The Model Law Of The Organisation Of African Unity On Community Rights And On The Control Of Access To Biological Resources

1. Introduction

The Organisation of African Unity (OAU) approved the draft of a model law on "Community Rights and on the Control of Access to Biological Resources" in its Meeting of the Ministerial Council, followed by a Summit of Heads of State and government, in May-June 1998. It also considered a corresponding draft African Convention. The Ministerial Council recommended that African States pass legislation based on the draft law, that they negotiate a Convention in order to create a regional instrument to coordinate action, and that they develop a common African negotiating position in the revision of Article 27.3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The process that produced the draft model law and draft Convention will now be briefly described and the draft model law will be compared to the Convention on Biological Diversity (CBD).

2. A Short Comparison of The Model Law with the CBD

The model law aims to regulate access to biological and community knowledge and technologies so that, on the one hand, access by the modern sector (mostly transnational corporations and Northern initiators) is subject to the conditions agreed in the CBD, but on the other, the traditional access by indigenous and local communities is maintained (Article 3 - Scope; Article 4 - Access of the model law).

The conditions of access include:

* research and development to be carried out in the country giving access (Art. 4.1 of model law, c.f. Art. 15.6 of CBD);

* prior informed consent of both the State and the indigenous and local communities (Art. 4.2 of model law, c.f. Art. 15.5 & 8(j) of CBD);

* a list of other conditions to agree to before a contract is signed (Art. 4.3 of model law, c.f. Art. 15.4 of CBD), including commitments for the conservation of biodiversity (Art. 4.3 (a), (g) & (h), Art. 4.9 of the model law, c.f. Art. 6,7,8 (c), (d), (j), (k) & (l), 9(c) & (d), 10(a) & (b) of CBD);

* commitment to provide information and duplicate specimens to the country giving access (Art. 4.3 (b), (c) & (g) of model law, c.f. Art. 15.7, 17.2 of CBD);

* commitment not to transfer to third parties without authorisation (Art. 4.3 (d) of model law, c.f. Art. 15.5 of CBD);

* commitment not to patent or apply any other IPR (Art. 4.3 (e) of model law, c.f. the fact that patenting biological materials is disallowed in the laws of most African countries, and also c.f. Art. 16.2 of CBD, which though recognising IPRs does not specifically provide for the IPR protection of biological materials showing that the choice of what to protect is left open;

* pay for the communal labour that has gone into creating or knowing the specific characteristic of the biodiversity or for the knowledge or technology accessed and the work borne by the state in doing this (Art. 4.3 (f) of model law, c.f. common practice of hiring labour); and

* commitment to abide by certain procedures aimed at ensuring the implementation of the mutually agreed terms (Art. 4.4, 4.5, 4.6, 4.7, 4.8, of draft law, which are obvious and need no explanation, except for pointing out that in Art. 4.7, a guarantor is required because, often, the person getting access will leave the country and there would then be no means of ensuring the observance by each party of the mutually agreed terms).

Article 5 of the model law creates community rights and provides for the implementation of those rights. It is largely based on Articles 8(j), 10(c) & (d), 15.5 of the CBD, and on the decision on the implementation of Article 8(j) taken by the 5th Conference of Parties of the CBD in Bratislava in June 1998.

The remaining provisions of the model law, Articles 6 - 10, are concerned with the implementation process. Their contents are self-evident and need no further comments.