Understanding TRIPS: Intellectual Property and Biodiversity Protection

The TRIPS Agreement – short for the Agreement on Trade-Related Aspects of Intellectual Property Rights – is one of the most significant international treaties governing intellectual property (IP). But what does a trade agreement have to do with biodiversity? Quite a lot, as it turns out. From patents on plant varieties to the protection of traditional knowledge held by indigenous communities, TRIPS sits at a critical junction between global commerce and the conservation of biological resources. This post breaks down the key aspects of TRIPS, the role of the TRIPS Council, its relationship with biodiversity, and how technical assistance and global cooperation fit into the picture.

What is the TRIPS agreement? 🔗

The TRIPS Agreement took effect on 1 January 1995 and remains the most comprehensive multilateral agreement on intellectual property to date. It is administered by the World Trade Organization (WTO) and applies to all WTO member nations. It was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) between 1989 and 1990, and it brought intellectual property law into the multilateral trading system for the first time.

At its core, TRIPS sets minimum standards of protection that every member government must provide for the intellectual property of nationals from other WTO member states. It covers seven main forms of IP: copyrights, trademarks, geographical indications, industrial designs, patents, layout designs for integrated circuits, and undisclosed information (trade secrets).

Key principles of TRIPS 🔗

TRIPS is built on two foundational trade principles. The first is national treatment, which means a country must treat foreign IP holders no less favourably than its own nationals. The second is most-favoured-nation (MFN) treatment, which prevents discrimination between the nationals of different WTO member states. Any advantage given to nationals of one member country must be extended immediately and unconditionally to nationals of all other member countries.

Beyond protection standards, TRIPS also sets out enforcement procedures, remedies, and dispute resolution mechanisms. Unlike many earlier IP agreements, TRIPS has a powerful enforcement mechanism – states can be disciplined through the WTO’s dispute settlement system. This enforcement power is what makes TRIPS so influential globally.

Objectives and balance 🔗

Article 7 of the agreement lays out a key objective: the protection of IP rights should promote technological innovation and the transfer and dissemination of technology, in a way that is conducive to social and economic welfare, while maintaining a balance of rights and obligations. Article 8 further recognises that member states may adopt measures to protect public health, nutrition, and other public interests – provided these are consistent with TRIPS provisions. This built-in flexibility is important, especially for developing nations trying to balance IP obligations with domestic policy goals.

Role of the TRIPS Council 🔗

The day-to-day governance of the TRIPS Agreement is handled by the Council for Trade-Related Aspects of Intellectual Property Rights, commonly called the TRIPS Council. This body monitors implementation of the TRIPS Agreement, provides a forum for WTO members to consult on IP matters, and carries out specific responsibilities assigned by the agreement.

Monitoring and compliance 🔗

According to the agreement’s text, the TRIPS Council monitors its operation and, in particular, members’ compliance with their obligations. It does this through transparency mechanisms including notifications of national IP laws, responses to checklists of questions, reviews of implementing legislation, and reports on technical assistance and technology transfer. The Council serves as a forum for discussion between members on key IP issues during its regular meetings.

The Council also reviews individual members’ national legislation to ensure it aligns with TRIPS requirements. Members are required to notify the Council about their domestic IP laws and regulations, establish contact points for cooperation aimed at eliminating trade in infringing goods, and notify the Council if they wish to use certain flexibilities available under the agreement.

Special sessions and negotiations 🔗

The TRIPS Council also meets in special sessions, which serve as a venue for negotiations on a multilateral system for notifying and registering geographical indications for wines and spirits. Additionally, the Council has taken on broader responsibilities over time, including examining the relationship between TRIPS and the Convention on Biological Diversity (CBD), as mandated by the 2001 Doha Declaration.

TRIPS and biodiversity 🔗

The intersection of intellectual property rights and biodiversity is perhaps the most debated aspect of the TRIPS Agreement in environmental circles. The core tension is straightforward: TRIPS enables the patenting of innovations derived from biological resources, while the Convention on Biological Diversity (CBD) asserts that nations have sovereign rights over their own genetic resources and that benefits from their use should be shared fairly.

Article 27.3(b) – the patentability question 🔗

Article 27 of TRIPS defines which inventions governments must make eligible for patenting and what they can exclude. Part (b) of paragraph 3 allows governments to exclude plants, animals, and essentially biological processes from patenting. However, microorganisms and non-biological or microbiological processes must remain patent-eligible. Importantly, plant varieties must be eligible for protection – either through patents, a purpose-built (sui generis) system, or a combination of both.

This provision has been a flashpoint. Critics, particularly from biodiversity-rich developing countries, argue that it can facilitate what is often called biopiracy – the patenting of inventions derived from genetic resources and traditional knowledge without the consent of, or benefit-sharing with, the source communities or countries.

The biopiracy concern 🔗

India, for example, has documented cases of patents claimed over turmeric, karela, basmati, and the neem tree – all biological resources with deep roots in Indian traditional knowledge. Another well-known case involves the ayahuasca vine, a sacred plant used by Amazonian indigenous peoples. Currently, the TRIPS Agreement does not contain provisions that specifically prevent such acts, nor does it require prior informed consent from the owners of biological resources used in an invention.

Although a high proportion of in-situ biodiversity and related traditional knowledge is found in developing countries, most patents relating to biological resources are granted for research carried out in developed countries. This imbalance is at the heart of the TRIPS-biodiversity debate.

The Doha Declaration and the TRIPS-CBD relationship 🔗

The 2001 Doha Declaration made it clear that the TRIPS Council’s work should cover the relationship between the TRIPS Agreement and the CBD, the protection of traditional knowledge and folklore, and other relevant new developments. This gave the discussion formal institutional backing within the WTO.

Several proposals have been put forward over the years to reconcile TRIPS with biodiversity goals. A coalition led by Brazil and India has pushed to amend TRIPS so that patent applicants must disclose the country of origin of genetic resources and traditional knowledge, provide evidence of prior informed consent, and demonstrate fair and equitable benefit sharing. Switzerland has proposed amendments through WIPO’s Patent Cooperation Treaty instead. The United States, on the other hand, has favoured national legislation and contractual arrangements rather than a disclosure obligation within TRIPS itself.

The disclosure requirement debate 🔗

Requiring patent applicants to disclose the source of genetic resources and traditional knowledge used in their inventions has been proposed as a mechanism to ensure legal access and fair benefit-sharing. Supporters argue this would create transparency and help prevent misappropriation. Critics counter that the IP system is not the right tool for this task – not every genetic-resource-based invention ends up as a patent application.

Creating databases of traditional knowledge and genetic resources has also been suggested as a means of establishing strong prior art records, which would be critical to preventing the inadvertent privatisation of knowledge that should remain in the public domain. India’s Traditional Knowledge Digital Library (TKDL) is a notable example of such an initiative.

Technical assistance and global cooperation 🔗

The TRIPS Agreement recognises that not all countries start from the same level of IP infrastructure or institutional capacity. To address this, the agreement includes specific provisions for technical cooperation and capacity building, particularly for developing and least-developed countries.

Provisions for developing countries 🔗

Developed country members are required to provide technical and financial cooperation to developing and least-developed country members, upon request and on mutually agreed terms. This cooperation includes assistance in drafting IP laws and regulations, support for establishing or strengthening domestic IP offices and agencies, and training of personnel.

Developed countries must also provide incentives to enterprises and institutions in their territories to promote and encourage technology transfer to least-developed country members. This obligation is reviewed annually by the TRIPS Council. The aim is to help these countries build a viable technological base that allows them to participate meaningfully in the global knowledge economy.

Transition periods 🔗

TRIPS originally provided different implementation timelines depending on a country’s development status. Developed countries had to implement the agreement by January 1996, while developing countries and transition economies received extensions until January 2000. Least-developed countries have received further extensions over the years, reflecting the ongoing challenge of building IP infrastructure from the ground up.

Cooperation with WIPO and other organisations 🔗

The preamble to the TRIPS Agreement calls for a mutually supportive relationship between the WTO and WIPO, as well as other relevant international organisations. In practice, the WTO Secretariat cooperates with WIPO, WHO, and many other intergovernmental and regional organisations on matters of common interest, including technical assistance, joint events on IP and trade, and related policy issues such as public health and climate change.

The TRIPS Council itself is required, in consultation with WIPO, to establish appropriate arrangements for cooperation with WIPO’s various bodies. This interinstitutional collaboration is essential because IP policy does not exist in a vacuum – it intersects with public health, environmental law, agricultural policy, and development strategy.

Why TRIPS matters for biodiversity conservation 🔗

The TRIPS Agreement was not designed as an environmental treaty. Yet its rules on patents, plant variety protection, and IP enforcement directly affect how biological resources and traditional knowledge are used, commercialised, and protected globally. IP rights define who can use the information contained in genetic resources and thus influence how the benefits from that use are distributed.

For biodiversity-rich nations – many of which are developing countries – getting the TRIPS-biodiversity relationship right is not just an academic exercise. It determines whether local communities and indigenous peoples benefit from the commercial use of their knowledge and resources, or whether they are left out of the equation.

The ongoing discussions at the TRIPS Council, the adoption of the Nagoya Protocol on access and benefit sharing, and the work being done at WIPO on genetic resources and traditional knowledge all point to a global recognition that trade rules and biodiversity protection must work together, not against each other.

What do you think? Should the TRIPS Agreement be amended to include mandatory disclosure of the origin of genetic resources in patent applications? And how can we better ensure that biodiversity-rich communities benefit fairly from the commercial use of their traditional knowledge?

References

1. https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
2. https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm
3. https://ustr.gov/trade-agreements/wto-multilateral-affairs/-world-trade-organization/council-trade-related-aspects-in
4. https://www.wto.org/english/tratop_e/trips_e/art27_3b_background_e.htm
5. https://www.cbd.int/
6. https://www.wipo.int/ip-development/en/policy_legislative_assistance/advice_trips.html
7. https://www.cbd.int/abs/