신지식재산 분야 국제동향과 법적 대응에 관한 고찰 — 식물신품종과 유전자원을 중심으로 —

Abstract

CBD and the discussions on the biological genetic resources The importance of genetic resources is growing with the economic value as the materials for bio-industries such as the development of new varieties and new medicine as well as with the value in the society, ecology, and bio-resources. On the other hand, each nation has been going under the fierce competition to acquire the bio-resources with rapid decrease of biological diversities. And the conflicts of interests is getting worse between the countries having the resources and the developed countries using the resources. The developed countries insist on the intellectual property rights to the results developed from the genetic resources which they are trying to acquire, and the developing countries which reserve genetic resources insist on the rights to share the benefits in the use of the nations' genetic resources. In this context, the international society has discussed various issues on genetic resources: CBD and ITPGRFA have tried to make regulations on the access and he utilization of other countries' resources; WIPO(World Intellectual Property Organization) has tries to gather intergovernmental opinions and to seek certain agreements on the issues of the intellectual property rights to genetic resources, traditional knowledge and folklore. These efforts, however, have not narrowed the gaps on opinions. International Treaty on Plant Genetic Resources for Food and Agriculture(ITPGRFA) and the recently-concluded Nagoya Protocol which has bounding forces, both of which, however, are still in unstable status. CBD explicitly states that the access to genetic resources shall be made under the mutually agreed terms(MAT) and the contract is the most general way to set the mutually agreed terms. 'The Panel of Experts on Access and Benefit Sharing' was established in 1999 following the discussion results from COP(Conference of Parties) of CBD. With reference to the reports of 'the Panel of Experts' , Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising Out of Their Utilization was drafted in 2001 and adopted in 2002 by the 6th COP. WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) is undertaking the negotiations between the developed and developing countries about the issues on the benefit sharing and the disclosure requirements in patent applications that relate to genetic resources in a claimed invention. The developing countries having genetic resources such as Brazil and India insist that the disclosure requirement, prior informed consent, and benefit sharing should have legal binding power by the international treaties. On the other hand, the developed countries using the genetic resources such as USA and Japan oppose to the developing countries arguing the disclosure requirement can restrain the new research and development, suggesting to build database to protect genetic resources. Europe and the Switzerland have opinion to make the disclosure requirement formal in PCT and PLT. On 30 October 2010, the tenth Conference of Parties of Convention on Biological Diversity(the CBD) adopted the Nagoya Protocol on Access to Genetic Resources and Benefit-Sharing. Until now (2012.11) 92 countries including South Korea signed, 9 countries; India, Mexico, Ethiopia, Fiji, Laos, Gabon, Jordan, Rwanda, Seychelles Islands, ratified the protocol. The Nagoya Protocol is a legally binding instrument dedicated to ABS and the international community is now shifting its attention from negotiating a legally binding instrument to ensuring its entry into force and implementation. After the CBD in 1993, the objective of fair and equitable sharing of benefits arising from the utilization of genetic resources has been a big issue. To negotiate the international regime for ABS of genetic resources is a main mandate for in the past years and ABS becomes an inevitable international norm by the adoption of the Nagoya Protocol. The objective of the Nagoya Protocol is the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and thereby contributing to the conservation of biological diversity and the sustainable use of its components. Parties to the Nagoya Protocol are required to enact related domestic laws and necessary administrative and politic actions, in order to enforce the principles of ABS. But, the protocol is far from legal certainty, clarity, and transparency, because COP President deleted or neutralized so many outstanding issues. This is, the reason why this Protocol is called a masterpiece in creative ambiguity. The actual utility of the Protocol will only become visible during the implementation phase. It is suggested that states start introducing their own ABS regimes without waiting any longer. The Nagoya Protocol requires the preparation of legislative and administrative measures and policies in order to pave the way for ABS. Thus, corresponding domestic legal measures need to be taken under the cooperation of government departments.