Compatibility of the Intellectual Property Regime, the Convention on Biological Diversity and the Nagoya Protocol

Abstract

For nearly two decades, there has seemingly been no way to make intellectual property norms compatible with the implementation of the Convention on Biological Diversity (CBD) and the Nagoya Protocol (NP). This conflict makes these two international agreements inoperative and difficult to apply. This study analyzes the main disagreements between the regulations of the CBD and NP on the one hand and intellectual property norms on the other. It briefly reviews the character and the dominant perspectives of both regulations and identifies concepts and interpretations that, if applied correctly, could make them compatible. To this end, the approach of this paper is to separate the problem of conservation and sustainability in biodiversity from the problem of the lack of intrinsic, potential or use value attributed to genetic resources and traditional knowledge. It also redeems the notion of patents as an instrument to reestablish fair competition and solve the market failure of unfair imitation, rather than its deployment as a strategic asset to generate extraordinary, monopolistic profits. At the same time, the article evaluates the assumed preponderance of innovation and conservation goals in comparison to other rights and public interests. The study analyzes the eleven most important connections between the rules that regulate the access to and use and distribution of benefits deriving from biodiversity and those that protect intellectual property. It concludes that most international impasses in which intellectual property is pitted against the CBD and the NP find a solution through the new approach proposed above. Finally, the article briefly provides solutions to each of the eleven issues examined. © 2021 Published by OUP and CH Beck on behalf of GRUR e.V. All rights reserved.