The objective of this Article is to examine the disclosure requirement as a measure to enhance the protection of traditional knowledge and genetic resources. Section Two illustrates the negative effects of biopiracy drawing on selected cases from Africa, India and the Americas while Section Three describes the international regime governing access to genetic resources and related traditional knowledge including rules on prior informed consent, mutually agreed terms and the fair and equitable sharing of benefits. Section Four traces the evolution of the obligation to disclose from provisions in national model laws and a draft treaty on folklore prepared by WIPO, to the CBD and the Bonn Guidelines as well as proposals before the TRIPS Council of the World Trade Organization. This section also discusses implications of the disclosure requirement, including triggers, legal bases for, scope and sanctions for non-compliance. Section Five reviews WIPO's current program on the disclosure requirement and evaluates the latest proposals contained in the draft texts being used as the basis of negotiations in WIPO for the adoption of international instruments on traditional knowledge and genetic resources. The Article concludes that the draft negotiating texts developed so far by WIPO will require further refinement and alignment to be ready for adoption as binding instruments. For WIPO member countries that are generally supportive of the disclosure requirement, the discrepancies may be seen as minor ones that could be ironed out in future negotiating sessions. However, for others rigidly opposed to the requirement, such hopes may not be realistic, leaving the distinct possibility that consensus may not be found to submit even a significantly improved text to a diplomatic conference for consideration for eventual adoption by WIPO. In the end, if it proves impossible to restart the negotiations that have stalled at WIPO, there will be an urgent need for like-minded traditional knowledge provider countries in collaboration with interested traditional knowledge user countries to respond to the void by working to develop solutions under bilateral, regional or other multilateral arrangements for the protection of traditional knowledge.
Regulating Access to Traditional Knowledge and Genetic Resources: The Disclosure Requirement as a Strategy to Combat Biopiracy,
San Diego Int'l L.J.
Available at: http://digital.sandiego.edu/ilj/vol17/iss1/2