Combating biopiracy in Australia: Will a disclosure requirement in the Patents Act 1990 be more effective than the current regulations?

AuthorVerity Dawkins
Date01 March 2018
DOIhttp://doi.org/10.1111/jwip.12086
Published date01 March 2018
DOI: 10.1111/jwip.12086
ORIGINAL ARTICLE
Combating biopiracy in Australia: Will a
disclosure requirement in the Patents Act 1990
be more effective than the current regulations?
Verity Dawkins
University of Tasmania, Hobart, Tasmania,
Australia
Correspondence
Verity Dawkins, Faculty of Law, University
of Tasmania, Hobart, Tasmania, Australia.
Email: verity.dawkins@utas.edu.au
Genetic and biochemical resources have the ability to
provide considerable economic, social and environmental
benefits to a nation. Traditional knowledge of these natural
resources is extensive. Biopiracy occurs when commercial
actors appropriate traditional knowledge without recogni-
tion or benefit-sharing. It has faced international condem-
nation. The importance of acknowledging traditional
knowledge and ensuring benefit-sharing from inventions
based on this knowledge is recognized. This paper explores
strategies for protection of traditional knowledge and
considers the adequacy of Australia's approach. It discusses
the global problem of biopiracy and Australia's international
obligations. It explores Australia's current protection,
including part 8A of the Environment Protection and
Biodiversity Conservation Regulations (2000) (Cth). This paper
then compares Australia's strategy to the protections
afforded in the United States, New Zealand and Brazil. It is
argued that an additional disclosure of origin and source
requirement within the Australian Patents Act 1990 (Cth)
would assist in better protection of traditional knowledge
and the promotion of benefit-sharing.
KEYWORDS
Australia, continents, patents, regions or location, traditional
knowledge
© 2017 The Authors. The Journal of World Intellectual Property © 2017 John Wiley & Sons Ltd
J World Intellect Prop. 2018;21:1531. wileyonlinelibrary.com/journal/jwip
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INTRODUCTION
Australia contains approximately 10% of the world's natural genetic and biochemical resources (Understanding the
NCA, 2002, p. 2). As a megadiverse country,
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Australia could gain considerable economic, social and environmental
benefits from effective utilization of these resources. Indigenous Australiansknowledge natural resources and their
traditional uses is extensive, and has large potential tobe harnessed in the development of future inventions. Further,
Aboriginal and Torres Strait Islander peoples own or control access to around 2530% of Australian land (Lingard,
2016, p. 177). Australia has a well-established system of commercial and intellectual property (IP) law, and a strong
scientific and research sector (Understanding the NCA, 2002, p. 4). This means that there is the ability to utilize and
develop these natural resources within Australia.
Protection of Australia's resources and recognition of Indigenous or traditional knowledge is important.
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Acknowledgment of traditional knowledge as a contribution to the Australian economy is desired by Indigenous
groups. This paper takes the view that it is fundamental that benefits from development of resources and inventions
based on traditional knowledge are shared effectively with Indigenous Australians, who face greater disadvantage and
economic and social problems. The aim of this paper is to evaluate how best to protect this traditional knowledge and
ensure the benefits of inventions based on this knowledge are shared.
Bioprospecting is the exploration of biological diversity for the development of commercially valuable genetic
resources. Bio-piracy, however, occurs when commercial actors appropriate traditional knowledge without
recognition or benefit-sharing. Despite international condemnation of biopiracy and the creation of the Convention
on Biological Diversity (CBD, 1992), Bonn Guidelines, and Nagoya Protocol international discussions around the subject
have failed to adequately address all concerns. These documents work alongside the Trade Related Aspects of
Intellectual Property (TRIPS) Agreement. Further, the work in progressDraft Articles by the World Intellectual
Property Office (WIPO) Intergovernmental Committee on Traditional Knowledge and Folklore (IGC) released in
September 2016, indicate that the IGC, and indeed the international community, is still divided on how best to combat
biopiracy (WIPO, 2016).
In Australia, Pt 8A of the Environment Protection and Biodiversity Conservation Regulations, 2000 (Cth) (EPBC
Regulations) provides the r egulatory framework for enco uraging bioprospecting i n a way that recognizes the
contribution of tradition al knowledge. However, it i s limited as a tool to prevent bi opiracy. These regulat ions
provide that access permits must be obtained from the Minister for En vironment and Heritage in order to access
biological resources of na tive species in Commonwealth areas. The regulation s also require creation of a benefit-
sharing contract with Indige nous owners and obtaining th eir prior informed consen t (PIC). This legislative
mechanism is unlike other Statesprotection for traditional knowledge (WIPO, 2004, p. 13). However, fo r a
number of reasons it is argue d that an additional disclo sure of origin and source req uirement within the Paten ts
Act, 1990 (Cth) would assist in better pr otection of traditional knowledge and promoti on of benefit-sharing. This
disclosure requirement wou ld require that, for the grant ing of patent rights, patent ap plicants would have to
disclose any relevant tradi tional knowledge, as well a s evidence of PIC and benefit -sharing agreements wit h
Indigenous groups.
This paper will exp lore the adequacy of Australia's a pproach to combating biopiracy. I t is in five parts: First,
the global problem of biopiracy is explained. Second, Australia's international obligations are examined. Third, Pt
8A of the EPBC Regulati ons is explained and critiqued, positingthat an addition alch eckpoint in patent legislation
would assist in enforcement of these regulations. Fourth, Australia's strat egy is compared wi th the protectio ns
afforded in the United States (US), New Zealand and Brazil. Finally, the benefits and drawbacks of a disclosure
requirement are weighed. The paper concludes that including a disclosure requirement in patent legislation would
be the optimal strategy for protection of traditional knowledge. It would extend protection to all traditional
knowledge, not just that of owners in Commonwealth areas. Tying patent approval to disclosure would also
provide an extra checkpoint to ensure benefit-sharing agreements have been made and an additional disincentive
for biopiracy.
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DAWKINS

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