Opening Pandora's Box : Exploring Flexibilities and Alternatives for Protecting Traditional Knowledge and Genetic Resources under the Intellectual Property Framework

Sammanfattning: What happens when resources get valuable and scarce? How is Intellectual Property dealing with market failures related to sub-patentable innovation or purely traditional knowledge with interesting applications? The protection of traditional knowledge and genetic resources (TKGR) has been one of the major modern challenges in international IP law. The entry into force of the Convention on Biological Diversity (CBD) and its implementation in national legislation has created more questions than the ones it answered.The objective of this dissertation is to assist in the evaluation of current national and regional implementation initiatives as well in the presentation and evaluation of different forms of entitlements that could be applicable in the case of TKGR. The dissertation has employed a theoretical framework for this evaluation, by combining the Coase Theorem and Rawls' theory of justice. The choice of these two theoretical models is not a random one. In order for the entitlement covering TKGR to be successful, it has to be efficient. It has to offer a stable and efficient marketplace where access to TKGR is possible without unnecessary frictions. However, efficiency could not be the only objective.  An entitlement focusing solely on efficiency would fall short of the needs and special considerations of TKGR trade. It would above all be counter to the objectives and major principles of the CBD, the “fair and equitable sharing of the benefits” and would certainly fail to address the very important North-South perspective.  Fairness is thus a necessary complement to the efficiency of the proposed entitlement.This dissertation proposes a thorough investigation of the special characteristics, of right-holders, subject-matter, market place as well as of the general expectations that an entitlement is supposed to fulfill. In parallel to that, it  looks into the meaning and scope of alternative entitlements in order to be able to propose the best alternative.