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Business law (301)
Jimma University
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Jimma University
College of Law and Governance
School of Law
Course: ADVANCED INTELLECTUAL PROPERTY LAW
Title: Brief Analyses of Access to Genetic Resources and Community Knowledge, and
Community Rights Proclamation. Proclamation no/
Submitted to; Instructor YOSEF ALEMU/Assistant Professor
BY; Abenezer Tarekegn-------------------ID:s40117/11-
1. INTRODUCTION
Ethiopia is party to different international treaty both CBD/ Convention on biological diversity and ITPGRFA/ International Treaty on Plant Genetic Resources for Food and Agriculture ratified the Nagoya Protocol on Access and Benefit Sharing (ABS). Ethiopia has put in place both institutional and legal frame works to implement ABS. 1 Regarding Institutional Framework Ethiopian Biodiversity Institute (EBI) is Competent National Authority (CNA). It is also the Focal Institute to the Convention on biological diversity (CBD) and International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). 2 Regarding Legal Frameworks Ethiopia has issued Access to Genetic Resources and Community Knowledge and Community Rights (ABS Law) Proclamation (No/2006) and Regulation (169/2009). The Proclamation has seven different parts dealing with general provisions; protection of community rights; conditions of access, follow up and compliance measures; exploration of GRs; administration of access and miscellaneous provisions. This paper is intended to analyze the legal frameworks that regulate Access to Genetic Resources and Community Knowledge, and Community Rights that exists at national level. 2. The need for the law Prior to enactment there had not been a legal framework requiring informed consent and Ensuring equitable sharing of benefits by legitimate holders of traditional knowledge. The proclamation applies on access to genetic resources found in in-situ or ex-situ conditions and community knowledge. Though there is no formalized study on how much of the countries Genetic Resources/GRs have been taken out and commercially utilized, it is a hard fact that there have been an unconstrained access to Ethiopia's GRs. 3 The consequence being the country has not been benefitted equitably with the concerned stakeholders from the commercial gains derived from GR commercialization. A foreigner has been entering into the country since there is no law that regulates about genetic resources. As examples, the Genetic Resource capable of resisting the gene of the Barley Yellow Dwarf Virus (BYDV) is thought to have been taken from the Ethiopian barley collection and introduced in to the genetic material of the Californian barley in the 1960s. 4 In addition to this, teff GR is believed to have been taken by Wayne Carlos who had worked in Ethiopia in 1970s. 5 Endod which is a perennial plant which has been selected and cultivated by Ethiopian woman is used as bedrock for the patents granted to the University of Toledo. 6 Since lack of legislation on ABS was considered as one of the factors for such free access, two of the major GR related issues, namely access to GRs and the fair and equitable sharing of benefits derived from the use of GRs have been widely discussed in Ethiopia since the ratification of the CBD in 1994. These discussions have culminated in the enactment of the Proclamation on Access to Genetic Resources and Community Knowledge and Community Rights Proclamation No/2006. 7 3. Objective of the law The objective of the law is provided under article 3 of the proclamation. It provides that: The objective of this Proclamation is to ensure that the country and its communities obtain fair and equitable share from the benefits arising out of the use of genetic resources so as to promote the conservation and sustainable utilization of the country’s biodiversity resources ;
1 wto/english/tratop_e/trips_e/colloquium_papers_e/2014/chapter_6_2014_e.pdf accessed on October 5/ 2 ec.europa/environment/nature/biodiversity/international/abs/ec_abs_workshop_november_2017/presentations/7%20As henafi_Ayenew_Hailu%20ET%20Access_in_Ethiopia%202017_11_21 accessed on October 5/ 3 kent Nnadozie, Robert Lettington and etel (eds.), African Perspectives on Genetic Resources: A Handbook on Laws, Policies and Institutions Governing Access and Benefit Sharing, Environmental L 4 aw Institute,( 2003),P. Ghelawdewes Aria, the Paradox of the Breadbasket Starving Ethiopia, 2002, available at Http:tisid/paradox.html .; accessed on October 2/2021. 5 Eshetayehu Tefera, Global Potentials and challenges of some of Ethiopian Germ plasm, the Plant Genetic Resources Review, 6 Ghelawdewes Aria, the Paradox of the Breadbasket Starving Ethiopia, 2002, available at Http:tisid/paradox.html .; accessed on October 2/2021. 7 Kent Nnadozie, Robert Lettington and etel (eds.), African Perspectives on Genetic Resources: A Handbook on Laws, Policies and Institutions Governing Access and Benefit Sharing, Environmental Law Institute,( 2003),P.
access application containing complete and accurate access information to a person seeking GR or community knowledge." 11 Special permit is required for export as well. 12 PIC is a manifestation of the states sovereign rights over its GRs and that is why it is clearly stipulated that the ownership of GRs is vested in the state and the Ethiopian people. 13 2. Benefit Sharing: The other condition for access to GRs in Ethiopia is Benefit sharing. As can be discerned from Article 12(3) of the Access to Benefit Sharing Proclamation, obtaining fair and equitable benefit from the commercialization of GRs by the state and the concerned local communities is mentioned as one precondition. And the proclamation lists modes of benefits which includes, license fee, upfront payment, milestone payment, royalty, research funding, joint intellectual property, employment opportunity, among others. By the way, it is good to note that the modes of benefits listed under Article 19 of the proclamation are not exhaustive and any appropriate benefit can be agreed. B. Limitations provided under the proclamations are: Denial of Access: Access applications may be denied for any of the following reasons as provided under Article 13 of the proclamation. Access can be denied If the species for which an access application is made for an endangered species, if the access may have adverse effects upon human health or the cultural values of the local community, if it may cause undesirable impact on the environment or if it could cause loss of ecosystem. If an access is intended to use genetic resources for a purpose contrary to the national laws of Ethiopia or if there has been an experience of violating access agreements before on the applicant side; could be additional grounds to deny access to an application. As enforcement is critical to any ABS legislation, the ABS Proclamation in its part has imposed some obligations on the access permit holder in order to make sure that the ABS objectives of the law are changed in to a reality. In this regard, a reference can be made to Article 17 of the proclamation entitled: obligations of the access permit holder. But, this section discusses those obligations which are important in indicating the place given to IPRs for the implementation of the ABS Proclamation.
- Separate agreement: To begin with, the access permit holder is not at liberty to apply for IPRs on inventions made based on the GRs accessed and on the accessed GRs unless a new agreement is negotiated with the Institute. 14 That means, the access agreement concluded to get access to GRs does not entitle the access permit holder to seek for IPRs on inventions made using the GRs accessed or the GR itself or parts thereof. So much so that, if the access permits holder wants to obtain IP protection, he/she/it is required to conclude a separate agreement.
- Disclosure of origin requirement: In addition to the obligation expounded above, the ABS Proclamation obligates the access permit holder to recognize the locality where the GR accessed from as origin in the application for IP protection on the products developed there from. 15 Bio piracy in Ethiopia Bio piracy happens when researchers or research organizations take biological resources without official sanction, largely from less affluent countries or marginalized people. This had been happened in Ethiopia on barley, teff and Endod. The legal aspect of our ABS regime is more or less similar with the provisions of Nagoya Protocol, other states’ ABS regime and model laws on access and benefit sharing. However, the main point is the issue of compliance and the capacity of ensuring proper implementation of the already existing provisions. 16 Therefore, in order to make the effective implementation of our ABS regime capacity building is crucial.
11 Article 2(11) of the Proclamation 12 Article 11/3 of the proclamation 13 Article 5/1 of the proclamation. 14 Article 17(12) of the Proclamation 15 Article 17(14) of the Proclamation 16 DAGNACHEW MELESE TEFERA, BIOPIRACY: INTERNATIONAL PERSPECTIVE AND THE CASE OF ETHIOPIA
(Legal and Institutional Regime), ADDIS ABABA UNIVERSITY
Jimma University genetic
Course: Business law (301)
University: Jimma University
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