Community Protocols and Biocultural Rights 33
10 The main outcome is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Annex 1C of the Marrakesh Agreement Establishing the World
Trade Organization, signed in Marrakesh, Morocco on 15 April 1994.
11 In the wake of the Diamond v. Chakrabarty (447 U.S. 303, 1980) case, a first patent
with claims covering maize seed, plants, and tissue culture was confirmed by the
Patent Office’s Board of Appeals in 1985 (Ex parte Hibberd, 227 U.S.P.Q. 443, 1985).
Throughout the CBD negotiations, the diffusion of patent on life forms, biotechnologies, and the GATT are seen as worrying trends (UNEP/Bio.Div.3/6 20 June
1990, paras 4 and 5), feared even by pro-IPRs economists (Barton & Christensen,
1988, p. 341).
12 ABS relies on a domestic procedure for requiring and granting “prior and informed
consent” (PIC), in addition to the requirement to establish “mutually agreed terms”
(MAT) for the purpose of benefit-sharing (Morgera et al., 2014, p. 15).
13 UNEP/Bio.Div.3/6 20 June 1990, para. 9; drawn from UNEP/Bio.Div.3/Inf.4,
para. 40.
14 UNEP, Governing Council, Decision 15/34 of 25 May 1989, (A/44/25), p. 161.
15 See footnotes 10 and 11.
16 See the Bellagio Declaration from the 1993 Rockefeller Conference “Cultural
Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the
Post-Colonial Era”: https://case.edu/affil/sce/BellagioDec.html.
17 A/CONF.151/PC/100/Add.21, para. 93h; A/CONF.151/PC/104, para. 59.
18 See, for instance, post-Rio Conference, the emblematic Mataatua Declaration on
Cultural and Intellectual Property Rights of Indigenous Peoples, June 1993 (International Conference on the Cultural and Intellectual Property Rights of Indigenous
Peoples (1st 1993: Whakatane, New Zealand), E/CN.4/Sub.2/AC.4/1993/CRP.5.
19 UNEP/Bio.Div.3/3, 12 June 1990, para. 9, ii; UNEP/Bio. Div. 3/12, 13 August
1990, Annex I, para. 8; UNEP/Bio.Div/WG.2/1/4), 28 November 1990, p. 39; A/
CONF.151/PC/100/Add.13, paras 41, 138, 141, 143, 144. “Participation” was the
new buzzword for international financial institutions (World Bank, 1989, p. 37)
and intergovernmental organisations (see Peet & Watts, 1996, p. 25). See, for
instance, United Nations Convention to Combat Desertification in those Countries
Experiencing S erious Drought and/or Desertification, Particularly in Africa, Paris,
14 October 1994.
20 UNEP/Bio.Div.3/6 20 June 1990, paras 1 and 2; also see Barton & Christensen
(1988); Wood (1988).
21 COP CBD, Decision III/18, UNEP/CBD/COP/3/38; Decision IV/10, UNEP/
CBD/COP/4/27 (“A. Incentive measures: consideration of measures for the implementation of Article 11”); Decision V/5, UNEP/CBD/COP/5/23, para. 5; Decision
V/15, UNEP/CBD/COP/5/23; Decision VI/15, UNEP/CBD/COP/6/20; Decision
VII/12, UNEP/CBD/COP/7/21, Annex. Addis Ababa Principles and Guidelines for
the Sustainable Use of Biodiversity, Practical principle 12.
22 By the same token, see the submission to WIPO by a group of Brazilian shamans:
As traditional indigenous peoples who inhabit diverse ecosystems, we possess
knowledge on the sustainable management and use of this biological diversity.
The knowledge is collective and is not a commodity that may be commercialized
as any good in the market. Our knowledge on biodiversity is not separate from
our identities, our laws, our institutions, our system of values and our cosmological view as indigenous peoples […].
(WIPO, 2001, para. 2)
23 In the area of crop genetic resources and landraces held by farmers, see Brush (1993).
24 In spite of these reservations, the number of sui generis regimes for the intellectual
property protection of TK (and also traditional cultural expressions) has swelled in
recent years, as the following compilation from WIPO testifies: https://www.wipo.
int/export/sites/www/tk/en/resources/pdf/compilation_sui_generis_regimes.pdf.
10 The main outcome is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Annex 1C of the Marrakesh Agreement Establishing the World
Trade Organization, signed in Marrakesh, Morocco on 15 April 1994.
11 In the wake of the Diamond v. Chakrabarty (447 U.S. 303, 1980) case, a first patent
with claims covering maize seed, plants, and tissue culture was confirmed by the
Patent Office’s Board of Appeals in 1985 (Ex parte Hibberd, 227 U.S.P.Q. 443, 1985).
Throughout the CBD negotiations, the diffusion of patent on life forms, biotechnologies, and the GATT are seen as worrying trends (UNEP/Bio.Div.3/6 20 June
1990, paras 4 and 5), feared even by pro-IPRs economists (Barton & Christensen,
1988, p. 341).
12 ABS relies on a domestic procedure for requiring and granting “prior and informed
consent” (PIC), in addition to the requirement to establish “mutually agreed terms”
(MAT) for the purpose of benefit-sharing (Morgera et al., 2014, p. 15).
13 UNEP/Bio.Div.3/6 20 June 1990, para. 9; drawn from UNEP/Bio.Div.3/Inf.4,
para. 40.
14 UNEP, Governing Council, Decision 15/34 of 25 May 1989, (A/44/25), p. 161.
15 See footnotes 10 and 11.
16 See the Bellagio Declaration from the 1993 Rockefeller Conference “Cultural
Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the
Post-Colonial Era”: https://case.edu/affil/sce/BellagioDec.html.
17 A/CONF.151/PC/100/Add.21, para. 93h; A/CONF.151/PC/104, para. 59.
18 See, for instance, post-Rio Conference, the emblematic Mataatua Declaration on
Cultural and Intellectual Property Rights of Indigenous Peoples, June 1993 (International Conference on the Cultural and Intellectual Property Rights of Indigenous
Peoples (1st 1993: Whakatane, New Zealand), E/CN.4/Sub.2/AC.4/1993/CRP.5.
19 UNEP/Bio.Div.3/3, 12 June 1990, para. 9, ii; UNEP/Bio. Div. 3/12, 13 August
1990, Annex I, para. 8; UNEP/Bio.Div/WG.2/1/4), 28 November 1990, p. 39; A/
CONF.151/PC/100/Add.13, paras 41, 138, 141, 143, 144. “Participation” was the
new buzzword for international financial institutions (World Bank, 1989, p. 37)
and intergovernmental organisations (see Peet & Watts, 1996, p. 25). See, for
instance, United Nations Convention to Combat Desertification in those Countries
Experiencing S erious Drought and/or Desertification, Particularly in Africa, Paris,
14 October 1994.
20 UNEP/Bio.Div.3/6 20 June 1990, paras 1 and 2; also see Barton & Christensen
(1988); Wood (1988).
21 COP CBD, Decision III/18, UNEP/CBD/COP/3/38; Decision IV/10, UNEP/
CBD/COP/4/27 (“A. Incentive measures: consideration of measures for the implementation of Article 11”); Decision V/5, UNEP/CBD/COP/5/23, para. 5; Decision
V/15, UNEP/CBD/COP/5/23; Decision VI/15, UNEP/CBD/COP/6/20; Decision
VII/12, UNEP/CBD/COP/7/21, Annex. Addis Ababa Principles and Guidelines for
the Sustainable Use of Biodiversity, Practical principle 12.
22 By the same token, see the submission to WIPO by a group of Brazilian shamans:
As traditional indigenous peoples who inhabit diverse ecosystems, we possess
knowledge on the sustainable management and use of this biological diversity.
The knowledge is collective and is not a commodity that may be commercialized
as any good in the market. Our knowledge on biodiversity is not separate from
our identities, our laws, our institutions, our system of values and our cosmological view as indigenous peoples […].
(WIPO, 2001, para. 2)
23 In the area of crop genetic resources and landraces held by farmers, see Brush (1993).
24 In spite of these reservations, the number of sui generis regimes for the intellectual
property protection of TK (and also traditional cultural expressions) has swelled in
recent years, as the following compilation from WIPO testifies: https://www.wipo.
int/export/sites/www/tk/en/resources/pdf/compilation_sui_generis_regimes.pdf.