In 1992, the United Nations Conference on Environment and Development convened in Rio de Janeiro and created two international agreements -- the climate change framework and the Convention on Biological Diversity.  Generally, the CBD “established sovereign national rights over biological resources and committed member countries to conserve them, develop them sustainably, and share the benefits resulting from their use.”  Although the CBD has now been signed by at least 168 countries, significant debate surrounded its passage and still plagues the implementation of the CBD today.

Over the centuries, many samples of unique genetic resources have been taken from their original country of origin to collections in industrialized nations.  Many unique biological resources have yet to be catalogued or even discovered. These resources, which are concentrated in developing countries of high biodiversity, remain in demand as sources of leads for new products, or for scientific collections.  This demand has led many biodiversity-rich developing countries to exercise their rights over biological resources established by the CBD by enacting national laws and rules to protect their resources.

The extension of developing country national laws to require informed consent and benefit sharing as preconditions to access to biological resources has resulted in contractual arrangements between biodiversity source countries and biotechnology and pharmaceutical corporations seeking access to the biological resources.  These agreements are variously referred to as either biodiversity prospecting agreements or access and benefit sharing agreements.

While this national legislation relating to biological resources and biodiversity prospecting agreements is intended to protect these countries’ rights to their biological resources, it has also added new legal complexities with which developing countries must cope.  Intellectual property experts have not been extensively involved in the establishment of such rules, with the result that they are of limited practicality.

Developing countries, therefore, have a need for professional legal advice regarding the passage and implementation of effective laws, the formation and execution of appropriate biodiversity prospecting agreements, and also their enforcement in the event of a breach.  Countries may also require assistance to enforce permitting laws in the event that a company engages in biopiracy – the taking of biological resources without the requisite permissions and agreements.

While some biodiversity prospecting agreements may be fairly straightforward contracts, many agreements provide negotiated royalty payments in exchange for access and sample collection and other agreements involve complex negotiations over the sharing and value of locally-acquired and/or pre-existing indigenous knowledge of a developing country’s biological resources.

Source countries may place a high value on these contracts in monetary, environmental, and political terms. Thus, ensuring that such countries have legal representation that can adequately and appropriately handle the intellectual property issues that arise in the context of biodiversity prospecting agreements, such as licenses for patent, trademark, and trade secret/ know-how rights, and material transfer agreements, is crucial.

 
Bioprospecting Resource Manual  (PDF) or (Microsoft Word)
This Web Resource is intended to guide the on-line reader through the vast field of literature on the subject of bioprospecting.  While this outline only represents a fraction of what is on-line, the resources listed below represent a balanced view of the subject matter, while taking into account the diverse viewpoints and debate on the subject of bioprospecting itself. Additional links are also provided for further reference and critical evaluation of the current activities and debates on this multi-faceted, ever-evolving and highly relevant topic in today’s global forum.

Intellectual Property and Biodiversity: The Good, the Bad, and the Ugly Paris, 3-4 November 2005 Roundtable on Compliance of ABS mechanism (Microsoft Word)

Biodiversity - Africa's Fighting Chance.  The economic potential for Africa is limitless if biodiversity is used properly and it represents a foundation for a potentially vibrant economic development.

African Innovators Need Strong IP Protection. John Kilama. Global Biodiversity Institute

Africa Has Its Own GMO Testing Facility (SABC News). 18 August 2003

Plant Biotechnology Research and Development in Africa: Challenges and Opportunities. John Kilama. June 12, 2003

Who Reaps the Benefits of Biodiversity? Call it bioprospecting, chemical prospecting, gene-hunting, or natural product research--the search for and collection of wild plants and animal products of potential value to medicine, agriculture, cosmetics, and other uses has been going on for hundreds, if not thousands, of years. Today's bioprospectors are gathering and studying extracts of everything from spider venoms to soil microbes to algae.

Developing and Implementing National Measures for Genetic Resources Access Regulation and Benefit Sharing, in Biodiversity and Traditional Knowledge. Charles V. Barber, Lyle Glowka & Antonio G. M. La Vina, 363, 371-74 (Sarah A. Laird ed., 2002).

Biodiversity Prospecting: The Commercial Use of Genetic Resources and Best Practice in Benefit Sharing, in Biodiversity and Traditional Knowledge.  Sarah A. Laird & Kerry ten Kate, 241, 243 (Sarah A. Laird ed., 2002).