The Realisation of Technology Transfer through the Access and Benefit-Sharing Regime: Which Way Forward?

Abstract There exists a global technology gap which manifests in the creation and concentration of most technologies in a handful of societies/countries. This technology gap transcends several aspects of human society, including biodiversity conservation and utilisation. Most of the societies with abundant biodiversity and knowledge of its usefulness generally lack the technologies for utilising biodiversity resources to manufacture goods and services at scale. Indigenous communities are major stakeholders in biodiversity conservation, nurturing up to 80 per cent of biodiversity in many nations. However, because they lack the technologies for biodiversity utilisation, they are generally only providers while others are users possessing capacity to manufacture goods and services at scale from biodiversity. This thesis examines how these indigenous communities can transition from mere providers of genetic resources and associated traditional knowledge to becoming users as well, considering the access and benefit-sharing system’s promise of technological capacity-building for providers.

Relying on doctrinal analysis, socio-legal methodology, and regime theory, this thesis highlights the fractious relationship between intellectual property and access and benefit-sharing, and the negative effects of intellectual property rights on technological capacity-building. The thesis establishes other policy and social challenges to the technology transfer aspirations of access and benefit-sharing. To resolve this impasse, this thesis employs concepts of property, Third World Approaches to International Law, and the right to development in advancing six normative principles for resolving the normative conflicts between intellectual property and access and benefit-sharing. It thereafter employs the six principles in critiquing the TRIPS Agreement, demonstrating, among other things, that TRIPS offers limited flexibility for member countries to prioritise access and benefit-sharing goals while implementing intellectual property laws.

The thesis proposes that, to actualise access and benefit-sharing technology goals, national policies must prioritise funding for indigenous communities’ capacity-building and biodiversity conservation and utilisation; demonstrate a desire for technological advancement; prioritise the education of indigenous peoples; and promote ease of doing business by eliminating investment obstacles and incentivising technology owners to invest in indigenous communities. In addition, the thesis proposes that intellectual property policy should embrace a right not to be excluded rather than its current exclusive rights paradigm; integrate a holistic definition of development; and resolve the traditional knowledge protection conundrum by penalising biopiracy.