Intellectual Property and Trade : The Issue of Control Over Bio-Resources.

Universiti Kebangsaan Malaysia Faculty of Law Pursuing PHD Program in Law P58462
Musbri Mohamed DIL; ADIL ( ITM ) MBL ( UKM )

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Since decolonisation, it has been agreed that states have sovereign rights over biological resources. States can relatively easily control the exploitation of resources such as coal, silver, iron ore and gold but this is much more difficult in the case of biological resources. Developing countries are the source of 90% of the world¶s bio-resources. Yet, individuals or companies from developed countries hold 97% of all bio-patents. Asebey and Kempenaar point out, µeven the most conscientious corporations almost never adhere to their codes of conduct in relations with developing countries.¶

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In the last decades there has been a distinct shift in the way biological resources are viewed. What was a µnatural¶ resource, accessible to all, has now become an µeconomic¶ resource, to be privatised. In this process, public property jointly held and nurtured by communities, is converted to a private property owned by a few and withheld increasingly from the local communities. This shift can be seen in recent international and national developments. Two major international agreements, the Agreement on µTrade-Related Intellectual Property Rights¶ (TRIPS) of the WTO and the United Nations µConvention on Biological Diversity¶ (CBD), with mutually conflicting approaches, are now shaping the domestic regimes of member states with respect to biological resources and associated indigenous knowledge. The Agreement on TRIPS engenders privatisation of biological resources by allowing patents to be granted on biological materials and associated indigenous knowledge, and the CBD acknowledges that local communities have rights over bio resources and indigenous knowledge.

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Over the last 2 decades the international community made huge steps in working towards global sustainable development and the management of the planet¶s resources. The 1992 Convention on Biological Diversity, a legally binding international agreement, was developed at the United Nations Conference on Environment and Development. It came into force in December 1993. The 150 signatories to the Convention made a commitment to ³the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources´ (Article 1). The 1992 Earth Summit of Rio de Janeiro addressed the conservation and sustainable use of the planet¶s biodiversity, the 1995 Social Summit or the 1996 World Food Summit are some milestones on that road.

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The CBD recognises the sovereign rights of states over their biological and genetic resources (Art 3 and 15) stipulating that access to genetic resources can only occur on mutually agreed terms and with the prior and informed consent of states (Art 15.5); requires signatories to protect and promote the rights of communities, farmers and indigenous peoples concerning the customary use of biological resources and knowledge systems (Art 8j and 10); defends an effective protection of intellectual property rights (Art 16.2) that enables developing countries, which provide genetic resources, to have access to technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights (Art 16.3); requires the equitable sharing of benefits arising from the commercial use of communities¶ biological resources and local knowledge (Art 15.7); and asserts that intellectual property rights must be supportive of and not run counter the objectives of the CBD (Art 16.5).

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The issue of the use of biodiversity has been in the centre of these reflections and uphold the principle that plant genetic resources belong to humankind¶s common heritage and should stay within the public domain. These international agreements however are at odds with provisions of the WTO¶s Trade Related Intellectual Property Rights Agreement that allows, indeed encourages, patenting of plant, animal and human genetic resources. Article 27.3(b) of TRIPS has brought biological resources under the purview of intellectual property rights, hence providing for private ownership over bio resources with exclusive commercial rights.

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There are four options within Article 27.3 (b) :Firstly, allows patents on everything. This would include all materials and all forms of technology. Secondly, to exclude plants, animals and biological processes, but not plant varieties. This means that whereas naturally found plants, animals and the natural biological process by which they are created, could be excluded from patents, crop varieties could not. The third option is to exclude plants, animals and biological processes from patenting and to introduce a special sui generis for the protection of plant varieties. A sui generis system allows the country to create a system of their choice that would enable the minimum protection agreed to in the WTO. The final option is to exclude plants, animals and essentially biological processes from patenting but not plant varieties, and to provide a sui generis right. This last would mean that plant varieties could be patented or protected by an independently created sui generis system.

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The TRIPS Agreement of the World Trade Organisation (WTO) provides minimum national standards for member countries to guarantee protection for intellectual property. By putting IPRs in the WTO agreements, members are obliged to respect other members¶ IPR titles or, in case of non-compliance, to face trade sanctions by the WTO Dispute Settlement Mechanism.

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While countries such as India have been asked repeatedly to change their patent laws under WTO, no pressure has been put on the US for violating the Convention on Bio-Diversity (CBD). This treaty had made it obligatory for advanced countries to make their MNCs share the profits of biological resources with those countries and communities from whom these resources have been taken. The US has refused to accept any such obligation and stated that this is a matter between the MNCs and the "bio-donor countries", officially therefore abetting the rampant bio-piracy that MNCs are indulging in. Further, US has also stated that the WTO regime has primacy over the bio-diversity treaty. The United States has accused developing countries of engaging in unfair trading practices when they fail to recognize US patents within their own national boundaries.

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The issue of WTO is not one of merely changing this or that provision of the Intellectual Property . The issue is to confront the US and the advanced countries on the entire gamut of issues regarding intellectual property and biotic resources. Without doing with, the developing countries shall slip into a neo-colonial regime: they will be the markets for and suppliers of raw materials while MNCs from developed nations make super profits.

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Once the information contained in a genetic resource is taken, there is a danger that the synthetic version of that variety will be developed and the raw substance no longer needed. This problem has already been illustrated with sugar production where genes were taken from raw Nigerian biological material and grafted into products that now make traditional sugar crops nearly redundant. The above analysis demonstrates that the expansion of property rights over genetic resources has resulted in a backlash from the donors of genetic resources, as under the present regime pecuniary benefits do not flow to them.

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The inequality of the present situation leads to the call for the control of the appropriation of genetic resources. There are compelling arguments that there could no longer be unconditional and unlimited free access to these resources. Furthermore, as the law has eliminated the exclusion of biological materials from patents, there is an attempt to exclude these types of inventions on the grounds of ethics and morality.

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The TRIPs agreement covers seven areas of intellectual property rights (IPR): 1 copyrights, 2 trademarks, 3 geographical indication, 4 industrial designs, 5 lay-out designs of integrated circuits, 6 trade secrets; and 7 patent. The most controversial and complex of these is the patent system. The TRIPs agreement aims to harmonize IPR protection on a global scale, which means that all members of the World Trade Organization (WTO) should have similar IPR regimes .

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This harmonization agenda poses problems for indigenous peoples and developing countries, where the majority of their populations still have a long way to go before they can reach a decent level of development. Since transnational corporations mostly own the trademarks, patents, etc., the harmonization of IPRs is to their advantage. The harmonization of intellectual property rights laws to ensure that these are consistent with TRIPs could be disastrous for indigenous peoples. It is similar to how national laws and policies on land, forests, governance, etc. were imposed on indigenous peoples without any consideration whatsoever on customary laws in these same areas. In this case, however, it is an international body, the WTO, which is acting like national governments.

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Life science such as basic biology, medical science, agriculture, and pharmacology is hoped to solve serious problems in health, food production and environment that we, human, are facing in the 21st century. For research in life science, experimental materials, often referred to as "Bioresources" or "Biological resources" are essential elements, in addition to human resources, equipments and facilities. Life science in Malaysia , however, used to depend on bioresources developed in the United States or in European countries. As a consequence, creativity of Malaysian scientists and development of unique and independent research in Malaysia has been severely limited.

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"Biodiversity, without any doubt, is the world's biggest asset. The value exceeds the market capitalization of all stock exchanges worldwide many times over. It is alarming to see that the tools and concepts of modern finance are not used to manage this asset. We expect the use of portfolio theory to provide additional incentives to conserve biodiversity." The Biodiversity Convention also establishes the idea of all countries sharing reasonably in the profits from bio-resources. Today, as biotechnology advances rapidly, each gene in each species is "software" that could be worth a gold mine. Countries with extensive biodiversity, like Brazil and Costa Rica, which have tropical rainforest, have begun to limit access to their bio-resources. In response, multi-national pharmaceuticals manufacturers are competing to sign contracts with countries of the South, gaining access to their bio-resources in exchange for a user fee. In recent years, research products in Life science frequently result in industrialization and commercialization. Thus, not only advanced counties but also developing counties have started to claim their intellectual property rights on bioresources.

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The inequality of the present situation leads to the call for the control of the appropriation of genetic resources. There are compelling arguments that there could no longer be unconditional and unlimited free access to these resources. Furthermore, as the law has eliminated the exclusion of biological materials from patents, there is an attempt to exclude these types of inventions on the grounds of ethics and morality. Ground for eliminating the patenting of inventions has its foundation in ethics. Article 53 of the European Patent Convention ('EPC') provides for the exclusion of biotechnological inventions, the publication or exploitation of which would be contrary to 'ordre public' or morality'. The tenor of art 53 of the EPC has been adopted in the General Agreement of Tariffs and Trade ('GATT') TRIPS Agreement in art 27(2)(b).

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It has been argued that patenting of living materials, be they animals and plant, or human biological materials, is unethical. However the European Patent Office has been slow to accept such generalizations in the celebrated case of the Harvard Onco-Mouse. In this case, a group of transgenic rodents had been inserted with a cancer virus at an embryonic stage. These transgenic rodents were capable of reproducing further mice, which carried the cancer virus. Arguments were forwarded in the court on both risks and benefits of genetic engineering of human beings. The court questioned whether the harm to animals was offset by the prospect of benefit for human beings. The court, in balancing the relative risks and benefits, was convinced that allowing patenting of transgenic animal would decrease pain and suffering of animals by reducing the number of animals used in laboratory research.

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Another moral argument is that patenting of biotechnological inventions results in the ownership of biological material and hence it is unethical. This argument has been rejected in the case of Greenpeace UK v Plant Genetic Systems NV where it was held that the exclusion of patentability in art 53(a) of the EPC for inventions which are contrary to public order and morality, concerns only extreme cases which are universally regarded as outrageous to the public conception of morality.

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In a similar vein, the Supreme Court in US Diamond v Chakrabarty had effectively dismissed the validity of the philosophical argument that patenting of living matters is not morally permissible. At p 23, the court commented: Whether the genetic engineering of animals and human beings is morally permissible is, on the other hand, a harder question, one that continually needs to be asked. The objections to genetic engineering are not, at present compelling. The factors to which these objections require constant scrutiny, however, and changes in them would warrant a careful reappraisal of genetic engineering's status. What genetic engineering requires, above all, is moral vigilance.

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The legal view further stresses the problem of defining morality and ethics. The first hurdle to be crossed is to decide who is competent to adjudicate on the matter and as to what is considered as immoral and unethical. According to Socrates, there are no moral experts and ethics is not a science which accumulates knowledge that can be passed on from one generation to the next . They further maintain that the proper yardstick in evaluating inventions which offend ethics and morality, is to utilize the balancing mechanism adopted in Harvard Onco-Mouse . If patenting of biological material is deemed intrinsically immoral, it cannot be justified by the fact that some good consequences ensue. This argument rests on the unproven first premise that it is immoral to alter the genes of animals, especially if the animal is likely to suffer in laboratory tests. The above arguments against and for the patenting of biological materials call for a critical appraisal of the implications of the expansion of property rights over biological materials.

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In Geneva at a meeting of the regular WTO TRIPS Council on 2 March 2010 amongst others discussed the implementation of the "Paragraph 6" solution in respect of the Doha Declaration on the TRIPS Agreement and Public Health, and the review of Article 27.3 (b) of the TRIPS Agreement relating to the patentability of life forms and the protection of plant varieties . During the discussions at the TRIPS Council on the review of Article 27.3 (b) of the TRIPS Agreement, Bolivia tabled a submission (IP/C/W/545) calling for an urgent and indepth review of the said article.

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Bolivia, in its communication, concluded that an urgent review of Article 27.3 (b) was needed to prohibit the patenting of all life forms, ensure the protection of the innovations of indigenous and local farming communities and prevent anti-competitive practices that threaten food sovereignty in developing countries. (See separate article.) The discussion on the submission by Bolivia came within the agenda items of review of the provisions of Article 27.3 (b), relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD), and protection of traditional knowledge and folklore.

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Speaking at the meeting, Bolivia said that with its communication, it wants to continue to contribute to the analysis of a topic that, in its understanding, definitely needs a multilateral solution designed to exclude the possibility of patenting life in all its forms, including biological resources, microorganisms, genes, gene sequences and non-biological and microbiological processes.

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Bolivia then summarized the contents of its communication on a review of Article 27.3 (b). It considered that, among others, the exclusion of patentability of life forms is one of the most important issues within the Doha Development Agenda. Highlighting a number of challenges, Bolivia said that it is not the only one facing them, but that several developing countries, small peasants or indigenous peoples share these same concerns, that is, amongst others, to put an end to bio-piracy, which is the extensive patenting of life forms, the misappropriation of biological resources originating from developing countries by developed countries.

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Also, to stop the increasing concentration of corporate control over the agriculture industry due to various acquisitions and overuse of intellectual property rights, undermining the rights of indigenous peoples, local community and farmers, including the right to exchange and save seeds and the State's food security and sovereignty. Another concern is to limit the proliferation of trade agreements and initiatives focused on enforcement of intellectual property that pressure developing countries to adopt a particular model of intellectual property, which is not in the best interest of the countries. According to Bolivia, all these reasons allow the Doha Development Agenda and the TRIPS Council to have a strong case for an in-depth and accelerated review of Article 27.3 (b).According to trade officials, Cuba, Nicaragua, Ecuador and Guatemala supported Bolivia.

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Ancient civilisations like India has served as the source of indigenous knowledge and bio-resources for centuries. In India's case, the East India Company, as part of its empire building agenda, employed botanists to compile local knowledge and transfer samples of bio-resources to Britain. These were then transplanted in Kew Gardens, which were established in 1772 by joining two royal estates in London. This venture was financed by banks who facilitated its growth as a centre for biological knowledge sharing. Today, in the era of Intellectual Property Rights (IPR), and patents, this 'transfer' has many ramifications. It has contributed to an inequality between biodiversity-rich developing countries and developed countries with pharmaceutical companies that have the capability to exploit these indigenous resources. However, over the last few years, an infrastructure has been put in place so that nations like India can safeguard their interests.

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The case that provoked India involved the neem tree, which has been part of the traditional heritage of the country. In 1995 the US Department of Agriculture and a pharmaceutical research firm, W R Grace and Company, was granted a patent on a technique to extract an antifungal agent from the neem tree. In fact, neem's antifungal properties were long known to Indian villagers. Post this patent, the Indian press raised a huge hue and cry, which was echoed by many developing countries. Government of India took legal action and the patent was overturned in 2005. Similar battles followed over turmeric, karela and the much criticised attempt by RiceTec Inc, a US company to patent Basmati rice.

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One such inequity that developing countries and NGOs observe is the ³taking´ of genetic resources and biodiversity, developed by TK in local communities, in support of research and development (R&D) efforts for industries in the developed world. Developed countries and their constituents think of such activities as legitimate R&D, while developing countries and supporting NGOs call these instances of ³biopiracy.´

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Simply calling such instances ³biopiracy,´ however, does not reflect the full complexity of this gap between existing IP law and TK, especially in the case of the alleged biopiracy of Indian basmati rice that came before two U.S. agencies. The patent reexamination before the United States Patent and Trademark Office (USPTO) and the petition about the use of the name ³basmati´ before the Federal Trade Commission (FTC) (³Basmati Rice Controversy,´ referring to both actions together) illustrate how IP frameworks can be limited and be potentially useful in protecting TK.

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New Delhi, Jan 4 ,2010 . After climate change, biopiracy is becoming the new battleground between rich and poor nations, because rich countries are opposing a legal framework for use of biological resources, Environment Minister Jairam Ramesh said here Monday. In this International Year of Biodiversity, India and other developing countries are pushing for a protocol on Access and Benefit Sharing (ABS) ³that will provide an opportunity to biodiversity-rich countries such as India to realise benefits for its people from the use of the biodiversity´, Ramesh said. But industrialised countries ² whose drug companies have often been accused of using traditional biological resources without payment ² are opposing it, and there is little chance of the protocol being finalised by the next summit of the Convention on Biodiversity in Nagoya, Japan, this October. India is hosting the summit after that, in 2012 in New Delhi.

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IPR regimes on bioresources and the commercialisation of these for markets will result in resource depletion. The case of the Canadian farmer Percy Schmeiser and his run in with Monsanto, over an alleged violation of IPR shows the way IPR regimes are being implemented by corporations to establish monopolies. Monsanto sued Schmeiser for huge damages for violating its patent on µRoundup Ready¶ canola after specimens of the proprietary canola were found on Schmeiser¶s property. Canola, is a cross pollinating crop so the likely source of the offending canola was pollen from a nearby Roundup ready field but the case demonstrates the extent to which MNCs will go to establish monopolies on bioresources. Such actions would have grave consequences in developing country situations since denying rights over vital resources would ultimately affect the community¶s ability to survive.

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Commercial interests that target bio resources on a large scale for the market will threaten the resource base, and with it, the knowledge base developed around the bio resources. The impact on women and through them, families, will be immediate. There is a steady depletion of rare medicinal flora from the hill regions because of collections being conducted by pharmaceutical companies. A sub-species of Taxus baccata, the Himalayan Yew tree in the Himalayan region is facing near extinction thanks to over exploitation for its the cancer curing properties. Large areas of the Kumaon and Garhwal Himalayas in India have been stripped of medicinal plants by head loaders collecting for foreign and Indian companies. This devastation of flora means that women lose the resources they need for use in home remedies to treat their families and their livestock.

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Patents on seeds would take away the women¶s ability to breed new, locally adapted varieties for food, healing and rituals. This would strike at food and nutritional security of families and also at the socio-cultural identity of communities. Women have bred varieties for special uses integral to local food habits and cultural and religious practices. Some varieties are offered to the Gods at certain festivals. Still others play a role in rituals during marriage and death ceremonies.

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Biodiversity is the basis of food and livelihood as well as human & animal health security for poor and marginalised communities. To alter the dynamics of control and usage of biodiversity through IPR rules will further impoverish and marginalise local communities, and women will be disadvantaged both in terms of their economic and decision making roles.

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The European Union's paper argues that TRIPS and the CBD, far from being in conflict, are compatible and can mutually reinforce each other. The key proposal in the paper is a means of obliging applicants for patents who have used the fruits of bioprospecting for new products, to disclose the geographical origin of any biological material used in biotech inventions. At present, there is no such obligation.The EU has little direct interest in the issue, as the raw material concerned is mostly concentrated in rain forests and other habitats still being explored for potent genetic resources. However, it has taken up the question with the aim of brokering a fair deal in the Doha Development Agenda for countries which want an interface between the TRIPs Agreement and the CBD.

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The EC Communication also addresses other related issues. It subscribes to the need to provide better protection to traditional knowledge and recognises the right of subsistence farmers in developing countries to re-use and exchange seeds, even if these seeds are covered by intellectual property rights.

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Currently, there is no law anywhere in the world to regulate the taking of biological resources. Biodiversity prospecting systems could take different forms. Owing to the apparent legislative vacuum in this area, most initiatives to regulate bioprospecting are in the form of contracts. One form involves biodiversity prospecting licences granted to allow a group or organization to carry out research prospecting on a species for a set period of time. On the basis of such licences, intellectual property rights could be sought for 'innovations' that arise during the course of the prospecting. One interesting model can be seen from the biodiversity prospecting licences as granted by Costa Rica to INBio. Unfortunately, some of these biodiversity prospecting rights are awarded on the basis that others are excluded, and could have the effect of locking up resources.

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As bioprospecting falls mainly in the domain of private transactions, model agreements have been drafted for the transfer of natural resources. One of them is the brainchild of the European Community which set up a task force on 12 March 1985 with the aim of achieving co-operation with developing countries. At the international level, material transfer agreements are being devised by the International Plant Genetic Resources Institute. It was also reported that the United Nations Food and Agriculture Organization (FAO) has produced an International Code of Conduct for Plant Germplasm Collection and Transfer.

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Licences can also come in a mandatory form imposed by a particular country. In New Zealand, the New Zealand Foundation for Research, Science and Technology has come up with a Crown grant of a non-exclusive licence. The purpose of the non-exclusive licences is to enhance the state's ability to manage, use and conserve biological resources.This form of grant is better than that negotiated among private individuals as it allows the state to be actively involved in bioprospecting and takes control of such transactions.

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The preceding discussion demonstrates that the marriage between bio-diversity and intellectual property rights is a difficult and challenging one. Currently, there is no satisfactory legal mechanism that exists which adequately addresses the concerns of the biological donors. This is compounded with the fact that TRIPS, the intellectual property primer, has totally ignored the existence of the Biodiversity Convention, although it pays a lip service to the ecological and health concerns of biological use in its preamble and art 27(2).

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With respect to the Rio Biodiversity Convention, it has been criticized that by focussing on direct economic benefits, the Convention avoided the controversial issue as to whether biological species need to be conserved just for their own sake. In the multilateral setting of the negotiations, this was not only prudent but also necessary for consensus. On the other hand, by not including the ethical or moral imperatives of biodiversity conservation, the Convention implicitly accepted that the case for biodiversity is premised on economic imperatives. The logical extension of this approach is that in the scheme of things, if a species does not have an economic value as such, there may not be an urgent need to protect it.

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Scientific research that looks for useful applications, processes, or products in nature is called biodiversity prospecting, or bioprospecting. In many cases, bioprospecting is a search for useful organic compounds in microorganisms, plants, and fungi that grow in extreme environments, such as rainforests, deserts, and hot springs. Malaysia being one of the 12 mega-diverse countries in the world, and rich with biological diversity would be an attractive location to conduct these bioprospecting activities. The existing Malaysian laws do not regulate access to such resources, as the Forestry Act 1984 only controls removal of forest products but do not differentiate between local and foreign collectors, while the Protection of Wildlife Act 1972 pertains only to specific species. Although export licenses under the Customs Act 1967 can, to a certain extent, check illegal removal of genetic resources, customs officials do not have sufficient expertise in this area.

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Laws are currently being drafted to protect and regulate access to Malaysia¶s local biodiversity resources, namely the Access and Benefit Sharing (³ABS´) Bill. The ABS Bill seeks to ensure fair and equitable sharing of benefits from the use of Malaysia¶s genetic resources and to avoid cases of bio-piracy. The ABS Bill is expected to impose a requirement that parties wishing to conduct research on, export or sell local bio-diversity resources must apply for specific permits for such activities. Those conducting such activities without permits may be liable to a fine and/or a jail term. Therefore, once the ABS Bill is enacted it is essential that parties, especially pharmaceutical companies which are involved or going to be involved in bioprospecting in Malaysia obtain the required permits to enable them to conduct the same. Local state regulations on bioprospecting have already commenced, as the Sarawak Biodiversity Access, Collection and Research Regulation 1998 currently requires various permits for work on the state¶s biological resources. There will therefore be a need for the intellectual property representatives of foreign parties in Malaysia to liaise with the authorities on the matter of permits once the ABS Bill is enacted.

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Developing countries are concerned that the TRIPS agreement does not encourage those seeking patents over biotech inventions to respect the basis principles of the CBD, i.e. obtain a permission from the source countries of bio-material used in inventions and share the benefits with the country of origin. They argue that the absence of information on the geographical origin of bio-material used in inventions makes it difficult for them to keep track of the commercial use of these resources or to check whether bioprospectors have respected the principles of the CBD.

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The only way to fully ensure a fair deal for communities in developing countries is to remove biodiversity from TRIPS altogether. Since achieving this ambitious goal may take more time than the mandated review period allows, one way might be to secure a five-year suspension of the implementation of Article 27.3(b) so that developing countries may sort out their strategies. In any case, developing countries must at least ensure that there is no strengthening of the TRIPS Agreement, as some developed countries are trying to do through bilateral treaties.

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The other approach could be to negotiate at the international level for establishing the primacy of CBD over TRIPS. Article 22 of the CBD says: The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. It is clear that the implementation of TRIPs is detrimental to the health of biological diversity and therefore its implementation must be made subservient to the conditions of the CBD.

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India, Brazil, China, Cuba, Dominican Republic, Ecuador, Pakistan, Thailand, Venezuela, Zambia, and Zimbabwe have urged the TRIPS Council to include additional clauses in the TRIPS Agreement. These are to ensure that an applicant for a patent relating to biological materials or indigenous knowledge shall provide disclosure of the source and country of origin of the biological resources and of the indigenous knowledge used in the invention. The applicant would also have to provide evidence of prior informed consent and of fair and equitable benefit sharing under the relevant national regimes. Compelling arguments can be drawn from the above discussion and from the experience of other countries to augment our proposition that the law in Malaysia with regard to appropriation of genetic resources needs a major overhaul.

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Countries around the globe are moving to protect their bio-resources and traditional intellectual property rights. Public access to and communal prerogative over biological resources are rooted in basic social justice principles directly tied to certain rights. Those to food, land, secure livelihoods, cultural identity, environmental integrity and the protection of the common good are among the most important. All forms of life are the basis for human survival, the patenting of life in any of its forms violates the fundamental human right to life.

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Health is a basic right of any countrymen. Are the developing countries denying the world a chance of developing effective new medicines by not allowing the use of their biodiversity? Or is it to protect the right and trading of the developing countries as shown in the case of Monsanto Co. v Coramandal India Products Ltd . Whatever the decision it shall and must provides a fair deal for global communities. On the eve of India's independence from Britain, Gandhi was asked if a free India could achieve the same standard of living as Britain. His answer still resonates: Britain consumed the resources of half a globe to achieve its prosperity. In that case, how many planets would a country like India have to consume to match? Musbri Mohamed December 2010

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