A long-awaited intellectual property treaty relating to 'Intellectual Property, Genetic Resources and Associated Traditional Knowledge' was adopted on 24 May 2024at a diplomatic conference by WIPO (World Intellectual Property Organisation). The adoption of that historic international treaty can be regarded a significant win for the countries of the Global South in several respects.

This treaty is drafted with two objectives in mind: (i) to enhance the efficacy, transparency, and quality of the patent system, and (ii) to prevent the evergreening of patents related to genetic resources and traditional knowledge associated with genetic resources. This treaty obliges its member states to ensure that for patent protection of a new invention based on genetic resources the inventor must disclose the country of origin of genetic resources or the source of the genetic resources in their patent application. Besides, where the invention is based on traditional knowledge of the indigenous or local the treaty mandates to disclose the Indigenous Peoples or local communities who provided such knowledge, or the source of such knowledge associated with genetic resources.

In the existing international conventions, such as TRIPS (Trade-Related Aspects of Intellectual Property Rights) or Paris Convention, traditional knowledge is not protected due to its lack of eligibility criteria of protection by traditional Intellectual Property tools. On the other hand, the patent regime under TRIPS does not impose any obligation to disclose sources or origin of Genetic Resources or Traditional Knowledge at the time of filing patent application. In consequence, the multinational companies (MNC) or inventors had acquired patent for their inventions based on genetic resources or traditional knowledge associated with generic resources of indigenous or local communities without disclosing this information and get exclusive rights over their inventions, whether a product or process, and exclude the local or indigenous people from using such patented inventions. The Indian Neem Case controversy is a pragmatic example of biopiracy where an application for a patent of "Neem", an age-old renowned medicinal plant of South Asia, was filed by W.R. Grace and the Department of Agriculture, USA in the European Patent Office.

Contrary to that, different human rights instruments recognised the rights of the indigenous people. Article 31 of the UN Declaration on the Rights of Indigenous Peoples asserts the right of Indigenous peoples to protect and maintain their cultural heritage, traditional knowledge and traditional cultural expressions, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, etc.

Thus, it appears that a dilemma was created between these two international conventions, which can be removed by the adoption of the new WIPO treaty. Since this treaty has included provisions for sanctions and remedies, it is expected that Biopiracy will be reduced after the adoption of this treaty. Further, the WIPO Treaty obliges its contracting member states to implement adequate, effective, and proportional legal, administrative, and/or policy measures to address any failure to submit the disclosure information required by this Treaty. Moreover, the state needs to provide an opportunity to rectify a failure to disclose the information required in Article 3 before implementing sanctions or directing remedies, except where there has been fraudulent conduct or intent.

Another impressive aspect of the WIPO treaty is that the treaty suggested that member states may establish databases for genetic resources and traditional knowledge, in consultation with Indigenous Peoples, local communities, and other stakeholders considering their national circumstances. This will be helpful for the inventors as well as for the traditional knowledge owner. Notably, India already maintains a digital database for their traditional knowledge (known as 'Traditional Knowledge Digital Library') to prevent exploitation and to protect traditional knowledge of India.

To conclude, the adoption of the WIPO Treaty is a win for the Global South countries, including Bangladesh, being the hub of mega biodiversity and traditional knowledge.  To ensure protection of the traditional knowledge of the local communities and indigenous people, Bangladesh can sign the treaty and amend its legal framework on patent so that the third parties cannot achieve patent protection over its resources and exercise monopolistic rights over the traditional knowledge of the local and indigenous communities.

The writer is LLM candidate at the University of Dhaka.