Overview of the BRL

Biodiversity Rights Legislation (BRL) is a collection of emerging laws that directly affect people's control over agricultural biodiversity in developing countries. It compiles those legislative texts that define rights in relation to genetic resources or to the knowledge associated with those materials. They may be rights of ownership, intellectual property, stewardship, access, sovereignty or something else. The bottom line is that they spell out who can control biodiversity at the local level.

Many of these laws have been drawn up under direct pressure from industrialised countries to provide commercial advantages for their own companies - such as required by the WTO TRIPS Agreement or bilateral treaties. Others, on the contrary, supposedly try to protect the interests of the rural poor and other local communities - such as framed in the Convention on Biological Diversity.

As a tool to follow what is going on in this area, the BRL includes both draft and adopted legislation. However, drafts are only incorporated with the explicit approval of a relevant source.

How the BRL is organised

There are two ways of accessing the materials: by country or by type of law.

By country or by type of law

Some of these categories are subjective, but we felt it useful to cluster the laws by what kind of rights they actually provide for. This is especially important because although they all grant some kind of rights over biodiversity, the laws have highly different objectives and end up serving different people.

There are six broad categories, which can be further subdivided:

Seed laws

We have added seed laws to the BRL to accompany a series of articles in our July 2005 issue of Seedling Magazine. Click here to read more about these types of laws.

Patents & sui generis PVP : the minimum standards of TRIPS

Patents: Patent laws are being amended in most developing countries to align with the WTO TRIPS Agreement. As a basic rule, TRIPS requires all countries to extend their patent systems to all technologies and all inventions. This includes the patenting of microorganisms and microbiological processes, while countries have an option to exclude plants and animals. To show how this being implemented, the BRL contains links to amended national patent laws.

Sui generis PVP: While plants can be exlcuded from patent systems under TRIPS, plant varieties must be subject to some form of intellectual property system: either patents or a sui generis system. Most developing countries are choosing the sui generis option, which means some kind of plant variety protection (PVP) law. Very often, they are modeled on the UPOV Convention and may or may not provide for a "farmer's privilege" to reuse, exchange or sell harvested material. (The farmer's privilege in PVP law should never be confused with farmers' rights.) PVP laws are marked in the collection with the icon . A one-page checklist of which developing countries have adopted PVP legislation is available here.

TRIPS-plus

Outside of the WTO, industrialised countries are also pressuring developing countries to go much further than the TRIPS requirements. Through a range of bilateral and regional agreements, they are able to condition preferential trade, aid, investment or technical assistance privileges on a commitment from developing countries to adopt more hardline standards for IPR on life forms. Generally, this means UPOV standards of plant variety rights or industrial patent rules over plants / animals. GRAIN issued a report on this trend in 2001, available here. In the BRL, we present links to these "TRIPS-plus" treaties themselves.

Broader biodiversity laws : ABS and beyond

In this bloc we get two kinds of laws that are commonly drafted to implement the biodiversity rights-related provisions of CBD.

On the one hand, there are rules on access to genetic resources and sharing of benefits from them. They are important because they determine who has the authority to allow researchers to collect biodiversity (governments? local communities?) and how. They may also set rules over commercial rights to innovations resulting from the research, interfacing with IPR policies and systems. Some even talk about community rights, without necessarily fleshing out those rights. Classic examples of ABS laws are the Philippines' 1995 Executive Order on Bioprospecting and the Common Regime on Access set up by the Andean Community. Others are India's draft bill and Brazil's.

Yet other countries enact ABS rules within a much more comprehensive framework for the conservation and sustainable use of biodiversity in accordance with CBD. A good example of this is Costa Rica's Biodiversity Law.

Traditional knowledge: the latest IPR trap

Increasingly, governments are also trying to protect rights over traditional knowledge that is associated with genetic resources because of its economic value. Traditional knowledge poses a challenge, however, because it is held by local communities as a collective heritage and most of it is uncodified.Major efforts in this area are going towards either trying to adapt current IPR systems to the special characteristics of TK, or creating new sui generis systems for TK altogether. Unfortunately, in both cases, governments are pulling TK into the IPR approach of exclusive monopoly rights and commercial imperatives.

Like in the legal world, this area of the BRL is under development. So far, most (but not all) of the legal provisions that supposedly contribute to the protection of TK under national law draw from efforts to regulate access and benefit sharing.

Alternative regimes: non-IPR community rights

Unlike the above - most of which is very much contributing to and reinforcing the status quo - the truly innovative and interesting category of biodiversity-related rights legislation is down here. It is common to refer to them as community rights in a very broad sense.

What we find here are tools being developed to protect, enforce and strengthen the rights of local communities over biodiversity outside of the IPR system and outside of the trade system. These may be instruments dealing with traditional knowledge, community rights per se, farmers' rights or indigenous peoples' rights, among others. Good examples of a "stand-alone" approach are the draft community rights legislations developed in Bangladesh or the Philippines. Other laws such as the OAU Model Law or, again, the Costa Rican Biodiversity Law have sections or important provisions on community rights.

These categories are loose and merely illustrative. Some laws may very neatly fit into one or the other. Others will combine several objectives or only partially address any of these elements. We also leave out other legal instrument defining rights to biodiversity such as national constitutions or model contracts.

The caveats

When you get down to it, these laws basically represent initiatives to deal with the increasing privatisation of genetic resources and associated knowledge, as pushed by transnational corporations keen on reaping maximum profits from biotechnology. Despite strong international awareness of the value of biodiversity and traditional knowledge, and the need to ensure their conservation and use in a more equitable manner, the pressure on the South to engage in global trade of genetic resources is extremely strong. And with that pressure comes the golden rule of engagement in this global biotrade system: allowing for exclusive monopoly control over genes and genetic information. When GRAIN started building this collection, the idea was to strengthen the work of those drafting alternative rights regimes by helping people monitor what is going on. As time goes by, it's clear that the pressure to conform with the demands of the industry in the North is gaining ground. More and more developing countries are legislating IPRs on life forms - sui generis or not. And with each step into that IPR minefield, they are chipping away at the very basis of community rights.

This collection does not aim to be complete. It only pulls together core material that is not too hard for an NGO to get hold of. We plan to discontinue the service as soon as the intergovernmental organisations busy promoting legislation in this area get more complete databases online. Until then, the BRL is only meant to help fill gaps, so people can have a better sense of what is coming into place.

Last modified: 17 November 2007