Barton Scotland, Consultant Project RLA/92/G 32
Georgetown, Guyana, september 1994
The present report is the result of a comparison between the existing legislation in Guyana and the requirements set out by the United Nations Convention on Biological Diversity, 1992 (hereinafter «the Convention»). In addition to the comparison of the laws and the Convention, specific recommendations have been proposed to improve the present system.
The report concludes, inter alia, that the scope of the current legislation is inadequate and outdated. Moreover, it does not promote the conservation and sustainable use of biodiversity.
On the basis of these conclusions, the proposed principal recommendations include:
the review of the current national situation as it relates to bio- diversity and intellectual property rights (IPRs);
the development of a comprehensive national policy which addresses crucial issues relating to the conservation and sustainable use of biodiversity, e.g., the reward to indigenous and local people for their knowledge; access to genetic resources; and the transfer of technology;
the amendment of the existing legislation in order to incorporate modern scientific and technological advances in the field of patents and IPRs; where necessary, new legislation should be drafted to reflect the underlying concepts and objectives of the Convention;
the establishment of a central agency to implement the national policy: the functions of this agency should include control of a general biodiversity fund and collaboration with relevant bodies national and international;
the ratification of the Convention and the signature, ratification or accession of otherrelevant international instruments; and
the introduction of alternative arrangements, e.g., contractual obligations between parties.
The Convention on Biological Diversity was signed by countries in Brazil at the United Nations Conference on Environment and Development (UNCED) in June 1992. Apart from promoting the sustainable use of biodiversity for present and future generations, the Convention recognises that there should be fair and equitable sharing of the benefits arising out of the utilisation of genetic resources and the use of traditional knowledge, innovations and practices.73
Under the Convention, biodiversity is defined as "the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems."74
Guyana possesses a wealth of genetic resources75 which to date, have been relatively undisturbed. With the increased interest of developed countries in the biodiversity trade,76 it is imperative that Guyana institutes the necessary mechanisms to safeguard and regulate its vast resources. In developing these mechanisms, it must be borne in mind that Guyana has a sovereign right over its biodiversity which is now recognised by countries as a common concern of mankind,77 and not as a common heritage of mankind,78 as was previously accepted.
Countries, therefore, have the sovereign right to determine access to their genetic resources, technology (including biotechnology) and the knowledge of indigenous and local communities. Moreover, one of the major objectives of the Convention is the equitable sharing of the benefits arising out of the utilisation of genetic resources.
The Government has stated its awareness "of the need to ensure that the ownership of intellectual property rights, including knowledge and customary and traditional practices of local people is adequately and effectively protected."79 Further, with respect to the know-how of indigenous people, they recognise that "legislation protecting the intellectual property rights of Amerindians in their ethno-botanical knowledge should be considered."80
It will be necessary to examine the existing scope of the legislation to determine whether the requirements of the Convention are satisfied. An analysis of the laws of Guyana reveals that the majority of laws were enacted primarily during the colonial period. This is true for the Patents and Designs Act; the TradeMarks Act; and the Copyright Act, 1956. These particular Acts remain largely unchanged and deeply rooted in the British legal system.
2.0 LAWS AND REGULATIONS
Intellectual property rights are essentially found in laws governing patents, trademarks, trade secrets, copyrights and designs.81 In Guyana, there are three major laws regulating patents and IPRs: the Copyright Act (1956) UK; the Patents and Designs Act, Cap. 90:03; and the Trade Marks Act, Cap. 90:01.82
2.1 The Copyright Act, 1956 (UK)
The law on copyright is «concerned with the negative right of preventing the copying of physical material existing in the field of literature and the arts. Its object is to protect the writer and artist from the unlawful reproduction of his material."83 Copyright law is concerned only with the copying of physical material and not with the reproduction of ideas and it does not give a monopoly to any particular form of words or design.84
The law governing copyright in Guyana is the United Kingdom Copyright Act, 1956 which makes provision in respect of copyright and related matters. Under this Act, copyright is defined as "the exclusive right to do, and to authorise other persons to do, certain acts in relation to that work in the United Kingdom or in any other country to which the relevant provision of this Act extends." The Copyright Act (UK), 1956, states that an Order in Council may direct that any of the provisions of the Act specified in the Order shall extend, subject to such exceptions and modifications (if any), to any colony. By Order in Council made on February 5, 1966,85 this Act was applied to Guyana with the necessary exceptions and modifications.
2.2 The Patents and Designs Act, Cap. 90:03
The Patents and Designs Act, 1937, seeks to amend and consolidate the law on the registration of patents and designs. The Act consists of three parts: patents; designs; and general.
A patent is a right, granted to a person by the State, to enjoy a monopoly in an invention, for a limited period.86 Although patents differ in scope and duration, they are designed to protect the patent-holder against the unauthorized use, sale or manufacture of inventions of both process and the product.87 An invention is defined by the Act as being any manner of new manufacture the subject of letters patent.
A patent may be granted to any person who is:
the true and first inventor; or
his assigns; or
the actual inventor jointly with the assigns of a part interest in
the invention; or
the legal representative of a deceased actual inventor or his assigns.
The Act defines a design as only the features of shape configuration, pattern, or ornament applied to any article by any industrial process or means, whether manual, mechanical, or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction, or anything which is in substance a mere mechanical device.88 An owner to a design can apply for registration of the design and to have the exclusive use of the design for a specified period.
2.3 The Trade Marks Act, Cap. 90:01
The Trade Marks Act, 1952, aims to amend and consolidate the law relating to trade marks. A trade mark is defined as a mark used or proposed to be used in relation to goods for the purpose of indicating a connection in the course or trade between the goods and some person having the right either as proprietor or as registered user to use that mark.89
A registrable trade mark must contain or consist of at least one of the following essential particulars:90
the name of a company, individual, or firm represented in a special
or particular manner;
the signature of the applicant for registration or of some
predecessor in his business;
an invented word or invented words;
a word or words having no direct reference to the character or
quality of the goods, and not being, according to its ordinary
signification, a geographical name or a surname; and
any other distinctive mark.
2.4 Examples of Patents and Intellectual Property Rights
See Appendix 1 for examples of patents and trade marks which have been extracted from the Official Gazette an official Government publication.
3.0 REGISTRATION PROCESS
All applications for patents, designs and trade marks are made at the Patent Office of the Registry of the High Court of Demerara, Georgetown. These applications are made to the Registrar of Patents, Designs and Trade Marks who is in effect the Registrar of Deeds (hereinafter "the Registrar"). The forms for the registration process are found in the Schedules to the various Acts.
Expenses for the maintenance of the Registrar’s office are paid from funds provided by the Government.
3.1 Patents and Designs Act, Cap. 90:03
An application for a patent is made to the Registrar by any person who claims to be the true and first inventor of an invention. The application is made by affidavit and must contain a declaration that the applicant claims to be the true and first inventor. Applications in respect of an invention communicated from abroad, and from persons not resident in Guyana, must be made through a patent agent licensed in Guyana.
The application must be accompanied by either a provisional or a complete specification: the provisional specification describes the nature of the invention and the complete specification particularly describes the nature of the invention and the manner in which the same is to be performed. The specification must commence with the title and be submitted in duplicate. A complete specification must end with a distinct statement of the invention claimed.
With respect to a patent for a chemical invention, the Registrar may request typical samples and specimens to be provided along with the application, before the complete specification is accepted.
The Registrar may refer any questions to an examiner, i.e., a suitably qualified person appointed by the Registrar. The Registrar or examiner may investigate whether the invention has been claimed in any previous or subsequent specification.
An application is in order when the complete specification has been submitted and the applicant has satisfied all the requirements under the Act. This process must be completed within a period of eighteen months from the date of the application. When the complete specification has been accepted, the Registrar must advertise the acceptance in the Official Gazette and open the application and specifications to public inspection.
Any person may give notice on specified grounds to the Registrar of his opposition to the grant of the patent. This must be done within two months from the advertisement in the Gazette.
An appeal may be made against the Registrar’s decision to the Appeal Tribunal, i.e., a Judge of the High Court who is nominated by the Chief Justice. Once the determination is in favor of the applicant, the patent will be granted.
Once granted, the patent is sealed in duplicate with the seal of the Patent Office and a copy is filed in the office within twenty-one months from the date of the application. Thereupon, the Registrar must enter in the Register of Patents all necessary particulars, e.g., name, address, and nationality of the patentee and title of the invention.
The term of patent is sixteen years from the date of the application but it may be renewed for a further term of five years or ten years in exceptional cases.Provision is also made under the Act for applications in respect of United Kingdom patents, which must be made through a patent agent in Guyana.
An application for the registration of a design can be made by any person claiming to be the proprietor of any new or original design not previously published in Guyana. The application must be made to the Registrar of Patents, Designs and Trade Marks, i.e., the Registrar of Deeds.
The signed application and three identical representations of the design, must be sent to the Patent Office at the Registry of the High Court, to be entered in the Register of Designs. The applicant may be required to endorse on the application and each of the representations, a brief statement of the novelty. The application must also state the particular class in which the design is to be registered.
A certificate of registration is granted to the owner who has copyright in the design for a period of five years. The copyright may be extended for a further period of ten years, by payment of renewal fees every five years. Before the sale of an article, the proprietor must mark it with the prescribed mark, words, or figures in order to denote that the design is registered.
The design must be registered in a particular class as listed in the Third Schedule of the Designs Regulations. These classes include books; boots and shoes; lace; carpets; and paper hangings. Persons may appeal against the Registrar’s decision to the Appeal Tribunal which consists of a High Court Judge.
Provision is made within the Act for designs registered in the United Kingdom, to be registered in Guyana.
3.2 Trade Marks Act, Cap. 90:01
Any person wishing to be registered as the proprietor of a trade mark must apply to the Registrar. Each application must be signed by the applicant and contain a representation of the trade mark together with four additional representations. The Registrar must search to determine whether there are existing marks identical or nearly resembling the mark applied for.
All registered trade marks are entered in the Register of Trade Marks at the Patent Office. The Register is divided into two parts: Part A and Part B. To be registered in Part A, the mark must be distinctive and easily distinguishable. In order for a trade mark to be registrable in Part B of the register, it must be capable of distinguishing goods with which the proprietor of the trade mark is or may be connected.
A trade mark must be registered in respect of particular goods or classes of goods. Goods are classified in the manner appearing in the Third and Fourth Schedules of the Trade Marks Rules. Classifications include chemical substances prepared for use in medicine and pharmacy; and raw or partly prepared vegetable, animal, and mineral substances used in manufactures.
When the Registrar accepts an application, he must advertise it in the Gazette. Persons may oppose the registration by giving notice in writing, within one month, to the Registrar, together with a statement of the grounds of opposition. A copy of the notice is sent to the applicant who may file a counter-statement in duplicate. Persons opposing the application are given a copy of the applicant’s counter-statement. An appeal against the decision of the Registrar may be made by persons to the High Court.
After one month from the date of advertisement of any application in the Gazette, the Registrar must enter the trade mark in the Register. A trade mark is registered as of the date of the application for registration. Registration is for a period of seven years, but it may be renewed for successive periods of fourteen years.
Upon registration, the applicant receives a certificate with a copy of the mark and the seal of the Patent Office. The registration of a trade mark must be completed within twelve months from the application date.
Any person who is the registered proprietor of a trade mark in the United Kingdom, may apply to the Registrar to have the trade mark registered in Guyana.
3.3 Copyright Act, 1956 (UK)
Copyright in relation to a work means the exclusive right to do and to authorise other persons to do, certain acts in relation to that work.91 Under the 1956 Act, work covers literary works, dramatic works, artistic works, musical works, sound recordings, cinematograph films, sound broadcasts, television broadcasts, and published editions of literary, dramatic or musical works.
The registration process for a copyright differs fundamentally from that of patents, designs and trade marks. Copyright is usually acquired when the work concerned is written or otherwise made or created.92 Thereafter, the owner receives an exclusive right to do certain acts. Copyright generally subsists for a period of fifty years.
Where a copyright is infringed by any unauthorised person, the owner may bring an action against that person. All relief, by way of damages, injunction, accounts or otherwise, is available to the owner as is available in any corresponding proceedings in respect of infringements of other proprietary rights.
4.0 COMPARISN OF EXISTING LEGISLATION WITH THE CONVENTION ON BIOLOGICAL DIVERSITY
The Convention on Biological Diversity which was signed by 156 countries and the EEC, and ratified by 30 countries, entered into force on 29 December 1993.
The Convention was negotiated and adopted in the last few minutes of the final session in Nairobi in May 1992. It should be noted that the issue of IPRs as it related to genetic resources, was a problem for both developed and developing countries. It has been observed that "one of the single most divisive issues in the negotiations was the relationship between intellectual property rights and genetic resources."93
4.2 Requirements of the Convention on Biological Diversity
Throughout the text of the Convention, references are made to patents, IPRs, and indigenous and local people’s knowledge, e.g., the Preamble, Article 1 (Objectives) Article 8 (In-Situ Conservation); Article 15 (Access to Genetic Resources); Article 16 (Access to and Transfer of Technology); and Article 19 (Handling of Biotechnology and Distribution of its Benefits).
The requirements of the Convention which are relevant to this study, are set out below.
4.2.1 Preamble (paragraph 12):
The Contracting Parties recognise the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components.
4.2.2 Article 8(j) In-situ conservation
Parties are required to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.
4.2.3 Article 15 Access to Genetic Resources
(1) The authority to determine access to genetic resources rests with the national government and is subject to national legislation.
(2) Contracting Party must endeavor to create conditions to facilitate access to genetic resources for environmentally sound uses by other
(3) Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention.
(4) Countries obtaining access must do so on mutually agreed terms.
(5) Access to genetic resources shall be subject to prior informed consent of the
(6) Contracting Party providing such resources, unless otherwise determined by that Party.
(7) Each Contracting Party shall take measures with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms.
4.2.4 Article 16 Access to and Transfer of Technology
(1) Each Contracting Party, recognizing that technology includes biotechnology, and that both access to and transfer of technology among Contracting Parties are essential elements for the attainment of the objectives of this Convention, undertakes to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment.
(2) Access to and transfer of technology to developing countries shall be provided and/or facilitated under fair and most favorable terms, including on concessional and preferential terms where mutually agreed In the case of technology subject to patents and other intellectual property rights, such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights.
(3) Each Contracting Party shall take measures with the aim that Contracting Parties, in particular developing countries, which provide genetic resources are provided access to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights
(4) Each Contracting Party shall take.measures with the aim that the private sector facilitates access to, joint development and transfer of technology for the benefit of both governmental institutions and the private sector of developing countries.
(5) The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objective.
4.2.5 Article 19 Handling of Biotechnology and Distribution of its Benefits
Each Contracting Party shall take:
(1) measures to provide for the effective participation in biotechnological research activities by those Contracting Parties, especially developing countries, which provide the genetic resources for such research ; and
(2) all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms.
4.3 Existing National Legislation: Comparison
The legislation governing patents and IPRs in Guyana is inadequate and does not satisfy the requirements laid down by the Convention. The Patents and Designs Act, e.g., states that a patent can only be granted for an invention which is a new manufacture. The legislation refers only to chemical products and substances intended for food or medicine, e.g., section 44(3) states that "[I]n the case of any patent for an invention for the preparation or production of food or medicine, the Registrar shall grant to any person applying for a licence for the purposes of the preparation or production of food or medicine." By only addressing the actual preparation or production of food or medicine, the above section fails to satisfy the requirements of the Convention.
Moreover, for the purposes of patent law, an invention is any manner of new manufacture and therefore does not extend to concepts such as the knowledge of indigenous and local communities which has been handed down from generation to generation and is not therefore regarded as a "new manufacture."
Subject matters such as genetic material, biotechnology, and the know-how of indigenous and local communities are not covered by the existing legislation. The laws do not protect living plants and animals. It is therefore concluded that the existing laws and regulations in Guyana, do not satisfy the requirements of the Convention.
5.0 REGISTRATION OF THE KNOWLEDGE OF INDIGENOUS PEOPLES, BIOTECHNOLOGY, AND GENETIC ENGINEERING PRODUCTS UNDER THE EXISTING LEGISLATION
Within the existing framework of the legislation, it is not possible to register the knowledge of indigenous and local people, biotechnology and genetic engineering products. The law does not make provision for these concepts.
Draft national environmental legislation for Guyana is contemplated but it is uncertain whether patents and IPRs will be addressed.
6.0 INTERNATIONAL AGREEMENTS
Guyana, since its independence in 1966, has not signed or ratified any international agreements relating to patents and IPRs. Before independence, however, the Agreement on the Importation of Educational, Scientific and Cultural Materials94 was signed by the United Kingdom and applied to Guyana which was then a colony.
Whether Guyana remains a party to this Agreement is unclear given that the "clean slate doctrine" is usually applied to newly independent States. This doctrine posits that a post-colonial State which has achieved independence is not bound to accept treaties which have been signed by a colonising power, except in certain instances. In other words, a new State starts with a "clean slate" in respect of multilateral and bilateral treaty rights and obligations made on its behalf by the colonising power.95 Exceptions to the rule include treaties evidencing rules of general international law; territorial régimes or localised treaties, e.g., on navigation, fishing rights, etc.; and boundary treaties.
A post-colonial State can address the problem of succession by making unilateral declarations, devolution agreements and by original accession to conventions.96 In 1966, the then Government of Guyana made a unilateral declaration to the United Nations which stated in essence that the Government would be prepared to continue applying bilateral treaties concluded by the United Kingdom on behalf of the territory of Guyana for a limited period after independence. At the end of this period, they would regard all treaties as having been terminated, except those which by the application of the rules of customary international law would be regarded as surviving.97
Furthermore, with respect to multilateral treaties signed by the United Kingdom on behalf of Guyana, the Government would review these individually and indicate to the depositary the steps it planned to take in relation to each treaty, e.g., confirmation of termination, or confirmation of succession. During this interim period of review, any party to a multilateral treaty which was applied or extended to Guyana before independence may, on the basis of reciprocity, rely against Guyana on the terms of such treaty.98
From the information available, however, it is not possible to determine whether Guyana actually confirmed the multilateral treaties which it intended to succeed or terminate.
7.1 National Policy on Intellectual Property Rights (IPRs)
A comprehensive national policy on patents and IPRs in relation to biodiversity, and indigenous and local communities, should be developed. This will be in keeping with the Government’s obligation to conserve and sustainably use biodiversity.99 The policy should address, interalia, biodiversity prospecting, access to genetic resources and the reward to indigenous and local communities for their knowledge. Further, the policy document should be used as a basis for future strategies, action plans, programmes and legislation.
The policy should seek to inform bilateral, regional and multilateral negotiations. It would allow Guyana to contribute to the Working Group on IPRs whose establishment has been proposed by the Caribbean Community Secretariat (CARICOM).
Persons from a wide cross section of areas should contribute to the development of the policy. These persons could, e.g., be drawn from the public and private sectors; NGOs (including Amerindian groups); indigenous and local communities; academic institutions (e.g., the Amerindian Research Unit of the University of Guyana); and the scientific community.
Further, there should be close collaboration with ongoing programmes including the Government of Guyana/Commonwealth Iwokrama Rainforest Programme and the Center for the Study of Biodiversity at the University of Guyana.
To date, Guyana has not ratified the Convention on Biological Diversity. Ratification of the Convention is of paramount importance to Guyana as it will enable the country to benefit under the Convention.
Upon ratification, a general law should be drafted to implement the provisions of the Convention and this law should prevail over other conflicting laws. The law should be specifically suited for Guyana’s development needs and provide for, inter alia, the sharing of research, development and benefits arising from commercial and other activities.
Since the existing national legislation is inadequate to address the requirements of the Convention, a review of all existing laws and regulations should be undertaken in the immediate future. Draft environmental legislation is now being developed by the Government but it is not clear whether these laws will directly address the conservation of biodiversity.
With respect to international agreements, Guyana should review relevant international agreements with a view to signing or acceding or ratifying. Among those Conventions which should be considered for adoption are the Paris Convention for the Protection of Industrial Property (1967) and the International Convention for the Protection of New Varieties of Plants (UPOV) 1983. Nevertheless, it should be borne in mind that these Conventions precede the Convention on Biological Diversity and therefore the Convention will supersede earlier agreements which address the conservation of biodiversity.
7.3 World International Property Organisation (WIPO)
Guyana should consider becoming a member of WIPO; membership will facilitate the country’s participation in the WIPO Draft Patent Harmonisation Treaty.
7.4 Participation in Ongoing International Negotiations
Guyana should ensure participation in relevant international negotiations. In recognition of the constraints that face developing countries, Guyana should jointly pursue international negotiations with other countries and relevant organisations.
7.5 Strengthening Local Capacity
Relevant national institutions should be strengthened and developed e.g. the University of Guyana (Amerindian Research Unit and the Center for the Study of Biodiversity); Ministry of Agriculture (National Agricultural Research Institute); and the relevant Government agency responsible for environmental affairs.
Scientific and technical resources need to be developed and where possible, foreign institutions should contribute to the training of local persons, especially scientists. Mechanisms to utilise technologies transferred from other countries should be developed.
Public awareness and education are important to ensure that the public understands the necessity and value of the conservation and sustainable use of biodiversity. Further, persons involved in the conservation of biodiversity should be awarded incentives.
7.6 Establishment of Central Executing Agency
This agency preferably a statutory body should be principally responsible for the conservation of biodiversity in Guyana and the development of IPRs. It should comprise persons from multi-sectoral areas who would be able to make an invaluable contribution. The agency should be the focal point and therefore coordinate all relevant activities.
The regulation of exports and imports of genetic material should be a major priority of the agency. Regulations should be developed to govern situations where the genetic material has been obtained without the consent of the agency. In such a case, IPRs should not be granted.
A data base should be maintained and all research past and current should be included. The names of foreign and national prospectors should also be maintained.
A general fund for biodiversity should be established and regulated by legislation. Monies paid for the collection of genetic material could be put towards the fund. The funds generated e.g., payment of fees and royalties on collected genetic material should be directed towards priority areas such as scientific research and development, and training of relevant persons.
The agency should be charged, inter alia, with the task of implementing a system of payment to indigenous and local communities for the use of their traditional knowledge. These communities should receive royalties from the sale of products derived from the use of their knowledge. Issues such as the "ownership of traditional knowledge" should be addressed.
The agency may make detailed studies on the possible impact of IPRs on Guyana e.g., the social, legal and economic effects in order to highlight their advantages and disadvantages.
It is advisable that persons should be guided by a code of ethics which should be developed by the agency. The code should provide that, interalia, the rights of indigenous and local communities are respected and upheld. These communities should be encouraged to develop internal rules to govern access to their communities and genetic material found within the community.
The agency should collaborate closely with existing institutions bilateral, regional and multilateral agencies and NGOs. Values may be learnt from the experience of other countries or foreign institutions.
7.7 Contractual Arrangements
At this stage of Guyana’s development, it may be more feasible to develop contractual agreements which contain strict standards. Private agreements must not contravene existing legislation or policies.
A model contract should be developed as a precedent to guide future agreements and must be adapted to suit the particular circumstance. A major stipulation of the contract should be that the collection of genetic materials is controlled. The conditions of the contract should include at a minimum: the payment of collection fees; royalties on applications derived; equitable sharing of benefits derived from the use of the material collected; sharing of research and development; access to technologies which make use of the genetic resources; and penalties for non-compliance with the contract.100 At least one local counterpart should be included in the proposed activity and this person should receive further training from the foreign scientists.
With regard to the collection of genetic material, a permit system applying to both nationals and foreigners should be introduced. This will guarantee that there is prior informed consent by all parties including indigenous and local communities on mutually agreed terms. If field collections are obtained without permission, their export should be prohibited. Penalties should be severe for persons carrying out activities without a permit.
The Government has publicly announced that they have developed draft guidelines for research scientists national and non-national interested in carrying out research in Guyana. It is hoped that these guidelines, when final, will make provision for the indigenous and local communities. The guidelines could be used as the basis for biodiversity prospecting contracts.
The involvement and compensation of indigenous and local people could create incentives to ensure that knowledge and information are shared within the community and handed down from generation to generation.
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List of relevant legislation and regulations
Modifications (1966 No. 79)(in respect of Guyana)(p.64)
Sec. 7:COPYRIGHT (Notice of Pub.)Reg 1966
COPYRIGHT (Library)Regs 1966
Sec. 8:COPYRIGHT Royalty System (Records)Regs 1966
Sec. 22:COPYRIGHT (Customs)Reg 1966
Sec. 31:COPYRIGHT (Transitional)Extension Order(1959 N°103)
Sec. 31:COPYRIGHT (British Guiana)Order(1966/79)(p.64)
(For regulations see under Secs. 7,8 & 22)(supra)
Sec 32: COPYRIGHT (International Convention)Order-
Order (1964 No. 690)
Amendments 1964-to-1966 (omitted)
Application to Guyana (1966 No.79)(p.64)
Sec 33: COPYRIGHT (International Organization)Order-
Order (1957 No.1524)
Application to Guyana (1966 No.79)(p.64)
Sec 34: COPYRIGHT (Broadcasting Organization)Order-
Order (1961 No.2640)
Application to Guyana (1966 No.79)(p.64)
PATENTS AND DESIGNS ACT (CAP. 90:03)
Sec. 82: Patents Regulations (1937)
Sec 103: Designs Regulations (1947)
TRADE MARKS ACT (CAP. 90:01)
Part omitted (By L.R.(O)O.1973)(CAP. 2:02)
Sec. 52: Trade Marks Rules (1955)