The conflicting rights and obligations between CBD and TRIPs are summarised in the table below.
CBD Says | TRIPs Says | The Conflict |
Nation states have sovereign public rights over their biological resources. | Biological resources should be subject to private intellectual property rights. Compulsory licensing, in the national interest, should be restricted. | National sovereignty implies that countries have the right to prohibit IPRs on life forms (biological resources). TRIPs overlooks this right by requiring the provision of IPRs on micro-organisms, non-biological and microbiological process, as well as patents and/or sui generis protection on plant varieties. |
The use or exploitation of biological resources must give rise to equitably shared benefits.(Nagoya Protocol) | Patents must be provided for all fields of technology, therefore the use or exploitation of biological resources must be protected by IPR. There is no mechanism for sharing benefits between a patent holder in one country and the donor of material in another country from which the invention is derived. | CBD gives developing countries a legal basis to demand a share of benefits. TRIPs negates that legal authority. |
The use or exploitation of traditional knowledge, innovations and practices relevant to the use of biodiversity must give rise to equitably shared benefits. | Patents must be provided for all fields of technology, therefore the use or exploitation of biological resources must be protected by IPR. There is no mechanism for sharing benefits between a patent holder in one country and the donor of material in another country from which the invention is derived. | CBD gives developing countries a legal basis to demand a share of benefits. TRIPs negates that legal authority. |
Access to biological resources requires the prior informed consent of the country of origin. It also requires the 'approval and involvement' of local communities. | There is no provision requiring prior informed consent for access to biological resources which may subsequently be protected by IPR. | CBD now gives states legal authority to diminish the incidence of biopiracy by requiring prior informed consent. TRIPs ignores this authority and thus promotes biopiracy. |
States should promote the conservation and sustainable use of biodiversity as a common concern of humankind taking into account all rights over biological resources. | The safeguarding of public health and nutrition, and the public interest in general, shall be subject to the private interest of IPR holders as reflected in the provisions of the TRIPs Agreement. | CBD places the public interest and common good over private property and vested interests. TRIPSs does the exact opposite. |
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