The relationship between the TRIPS Agreement and treaties protecting genetic resources and traditional knowledge

This section analyzes the legal impact of the TRIPS Agreement on the implementation of other related international legal instruments in the field of environmental law and human rights. In order for States to implement all the applicable international law, these treaties need to be analyzed and interpreted. Accordingly, one cannot study the field of IP in clinical isolation from other fields of international law as well as diplomatic and international political relations. The very existence of Article 27 of TRIPS has evoked strong criticism by NGOs and indigenous communities in DCs that try to resist the alleged practice of “biopiracy” and market control over biodiversity through industrialized countries' use of the patent system. This campaign has resulted in a diplomatic strategy to modify the international norms of patentability contained in the TRIPS Agreement and other patent treaties. In sum, the rhetoric used by TK holders and some DCs is that they are having to pay for IP protected products, including royalties, that are based on the use of their own resources and knowledge. The differences between the IP and environmental legal regimes dealing with this subject-matter are wide. A patent under TRIPS requires novelty, whereas community rights under the CBD are founded on pre-existing rights to biodiversity and associated knowledge. IPRs on biodiversity-related “inventions” are therefore dependent upon the prior “rights” of communities. TK holders argue that these latter rights are undermined by the very existence of the rights detailed in TRIPS and inspired by “myopic” industrial interests.