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Abstract:
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In light of the various international instruments and international
agencies that are actively engaged in resolving the issue of ABS, the present
work tries to find an answer to the larger question how far the above
agencies have succeeded in regulating access and make sure of benefit
sharing. In this process, the work comprehensively analyses the work of
different agencies involved in the process. It tries to find out the major
obstacles that stand in the way of fulfilment of the benefit sharing objective
and proposes the ways and means to tackle them. The study first traces the
legal foundations of the concept of property in GRs and associated TK.For this, it starts with analysis of the nature of property and the
questions related to ownership in GRs as contained in the CBD as well as in
various State legislations. It further examines the notion of property before
and after the enactment of the CBD and establishes that the CBD contains
strong private property jurisprudence.Based on the theoretical foundation of private property right,Chapter
3 analyses the benefit sharing mechanism of the CBD, i.e. the Nagoya
Protocol. It searches for a theoretical convergence of the notion of property
as reflected in the two instruments and successfully establishes the same. It
makes an appraisal of the Nagoya regime to find out how far it has gone
beyond the CBD in ensuring the task of benefit sharing and the impediments
in its way.Realizing that the ITPGRFA forms part of the CBD system, Chapter 4
analyses the benefit sharing structure of ITPGRFA as revealed through its
multilateral system. This gives the work the benefit of comparing two
different benefit sharing models operating on the same philosophy of
property. This chapter tries to find out whether there is conceptual coherence
in the notion of property when the benefit sharing model changes. It alsocompares the merits and demerits of both the systems and tries to locate the
hurdles in achieving benefit sharing.
Aware of the legal impediments caused by IPRs in the process of
ABS, Chapter 5 tries to explore the linkages between IPRs and GRs and
associated TK and assesses why contract-based CBD system fails before the
monopoly rights under TRIPS. Chapter 6 analyses the different solutions
suggested by the international community at the TRIPS Council as well as
the WIPO (World Intellectual property Organisation) and examines their
effectiveness. Chapter 7 concludes that considering the inability of the
present IP system to understand the grass root realities of the indigenous
communities as well as the varying situations of the country of origin, the
best possible way to recognise the CBD goals in the TRIPS could be better
achieved through linking the two instruments by means of the triple
disclosure requirement in Article 29 as suggested by the Disclosure Group
during the TRIPS Council deliberations. It also recommends that considering
the nature of property in GR, a new section/chapter in the TRIPS dealing
with GRs would be another workable solution. |