Biodiversidade e propriedade intelectual: conflito entre as determinações da convenção da diversidade biológica e as regras do acordo TRIPS

Abstract

This work is the result of some reflections that emerged after the analysis of the standards listed in the Convention on Biological Diversity and the TRIPS Agreement (Agreement on Trade Related Aspects of Intellectual Property Rights) and the main antagonisms resulting from the perspectives released by these two legal instruments and the international legal and constitutional patriotism. The technological improvement and growing concerns about the protection of biodiversity present a new global dynamics, through which intensify the debate about the use of natural resources by countries and illegitimate access to biodiversity, aiming to respect national sovereignty and combating biopiracy. Initially, we will make some brief remarks about the international legal protection of access to biodiversity, approaching the provisions of the CBD and TRIPS, the conceptual issues and the implementation of these standards in the Brazilian legal system. It proposes also an analysis of the homeland legislation and the environmental protection included in the Federal Constitution, elucidating the difficulties concerning the implementation of standards in Brazil, highlighting, among others, the importance of establishing a new regulatory framework clearer and consistent with the current landscape to protect biodiversity and combat biopiracy since the current legal framework is not sufficient enough as a protective measure of biological diversity. Finally, we present the conflicts in the application of international standards to the CBD and TRIPS, the point of view of the different interests and rights defended, demonstrating the lack of consensus among the States Parties and the barriers that prevent the harmonious relationship between them, depending on the technological and economic disparities, gaps in legislation and the partial convergence of TRIPS with the principles of the Convention on Biological Diversity. In this context, it is concluded by the need to consider problems relating to intellectual property in the field of biodiversity protection, setting a strategic direction to align the provisions of the CBD and TRIPS, seeking a higher protection of biological diversity, simultaneously to science and technology progress in developing countries.