Intellectual property rights, traditional medicinal knowledge and the interest of justice

• Grant number: 13/20801-8
• Support Opportunities: Scholarships abroad - Research
• Start date: January 13, 2014
• End date: July 12, 2014
• Field of knowledge: Interdisciplinary Subjects
• Principal Investigator: John Bernhard Kleba
• Grantee: John Bernhard Kleba
• Host Investigator: Matthew Clayton
• Host Institution: Divisão de Ciências Fundamentais (IEF). Instituto Tecnológico de Aeronáutica (ITA). Ministério da Defesa (Brasil). São José dos Campos , SP, Brazil
• Institution abroad: University of Warwick, England

Abstract

The research project develops three different models of justice to examine the normative dissent in the access and benefit sharing (ABS) regime of the Convention on Biological Diversity. The study takes the challenge of bridging sophisticated theories of the political philosophy with the empirical social research. An appraisal of the literature on justice and the ABS regime, acknowledging its fragmented and plural character, shows that the studies are mainly focused on a critique of the Convention's excessive emphasis on entitlements and the urgency of incorporating concerns with distributive justice in its regulatory framework. There is a clear lack of more comprehensive accounts about issues of equality and intellectual property rights, which play a central role in the political dissent over the Convention. I argue that models of justice grounded in the works of John Rawls and Amartya Sen can provide a major advancement in achieving theoretical clarity and analytical explanatory power to the empirical and normative controversies of the ABS regime. The theoretical approach outlines a critical assessment of Nozick's libertarian theory of property, of John Rawls second principle of justice and Amartya Sen's capability approach. Empirically the study will take the case of traditional medicinal knowledge of indigenous and local communities accessed by the pharmaceutical industry (bioprospecting) and the negotiations to ABS agreements, also following an assessment of the recent established Nagoya Protocol. A special emphasis will be given to the dissent on intellectual property rights of both the pharmaceutical industry and the indigenous and local communities, and the related empirical and normative questions, such as about merits and incentives. Based on the theoretical background, three models of justice for the access and benefit sharing regime are developed. The models have the heuristic function of highlighting the controversies of the field, as well as assessing the robustness of the underlying theoretical assumptions. The models are the following: a) priority of entitlements; b) equality of wealth and c) equality in realizing citizenship. I investigate the moral, legal and sociological consequences of the advocated principles of each model applied to the empirical realm. The priority of entitlements model draws a scenario in which all stakeholders claim strong entitlements, including the pharmaceutical industry, the ILCs and the research institutions. Among other, I ask about the justification of the entitlements of the traditional knowledge holders and of the pharmaceutical industry outlining the controversies provided in literature around these issues. The equality of wealth model interprets the Rawlsian difference principle as a maximin rule providing equality of income and wealth to the least advantaged. The difficult question of fair shares in ABS contracts is raised, and more generally also the Rawlsian call for a trade-off between the need of a productive society based on incentives and the claims of equality. The equality in realizing citizenship model is a hybrid concept grounded on the Rawlsian principle of equal opportunities and amended by Sen's concerns with capabilities. In this model, among other, I raise the issue of designing an applicable model including the methodological difficulties regarding the availability of data and the measuring of factors such as liberties and opportunities. The research findings aim to streamline law and policy in the area and to contribute in providing applicability of theories of justice in the realm of the social research. (AU)