In the 1980s, plant genetic resources were considered
under international law to be a common heritage of mankind, and
were therefore classified as goods that cannot be owned.
However, this status was strongly rejected by many emerging
countries because it gave pharmaceutical and seed companies
(mostly from rich countries) free access to their genetic resources
without being required in any way to redistribute a share of their
profits.
These countries scored a victory with the signing of the
Convention on Biological Diversity (CBD) in 1992 and the
TRIPS agreement in 1995. Genetic resources now come under
the control of sovereign countries, and some property rights can
be recognized to the indigenous communities on the resources
that they have been conserving from generation to generation.
States are now required to organize these “collective intellectual
property rights” in such a way that any local resource conserved
in this manner will generate dividends for these populations when
used by multinational firms.
The now well-known concept of Access to Genetic
Resources and Benefit-Sharing (ABS) emerged in the second half
of the 1990s. Their aim was to organize a biological diversity
marketplace capable of enhancing the value of the genetic
resources of countries of the South, which cannot refuse access to
these resources. In addition, these countries can now claim a
share of the profits that may result from their use.
In short, the change in the status of genetic resources from
common heritage of mankind to a good that can be owned under
national sovereignty took place in the early 1990s at the request
of countries of the South and to their benefit, and the ABS
mechanism is a fine example of intellectual property rights set up
in the interest of the people of these countries.
In a general sense, this analysis is fairly accurate and
could constitute an argument to be used against those who are of
the opinion that the spread of intellectual property rights is an
obstacle to the development of the South. However, the issue
today is whether the South gained anything by playing this card.
In answering this question, it is important to more clearly
emphasize the deep connection—often overlooked—between the
conservation of genetic resources and their practical use.
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