L’accès et le partage des avantages des savoirs traditionnels en Amérique latine : comment les droits de propriété intellectuelle peuvent empêcher la biopiraterie
This thesis examines the legal protection of traditional knowledge against biopiracy perpetrated by some pharmaceutical and cosmetic industries. Despite the ongoing debate on this topic, since the signature of the Convention on Biological Diversity, traditional knowledge rests largely unprotected. The purpose of the thesis is to analyse mechanisms capable of protecting traditional knowledge associated with biodiversity of interest to the cosmetic and pharmaceutical industries. Using intellectual property rights found in international law and in certain domestic legislations, the thesis evaluates these initiatives according to their efficiency leading to a recommendation as to the most appropriate legal tools for countries which lack legislation on the topic. The thesis also considers how the best practices identified could be incorporated into the international legal framework. The thesis presents an analysis of the Brazilian, Costa Rican and Peruvian legislation, as well as international legal instruments such as the Convention on Biological Diversity/Nagoya Protocol and the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The analysis points to a number of mechanisms found in national legislation which would benefit countries without legal protection for traditional knowledge. Also these same mechanisms could be very useful in updating and reinforcing international treaties. Despite these innovative national initiatives, the thesis concludes that the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights remains the most interesting forum for binding and effective protective measures against biopiracy. Inspired by constructivist theoretical fundamentals, this thesis demonstrates that countries of the South – biodiversity and traditional knowledge rich – can lead the development of international legislation for the protection of traditional knowledge which better meets the needs of traditional knowledge holders.
Amérique latine Brevet Marque Traditional knowledge protection Latin America Intellectual Property Patents Trademarks Geographical indications Acces and benefit sharing Pharmaceutical industry Biodiversity Biopiracy