One of the most contentious issues at the UN Conference on Environment and Development was the Convention on the Protection of Biological Diversity. The goal of the Convention is to foster protection of biological resources, particularly· those found in tropical forests. Plants, animals, and derivatives of plants and animals are to be preserved, with particular attention to the sustainable development1 of the uses of bioresources and adequate compensation to those countries that house most of the resources as well as to those who may assist in the development of new biotechnologies. In addition, the Convention provides for the “fair and equitable” sharing of the fruits of such innovations (and therein lay the rub).
While few were ecstatic about the convention, which had undergone several drafts (the final text bearing marginal resemblance to some of the earlier bracketed versions), all of the attending countries, but one (the US), signed the treaty. “[T]hat proposed agreement threatens to retard biotechnology and undermine the protection of ideas,”2 said President Bush in a speech before other world leaders at the “Earth Summit.” Put another way, the Bush administration viewed the treaty as an affront to US trade, US industry, and US jobs because the convention could impact on one of the remaining bastions of US enterprise, biotechnology — an area where the US has maintained a competitive edge largely through enforcement of intellectual property rights. After all, it was in the US that the first oil-eating microorganisms were patented, as well as the first biotechnically engineered mouse. So when the Convention on Biological Diversity was read to impact on the exclusive right of economic control accorded to US corporations through IP rights, the US was not about to yield, regardless of the accuracy of US concerns.
This paper examines the collision of intellectual property (IP) rights and the environment through the kaleidoscope of international issues in which IP has recently been raised (to new heights). The goal of this paper is not to provide the right answers (a later series of papers may do that), but rather to review the IP issues that have been brought on to the international stage, and note where they may impact on environmental issues. Part I introduces IP protection as it has been throughout its past. Part II examines the.primary international issues that have been raised with regard to IP rights, focusing on three areas: IP and trade; IP and development; and IP and the environment. Finally, Part III reviews those issues with an eye toward how they may impact on the environment and environmental protection. The final part is distinguishable from the environment section of part II in that it posits where IP issues may arise, while Part II focuses on where they have already been raised.