UNCTAD held two workshops in Peru last month to look at how the country could use the Nagoya Protocol to ensure it gets a fair share from research and commercial benefits derived from local microorganisms, plants and animals.
Peru is home to more than 25,000 plant species, one-third of which can only be found on Peruvian territory. A significant portion of animal species also call Peru home-about 10% of the worlds fish species, for example. This makes the country one of the most biodiverse regions of the planet.
And biodiversity can mean big business. The genetic resources and biochemicals found in microorganisms, plants, animals, and are essential for the research and development (R&D) that leads to scientific breakthroughs and new commercial products, especially in the cosmetic, pharmaceutical and natural medicine sectors.
But who benefits?
So far, not Peru-at least not as much as it could and should. This is true for the government, and especially true for local populations, whose traditional knowledge is essential to understand the potential of the local flora and fauna.
Foreign companies and researchers have often profited from the genetic resources of plant and animal species without compensating the original “owners-what many refer to as “biopiracy”. But the situation could improve thanks to a new international agreement, known as the Nagoya Protocol, which entered into force in October 2014.
Countries such as Peru that have ratified the protocol now face the challenge of ensuring effective implementation at the national level. This is why UNCTAD and the Peruvian Institute of Intellectual Property and Competition (INDECOPI in Spanish) organized two seminars on access and benefit sharing rules and intellectual property rights under the protocol. More than 150 government officials attended the seminars, held from 8-9 February in Lima and on 11 February in Cuzco.
Building on previous commitments under the UN Convention on Biological Diversity of 1992, the Nagoya Protocol helps countries like Peru establish a legally-binding framework that determines how researchers and companies can obtain access to the country’s genetic resources and to the traditional knowledge associated with these resources.
Equally important, it explains how the benefits arising from the use of these genetic resources and associated traditional knowledge will be shared-a process called access and benefit sharing. These benefits could be financial or non-monetary, such as the involvement of the locals in research and development projects and the sharing of research findings.
According to the president of the Peruvian Institute of Intellectual Property and Competition, Herbert Tassano, Peru is a country committed to the successful implementation of the protocol, to ensure that biodiversity is protected and that the benefits are actually shared with local communities. He added that Peru is in favour of an intellectual property system that supports the implementation of access and benefit sharing regulations.
Two key elements of access and benefit sharing are the notions of prior informed consent and mutually agreed terms, and these were main points of conversation at the seminar.
When requesting access to genetic resources, companies and researchers must obtain the consent from the competent authority about the type of access and use to be given to a particular genetic resource or biochemical. They will also need to define the terms of such access and the intended utilisation. The consent and agreed terms usually take the form of contracts, permits or licenses.
In addition, if the country protects traditional knowledge, which Peru does, and such knowledge is associated with the genetic resource or biochemical, then the company or researcher must also obtain prior informed consent from the particular indigenous community. The same is true for the mutually agreed terms.
Peru was one of the first countries to adopt national legislation that specifically protects traditional knowledge. According to Law N° 27811, at least 5% of any commercial benefits must be shared with the communities, and at least 10% must go to the Fund for the Development of Indigenous Peoples.
The Ministry of Environment indicated that UNCTAD’s BioTrade initiative has proven to be an effective means to ensure prior informed consent and benefit sharing. Peru has become one of the main exporters of BioTrade products-goods that were sourced and produced in a manner that respects the environment and the local communities-with exports reaching 400 million USD in 2013.
Key concerns raised at the meeting focused on simplifying access and benefit sharing procedures, improving institutional coherence, creating verification points (such as disclosure requirements), and monitoring compliance.
Peru, like many countries that ratified the Convention on Biological Diversity of 1992, had originally designed access and benefit sharing procedures mainly to prevent “biopiracy”. The strategy was thus defensive and, as a result, the procedures are in some cases cumbersome and compliance is difficult, even for those who want to abide by the rules.
According to the Ministry of Environment, the Peruvian government and users of genetic resources have signed about 80 access and benefit sharing contracts, mostly for non-profit research activities. The participants agreed that simpler procedures could lead to more access and benefit sharing contracts, especially for commercial activities.
Simpler procedures will require better coherence among the three specialized authorities currently involved in issuing access and benefit sharing contracts: the National Institute of Agricultural Innovation (INEA in Spanish) for cultivated plant species; the National Service for Forestry and Wild Animals (SERFOR in Spanish) for wild forest species; and the Fisheries and Aquaculture Services (PRODUCE in Spanish) for water species.
One recommendation that came out of the seminar was to set up an interagency task force to identify redundancies and best practices.
Getting more companies and researchers to apply for access and benefit sharing contracts is important, but so is compliance. And Peru will need to set up effective check points. Intellectual property rights, and the process to apply for patents, the participants agreed, could play an important role in verifying compliance.
Indeed, as the Institute of Intellectual Property and Competition pointed out, patents can only be granted after the company or researcher has presented an access and benefits sharing contract with the competent authority and, if necessary, a license from the holders of the associated traditional knowledge. The institute’s data shows that in 41% of cases where verification was undertaken on biotechnological patent applications the presentation of access contracts or traditional knowledge licenses was actually required.
Furthermore, 14 patent requests abroad that involved genetic resources from Peru were turned down due to the provision of additional information on prior art and improved patent examination, indicated Andrés Valladolid, Director of the National Commission against Biopiracy.