From Nagoya to Rio and Back, a Detour Through Brussels. The Protection of Traditional Knowledge and Genetic Resources in the EU

The most important contribution for the international regulation and protection of traditional knowledge and genetic resources (TKGR) was made in Rio in 1992 by means of the Convention on Biological Diversity (CBD). The objective of the CBD was to remedy the market failure noted in cases such as that of the Hoodia cactus, the maca plant and the ayahuasca vine. This market failure depends on the fact that the countries where TKGR is found, the countries where traditional knowledge is developed are not the ones to reap the benefits of their application and use in research and commercial products. While the CBD constitutes the first international attempt to bring a certain institutional balance in the CBD market, it had to overcome a very important barrier, namely that of the strong and at the time of its entry into force, still growing stronger, Intellectual Property Rights (IPRs) regime. The need to relate to the Intellectual Property (IP) system and to the extent possible, use it in order to achieve the Convention’s objectives has considerably influenced the final text of the CBD, as well as its implementation. It is also the existence of the IP system that has formed the subsequent international negotiations and the way contracting states (and non-contracting for that matter), have positioned themselves in the post-CBD negotiations.