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«The Property Regime of Biodiversity and Traditional Knowledge Institutions for Conservation and Innovation Nicolas Brahy Dissertation présentée en ...»

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Faculté de Droit

Centre de Philosophie du Droit.

The Property Regime

of Biodiversity and Traditional Knowledge

Institutions for Conservation and Innovation

Nicolas Brahy

Dissertation présentée en vue de l’obtention du grade de docteur en droit

Jury:

Prof. Henri Simonart (UCL): Président du Jury

Prof. Reichman (Duke University)

Prof. Geertrui Van Overwalle (KUL)

Prof. Philippe Coppens (UCL): comité d’encadrement

Prof. Tom Dedeurwaerdere (UCL): comité d’encadrement Prof. Bernard Remiche (UCL): Promoteur Prof. Jacques Lenoble (UCL): Promoteur A mon père qui m’a donné le goût des affaires publiques et à celle et ceux qui l’entretiennent tous les jours 2 Qu'on ne dise pas que je n'ai rien dit de nouveau: la disposition des matières est nouvelle; quand on joue à la paume, c'est une même balle dont on joue l'un et l'autre, mais l'un la place mieux.

J'aimerais autant qu'on me dît que je me suis servi des mots anciens. Et comme si les mêmes pensées ne formaient pas un autre corps de discours, par une disposition différente, aussi bien que les mêmes mots forment d'autres pensées par leur différente disposition.

Blaise Pascale, Pensées 3 4 Acknowledgements This thesis has been conducted at the Center for Philosophy of Law at the Catholic University of Louvain with a one year research stay in Yokohama, Japan at the United Nations University Institute of Advanced Studies. I wish to thank both of these organizations for their innovative approach to research and for providing me with the framework that allowed me to conduct this research.

I wish to thank my supervisor, Professor Jacques Lenoble for his constant ability to enter into my reasoning, to identify the intentions behind my clumsy prose and to help me clarify and further develop my personal reflection.

I am also grateful to Professor Tom Dedeurwaerdere, Professor Bernard Remiche, and Professor Philippe Coppens, as members of my supervision committee, for the time they spent reading and commenting on my PhD proposal and drafts of this dissertation. Their remarks helped me clarify several technical and methodological issues. I thank Professor Henri Simonart, Professor Geertrui Van Overwalle and Professor Jerome Reichman for accepting to join my jury. I look forward to receiving their comments.

I wish to offer an additional thank you to Professor Jerome Reichman as it is his work that gave me the inspiration for the comparative and theoretical approach adopted within this dissertation.

I heartily thank Sélim Louafi, Brendan Tobin and Carmen Richerzaghen for their restless encouragement, stimulating contestation and positive suggestions.

I am grateful to my friends and research colleagues for their engaging presence and countless discussions on the servitude and greatness of being PhD students: Vincent, Idesbald, François, Ivan, Lalaina, Noah, Laurence, Alain, Véronique, Anne, Christine and all the others.

One of the people who I am very indebted to is Heather Ritch who translated my inelegant prose into the English language.

Last, but certainly not least, I am grateful to Diane who against any logic never stopped being proud of having a PhD student as her husband.

–  –  –

Acknowledgements

Summary Table of contents

General Introduction

Part One: An History of the Evolution of the System of Intellectual Property and its Economic Theorization

Introduction

1. Property Rights to Knowledge

2. A First Equilibrium: a Two-Part Balance

3. A Two-Part Transformation

4. Unexpected Side Effects and New Issues

5. First Element of Solution: How Rights are Protected?.............. 79

6. A Second Solution: Individuals Can Modify their Initial Entitlements

Conclusion and Future Developments

Part Two: The Property Regime of Genetic Resources Introduction

1. Biodiversity as Knowledge: a Double Public Goods Issue........ 127

2. A First Equilibrium with Three Branches

3. Two Changes and the End of Open Access

4. The Convention on Biological Diversity and its Implementation

5. The International Treaty on Plant Genetic Resources............. 216 Conclusion and Future Developments

6 Part Three: The Property Regime of Traditional Knowledge....... 251 Introduction

1. The Notion of Traditional Knowledge

2. A First Equilibrium: The Former Situation of TK

3. Two Changes and a Demand for the Protection of TK............. 266

4. Difficulties in Protecting Traditional Knowledge

5. Defining Property Rights on TK

6. Taking into Account Customary Law to Maintain Traditional Innovation

Conclusion and Further Developments

General Conclusion

Bibliography

Detailed Table of Contents

–  –  –

Notions of Biodiversity and Traditional Knowledge According to the Convention on Biological Diversity, the expression “biological diversity” or “biodiversity” designates the variability among living organisms and the complex ecologies of which they are a part; this includes diversity within species (genetic diversity), between species and of ecosystems. In this dissertation, biodiversity is regarded at the level of genetic diversity. One important benefit provided by biodiversity, and the one of most interest in this dissertation, lies in its role as input into the research and development process (R&D) of “bio-industries” (e.g. pharmaceutical and agricultural industries). Bioindustries can be conceived of as defense systems or dynamic contests between human societies and nature. These industries consist of relentless efforts to struggle against the erosion of human erected defenses against a hostile biological world.1 In agriculture, there is a perpetual renewal of the defense system that guards our food crops against constantly evolving pests and predators. Similarly, in medicine, there are efforts to defend human beings against direct aggressions. In both sectors, our defense efforts are perpetually eroding and must be constantly renewed.2 The same forces that are operating against the human domain are also at work against other living organisms. Any life form that survives has developed resistances that are successful in a contested environment.3 It is for the retention of these existing resistance strategies that human societies need biodiversity. Unfortunately, while the development of biotechnologies increases the possibility of using biodiversity, biodiversity is eroding, most notably because human societies prefer to convert biodiversity intense land into more immediately profitable uses.





1 Timothy M. Swanson (1996), "The Reliance of Northern Economies on Southern Biodiversity: Biodiversity as Information", 17 ECOLOGICAL ECONOMICS 1, p. 2 2 Ibidem, p. 13 3 Ibidem 8 As for traditional knowledge, the Convention on Biological Diversity uses this expression to designate “innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity”. Recently, traditional knowledge has also been acknowledged as an important source of information for modern science. Traditional knowledge is notably used to increase the probability of identifying resistance strategies. Unfortunately, at the precise moment where the contribution of TK to science is recognized, there is an important erosion of this knowledge. The main threats to traditional knowledge are the poor economic conditions of local and indigenous communities and the erosion of biodiversity. Because TK holders live in close connection with their environment and have developed knowledge specific to their immediate environment, they are among the first victims of their environmental degradation and TK is subject to the same threats as biodiversity.

Therefore, we have to cope with a chain of innovation, originating upstream with biodiversity (genetic resources) and sometimes traditional knowledge, and ending downstream with a final product (e.g. a new plant variety or a medicine)4. All elements of this chain of innovation have a common characteristic, they are knowledge goods.

Objectives of the Property Regime Created by the CBD In view of both the usefulness and the erosion of biodiversity and traditional knowledge, their property regimes must aim at one general purpose: to ensure biotechnological innovations for today and tomorrow. This general purpose can be divided in two objectives: (1) downstream, favoring innovation and (2) upstream, ensuring the conservation of and access to the inputs of innovation, i.e. genetic resources and traditional knowledge.

In this dissertation, I focus mainly on the solutions that have been set up to achieve the second objective, (conservation of and access to the inputs of innovation)5, but I examine these solutions in light of the general objective (innovation today and tomorrow).

4 Often the chain of innovation is not continuous and linear; where there is a final product, such as a new plant variety or a medicine (downstream), biological resources are almost always found at the upstream end.

5 Actually, I also pay much attention to the first objective (favoring innovation) in the first part of this dissertation, though it is mainly as way to build an analytical framework that enables me to better understand how to ensure the second objective (Cf. infra).

–  –  –

Tested and Discussed Solutions The solution considered by the Convention on Biological Diversity consists of granting exclusive rights as an incentive to conserve biodiversity and traditional knowledge.

In intergovernmental discussions, governments have come to this solution by observing an asymmetry among countries. Schematically, most remaining biodiversity and associated traditional knowledge lies in tropical developing countries, while most technical capacities to use biodiversity to develop new products lies in industrialized countries. For a long time, genetic resources had been in open-access. When industrialized countries decided to grant intellectual property rights (IPRs) to “bio-inventions” or “worked genetic resources” in order to enable bio-industries to capture the benefits of their research and development, developing countries reacted by claiming national sovereignty over their “raw genetic resources”. Indeed, they did not want to continue to provide their “raw genetic resources” for free while they had to pay to obtain industrialized countries’ “worked genetic resources”.

Academic circles came to the same conclusion through theoretical reasoning. The theory of property rights developed by Ronald Coase6 predicts that problems of externalities and public goods can be solved by the creation of property rights when transaction costs are low. The conservation of biodiversity and traditional knowledge appears to be a public good or at least a source of positive externalities: biodiversity and traditional knowledge (TK) are not only useful for their holders but also for the international community because they are useful sources of information for bio-industry. If countries rich in biodiversity and TK holders cannot capture the benefits of conserving biodiversity and traditional knowledge, they will under-invest in conservation, and destroy biodiversity by turning land where it lies to more immediately productive 6Ronald Coase (1960), “The Problem of Social Cost”, 3 JOURNAL OF LAW AND ECONOMICS 1

–  –  –

As a result, the Convention on Biological Diversity confirms the patentability of biotechnological innovations and invests states with national sovereignty over their genetic resources and to some extent invests local and indigenous communities with a property right to their traditional knowledge. In so doing, the Convention encourages the negotiation of bioprospecting contracts by which bio-industries could obtain access to genetic resources and knowledge from biodiverse countries and TK holders. In the situation where innovations were developed or derived from these genetic resources or traditional knowledge, the contracts would provide for the sharing of benefits. The potential for such compensation is supposed to encourage biodiverse countries and TK holders to conserve their biodiversity and knowledge.

Limits of These Solutions To what extent do these solutions fulfill the objective to ensure the conservation of and access to the inputs of innovation, i.e. genetic resources and traditional knowledge?

Regarding genetic resources, the process of creating property rights is well-launched. The Convention grants states national sovereignty over their genetic resources and approximately fifty countries have enacted or have considered enacting legislation that regulates access to their genetic resources. Biodiverse countries and firms or research centers have signed a certain number of “bioprospecting contracts”. Even if it might be a bit early to assess the solution proposed by the Convention, observers already point to a series of problems. It seems that this mechanism seriously hinders bio-industries’ access to genetic resources. In addition, it turns out that the creation of property rights has not generated sufficient benefits to fund the conservation of biodiversity.

Concerning traditional knowledge, we are considering the same solutions, but the process of creating property rights is less advanced.

The issue of protecting traditional knowledge has appeared more recently on the international scene on the initiative of a series of NGOs and representatives of indigenous peoples. NGOs and later academics have also suggested resorting to property rights to foster the conservation and use of traditional knowledge. The discussion has been launched in the organs of the Convention of Biological Diversity, the World Trade Organization and above all the World Intellectual Property

–  –  –

B. A Comparative and Theoretical Approach In order to contribute to this highly polarized debate, I have stepped back and examined whether the discussions on genetic resources and traditional knowledge are examples of broader phenomena that have already been observed and theorized.



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