Peru has been recognized as one of the seventeen megadiverse countries in the planet for being holder of more than 70% of the planet’s biodiversity. The biodiversity of Peru is represented by a variety of ecosystems, flora and fauna and genetic diversity, which have contributed and contribute to the development and global sustainability. (Ministry of Environment – Peru, 2014).
Therefore , protecting our biodiversity and accessing to it is of vital importance in public policy in our country, so that Peru has always claimed the position to protect its genetic resources and traditional knowledge through various measures legislative and practices , so that to date Peru has been the only country of the Andean Community which has signed the Nagoya Protocol, regarding access to genetic resources, fair and equitable sharing of benefits arising from The use the Convention on Biological Diversity (CBD ).
For its part, the Convention on Biological Diversity (CBD) is a legally binding international treaty with three main objectives: the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of benefits arising from the utilization of genetic resources. Being its overall objective the promotion of the use and conservation of biodiversity sustainably with benefits for future generations. This agreement breaks a paradigm, because before its entry into force, genetic resources were the common heritage of mankind and therefore there were no conditions for access, on the other hand the CBD also commits States parties with under its national legislation respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities. After the signing of the CBD, the countries of the Andean Community, including Peru as a member, signed the Common Regime on Access to Genetic Resources, through Decision 391 (1996), which included the following objectives, according to Article 2, paragraph a): “Anticipate conditions of fair and equitable sharing of benefits arising from access”; and b) “Paving the way for the recognition and appreciation of genetic resources and their derivatives and their indigenous, Afro-American or local components.”
Therefore, adherence of Peru accession to the Nagoya Protocol reaffirms its position to promote conditions of fair and equitable sharing of benefits arising from access to genetic resources and traditional knowledge associated with these (ABS , for its acronym in English ) ensuring through this instrument of the CBD , respect of national provisions in those countries which have ratified the protocol, which to date total 70 members, including Mexico and the European Union
Practical experience in the implementation of ABS has shown that, in addition to an appropriate legislative framework, it is extremely necessary a favorable institutional framework, Therefore, the Nagoya Protocol complements the legal framework for access which owns Peru, through Article 17, paragraph 1 states: ” To support compliance, each Party shall take measures as appropriate to monitor and increase transparency in the utilization of genetic resources. These measures include: a) The appointment of a checkpoint, or more, as follows: (…) ( iv ) Check points must be effective should have functions relevant to the application of this subsection a) should be relevant to the utilization of genetic resources , or the collection of relevant information, among other things, at any stage of research , development, innovation , pre – commercialization or commercialization .
Where has mentioned that ” checkpoint ” is an institution that verifies documentation relating to access to genetic resources , which means that in addition to the institution that is responsible for managing access to genetic resources , there are several checkpoints along chain use of this genetic resource and the case of associated traditional knowledge.
Accordingly through Supreme Decree No. 003-2009-MINAM “Regulation of Access to Genetic Resources” is designated as Management and Enforcement Authorities (EPAs) competent to issue opinion on access and verification of compliance with conditions access and according to their sectoral expertise to the Ministry of Agriculture, Institute of Agricultural Innovation and Ministry of Production. And authority in Intellectual Property is the National Institute for the Defense of Competition and Protection of Intellectual Property (INDECOPI), consistent with the rule governing the patent system, Decision 486 of the Andean Community commission, as a “checkpoint”, which exercises that work a practical way and in coordination with EPA, through the requirement of the application of the access Contract and license use of traditional knowledge of indigenous peoples in processing the application for a patent the invention for which protection is required is developed or obtained from a genetic resource or traditional native knowledge of Peru, on the understanding, it is very likely that research from resource (s) gene (s), and if applicable associated traditional knowledge, culminating in patent applications.
However, in the course of this work, there are several aspects to consider, such as the efficient dissemination of this system ABS by the related institutions, management and efficient completion of the negotiation processes, recovery of the outcome of the utilization of genetic resources and traditional knowledge and bargaining power of the State as holder of such genetic resources and the indigenous peoples holders of traditional knowledge, resources and knowledge shared among other things, by which many countries face today difficulties in adopting efficient and effective institutional mechanisms that are checkpoint at first instance and consequently support in the operation of ABS. Overlapping, or just uncertain or nonexistent institutional, are challenges for countries that do not have explicit rules that relate to intellectual property and access to genetic resources.
By Stephany Soto & Aurora Ortega