional Wisdom on the Relationship Between Biological Diversity and Intellectual Property. Environmental Law Reporter, Vol. 31, No. 10, p. 625, 2001; Minnesota Legal Studies Research Paper No. 06-28. Available at SSRN: https://ssrn.com/abstract=908715