論説
The Protection of Genetic Resources and Traditional Knowledge under Ethiopian Legal and Regulatory Framework
2022 年 2022 巻 100 号 p. 49-110
詳細
2022 年 2022 巻 100 号 p. 49-110
The connection between humans and the environment and its inhabitants are very strong. Human beings play a great role in nurturing and preserving the natural environment and its inhabitants. GR are the main basis for human life and the means for its survival on the planet. The linkage between human and genetic resources (GR) is far stronger in developing countries where a significant number of lives are directly dependent on GR and associated Traditional Knowledge (TK), when compared to Western societies. In this paper exploration on the international legal framework for the protection of GR and associated TK will be made. AU, the regional initiatives of ARIPO and OAPI in TK protection, the experience of South Africa and India in bioprospecting and developing effective legal system for protections of GR and associated TK is also considered. Japanese context in the management of GR and associated TK will be touched. In particular exploration and analysis on the legal and regulatory framework of Ethiopia will be made. The author believes that though the degree and nature of the measure varies a combined effort and actions at international, regional and national level is warranting for realization of effective protections for the biological resources and associated TK.
Ethiopia is characterized by a wide range of agro-climatic conditions that account for its enormous diversity in biological resources. The most important among these resources is perhaps the immense genetic diversity of the various crop plants grown in the country.1
Ethiopia is endowed with rich flora and fauna because of its physical and climatic diversity. The total number of vascular plants is estimated at over 6500 species, of which approximately 10% are endemic and about 14% are used as medicinal plants.2
About 80% of the human population and 90% of the livestock in Ethiopiarely on traditional medicine. Medicinal plants are used for the treatment of both human and livestock diseases.3 They are also seen as economic commodities by some members of society who make their livelihoods by collecting or trading,or by using them to treat patients as traditional medical practitioners/healers.
Despite the prevalence of a huge number of GR and associated TK in Africa, most nations lack effective legal frameworks to govern their resources. However, there are encouraging initiatives in the continent, such as the adoption of the African Model Law, the Swakopmund Protocol and the South African Indigenous Knowledge Systems Bill to provide protection. Such initiatives need to be expanded across the continent in order to protect biological resources and associated TK which in turn contribute to alleviate poverty, ensure food security, foster industrial innovation, and access to medication.
TK is mostly unwritten, transmitted from generation to generation orally, and vulnerable to unlawful exploitation. The huge financial benefits that the commercialization of these resources has begun to offer and the new technological developments, particularly biotechnology and commercial success of major pharmaceutical and cosmetic industries, all clearly demonstrate the significance and usefulness of TK in research and development.4
However, the absence of inbuilt safeguards and the patenting of inventions involving TK without ensuring benefit sharing has exposed the latter to pillage.The protection of TK has become a very important topic on the international intellectual property (IP) agenda, especially the key problems such as inappropriate patenting, the absence of a benefit-sharing regime from TKbased inventions, and insufficient consideration in prior art searches by patent offices. Issues pertaining to the protection of TK appeared to be compounded by the apparent contradiction between the two major international instruments,namely the Convention on Biological Diversity (CBD) and the Trade Related Aspects of Intellectual Properties (TRIPs). The problem countering these two instruments is that a single measure taken by a member party to fulfil its obligation under TRIPs may result in violations of an obligation under CBD or vice versa. Currently, there is an ongoing open-ended work to reconcile these arguments.
The misappropriation of TK and the forgone benefits derived from their use continues to elicit serious misgivings among local communities and indigenous people. High profile cases like the Turmeric, Neem, Periwinkle and Buchanan cases, all fueled the call for a more effective system to prevent such unauthorized access.5 Thus, designing a strong mechanism for the protection of such knowledge both in the national and international level is warranted.
The international legal regimes have an impact on Ethiopiaʼs legal regime on both the promotion of IPRs and achievement of ABS objectives. This is because Ethiopia is a party to the CBD and it is in the process of acceding to the World Trade Organization (WTO). All countries including Ethiopia are not free from the impact of the international legal regime. More importantly, significant portion of the populationʼs livelihood in Africa, including Ethiopia is directly dependent on biological resources and associated TK, especially for medication. Thus, designing a mechanism to prevent the unlawful exploitation of GR and formulating a legal system to facilitate lawful access and benefitsharing through enhanced bi-prospecting schemes should not be left for the future. The formulation of an effective legal and regulatory regime generally in the continent and particularly in Ethiopia to assure these objectives is necessary.
1.1. Brief History of the Approaches to TK ProtectionOver two decades have passed since international attention turned to IP laws to preserve, protect, and promote TK. IP laws are considered the best option in protecting against the “poaching” of TK through patent and geographical indications of the origin in order to protect the cultural integrity and development of a community.6 In 1992, the CBD recognized the value of TK in protecting species, ecosystems, and landscapes, and incorporated language regulating access and use.7 It soon become apparent that implementing the CBD meant that international IP agreements like TRIPS had to be amended.
The adoption of the TRIPS, which established rules for creating and protecting IP that could be interpreted to contradict the agreements made under the CBD demanded emphasis. In response, states that ratified the CBD requested the World Intellectual Property Organization (WIPO) to investigate the relationships among IPR, biodiversity, and TK. WIPO established the Intergovernmental Committee on Intellectual Property and GR, TK, and Folklore (IGC) to carry out its activities.8
The 1990s were characterized by rapid use of collective right in global civil society. The characterization emerged as a result of the following major developments. The High Level Brundtland Report (1987) recommended a change in the development policy that allowed for direct community participation and respected local rights and showed aspirations for its implementation. Besides, indigenous people and others had successfully petitioned the United Nation (UN) to establish a working group on indigenous populations that resulted in two early surveys on treaty and land rights. These led to the greater public and governmental recognition of indigenous rights over land and resources and the need to address the issues of collective human rights as distinct from individual rights under the existing human rights law regime.9
Likewise, the collective human rights of indigenous and local communities have been increasingly recognized such as in the International labor Organization (ILO) convention 169 (1989) and the declaration on the right of indigenous peoples (2001). The Rio declaration (1992), endorsed by the presidents and ministries of the majority of the countries of the world recognized indigenous and local communities as distinct groups with special concerns that should be addressed by states.10
A seemingly initial concern was over the territorial and traditional resource rights of these communities. Indigenous people soon showed concern for the misappropriation and misuse of their intangible knowledge and cultural heritage. Among other things, they resisted the patenting of traditional use of medicinal plants and copyrighting and distribution of traditional stories. As their knowledge was often entwined within the culture and spirituality of these communities and can provide a form of self-identification 11 any misappropriation affects their identity, culture, and livelihood, especially if their knowledge gives them the basic technique for the preparation of their food and medication. Indigenous people and communities have sought to prevent the patenting of TK and resources where they have not given their express consent. They sought greater protection for TK and control over inventions that uses TK. Communities have also sought to ensure that their TK is used equitably12 and accordingly restrict usage as stated by their traditions, or require benefitsharing for access according to the benefits they define domestically.13
Three approaches have been developed for TK protection. The first emphasizes protecting TK as a form of cultural heritage as espoused by UNESCO. The second looks at TK protection as a collective human rights concern (ILO). The third and widely prevalent approach is implemented by the WTO and WIPO to investigate the use of existing IPRs or novel sui generis14 measures for TK protection.
Currently, only a few countries offer sui generis system of TK protection. However, a number of countries are still undecided on whether they should protect TK or not. Indigenous people and local communities have been ambivalent about the IP approach. Some have been willing to investigate how the existing IP law may work, but still require more radical and novel forms of IP law or sui generis systems.15 Others believe that an IP system uses concepts and terms that are incompatible with traditional cultural concepts, and note that the commercialization of their traditions takes place with little or no gain reaching the community, which is what they usually resist. Following this, many have argued that the form of protection should refer to collective human rights to protect their distinct identities, religions, and cultural heritage. The trend seems to tend toward relying on IP laws or sui generis mechanisms to preserve TK.
1.2. International Legal Framework for the Protection of Genetic Resources and Traditional KnowledgeTo date there have been several attempts to accord protection for GR and associated TK at the international level. However, the nature and characteristics of these resources has brought difficulties to seek the desired protection by single instruments only. This is associated to the diverse nature of the resources seeking the involvement of several stakeholders within their own spheres of mandates. In the following sections a brief exploration of the first landmark achievement in formally recognizing and providing protection in the international level and other continuous development and achievements in the area will be addressed.
1.2.1. The CBD on the Protection of GR and Associated TK and IPRThe CBD is the result of discussions at the Rio de Janeiro 1992 United Nations Conference on Environment and Development towards a strategy for sustainable development, following negotiations that had commenced in November 1990 under the United Nations Environment Program (UNEP).16
The CBD is a comprehensive, “umbrella” framework convention that recognizes the sovereign rights of states over the biological resources found within their territories and seeks to promote three main objectives; the conservation of biodiversity, the sustainable use of the components of biodiversity, and the fair and equitable sharing of the benefits arising from genetic resources.17 Technology transfer is highlighted as a method for achieving one of the CBDʼs three principal objectives, and IPRs are identified as a significant aspect of technology transfer.18
According to the CBD, recognition of biological diversity is not limited to plants, animals and micro-organisms and their ecosystems, but also extends to humans and their need for food security, medicines, fresh air and water, shelter, and a clean and healthy environment to live in.19
A cumulative reading of article 8 (j), 10, 15, 16 and 16. 5 of the CBD provides a clear picture on the relationships between GR, TK and IP with the resulting obligation on contracting parties. Under article 3, 15 and 15 (3) it recognizes the sovereign rights of states over their biological resources and stipulates that access to biological resources can only occur with the PIC of states. Furthermore, as per article 8(j) and 10, requires signatories to protect and promote the rights of communities, farmers and indigenous peopleʼs vis-ávis their biological resources and knowledge systems. It also requires establishing a system on access to the biological resources of developing countries on a quid pro quo basis with technology transfer from the industrialized countries and sharing of benefits arising from the commercial use of communitiesʼ biological resources and local knowledge (Article 16 and 15.7). The CBD also asserts that IP rights must not conflict with the conservation and sustainable use of biodiversity (Art 16.5).
However, there are a number of limitations of CBD which led to a number of criticisms. First, the Convention leaves the protection of the knowledge, innovations and practices of indigenous and local communities to the discretion of parties. Language such as “subject to national legislation”, “as far as possible and as appropriate” was promoted during the negotiations for the CBD by governments that did not want to be committal about protection of indigenous peoples and their rights.20 Second, Article 8 (j) does not talk of protection of the knowledge but merely calls on parties to “respect, preserve and maintain” it. It does not guarantee indigenous and local people any rights in TK.21 But still, many see a potential for the CBD to be an effective tool for biodiversity conservation and use if it provides practical means for local communities to assert their rights against the privatization of biodiversity.22
1.2.2. Nagoya Protocol (NP)The NP on ABS was adopted on 29 October 2010 in Nagoya, Japan and entered into force on 12 October 2014. Itʼs a legally binding supplementary agreement to CBD adopted to provide a transparent legal framework for the effective implementation of one of the three objectives of the CBD: the fair and equitable sharing of benefits arising out of the utilization of GR.23 The NP applies both to GR and associated TK which are covered by the CBD. It imposes obligation on member states to regulate the utilization of such resources and for the realization of the fair and equitable sharing of benefits. Such benefit-sharing includes appropriate access to GR, transfer of relevant technologies and funding. NP also aimed contributing to the conservation of biodiversity and the sustainable use of its components. This marks the close linkage of ABS with the other two objectives of the CBD. The issue of access to GR and/or TK forms a core part of the ABS concept. The NP reiterates the sovereign rights of States over their natural resources and clarifies further access to such resources is subject to PIC granted by the provider country unless determined otherwise.24 Though in 1992 CBD recognized the issues and provided a legal framework to resolve as such, the rules contained related to ABS were rather vague and necessitated the adoption of a more detail and authoritative international agreement on ABS that is NP.25
The NP has advantages for both providers and users of GR and associated TK, as it creates legal certainty and transparency by establishing more predictable conditions for access to GR and associated TK and ensures benefitsharing for resource owners. Such a guarantee of benefit-sharing serves as an incentive to nurture, preserve, and sustainably use biological resources, and even enhances the role of biodiversity for development and human wellbeing. 26 It also sets core obligations on contracting parties. Each contracting party have the obligation to ensure its domestic access measures ascertains legal certainty, clarity, transparency by establishing fair, clear and nonarbitrary rules and procedures for PIC and MAT. The measures are also expected to give due regard to existing or imminent dangers that threaten healthy life in the planet and should consider the contribution of GR for food security. Creating favorable conditions to promote and encourage research that intern contribute for biodiversity conservation and sustainable use are among the obligations.27
As a compliance measure, parties should also ensure the GRs utilized within their jurisdiction have been accessed in accordance with PIC and MAT established and required by other parties. Parties should also monitor the utilization of GRs after they leave a country even by designating effective checkpoints at any stage of the value-chain: research, development, innovation, pre-commercialization or commercialization. Whenever appropriate parties have to also cooperate and encourage contractual provisions on dispute resolution in MAT including ensuring recourse to domestic legal system when dispute arises from MAT.28
However, the success of the NP requires the effective implementation of various tools and mechanisms at the domestic level on part of each contracting party. Among others, NFPs and CNAs serving as contact points for information, granting access, or cooperating on issues of compliance, is vital. Setting up an ABS Clearing-House to share information, such as domestic regulatory ABS requirements or information on NFPs and CNAs, is important for the facilitation of access and benefit-sharing regimes.29 Capacity building based on members needs and priority area, raising awareness and technology transfer mechanisms are also key for the successful implementation of NP.
The Access and Benefit-sharing Clearing-House (ABS Clearing-House) is a platform for exchanging information and a key tool for facilitating the implementation of the NP. It is required to make available relevant information of members that are associated to ABS, ABS Clearing-House facilities and desires to widen options for users and providers of GR and associated TK to link and establish fair and equitable ABS agreements.30 Though the performance of members in fulfilling their obligation under NP is not at equal footing, such platforms are playing an important role in sharing relevant information and connecting users and providers of GRs and associated TK. Through such platforms enhanced relevant information are made available which help to facilitate the access to GR and ensuring fair and equitable benefit sharing.
1.2.3. The International Treaty on Plant Genetic Resources for Food and Agriculture of FAOThe International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) is the end product of a long period of international debates and negotiations in the FAO.31 However, the critical point and the wakeup call for agricultural sector was the consecutive adoption of the two international binding agreements of CBD and TRIPS within two years difference. To this effect, countries, the seed industries and non-governmental organizations (NGOs) joined together to transform the international undertaking (IU) which sparked much controversy by laying out a common heritage doctrine that allow free access on GR.32 The aim was to change IU in to a binding agreement.
The ITPGRFA was adopted in 2001 entered into force in June 2004 and became operative with the first session of its Governing Body (Madrid, June 2006) which resulted in the adoption of a standard material transfer agreement.33 Through the Treatyʼs multilateral system of access and benefit sharing (MLS), it determines the quantity, method and terms of payment related to commercialization. Its objective is conservation and sustainable use of plant genetic resources for food and agriculture (PGRFA) to ensure food security, fair and equitable sharing of benefits in harmony with the CBD.34
Among the foremost achievement of ITPGRFA is establishing of international system of Access and Benefit-sharing (Multilateral System) to facilitate exchanges of plant genetic materials for agricultural research, training and breeding which in turn contributed for conservation and sustainable use of PGRFA.35 In addition important collaboration on exchange of information, access to technologies and capacity-development is enduring, while monetary benefits are shared through the International Treatyʼs Benefit-sharing Fund.36 Quite differently to proponents of TRIPS amendment, the treaty does not seek to alter IPR laws in any way, rather works whatever laws are in place. The treaty provides secure basis of framework for conservation and sustainable use of PGRFA. It also represents invaluable support provided for public, private, and hybrid innovation.37 However, a combined effort and commitment at the national and international level is necessary to make it more effective and persistent.
1.2.4. The Conference of Parties (COP) to the CBDThe COP is a governing body of CBD with ultimate authority of all governments (or Parties) that meets every two years to review progress, set priorities and commit to work plans.38 Though the main participants to COP are member parties to CBD, it is also a forum for partaking of international civil societies, indigenous and local communities, youth and others to review and advance the implementation of the Convention.39 Till 2020 COP has held 14 ordinary meetings, and one extraordinary meeting (the latter, to adopt the Biosafety Protocol, was held in two parts). At the beginning ordinary meetings were held annually, but following a change in the rules of procedure in 2000, the meetings are now held every two years with wide-ranging agenda reflecting the program of work the COP has established for itself.40
The COP starting from its inception in 1994 Nassau, the Bahamas to date had conducted a number of continuous deliberations to discuss various issues that given rise to significant outcomes.41 Among others it resulted in major achievements like the adoptions of non-binding Bonn guideline on Access to GRs and Fair and Equitable sharing of the benefits arising out of their Utilization and later the binding NP which sets out rules and procedures for implementing CBDʼs third objective.
1.2.5. TRIPSNegotiations of the TRIPS agreement was started in the 1986 Uruguay Round under the auspices of the General Agreement on Tariffs and Trade (GATT), the institutional predecessor of the World Trade Organization (WTO). It incorporated substantial and uniform protections of IPRs and seen as a comprehensive new framework prescribing standards of IP protection.42 It was entered in to force in 1995 with the purpose of introducing new scope, rules and disciplines for global trade concerning the provision of adequate standards, principles and use of trade related IPRs with effective enforcement tools.43 During TRIPS negotiations, the protection of IPRs was often promoted as the main means to resolve most of socio-economic issues of developing countries.44 However, IP protection can never be as such a solution alone. It can only be one of many factors that operate together to promote innovation and the dissemination of information and technology, thereby advancing economic expansion and resulting in high standards of living and social development.45 That is why the adoption of TRIPS has led to increasing debate and dialogue among north and south and resulted in ongoing critics on it especially from developing countries for luck of a framework to protect TK, GR and traditional cultural expressions (TCEs).
Though it was not a direct step taken to recognize the above concerns of developing countries, the WTOʼs Doha Ministerial Declaration opened the possibility of some initial steps towards rebalancing the TRIPS Agreement with public concerns such as health, food security, development, environment and mandated reviews of the relationship between the TRIPS Agreement and CBD as well as the protection of TK.46 Specifically, requiring the amendment of article 27 (3) b and 29 of TRIPS to adopt the disclosure of the origin (DR) of the genetic material and associated TK in way to require PIC and the existence of fair and equitable benefit sharing agreements to achieve a cost-effective solution to illegal access of GR and associated TK. However, there is no consensus among member states and the negotiation is still persisting on the proposed scenarios for protection of GR and associated TK through IP system. A brief consideration of some of the scenarios will be provided below in separate sections.
A. Protection of GRs through IPFrom their very nature GR are not the creation of human mind and may not be directly contemplated to be protected through IP system. However, some GRs are linked to TK and traditional practices through their use and conservation by indigenous peoples and local communities which have served and being serving as the basis for modern scientific research especially for pharmaceuticals related industries worth requiring protection. Though different studies and facts shows that GR has contributed a lot for the development of various inventions, to date there is no consensus among developed and developing countries in formulating an appropriate IP system to protect GR. However, this does not mean that there is no any attempt to provide the necessary safeguard against their unlawful exploitation and utilization. Taking in to account their unique features and recognizing their contributions for biodiversity conservations and sustainable economic development, the CBD, Nagoya protocol and ITPGRFA have adopted PIC and MTA mechanisms to regulate the lawful access to GR and for safeguarding the benefit sharing derived thereof for local communities and indigenous peoples.
B. The Defensive ProtectionDefensive protection refers to a legal or regulatory measure adopted in the national system to prevent IPR claims relating to TK or a cultural expression or a product being granted to unauthorized persons.47 It is used to prevent the granting of patent over TK relating to GR although this does not amount to recognition of actual right of ownership over TK in favor of indigenous peoples. According to WIPO, defensive protection can be valuable and effective in blocking the grant of illegitimate IPR, but does not stop others from actively using or exploiting TK. Some form of positive protection is needed to prevent unauthorized access and use.48 Countries like India, South Africa and Brazil are among the prominent countries in adopting defensive protection system in their patent laws to prevent erroneous grant of IPR and unlawful exploitation of GR and associated TK thereto. Traditional Knowledge Digital Library (TKDL) system in India, the mandatory disclosure source of origin of the GR or associated TK in South Africa at the time of patent applications was adopted in order to prevent the grant of illegal IPR over TK.
C. Protection of TK through IPBecause of the unique nature of TK, the current IP regime which typically recognizes and grants protection for new inventions of individuals, does not provide protection for knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. Noticing that and affirming the need to establish an international system to safeguard their interest, representatives of local communities and governments especially from developing countries are massively insisting for the adoption of an international legal instrument that provide sui generis system of protection for TK.49 Among others, documentation of TK is the prominent one though it raises some concerns from the TK holdersʼ perspectives: the widespread availability and the easy accessibility of TK because of the development of technologies like the internet might affect the interests of right holder and will contradict with the motives originally desired of. However, in spite of such shortcomings, formal documentation and registries of TK support sui generis protection systems, while TK databases such as Indiaʼs database on traditional medicine play a role in defensive protection at least at national level.50
Till 2020 there is no comprehensive international IPR instrument designed to protect TK. However, since 2000 under the auspice of WIPO, the (IGC) was established with an attempt to establish holistic protection of TK in the international level.51 Though WIPO is serving as a better forum to discuss the issue and produced draft document for protecting GR and TK, it canʼt narrow the diverging interests and adopt legally binding instrument to date. Developing countries advocates for the adoption of binding IPR instrument at the international level while on the other hand developed countries strongly opposed such proposal and recommend different solution outside the WTO/TRIPs regime.
1.3. AU and Regional IP Organization Initiatives in the Management of Biological Resources and Indigenous KnowledgeIn Africa, no single continental IP organization deals with the protection of TK. However, there is an initiative toward the creation of a continental protection mechanism for TK under the auspices of the African Union (AU). There are also two regional IP organizations that deal with TK protection, African Regional Intellectual Property Organization (ARIPO) and African Intellectual Property Organization (OAPI).52 In the following sections, this study explores major developments and initiatives for the protection of GR and associated TK at the continental and regional levels.
1.3.1. AU InitiativeAfrica has not established a new organization for TK protection similar to South American countries regional alliances to protect the same.53 The existing regional organizations have limited provisions on TK protection. However, African countries have come together to make submissions with the aim of developing and adopting a legally binding international instrument that deals with the protection of TK, traditional cultural expressions, and GR.54 The initiative for TK protection at the AU level began when the AUʼs Scientific, Technical, and Research Commission (STRC) began to focus on these issues as emerging and important components of development and commerce. The STRC convened a joint workshop with the Kenya Industrial Property Institute (KIPI) on “Medicinal Plant Policy Issues on Ownership, Access, and Utilization,” with the aim of charting a course of action to follow through on issues surrounding access and benefit-sharing vis-à-vis TK.55 The joint deliberation later resulted in the adoption of the “African Model Law on the Protection of the Rights of Local Communities, Farmers and Breeders, For the Regulation of Access to Biological Resources (The Model Law).”56
The Model Law was reinforced by the OAU/AU Council of Ministers in 1998 with the aim of creating a sui generis system to regulate access to biological resources and to protect related rights of local communities, farmers, and breeders.57 To date, the provisions of the Model Law also serve as the only platform on which member states of the AU can have a common understanding of the international instruments and negotiations affecting TK in Africa.58 The AU Model Law is known for entertaining sovereign rights on biodiversity and issues that are consistent with the major objectives of the CBD, conservation and sustainable use of biodiversity, maintenance of food security, protection of community rights, and the equitable sharing of benefits. The Model Law is also fashioned as a framework instrument to provide AU member states with guidance in formulating domestic legislation. It is also intended to serve as a basis for generating a sustained African “Common Position” on the TRIPS amendment negotiation in general and on Article 27.3(b) in particular.
The AUʼs initiative to regulate TK protection in general, and the adoption of the Model Law in particular, are among the noticeable steps that strive to guarantee TK protection, at least domestically. Before the adoption of the Model Law, little effort was made to formulate national legislation relating to access to and benefit-sharing for GR and associated TK in the continent.
1.3.2. Regional IP Organizations Initiatives in Africa for Protection of GR and TKAs mentioned above, there is no single IP organization that deals with TK protection at the continental level in Africa. However, there are two regional IP organizations that entertain IP related issues, namely ARIPO and OAPI, which were established by bringing together English and French speaking countries, respectively. Each of these regional IP organizations is presented in detail below.
ARIPOARIPO came into existence in 1976, pursuant to the Lusaka Agreement. It is an intergovernmental organization for cooperation among 19 African states in the context of patents and other IP matters.59 It also encompasses 12 African countries as observer including Ethiopia which are presumed to accede the membership.60 To date, ARIPO has adopted four protocols that govern different IP issues: the Harare Protocol on Patents and Industrial Designs adopted on December 10, 1982,61 the Banjul Protocol on Marks adopted on November 19, 1993, the Arusha Protocol for the Protection of New Varieties of Plants adopted on July 6, 2015, and the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, adopted on August 9, 2010.62 The Swakopmund Protocol gives the ARIPO the mandate to regulate issues pertaining to TK and the expression of folklore, and to protect knowledge holders against any infringement of their rights as well as expressions of folklore against misappropriation, misuse, and unlawful exploitation.
ARIPO, alongside its parallel organization OAPI is commonly expected to promote the harmonization and development of IP laws and matters relating to African TK systems. Both organizations may promote Africaʼs development by ensuring that IPRs contribute to the economic, social, and cultural welfare of African communities.63
Understanding the multicultural and transboundary nature of TK and working toward linking its initiatives to those undertaken by WIPO64 for TK protection, and the adoption of the protocol signifies an important landmark in ARIPOʼs initiatives for TK protection. However, the harmonization of its system and rules with OAPI and integration of other member states of Africa will need to be completed if we intend to create a better TK protection in the region.
OAPIOAPI was established by the Bangui Agreement on March 2, 1977, and covers 1765 African countries that are mostly French speaking.66 Its headquarter is situated in Yaoundé, Cameroon. The Bangui Agreement, which was amended in 1999, assigned the responsibility to OAPI to implement and apply a uniform system for the protection of industrial property and international agreements to which its member states acceded.67
As opposed to ARIPO, OAPI clearly envisaged as an objective that its aims to contribute to the promotion and protection of expression of cultural and social values. However, unlike ARIPO, OAPI has a unique system in which members states are required to renounce their national sovereignty in the area of IP. According to this system, member states have to afford the right-holder the single regional title of protection, which is valid in each country, and is obtained through an OAPI application and registration procedure.68
Though the regional initiatives taken by OAPI and ARIPO to protect TK beyond the national level are encouraging, the difference in language between the two sets of countries and the dissimilarities in the systems they follow in the administration of IP constitute a major hindrance to the harmonization of these organizations and their legislations. As Tshimanga Kongolo pointed out, the systems of protection provided under these organizations do not reflect African realities in a strict sense. Rather, to some extent, they simply aim at the transposition of the so-called international protection system at the regional level, almost without looking for a way to recognize and accommodate different cultural norms and values prevailing in the societies. Understanding these problems and striving to narrow down the differences and accommodating such societal values that meet the interests of local communities and indigenous societies necessitates collective action.
1.4. Countries Experience in the Administrations of GR and ABS South AfricaWhen compared to other African countries, South Africa has diverse laws that deal with the protection of GR and associated TK of indigenous communities. The legal coverage encompasses biodiversity and IPR laws that provides legal protection for TK relating to GR. The initiatives to provide protection for such resources was commenced by enacting the Biodiversity Act in 2004 and the regulation passed under it in April 2008 as amended in May 2015. The Patent Amendment Act, 2007, Intellectual Property Laws Amendment Act, No. 28 of 2013, and Indigenous Knowledge Systems Bill of 2016 are also other areas that are designed to protect GR and associated TK of indigenous communities in the country.69
South Africa is pioneer in taking the initiative to address bio-prospecting issues and protecting biological resource-based TK in Africa. It is also a model country for realizing successful collaborations between research institutions and traditional knowledge stakeholders in the commercialization of TK.
The South African government mandated the Council for Scientific Industrial Research (CSIR) “…to foster the national interest in industrial and scientific developments through private initiatives or cooperation with private sector to contribute to the improvement of the quality-of-life South Africans…”70 CSIR is the prominent research institute not only in South Africa but also in the continent for conducting biodiversity based research and developments that extend to the realization of successful product development by combining indigenous based-knowledge with scientific research. CSIR has conducted a number of successful TK-based research and developments on biological resources. The typical TK-based bio-innovations and collaboration agreements in this regard include cooperation between CSIR and TK holders for the development of mosquito repellents (Lippia javanica) and Molomo molatin (Monsonia anguistifolia), which were found to actively inhibit the production of enzymes associated with Alzheimer Aβ42 and Aβ40 in vitro.71 In both cases, a benefit-sharing agreement between CSIR and the Traditional Healerʼs Committee was entered into, and bio-prospecting permits were also issued for the commercialization of the products.72
CSIR has also undertaken a number of research and development activities in collaboration with the AUʼs New Partnership for Africaʼs Development (NEPAD). It was chosen to host the SANBio73 Network for BIOsciences in 2005. Such collaborations aimed to create CSIR footprints in the SADC region in particular and Africa in general, by providing, among other things, access to world-class research and translational infrastructure and expertise in multifaceted disciplines and a wide range of scientific fields and capacity-building initiatives.74
Among SANBio Hubʼs initiatives, an agreement that was concluded between Zimbabwe Bio-innovation and a South African company called Parceval Pty Ltd to Commercialize Resurrection Bush Tea out of Zimbabwe is prominent. Resurrection bush tea is consumed in small quantities by herbal tea drinkers in Zimbabwe, and to a smaller extent in South Africa. Before the collaboration, the tea was traditionally used to treat colds, kidney problems, asthma, backaches, and headaches. Through the collaboration, the product was developed and commercialized by technology licensing and confirmed that the commercialization was a compliment to the ABS system in Zimbabwe.75
IndiaTo protect biological resource-based TK, India enacted three major laws:the Protection of Plant Varieties and Farmers Rights Act, 2001 (PPFR Act), Biological Diversity Act, 2002 and the Patent (Amendment) Act, 2005. The PPFR act is a sui generis system adopted to protect new varieties of plants and farmersʼ rights. According to this act, Plant Breeders Right (PBR) holders have the exclusive right to produce, sell, market, or distribute the seeds of plant variety. India also comes to the forefront among the countries that have been affected by the poaching of biological resources and associated TK. There are popular cases that challenged the grant of erroneous patents based on TK from India in Western countries. The following section presents a brief exploration of some of these cases.
The Turmeric (Curcuma longa) CaseTurmeric is a plant found in India and has been used to heal wounds and rashes in traditional medicine for a long time. Despite its existence as TK, two expatriate Indians were granted a US patent (NO 5401, 5041) for using turmeric as a medicine for healing wounds.76 Later, a re-examination application was filed against the patent so granted, challenging it on the ground of “prior art.” In the application it was stated that turmeric has been used for thousands of years in India for healing wounds and rashes and therefore its use as a medicine was not new. Finally, once the US patent office was satisfied by the applicantʼs assertions, it ordered the revocation of the patent granted on the ground of lack of novelty.
The Neem (Azadirachta Indica) CaseThe Neem case is another example of the illegal grant of a patent on long existent TK in India. Neem is known for its medicinal properties, and is used as a natural medicine, pesticide, and fertilizer. Further, oil extracts from the seed have been used to treat colds and flu. It is believed to offer relief from malaria and several skin diseases. A US company called W R Grace was granted a patent by the European Patent Office (EPO Patent No 436257) in 1994, for a method of controlling fungi on plants using extracted neem oil.77 However, in 1995, a group of international NGOs and representatives of Indian farmers filed a petition against the patent, claiming that it was prior knowledge and has been practiced in India for centuries to protect crops. The EPO accepted the claims and revoked the patent on the grounds of lack of novelty and inventive step.
These two cases reveal that how the long existed TK of local communities are being unlawfully exploited and are becoming the basis for modern research and product development without benefit sharing. Further, it shows the importance of adopting proper legal and documentation systems domestically and a need for global cooperation toward the proper management of biological resource-based TK for ensuring and maximizing the benefit derived thereto through lawful access and benefit-sharing schemes.
Another major contribution of India is the Traditional Knowledge Digital Library (TKDL), a comprehensive database that supports the defensive protection of TK. TKDL involves the documentation of publicly available TK which is used in the traditional medicine systems in India.78 It serves as an important source of information on prior art for preventing the erroneous grant of patents. Till 2020, in 239 cases, patent applications have either been withdrawn, or cancelled, or declared dead, or even terminated, or have had claims amended by applicants or rejected by the examiner(s) based on TKDL submissions.79
JapanEndowed with rich biodiversity, Japan has taken different measures to conserve and utilize its biological resources. Soon after becoming a party to the CBD in 1993, the Japanese government formulated a biodiversity strategy in 1995. Japan also adopted the NP. Despite the prevalence of numerous biological resources and associated indigenous knowledge deserving protection, Japan adopted a non-binding guideline that deems pro researchers quite different from other countries. In the following sub-section, the Japanese context is explored from the perspectives of both users and providers
Japan as a User of GR and Associated TKUnlike other developed countries, Japan plays a double role in the management of biological resources and associated TK. On the one hand, Japan is among the leading countries in conducting numerous studies and contributes successfully by using different inputs including biological resources. This makes Japan one of the main users of biological resources and associated TK. In contrast, the countryʼs rich land and water biological resources that are the main basis of inputs for research and development categorize Japan among the provider country pole. Nevertheless, this does not mean that Japanʼs engagement as a user and a provider of GR and associated TK are on an equal footing.
As a user, Japan has taken administrative measures to monitor the inflow of biological resources to its territories. The non-binding Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their utilization (ABS Guidelines), a domestic measure for access and benefit-sharing, was adopted in August 2017. According to the ABS Guidelines, any biological resources that are accessed and brought to Japan under the framework of the NP should be reported to the Ministry of Environment (MoE). As per the ABS guideline, any individual or institution, foreign or Japanese, is required to report to the ministry the identity of any biological material imported into Japan. The ministry, approximately five years after receiving the abovementioned access report requires that users submit information on the utilization of GR. As a measure of transparency, the Ministry also posts information on its website and the ABS clearing house (ABSCH).
Though such requirements are put in place, Japanese companies are keener on accessing GR in Japan than bringing in puts from abroad as they are physically closer to them and easier to access.80 In addition, according to Sumida (phd) the recent Nobel Prize that was awarded to three Japanese professors in areas of physiology, iPS cells, and cancer therapy further signifies researchers and academic institutions in Japan have also shifted from biological resource-based research to microbiological one. However, the author believes further study is needed to confirm his statement or prove otherwise.
Japan as a Provider of GR and Associated TKJapan is endowed with rich biological resources deserving protection against unlawful access and utilization by establishing efficient legal systems. Japan has a set of non-binding guidelines instead of adopting binding laws to regulate access to biological resources and sharing benefits from their utilization. According to the ABS guideline, unlike other countries, an individual or research institution is not required to furnish evidence to show PIC for access to biological resources. Instead, a document issued by the relevant Japanese authorities showing the provenance of GR is necessary. This is aimed to encourage smooth access to GR in Japan. Similarly, Japan preferred to adopt soft laws to regulate the access to and utilization of TK in spite of the prevalence of indigenous knowledge and communities in its territories. The Ainu indigenous peoples who inhabit the northern region of the Japanese islands are ethnographically classified into three: Hokkaido, Kurile (Chishima), and Karafuto (Sakhalin) Ainu81 are prominent and have a cultural background that is somewhat different from that of the Yamato Japanese who have been inhabiting most of the rest of Japan.82 They speak their own language and have a distinctive lifestyle involving fishing, hunting, gathering, and farming. Although they are recognized as indigenous people and different initiatives have been taken to preserve and promote their distinctive culture by establishing the National Ainu Museum, as per the ABS guideline, PIC and benefit sharing is not required to access and utilize the TK pertaining to indigenous communities. The common reason forwarded for omitting such requirements and allowing free access to resources is that indigenous people are not interested on issues of benefit sharing at all. However, to the opinion of the author, such generalized declaration is wrong and needs further study as the indigenous communities may lack the awareness and appropriate knowledge in the area.
Though the ABS Guidelines do not require a PIC for access to biological resources and associated TK domestically, there are exceptional situations where free access to resources is prohibited. The regulation on protected areas and endangered species, phytosanitary regulations, etc., and agreements with land and specimen owners are different. The ABS Guidelines are expected to serve as effective compliance measures in accordance with the NP and are intended to facilitate research and development activities by supporting compliance with ABS laws of provider countries. This assertion is also expressed and highlighted by Mutsuaki Suzuki (PhD) head of the ABS support team, director of the National Institute of Genetics Innovation in his presentation at Kansai University on Japanese ABS Guidelines as a domestic measure of the NP.
Generally, it is believed that at least from the Japanese perspective, the non-binding ABS Guidelines are enough to inspire compliance on part of Japanese users. The guidelines seem to contribute toward Japanʼs keen interest to promote research by evading obstacles and creating a flexible environment for access to GR and associated TK.
1.5. The Legal Framework for the Protection of GR and Associated TK in EthiopiaEthiopia has dramatic geological terrains and a broad range of elevations, ranging from the Afar Depression (~125 m below sea level) in the east to the spectacular world Heritage Mountains of Ras Dashen (4533 m above sea level) in the north (IBC, 2005).83 Ethiopia is also endowed with 10 ecosystems, and 18 major and 49 minor agro-ecological zones that are inhabited by diverse animal and microbial GR that make it one of the hotspots for biodiversity in the world.84 The large elevation range has caused variations in topography and climate, and has resulted in a heterogeneous landscape with high habitat and species diversity, and centers of species endemism, particularly in the highlands. The plant species in Ethiopia are estimated at around 6000, of which 10% are considered endemic. Crop plants like coffee (Coffea arabica), Safflower (Carthamus tinctorius), tef (Eragrostis tef), noug (Guizotia abyssinica), anchote (Coccinia abyssinica), enset (Ensete ventricosum) etc., are known to have originated in Ethiopia.85
Ethiopia is also rich in different indigenous knowledge systems in areas such as architecture, medicine, agriculture, and cottage industries. For example, the Konso are famous for their traditional skills in hillside terracing and banding. They also practice traditional irrigation to supplement the meager precipitation they receive during the cropping season. In Gondar, farmers shift their barns from one farmland to another in order to fertilize the land. Metal works, known as annealing and hardening, are common among traditional Ethiopian blacksmiths, to soften the metal they put it in a fire until it becomes red - hot and air cool it. To harden a work piece, they put it in the fire until it gets red-hot and immediately immerses it in cold water and withdraws it. Ethiopiaʼs varying altitudes and climates are home to a range of different medicinal plants that are used for the treatment of major human and livestock diseases, such as tapeworm, bronchopneumonia, and hypertension in humans, and tapeworm, mastitis, and dermatophilosis, in livestock.
As articulated by Richard Pankhurst,86 a renowned researcher on Ethiopian economic history and socio-cultural studies, research on traditional Ethiopian medicine remains a matter of urgency for two reasons. First, indigenous knowledge is losing to modern development. Second, medicinal plants are quickly disappearing because of deforestation. In Ethiopia, biodiversity and ecosystems form the bases for the socio-economic development of societies. The rich biodiversity supports tourism and serves as a major source of inputs for the manufacturing sector. The government of Ethiopia has recognized the importance of biodiversity and has put in place necessary institutional and legal frameworks that govern the conservation, sustainable use, and access to GR as well as fair and equitable sharing of benefits arising out of their utilization. This has also been supplemented by Ethiopiaʼs ratification and accession to international biodiversity instruments as well as adoption of domestic legislation in line with international requirements, while bearing in mind the nature and characteristics of its resources.
Ethiopia was the 54th signatory to the CBD and became a party to the convention on July 4, 1994 after ratification.87 It also acceded to the NP on October 12, 2014 and committed to the protection of biological resources and associated TK by taking policy measures and adopting legal instruments domestically.
Although there are a number of national policy initiatives and legal instruments addressing the conservation, protection, and sustainable use of biological resources in one way or another, a more relevant domestic legislation on the protection of biological resources and associated TK in Ethiopia is the ABS Proclamation and its accompanying Regulation No. 169/2009, which was enacted as the law implementing the proclamation. The Plant Breeders Right Proclamation No. 1068/2017 is also important vis-à-vis the protection of GR and associated TK in the country. The next section explores these laws that directly deal with the protection of GR and associated TK in the country.
1.5.1. Laws Related to GR and Associated TK in Ethiopia ABS ProclamationThe ABS Proclamation came in to effect a decade after the country become a party to the CBD in 2006. It is applied both to ex situ and in situ GR (including derivatives) and associated TK. It also contains two templates of access requests (commercial and non-commercial) with varied procedures based on the nature of each such request. The basic objective of the Proclamation is to ensure fair and equitable benefit-sharing and to promote the conservation and sustainable utilization of Ethiopiaʼs biological resources.88
The ABS Proclamation defines community knowledge as knowledge, practices, innovations, and technologies created or developed over generations by local communities on the conservation and use of GR (Article 2 (14)). As explained by Mr. Ashenafi, Access and Benefit Sharing Directorate Director at EBI, the proclamation preferred to use the term Community Knowledge (CK) and not TK or IK as CK best suits the nature of such knowledge in Ethiopia and is appropriate to address the needs of local communities as most of the TK exists at the community level. Thus, the author uses TK as a term to refer to CK.
In line with the preamble to the CBD, the ABS Proclamation vests sovereign rights of ownership over GR in the people of Ethiopia and their government, and over TK, in appropriate local communities.89 The local communities also have an inalienable use right over their GR and associated TK. They have the right to freely exchange GR and associated TK among themselves in the course of sustaining their livelihoods in accordance with their customary practices and norms. The proclamation does not impose legal restrictions on the exercise of such rights, but rather stipulates the right to share 50% of the benefits from the utilization of their TK. Registration is not a precondition for the protection TK. As per Article 10 of the ABS Proclamation, the non-registration of TK shall not render it unprotected by community rights and the publication or oral description of a given GR or TK, or the presence of GR in the gene bank or any other conservation center or that is in use, shall not affect its protection as a community right.
The ABS law of Ethiopia does not allow free access to GR. According to the ABS Proclamation, GR and TK shall not be accessed in Ethiopia without a written access permit granted by the EBI based on PIC of their holders. In the same vein, exporting GR is not allowed without a written access permit granted by EBI to this effect.90 Any institution or individual who wishes to access GR and associated TK must fulfill the procedures established by law to secure a written access permit before accessing GR and associated TK. However, as exceptional circumstances, state organs in charge of conservation of GR and TK are exempted from obtaining exploration permits while discharging their state duties to conduct an exploration of GR. EBI may grant specific access permits to Ethiopian national public research and higher education institutions as well as intergovernmental institutions based in the country, without imposing the need to strictly follow the access procedure (Article 15(1) of the ABS Proclamation). The purpose of adopting a lenient procedure is to facilitate the development of academic research in the country. Detailed requirements and procedures for commercial and non-commercial access to GR and associated TK, including rules on the multilateral system of access are provided in the subordinate regulations enacted to implement the ABS Proclamation.91
Under the ABS Proclamation, an access permit may be denied if: (i) the application is made for a species of GR that is at risk; (ii) providing access would be detrimental to human health or the cultural values of the local community; (iii) such access can cause an unfavorable effect on the environment or loss of an ecosystem; (iv) such access is intended to use GR for the purpose conflicting with the national laws or international treaties to which Ethiopia is a party, or the applicant has violated access agreements in the past.92 One of the basic objectives of the ABS Proclamation is to ensure fair and equitable benefit-sharing. Local communities have the right to give PIC and share the benefits arising out of the utilization of their TK. This includes both monetary and non-monetary benefits such as joint ownership of IP, employment opportunities, technology transfer, etc. (See Article 19 of the proclamation).
The ABS Proclamation has enshrined basic principles and rules to govern the biological resources and associated TK in Ethiopia in line with the CBDʼs objectives. However, as it has been over a decade since the proclamation was adopted and the world situation has changed rapidly with globalization, the proclamation does not seem to be fully competent to accord the protection sought for Ethiopiaʼs GR and associated TK and ensure the desired benefits for the country in general and local communities in particular. To mention, the proclamation does not meet the requirements of the NP and needs to be adjusted to incorporate basic and important concepts from the protocol that are vital for the realization of effective access and benefit-sharing schemes. The Ethiopian ABS Proclamation does not provide for the basic principles and rules of the NP, such as: 1. ABS procedure, 2. National Model contractual clause, 3. National website or data base, 4. Checkpoint, and 5. Checkpoint communiqué. As these norms are absent, Ethiopia faces hurdles in establishing an efficient legal system to regulate and protect its resources and setting up a benefitsharing regime. Thus, the Ethiopian government, particularly the EBI, has to act promptly and adopt those basic principles of the NP into the ABS Proclamation that are significant and necessary in order to ensure that its legal system is effective and efficient access and benefit-sharing are ensured. The limitations in the ABS Proclamation in providing an efficient set of rules and procedures for the registration of TK is another area that needs to be addressed. Not denying the actual advantages attached to registration, the lack of such a system may make it difficult to furnish necessary evidence while challenging illegal patent claims in foreign countries on Ethiopiaʼs GR and associated TK as seen in the Teff patent claim case.
Plant Breeders Right Proclamation (PBRP)Another important law addressing this area is the Plant Breeders Right Proclamation No. 1068/2017 (PBRP). According to the PBRP, save for the exemptions and restrictions provided for in this Proclamation, a right-holder has the exclusive right to sell or give permission to another to sell and produce the protected seed or the propagating material of a protected variety.93 The right-holder also has an exclusive right over the derivatives (see Article 5(2)). Besides, The PBRP proclamation also includes an important feature that recognizes the contributions of farmers and local communities. Under Article 5 (3) of the PBRP, where an improved variety is developed using material from farmersʼ and/or pastoral communitiesʼ varieties, wild relatives of the crop plant and other varieties and CK, the right-holder must obtain PIC on the use of such material and associated TK and conclude a benefit-sharing agreement on MAT. As an exception, PBRP is not applicable where the varieties are meant for private and/or non-commercial purposes, or experimental, research, or educational purposes, or for the breeding of other varieties. The proclamation recognizes small-holding farmersʼ and pastoral community rights to save, use, exchange, and sell farm-saved seeds of any variety in the non-commercial market and selling of variety of food crops and other species that directly support his livelihoods (Article 7 PBRP).
Though the PBRP is a sui generis law that exclusively deals with the protection of plant varieties and does not directly address the issue of TK protection like the ABS Proclamation, the incorporation of provisions recognizing the rights of farmers and pastoral communities, TK, and the concept of PIC, as well as benefit-sharing has an impact on Ethiopiaʼs initiatives toward the protection of GR and associated TK at least to the extent of addressing plant varieties.
The Proclamation on Inventions, Minor Inventions, and Industrial Designs and ABSIP is relevant to ABS mechanisms as most research and development based on GR and associated TK will eventually be subject to IPRs, usually through patents. However, many providers of GR perceive IPRs as a threat and as a powerful means for corporations to illegitimately gain ownership over what is technically not theirs. Cases of misappropriation of GR or TK through llegally granted patents are common. On the other hand, some argue that IPRs can be strong tools against the misuse of GR and associated TK.94 Thus, it is appropriate to raise the question of whether the Invention Proclamation has incorporated mechanisms to halt the misuse of GR and associated TK and contributes toward the achievement of the objectives of the ABS.
The Invention Proclamation requires the patent applicant to include a description of the invention, one or more claims, an abstract, and wherever necessary, drawings that make appropriate disclosures in line with patent law (see Article 9 (3) of Invention Proclamation). The proclamation also states that the description should disclose the invention in a manner that is sufficiently clear and complete, so that it is possible for the invention to be replicated by a person having ordinary skill in the art, and should, in particular, indicate at least one mode known to the applicant to implement or use the invention.95
Thus, it is worth examining whether the information that should be disclosed in a patent application under the Invention Proclamation also includes disclosing the source and/or origin of GR, evidence of PIC, and benefit-sharing agreements. The Invention Proclamation does not mention any requirements for the disclosure of information on the source of GR, evidence of PIC, and agreements showing benefit-sharing arrangements for the application of patents based on GR and associated TK. As it stands, an Invention Proclamation cannot prevent the misuse of GR and associated TK through illegal patenting for inventions based on biological resources, as there is no legal obligation demanding such information. This is one of the shortcomings of the proclamation that needs to be rectified if Ethiopia is committed to adopting an effective legal protection system for GR and associated TK of local communities.
1.5.2. Institutions Involved in the Management Biological Resources and TK in EthiopiaIn Ethiopian legal system there are various governmental and nongovernmental institutions in one or another way have an impact in the administration of GR and associated TK. In this part a brief exploration of the institutions that have direct responsibilities to manage any activities related to such resources will be addressed.
Ethiopian Biodiversity Institute (EBI)EBI is the core institution with authoritative mandate to deal on biodiversity and related issues. It has the mandate to initiate and enforce policies and legal instruments on the conservation and sustainable utilization of Ethiopiaʼs biodiversity and associated TK and ensure fair and equitable sharing of benefits arising from their utilization. EBI serves as a focal point on biodiversity-related issues that emanate from international greements ratified by Ethiopia.96 The EBI is the competent authority to monitor and regulate access to GR and associated TK and ensure benefit-sharing upon utilization. It has the mandate to grant access permits for both commercial and noncommercial purposes and PIC (Article 12 (1) and (2) of the ABS Proclamation). EBI has also the power to deny the grant access permits if the request is not in line with law (Article 13 (1) – (6) of ABS Proclamation). The EBI also has regulatory authority to alter, suspend, and terminate access permits or place any other appropriate limitations on access in accordance with the law (ABS Proclamation Article 21). The EBI has also the power to issue special permits for the exportation of GR and associated TK. However, state organs in charge of the conservation of GR and associated TK are exempted from obtaining exploration permits while discharging their state duties to conduct an exploration of GR (see Article 11 (3), 22-25 of ABS Proclamation respectively).
The EBI is also responsible for collecting the benefits derived from access agreements and transfer them to the appropriate beneficiaries. Beneficiaries are usually local communities that are custodians of GR and associated TK. The EBI also prepares model access agreements that serve as a reference for negotiations on access to GR and associated TK. It also has the power to issue directives and perform other activities that are deemed necessary to implement the ABS Proclamation and may delegate some of its powers to legally established bodies as it deems necessary and appropriate to carry out its responsibilities in a better manner (Article 27 (2) (3), (7) and (8) of ABS Proclamation).
EBI is key institution for administration of GR and associated TK, however, the absence of established system that recognize and document the countries TK coupled with poor infrastructure of the gene bank have created a hurdle to accord the desired protections for resources. In addition, though the ABS Proclamation clearly stipulates EBI as the appropriate organ and the national focal point for regulating the access request on the countryʼs biological resources, the access service given by Ministry of Agriculture and Ethiopian Wild Life Conservation Authority (EWLCA) on plants and wild lives respectively is creating another challenge to the country.
The ABSʼ Experience with the Teff AgreementTeff (Eragrostis tef) is a food grain that is endemic to Ethiopia and the most significant GR both in terms of cultural and economic value.97 Teff is the main ingredient in the production of the staple food ‘Injeraʼ. Over two-thirds of the population depend on Teff, as it is part of the average basic meal. The cultivation of Teff in Ethiopia has persisted for several thousands of years. It is known for its multiple health benefits, richness in minerals such as calcium, protein, iron, fiber, and amino acids, and its efficiency in fighting diabetics and obesity. As it is a gluten-free grain with all these benefits, it has tremendous potential for marketability in the Western world.98 Under the agreement, Ethiopia agreed to give access to genetic varieties of Teff and HPFI agreed to come up with new Teff-based food products. The agreement prohibits HPFI from claiming IPRs over the GR of Teff or any other component of genetic materials. However, HPFI is allowed joint ownership of plant variety protection over Teff varieties with EARO. Teff varieties that are not developed by the company shall be owned by the EARO on behalf of the Teff farming local communities in Ethiopia. The company agreed to pay a lumpsum amount to the extent of a third of its gross net income generated between 2007 and 2009, which was to be due in June 2010. It also agreed to continue to pay an annual royalty of 30% of the net profit and shared other monetary and nonmonetary benefits like knowledge and technologies, except undisclosed information pursuant to Article 39 of the TRIPS.99
Though there was clearly stated contractual obligation not to claim IPR over Teff genetic varieties, HPFI filled patent application in European Patent Office (EPO) USA and Japan. The patent application was rejected on the ground of lack of novelty and inventive step in both US and Japan patent office. However, despite the rejection of the same application by US and Japan, EPO has granted patent right for HPFI in 2007100 and the said right was valid in several European countries including England, France, Germany, Spain, The Netherlands, and Turkey). However, the Dutch court revoked the patent in 2014 for the lack of inventive step, and a nullity action brought against EP 16 46 287 by an individual in Germany led to the revocation of the patent there as well.101 However, the existence of a valid patent right in other European countries continues to undermine one of Ethiopiaʼs most prized national assets, and this makes it necessary to implement additional efforts to successfully avert further illegal enrichment and secure future benefits for Ethiopia in general and the local Teff growing communities in particular.
Thus, the illegal claim by HPFI and the grant of patent rights on Teff genetic varieties by EPO clearly shows how difficult it is to tackle bio-piracy on GR through individual initiatives alone. Let alone through national legislation, contractual obligations cannot hamper illegal patenting of GR as shown in the ABS Teff agreement. Thus, the patent application and grant of patent rights on Ethiopian Teff grains by EPO signifies how an individual national law and bilateral contractual obligations are insufficient in tackling illegal patenting. If it is backed by enhanced international cooperation and if the world is committed to tackling bio-piracy, while also striving to enhance bio-prospecting by formulating binding international legal frameworks that address the interests of both providers and users of GR and associated TK, this issue can be solved.
The Ministry of Agriculture (MoA)Establishing agricultural institutions in Ethiopia is one of the oldest institutional developments that took place a century ago. The first Ministry of Agriculture (MoA) was established in 1907, during the reign of Emperor Menelik II.102 The PBRP has vested several responsibilities to the MoA. This includes the obligation to receive, examine, and give decisions on applications; to conduct distinctness, uniformity, and stability testing on candidate varieties;and to administer plant breedersʼ rights in general. It is also expected to maintain a register of plant breedersʼ rights and the list of countries whose application would be directly accepted in relation to variety distinctness, uniformity and stability testing. Article 9 of the PBRP also empowers the MoA to grant a compulsory license if the breeder does not produce or trade the seeds of the protected variety in sufficient quantities or refused to license for others and is necessary to ensure national food security or public health.103
Ethiopian Intellectual Property Office (EIPO)The EIPO was established in 2003 under Proclamation No. 320/2003 with the aim of ensuring service delivery, protecting IPRs, formulating IP policies, raising awareness, disseminating information, and strengthening the ties among national, regional, and international IP offices.104 It has the power to receive applications for patent and trademark registration, to follow up on the implementation of IP laws and policies, to facilitate linkages between IP owners and businessmen (see Article 6 of proclamation 320/2003). The procedure to registration foreign applications is the same with national one. The acceptance and registration of foreign patent applications are subject to the principle of reciprocity and based on the first-file rule and right of the property.105 EIPO may also issue a patent of introduction for an invention that has been patented abroad but has not yet been protected in Ethiopia for a maximum duration of 10 years. The office also has the power to issue compulsory licenses where it finds a request to this effect satisfactory and can register the issuance and announce it in the official gazette (See Articles 29 and 30 of the Invention Proclamation).
As per Trademark proclamation, the EIPO can examine, register, issue certificates, transfer rights, and publish any information on trademarks, including collective and well-known marks.106 Ethiopiaʼs IP laws more or less meet the minimum standards set by international IP laws including the TRIPS, although Ethiopia is not a member of the WTO yet. In course of acceding to the WTO, Ethiopia has undertaken various reforms and is also currently undergoing reforms and improving its IPR system.
Coffee Trademarking InitiativeCoffee locally referred as “Green gold” a nomenclature given to acknowledge its leading share in the export market and major contribution for sustaining the lives of farmers and households. Ethiopia is the origin and birth place of arabica coffee 107 and it is believed that coffee was first discovered around 850 by a goatherd by the name called Kaldi.108
The aims of the coffee trademarking initiative were to increase Ethiopiaʼs coffee export income while ensuring a higher and more predictable income for Ethiopian coffee farmers and their households, by enabling them to capture a larger share of the final retail value of their coffee and more stable and predictable prices for their coffee. The initiative was designed to achieve the objective of registering the trademark for Ethiopiaʼ three widely known highquality specialty coffee varieties namely called Sidamo, Harar and Yirgacheffe coffee beans.109
Taking in to account the existing export destinations and future export market potential for fine coffee beans, EIPO has filed applications since 2005 for trademark registration of the three coffee designations Harar/Harrar, Sidamo and Yirgacheffe in 36 countries including Australia, Brazil, Canada, China, India, Japan, the European Union, Saudi Arabia, South Africa and the US.110 The application was accepted in the majority of countries and the title for the registration of trademark for the three brand coffees were secured though there were some challenges to accept the application in a few countries.
One of the challenges was the denial of the registration of Sidamo coffee by USPTO based an earlier application by Starbucks Corporation and later opposition by the National Coffee Association of America (NCA) on the ground that the designation is generic. However, up on the withdrawal of the application by Starbucks by public pressure and Ethiopiaʼs rebuttal submission based on relevant laws, precedence and corroborated by evidence of acquired distinctiveness, the USPTO accepted the application and issued Certificate of Registration for Sidamo coffee brand in April 2008.111
On the other hand, though the registrations of Sidamo and Yirgachefe coffee were successful in japan at the beginning, Harrar was rejected in Japan on the grounds that it was already registered and owned by a Japanese company UCC Ueshima Coffee Company. Eventually, the problem for the registration of Harar coffee was solved after consultation with Japanese company and decision to cancel his right. However, another problem was created as All Japan Coffee Association has filed a petition for the invalidation of the titles granted for Sidamo and Yirgacheffe while preparation was made for reapplication.112 Though it was not successful, initially Ethiopia approached the Association and endeavored to persuade it to withdraw its petition. The associationʼs petition got an acceptance by Japanese Patent Office (JPO) tribunals and the two trademark registration of Sidamo and Yirgacheffe was invalidated on March 30 2009 on the grounds of lack of the requirements of registration under Japanese law.113
The Ethiopian government appealed to the IP High Court and on March 29, 2010 the Court reversed JPOʼs decision allowing the invalidation of the trademark registrations owned by the Ethiopian government for the marks SIDAMO and YIRGACHEFFE. In its ruling the court reasoned out that SIDAMO and YIRGACHEFFE, used for coffee and coffee beans, are not merely geographical names indicating origin, but are recognized among dealers and consumers as brand names or types of high-quality coffee bean from Ethiopia - thus, they are distinctive. As per ruling of the court, the trademarks registered on May 26 2006 as Registrations 4955560 and 4955561 maintained valid under the provisions of Articles 3(1)(3) and 4(1)(16) of the Trademark Law (127/1959) and the marks are active currently in Japan.114
The Ethiopian government have also developed and launched a licensing program and has offered a royalty-free license agreement since 2006 with the aim of (a) boosting consumer recognition of the registered trademarks; (b) increasing the demand for Ethiopian specialty coffees, and (c) ensuring long lasting benefits from the sale of the coffee for Ethiopian farmers and small traders as well as foreign companies involved in the coffee trading chain.115 As per Getachew (the then head of EIPO) statement, because of the program, 91 license agreements have been concluded with coffee importing, roasting and distribution companies in Europe, Japan, North America and South Africa and domestically Forty-seven private coffee exporters and three coffee-producersʼ cooperative unions have also signed an agreement. Inaddition, simple, memorable and recognizable brand identities for each of the registered marks as well as an umbrella brand for Ethiopian fine coffees was designed.116 The branding was designed not only to promote Ethiopia as the birthplace of coffee but also to raise the awareness that Ethiopia is the main supplier of the most renowned coffee in the world.
As a country rich in GR and associated TK, Ethiopia has taken the initiative to protect its resources by establishing institutions and formulating laws. These initiatives were taken to fulfill its obligations under the CBD and because it has been affected by several incidents of illegal access to its resources, which called for immediate action to minimize risks and enhance lawful access to ensure benefit-sharing for the local communities and the country at large. Though the ABS Proclamation has provided some basic principles and rules to govern biological resources and associated TK of Ethiopia in line with the CBD, it has some loopholes that need to be rectified. First, it was created almost over a decade and a half ago, which makes it difficult for the instrument to accommodate the rapidly changing world and to govern new developments in the area. It needs to be updated with due consideration for new developments and the peculiar nature of Ethiopiaʼs resources in order to provide the protection sought for its GR and associated TK, and to ensure that the desired benefits accrue to the country in general and local communities in particular. The ABS Proclamation does not incorporate the basic requirements of the NP that are vital for the realization of effective access and benefit-sharing regimes, Without the incorporation of these norms, it will be tough for Ethiopia to adopt an efficient legal system to regulate such resources and meet its desired goal of protecting its resources and benefits derived from them. Lacking efficient set of rules and procedures for the registration of TK may make it difficult to furnish evidence while challenging illegal patent claims in foreign countries, as seen in the Teff patent claim case.
The incorporation of important concepts of PIC and benefit-sharing agreements in PBRP will have a tremendous impact on Ethiopiaʼs initiatives in the protection of GR and associated TK at least to the extent of plant varieties. While on the other hand the gaps that exist in Invention Proclamation show that IPR laws of Ethiopia are not consistence with the ABS objectives rather serving as one of the contributing factors for the illegal access to the GR and associated TK of the country. Further, the non-existence of a centralized system that consolidates all access requests on Ethiopiaʼs biological resource has also worsened the problem. Lack of coordination among institutions and extant lacunae in the process of drafting laws in Ethiopia, as each institution is competent to initiate laws under its respective jurisdiction, is also a matter of concern. Of course, not only national legislation, contractual obligations cannot hamper illegal patenting of GR as shown in the ABS Teff agreement unless backed by enhanced international cooperation. Thus, formulating binding international legal framework that address the interest of both providers and users of GR and associated TK is necessary.
1 J. G. Hawkes, Engels and Worede 1991. Plant Genetic Resource of Ethiopia. New York: Cambridge University. p. 3
2 Medicinal Plants Field Genebank in Ethiopia http://www.ebi.gov.et/biodiversity/conservation/fgbs/medicinal-plants-field-genebank/(15 May 2020)
3 Ibid
4 Sanjit K. C. “Protection of Traditional Knowledge and Plant Intellectual Property Rights: Emerging Challenges and Issues in India” p. 1 https://amity.edu/UserFiles/aibs/c8cd2017%20AIJJS%20Final_5-18.pdf (23 June 2020). The Protection of Genetic Resources and Traditional Knowledge under Ethiopian Legal and Regulatory Framework
5 Ibid
6 Nigussei T 2009 “The Protection of Traditional Knowledge Related to Genetic Resource in Ethiopia” Bahirdar University. Page 7.
7 Article 8 (j) and paragraph 12 of the CBD Preamble
8 Supra note 6
9 Ibid
10 Long and DʼAmato. 1997 International Intellectual Property. Kluwer Law International Academic Publishers.
11 Marko B “Protection of traditional knowledge related to genetic resources the cases of Modified patent Application Procedure”, p 207. https://www.bailii.org/uk/other/journals/Script-ed/2005/2_2_SCRIPT-ed_206.html (5 March 2020).
12 Ibid
13 Ibid
14 The term ‘Sui generisʼ, Latin term meaning ‘its own kindʼ. Blackʼs Law Dictionary(10th ed. 2014)
15 Supra note 6
16 See https://www.cbd.int/history/
17 Jennifer A. “Investigating the Convention on Biological Diversity; Protection for Traditional Knowledge”. p 16. https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1215&context=jesl (18 October 2019).
18 Ritu L “Intellectual Property Rights, Biodiversity and Traditional Knowledge, Monographs on Globalization and India – Myths and Realities” p 8 http://www.cutscitee.org/pdf/MONOGRAPH07-03.pdf (18 October 2019).
19 Ibid
20 J. Mugabe, Kameri & Mutta, “Traditional Knowledge, Genetic Resources and Intellectual Property Protection: Towards a New International Regime”. P 5 http://www.ielrc.org/content/w0105.pdf (19 October 2019).
21 Ibid
22 GAIA/GRAIN, “TRIPS versus CBD Conflicts between the WTO regime of intellectual property Rights and sustainable biodiversity management” https://www.grain.org/article/entries/20-trips-versus-cbd (20 October 2019).
23 https://www.cbd.int/abs/about/, (25 October 2019).
24 Thomas G & Sonia An Explanatory Guide to the Nagoya Protocol on Access and Benefit-Sharing; p 26 https://portals.iucn.org/library/efiles/documents/EPLP-083.pdf(27 October 2019).
25 Ibid
26 Supra note 22
27 See Article 6 (3) and 8 of Nagoya Protocol
28 See Article 15 and 16 of Nagoya Protocol
29 Supra note 22
30 See https://www.cbd.int/abs/theabsch.shtml (21 August 2020)
31 Christine F, Francisco, José and Esquinas “Plant Genetic Resources and Food Security Stakeholder Perspectives on the International Treaty on Plant Genetic Resources for Food and Agriculture”. P 7 published by FAO and Biodiversity International Christine with Earthscan, London, New York 2011. http://www.fao.org/3/a-bb143e.pdf (21August,2020).
32 Article 1 of the IUPGR, http://www.fao.org/wiewsarchive/docs/Resolution_8_83.pdf.(21August, 2020).
33 Supra note 31
34 Compendium of Canadaʼs Engagement in International Environmental Agreements and Instruments; International Treaty on Plant Genetic Resources for Food and Agriculture p 1 https://www.canada.ca/content/dam/eccc/documents/pdf/international-affairs/compendium/2018/batch-1/international-treaty-plant-genetic-resources-food-agriculture.pdf
35 International Treaty on Plant Genetic Resources for Food and Agriculture inputs to High-level Political forum 2019; Empowering people and ensuring inclusiveness and equality, FAO on SDGʼs annex 6 https://sustainabledevelopment.un.org/content/documents/22024FAO_intergov_body__Annex_6_ITPGRFA.pdf. (30 October 2019).
36 Ibid
37 Christine, Tom and Michael, “Intellectual Property and Facilitated Access to Genetic Resources under the International Treaty on Plant Genetic Resources for Food and Agriculture”; 2010 file:///F:/Proposal%20related%20documents/FAO/art-2010_IntellectualPropertyFacilitatedAccess.pdf (30 October 2019).
38 COP-14, https://www.cop14-egypt.com/wp-content/uploads/2018/06/About-CBDMore-info-EN.pdf, (30 October 2019).
39 Ibid
40 Ibid
41 IISD Reporting service, Earth Negotiations Bulletin; A Reporting Service for Environment and Development Negotiation, http://enb.iisd.org/vOl09/enb09595e.html(31 October 2019).
42 Jorn S “Intellectual Property Rights and the TRIPS Agreement an Overview of Ethical Problems and Some Proposed Solutions”). https://elibrary.worldbank.org/doi/pdf/10.1596/1813-9450-5228 (31 October 2019).
43 The TRIPS agreement preamble https://www.wto.org/english/docs_e/legal_e/27-trips.pdf (31 October 2019).
44 Alison S “The Objectives and Principles of the WTO TRIPS Agreement: A Detailed Anatomy” http://digitalcommons.osgoode.yorku.ca/ohlj (31 October 2019).
45 Ibid
46 David V. E “What agenda for the review of TRIPS? A sustainable development perspective” http: //www. ciel. org/wpcontent/uploads/2015/03/AgendaTrips_Summer02.pdf; (7 October 2019).
47 Nithin V. K. “Protection of Traditional Knowledge: International and National Initiatives and Possible ways ahead”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2012724 p 24 (12 November 2019).
48 Rosa G & Alvarez 2007 “Intellectual Property and the Protection of Traditional Knowledge, Genetic Resource and Folklore”: The Peruvian Experience. p 523. https://www.mpil.de/files/pdf3/mpunyb_14_thesis_rosa_12.pdf (12 November 2019.
49 WIPO Background Brief N:1 Traditional Knowledge and Intellectual Property: https://www.wipo.int/publications/en/details.jsp?id=3858 (13 November 2019)
50 Ibid
51 Aman G “International Intellectual Property Law and The Protection of Traditional Knowledge: From Cultural Conservation to Knowledge Codification”, https: //papers.ssrn.com/sol3/papers.cfm?abstract_id=2700537 (15 November 2019).
52 Ayoyemi A “A Continental Approach to Protecting Traditional Knowledge Systems and Related Resources in Africa”. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1313582
53 Ibid, Bolivia, Columbia, Ecuador, Peru and Venezuela have together developed shared legislation within the framework of the Andean Community of Nations (CAN). Decision 391 has been approved as a common framework of Access to Genetic Resources and Benefit sharing.
54 African Group Proposal on the Protection of Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources (Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore 13th Session Geneva October 13 to 17, 2008) WIPO/GRTK/IC/13/9.
55 https://www.aripo.org/member-states/.(24 March 2020).
56 Ibid
57 WIPO https: //www. wipo. int/edocs/lexdocs/laws/en/oau/oau001en. pdf, (28 March 2020).
58 Supra note 55
59 https: //www. aripo. org/wp-content/uploads/2018/12/ARIPO_Who_We_Are__What_We_Do_1-1.pdf, (7 April 2020).
60 Algeria, Angola, Burundi, Egypt, Eritrea, Ethiopia, Libya, Mauritius, Nigeria,Seychelles, South, Africa, and Tunisia. https://en.wikipedia.org/wiki/African_Regional_Intellectual_Property_Organization#Members, (7 April 2020).
61 The Harare protocol empowers ARIPO to grant patents and register utility models and industrial designs and to administer such patents, utility models and industrial designs on behalf of contracting states.
62 See the list of ARIPO-administered treaties at WIPO website, https://wipolex.wipo.int/en/treaties/profile/ARIPO (9 April 2020).
63 Supra note 59
64 Ibid, (1) a study on the feasibility of establishing in cooperation with its member states a database on traditional knowledge; (2) supported drawing up of traditional related documentation to be included in the minimum documentation list of Patent Cooperation Treaty (PCT); (3) development of model legislation for the protection of genetic resources, traditional knowledge and folklore; (4) training and the creation of awareness especially among traditional knowledge-holders of their rights and obligations; (5) creating an enabling environment to facilitate the promotion, development and exploitation of traditional knowledge assets; (6) the promotion of cultural industries and recognition of their contribution to economic development at national and regional levels.
65 Member states of OAPI: Benin, Burkina Faso, Cameroon, Central African Republic,Chad, Congo, Ivory Coast, Equatorial Guinea, Gabon, Guinea, Guinea- Bissau, Mali,Mauritania, Niger, Senegal, Togo and Comoros.
66 https://en.wikipedia.org/wiki/Organisation_Africaine_de_la_Propri%C3%A9t%C3%A9_Intellectuelle#Member(16 April 2020).
67 Supra note 59
68 https://www.adams.africa/works/oapi/, (20 April 2020).
69 Dr Sechaba Bareetseng, South African IPRs System and Bio-innovation: ABS Case Studies, Lecture for under Graduate Law students of Kansai University, 24 October2018.
70 Scientific Research Council Act 46 of 1988, as amended by act 71 of 1990
71 Supra note 69
72 Ibid
73 The Southern Africa Network for Biosciences (SANBio) is a platform to address and find means to resolve key bioscience concerns in health, nutrition, agriculture and environment in the Southern Africa. It was established alongside four other networks under the African Biosciences Initiative (ABI), for the SADC region. Thirteen countries of the SADC region are part of the SANBio network, supporting each other to be acknowledged as the biosciences network improves livelihoods in Southern Africa through research and innovation. https://www.nepad.org/publication/southern-africanetwork-biosciences-sanbio-0. (08 October 2020).
74 Bareetsng, Sechaba and YAMANA Mika, Nomos no. 45 Dec. `19, Traditional Knowledge and Biodiversity in South Africa: CSIR Case.
75 Dr Sechaba Bareetseng, NEPAD SANBio and the South African Bio-innovation,Kansai University, Osaka, Japan 10 November 2018.
76 Saba, “Protecting Traditional Knowledge – the India story till date” https://www.scconline.com/blog/post/2018/04/23/protecting-traditional-knowledge-the-india-storytill-date/ (18 May 20200.
77 Ibid
78 Ruchi P 2015 “Protecting and Promoting Traditional Knowledge in India”: What Role for Geographical Indications? Working Paper. file:///C:/Users/mesmo/Documents/african%20GR%20and%20TK%20initiative/India/TK%20protection%20India.pdf. (18May 2020).
79 See http://www.tkdl.res.in/tkdl/langdefault/common/outcomemain.asp? GL = Eng (1June 2020).
80 Interview with SEIZO SUMIDA, Ph. D. Technical Advisor Research Institute of Biological Resources, Japan Bioindustry Association on December 19, 2018 in Tokyo, Japan.
81 KATO H “The Ainu and Japanese Archaeology: A change of perspective” http://www.jjarchaeology.jp/contents/pdf/vol004/4-2_185.pdf (11 June 2020).
82 Japan Guide, https://www.japan-guide.com/e/e2244.html (11 June 2020).
83 See Ethiopian vegetation types, climate and topography, file:///C:/Users/Dell/Downloads/Ethiopian_vegetation_types_climate_and_topography.pdf (4 July 2020).
84 See Ethiopian National Biodiversity Strategy Action plan 2015-2020. https://www.cbd.int/doc/world/et/et-nbsap-v2-en.pdf (4 July 2020).
85 See Biodiversity status in Ethiopia and Challenges. file:///C:/Users/Dell/Downloads/BiodiversityStatusinEthiopiaandChallenges---Husenetal.2012.pdf (1July 2020).
86 Richard Pankhurst was a British-Ethiopian scholar, founding member of the Institute of Ethiopian Studies, and former professor at the University of Addis Ababa in Ethiopia.https://en.wikipedia.org/wiki/Richard_Pankhurst_(Ethiopianist) (1 July 2020).
87 See https://www.cbd.int/countries/?country=et (1 July 2020).
88 See Article 3 of the ABS Proclamation http://www.ebi.gov.et/wp-content/uploads/2018/01/ABS-Proclamation-Ethiopia.pdf (5 January 2020).
89 See Article 5 of ABS proclamation
90 See Article 11 of ABS Proclamation
91 See Access to Genetic Resource, Community Knowledge and Community Right Regulation No. 169/ 2009 http://www.ebi.gov.et/wp-content/uploads/2018/01/ABS-Regulation-Ethiopia.pdf (5 January 2021).
92 See Article 13 of ABS Proclamation
93 See Article 5 (1) of the PBRP Proclamation
94 See Intellectual property right http://www.abs-initiative.info/topics/ipr/ (13 July 2020).
95 See Invention Proclamation Article 3 (1) & 9 (4).
96 Ibid
97 See https://www.ethiopianforeignpolicy.com/the-teff-agreement-how-ethiopia-lostcontrol-of-its-teff-genetic-resources/ (22 September 2020).
98 See https://hornaffairs.com/2015/03/13/netherlands-breach-international-obligationsethiopia-teff-grain/ (22 September 2020).
99 See Agreement on Access to and Benefit Sharing from Teff Genetic Resource. https://view.officeapps.live.com/op/view.aspx?src=http%3A%2F%2Fwww.abs-initiative.info%2Fuploads%2Fmedia%2FTeff-ABS-Agreement-2004-12.doc (22 September 2020)
100 See European Patent Specification EP 16 46 287 B1
101 See https://www.juve-patent.com/news-and-stories/cases/heuking-attempts-to-revoketeff-flour-patent/ (24 September 2020).
102 See http://www.moa.gov.et/web/guest/about-the-ministry (24 September 2020)..
103 See Article 8 & 9 of PBRP
104 See Ethiopian Intellectual Property Office Establishment Proclamation No. 320/2003 Article 5
105 See Article 11 of invention proclamation 123/1995
106 See Article 11, 12, 13, 15, 16 and 28 of Trademark Proclamation No. 501/2006.
107 Aslihan A “The Effects of the Coffee Trademarking Initiative and Starbucks Publicity on Export Prices of Ethiopian Coffee”. P 705 file:///C:/Users/mesmo/Downloads/The_Effects_of_the_Coffee_Trademarking_Initiative_.pdf (15 October 2020).
108 See https://club.atlascoffeeclub.com/journey-ethiopia/ (15 October 2020).
109 Ibid
110 Getachew M. Intellectual Property as a Policy Tool for Development: The Ethiopian Fine Coffee Designations Trade Marking & Licensing Initiative Experience. A case study commissioned by WIPO 2020. https://www.wipo.int/edocs/pubdocs/en/licensing/1029/wipo_pub_1029.pdf (15 October 2020).
111 Ibid
112 Ibid
113 Eiichi F IP High Court: eye-opening decision on Ethiopian governmentʼs coffee trademarks, 17 May 2010. https://www.internationallawoffice.com/Newsletters/Intellectual-Property/Japan/Nishimura-Asahi/IP-High-Court-eye-opening-decision-on-Ethiopiangovernments-coffee-trademarks# (18 October 2020).
114 See https://www.j-platpat.inpit.go.jp/s0100 (18 October 2020).
115 Supra note 110
116 Ibid
