By Tracey Powell, ContributorINTELLECTUAL PROPERTY rights laws seek to protect and promote creativity and innovativeness of individuals and groups by striking a balance between the rights and interests of the creator on the one hand and the public on the other.
The very nature of intellectual outputs means that they are available on a non-exclusive basis. Without the benefit of intellectual property rights a creator will be restricted in recovering the costs of his investments. Therefore, where intellectual property rights are weak, incentives to innovate and produce are also weak, and this results in reduced investment, research and development.
One source of innovation is the use of biological resources to generate developments in the pharmaceutical and agricultural industries via biophysical, biochemical and genetic methodologies.
The Caribbean and other developing nations boast a rich and varied biodiversity and as such are favoured destinations for bioprospecting which is the sourcing of genes and compounds with the potential for product development.
There are however implications to the free reign of access to such resources, the most blatant being its effects on the vitality and viability of biodiversity, and the resulting inequity of allowing the unrestrained exploitation of valued and limited resources by international corporations. With little benefit redounding to the source country, industrialised economies have for a long time benefited from such exploitation.
However, with loopholes in the enforcement of Intellectual Property regimes, innovations are subject to piracy. In 1995 during the Uruguay round of the GATT (General Agreement on Tariffs and Trade), the Agreement on the Trade Related aspects of Intellectual Property (TRIPS) was negotiated. Nations who are signatories to TRIPS are required to meet minimum standards for protecting patents, copyrights, trade marks and trade secrets. But how do the basic types of intellectual property rights highlighted in TRIPS and local patent and copyright laws, influence access to genetic resources?
Trade secrets protect confidential information, which is of commercial value due to its secret nature and prevents the unauthorised disclosure of the information even by the person lawfully in control of it. A trade secret may endure forever as long as the information remains a secret. As related to biological and genetic knowledge, trade secrets are useful where the information is something handed down from generation to generation, for example an extractive technique. However, if such information is published by a researcher, public agency or otherwise, it loses its secret nature and is no longer protectable as a trade secret.
Patents include rights granted to the inventor to exclude others from making, using or selling an invention. This right is invariably granted for a specific period (in Jamaica fourteen years). However, a requirement for obtaining a patent is that the material is novel, useful and involves an inventive or non-obvious step. In the context of natural resources,
species and raw biological materials cannot be patented because they are not new and are considered products of nature. On the contrary, where a compound goes through some processing or purification to produce a new compound this may be patentable. Accordingly, derivative products, synthetics or hybrid resources produced from primary materials may be patented. Such a patent will only cover new inventions and will not affect existing species or traditional methodologies. Mere discoveries are not patentable.
Plant breeder's rights accrue where new plant varieties are developed. One requirement of TRIPS is that all signatories generate either a patent or a sui generis system for the protection of plant varieties. A patent regime implies the registration of plant varieties in the breeder's name, to ensure the breeder has exclusive rights to all uses of that variety. This means that any future use of the variety has to be made against a royalty payment and with the permission of the breeder. Under the 1991 International Union for the Protection of New Varieties of Plants (UPOV), the breeder may obtain intellectual property rights to new varieties if it is novel, distinct, uniform and stable. Without effective husbandry of such rights, there is great potential for exploitation by pirates.
Trade marks are distinguishing signs or marks used to identify the origin or source of goods or services and includes certification marks, which are affixed to goods identifying it as having met the standards established by a specific organisation competent to certify the products as such. Genetic resources highlighted with a certification mark indicates that they have undergone extraction and development processes in accordance with reputable standards.
Copyright laws protect original works of authorship expressed in a material form but not the underlying ideas. It includes literary and artistic works, computer programmes and databases.
Tracey Powell is a student at the Norman Manley Law School who is doing her in service training at DunnCox, Attorneys-at-Law, 48 Duke Street, Kingston.
