Policy & legal framework on the genetic resource linked to intellectual property rights and its implementation in Cambodia

Background

The relationship between agriculture, genetic resources, traditional knowledge and intellectual property rights is a contentious, on-going, issue of debate in several multilateral institutions. These include the World Trade Organization (WTO), and the World Intellectual Property Organization (WI PO), the Convention on Biological Diversity Conference of the Parties (CBD COP), and the United Nations' Food and Agriculture Organization (FAO).

So far the government of Cambodia is a member of CBD and the government has developed a National Biodiversity Strategies and Action Plan since 2002. The strategy and actions has been implemented and enforced in order to preserve and develop the biodiversity in Cambodia. Furthermore, the government developed a number of laws and regulation to protect the intellectual property rights however there is no clear policy/strategy or law to protect the intellectual property rights in the framework of genetic resource.

The nature and terms under which genetic resources can be accessed have changed dramatically in recent years. The free flow and trade of genetic resources has been replaced by a wide range of national and international legal instruments that seek to regulate access, control and use of genetic biodiversity and to protect traditional knowledge. Of particular concern is the recent trend to extend intellectual property rights (patents and plant breeder's rights) to plant genetic resources. Recently, for instant, even there is an initial project to protect the patent rights of bio-rice for exporting to European country but a lot of issues are happened since there is not yet national policy to protect that issue.

The government of Cambodia did take any action concerning to the resource genetic which has been traditionally used and implemented by the local Cambodian people long time, for example, in agriculture sector. The conservation and development of genetic resources is crucial for the maintenance of key crops and the improvement of crop varieties and breeds and, ultimately, for food security. But the implementation of the strategy and action and other laws and policy related to protect intellectual property rights in genetic resource is still a question.

Genetic resources also play a fundamental role in many contexts. In recent years, NGOs have been arguing that the current operation of the international intellectual property system is not preventing bio-piracy, but instead is encouraging it. For example, they point to cases which excessively broad patents have been granted over genetic biodiversity. They are pressing to introduce mechanisms into the international intellectual property system to Cambodian to address these issues.

The council for Legal and Judicial Reform is a body to deal with the development of the policy and strategy of the government in the framework of law for the country in which action to develop a policy/law related to the genetic resource linked to intellectual property rights to improve the intellectual property rights as a whole is a priority action of the government strategy in the framework of legal reform. Therefore it is time for Cambodia to consider on this issue.

The objective of the development of the genetic resource linked to intellectual property rights is to make sure that all genetic resource will be used in the proper way included: (i) balancing the rights of breeders with the rights of local farmers in developing countries to save,' share, sell, and replant seed; (ii) equitable sharing of benefits between plant breeders and farmers to take account of the latter's contribution to innovations in plant breeding and plant patenting; (iii) the protection of genetic resources through measures which prevent the grant of patents over genetic resources; and (iv) the protection of the innovations of indigenous and other traditional communities and the recognition of their traditional knowledge.

Of course, technical support from different stakeholders, especially from international support like WIPO, WTO, CBD COP, and FAO is very important. The Council plan to develop such a very important policy for the government as soon as possible since now it is time for Cambodia to build up international commercial relationship and to make sure that their own genetic resource and traditional knowledge are ensured intellectual property rights.

To develop such a policy/strategy or law for this issue will is a deal and needs a lot of time and efforts to achieve. Therefore, this project should look at (1) assessment of the existing policy and legal framework on the genetic resource linked to intellectual property rights and its implementation in Cambodia, (2) establish policy for genetic resource linked to intellectual property rights for Cambodian context, and (3) develop legal framework to protect intellectual property rights in genetic resource.

Concerning to the relevant policy/strategy and legal framework to support that area, please see t he list of the relevant of those policy and legal framework as followings:

International agreement:

• International Treaty on Plan Genetic Resources for Food and Agriculture which Cambodia was signed on 11 June 2002 and accepted on 11 June 2002
• Asean Framework Agreement on Access to Biological and Genetic Resources
• Agreement between the United State of America and the Kingdom of Cambodia on Trade Relations and Intellectual Property Rights Protection in 1996
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National laws and regulations:

• Enforcement (Customs & Borders Measures), Law, 2007, Law on Customs of The Kingdom of Cambodia dated 20 July 2007
• Traditional Cultural Expressions (Cultural Heritage & Property), Law, 1996
  Law (Kram) of National Assembly dated 25 January 1996 on the Protection of Cultural Heritage
• Intellectual Property (Shares & Value of Intellectual Property Rights, Commercial Enterprises), Law, 2005
  Law of National Assembly of May 17, 2005 on Commercial Entreprise
• Copyright (No. 2498), Regulation, 2003
  The Copyright and Related Rights Regulation No. 2498 of September 27, 2003
• Patents & Utility Models & Industrial Designs, Law, 2003
  Law on Patents, Utility Models and Industrial Designs of January 22 , 2003, supplemented on June 29, 2006 by Prakas (Decree) No. 706 on Procedure granting Patent and Utility Model Certificates
• Copyright, Law, 2003
  Law on Copyright and Related Rights of National Assembly of January 21, 2003
• Trademarks & Trade Names & Unfair Competition, Law, 2002
  Law concerning Marks, Trade Names and Acts of Unfair Competition of the Kingdom of Cambodia by the National Assembly on February 7, 2002
• Trademarks & Geographical Indications (Food Labels & Products Origins), Regulation, 2000
  Prakas No. 1045 of|Ministry of Industry, Mines and Energy|on Cambodian Standard CS 001-2000 related to labelling of food product
• Enforcement (Border & Market, Quality & Safety of Products and Services), Law, 2000
  Law on the Management of Quality and Safety of Products and Services of June 21, 2000
• Other, Constitution, as amended 1999
  The Constitution of September 21, 1993, as amended on March 6, 1999
• Enforcement (Border & Market, Phamarceutical Products), Law, 1996
  Law on the Management of Phamarceutical Products of May 9, 1996
• Enforcement, criminal and criminal procedure code
• Enforcement, civil and civil procedure code

However, starting from this context, a number of involved reports or research has been done so far as list below:

• Forest Genetic Resource
• Intergovernmental Committee on Intellectual Property and Genetic Resource

In this project of change, I will focus only the first project which is to assess the existing policy or legal framework on the genetic resource linked to intellectual property rights and its implementation in Cambodia. To do that, a number of activities will need to be conducted. Therefore the strategy to achieve this is (1) prepare working group for the assessment, (2) collect all related documents, (3) analyze, (4) make report and recommendations.