Book Review: The Protection of Traditional Knowledge on Genetic Resources

In The Protection of Traditional Knowledge on Genetic Resources, fellow GuestKat Frantzeska Papadopoulou writes about the protection of traditional knowledge and related genetic resources. In broad terms, her work provides a novel framework to this subject, by combining the theories of Rawls and Coase. She does so by analyzing various means to protect traditional knowledge that cohere with Rawls’ and Coases’s specific objectives of fairness and efficiency. Papadopoulou reaches the conclusion that property, liability, and reward systems are forms of protection that fulfil the fairness and efficiency criteria whilst remaining compliant with the general international legal framework.

The first chapter discusses traditional knowledge on genetic resources (TKGR) and its role in becoming one of the major challenges for the 21^st Century international law and IPR system. It also sets theoretical footprints such as the Coasean approach, fairness as justice and Rawls, and the dualistic approach. 

The second chapter employs a dogmatic approach to the concept of bioprospecting that is accompanied by the concept of biopiracy. The principal goal of bioprospecting is to overcome problems in the implementation of conservation programmes. Biopiracy gradually emerged to describe the unlawful bioprospecting practices of developed countries and their industries.  The chapter thoroughly covers the legal status of TKGR and the international-institutional framework which regulates the access and transfer of plant genetic resources, in particular the Convention on Biological Diversity (CBD), the TRIPS Agreement, and others.

The first part of the third chapter introduces a discussion on CBD implementation and indicates the challenges between CBD and other relevant international conventions due to the lack of specific rights and obligations under the CBD. It then goes on to cover regional implementation initiatives such as the Organization of African Unity (OAU) model, the Andean Community Decisions, The ASEAN Agreement, and certain national implementations. The second part of the third chapter takes into account the protection of TKGR within the patent system. One of the central approaches related to the protection of TKGR within the framework of the patent system has initially been its recognition as ‘prior art’, a defensive form of TKGR protection. Closely related is the introduction of the disclosure requirement – in order to facilitate both the prior art search and the monitoring and enforcement of prior informed consent and bioprospecting agreements. 

Due to the lack of international regime governing the protection of TKGR and the uncertainties related to different national regulations, the fourth chapter discusses the limitations and potential of TKGR. In particular, the chapter supplies the reader with an overall assessment of what types of agreements can be used for the protection of TKGR. The protection awarded to TKGR by means of a bioprospecting agreement, according to the author, does not seem to go beyond collection fees and other costs of providing for the biological material. A conclusion in this regard is that, on the one hand, the almost automatic choice to place the discussion of TKGR protection within the property paradigm is not necessarily justified by the objectives and the general legal framework of the protection and that, on the other hand, there is no consensus on what property rights entail or how these may be structured and managed.

In order to develop a legal entitlement for TKGR that lives up to the double objectives of fairness and efficiency, chapter 5 reviews the major protection schemes that could be applicable while also analyzing their respective legal content and theoretical foundations. This enables the reader to better evaluate the alternative forms of protection for TKGR that have been tested in practice, or discussed in theory through the scope of efficiency and fairness.

The final chapter provides a discussion on the protection of TKGR, in particular the needs and expectations of such protection. It clarifies the importance of considering the requirements and constraints placed on the elaboration of a TKGR entitlement by the applicable international framework, and the challenges posed by the combined legal framework of the CBD, TRIPS and in the case of for example of marine genetic resources (MGRs). The chapter also draws parallels with the lessons learned from regional and national protection, as well as making an assessment of TKGR characteristics which are of importance for the protection granted. 

The conclusion reached by Frantzeska Papadopolou is that practical cases have indicated that lack of TKGR leads to undesirable effects such as market failure, biopiracy, and hindrances to access. In this regard, the chapters map and analyze relevant international conventions and treaties, seeking to demonstrate such undesirable effects. Regional and national protection initiatives are critically analyzed in order to extract valuable lessons regarding what should and should not be done in drafting a future TKGR framework. The opposing views on the theoretical framework related to the justifications, legal content, and management of different entitlements reveal a lack of uniform approach to the definition of what constitutes a property rights or how common property is regulated. The goal and ambition of the book is initially to provide for an alternative form of reasoning in the elaboration of new entitlements. 

This work make an enjoyable read and will be useful to students, academics and policy-makers working on IP issues, also because of its novel methodological framework for the evaluation of IPRs.

Book reviewed: Frantzeska Papadopoulou, The Protection of Traditional Knowledge on Genetic Resources, Edward Elgar, 2018.
ISBN: 978 1 78643 742 6
Hardback, 370 pages
The eBook is priced from £22 from Google Play, ebooks.com and other eBook vendors, while in print the book can be ordered from the Edward Elgar Publishing website.