Volume 3, Issue 3: This feature highlights the Business and Biodiveristy related decisions and events at COP 9 in Bonn.
Equity is a moral issue that has repercussions with respect to the distribution of benefits and environmental conservation. However, equity is in the eye of the beholder; different individuals come to different conclusions about what is equitable and about how to achieve equity.
Unfortunately, market systems created to place a price on equity do not work because market systems are contrained in what they measure. With regard to TK, because its products are intangible, once the knowledge or information is disseminated, control over the knowledge is lost. From an objective standpoint, that knowledge has no direct monetary value unless the knowledge can be translated into a market-based commodity (or service), whereby the value of different contributions (knowledge, technology, labor, capital, and so forth) can be quantified and traded.
Modern IP system In addition to these problems, the modern system of IP rights, particularly patenting, is based on the premise that anything that is already known cannot be protected. Indigenous knowledge is often communal, has been disclosed, and has been passed on from previous generations. The very nature of indigenous knowledge, therefore, does not meet the criteria for intellectual property in today’s IP system. Not surprisingly, some people view the use of TK in modern science as a form of biopiracy, which is the unfair acquisition of biological resources and/or associated know-how. Some even argue that the modern IP rights system has harmful effects on indigenous peoples.
These arguments can be broken down into two distinct issues:
1.
Biopiracy: to what extent do patent systems exploit traditional indigenous knowledge?
2.
Patenting of living organisms: how can we justify patenting gene-sequence and gene-product information taken from living organisms (especially humans) when these are naturally occurring substances? And if patented, how do we answer the ethical questions surrounding such patents?
Succesful partnerships Any serious company chooses for bioprospecting countries that have unique and protected ecosystems, a solid legal framework, sufficient political will, fair and equal treatment for all access seekers, and strong science experts or institutions to partner with. Countries will seek partnerships with foreign companies and universities that adhere to international conventions and best practice, and that have an established track record. Guiding principles for a successful partnership between collaborators in the host country and a company include a commitment between parties to maintain a fair, trusting, long-term relationship, with an efficient and reasonable authorization process, and equitable sharing of benefits between partners.
In order to be successful, biodiversity access agreements (BAAs) must have a clear definition and assignment of legal rights to all genetic resources involved. Informed consent from all domestic parties affected by the bioprospecting, including landowners and managers, must be attained prior to partnership. There must exist a clear delineation of rights to patent and commercialization of the products derived from these endeavours. Each BAA is a confidential document, which supports a lack of competition among the partners to the agreement, and does not allow the transfer of proprietary technologies or technical capacity to third parties or exclusivity.
To understand the fundamental principles of ABS, one needs to know the relevant rules, regulations, laws, customs, and conditions for benefit sharing in the country where one intends to conduct research and/or collect samples. Basic questions to ask before collecting include:
- Under which conditions may I, as a scientist, enter another sovereign state’s territory in my scientific capacity?
- Under which conditions may I, as a scientist, collect biological material and related information?
- Under which conditions may I, as a scientist, carry out or export biological material and related information from that sovereign state’s territory?
- Under which conditions may I, as a scientist, make further use of collected biological material and related information?
A practical overview of the principles and procedures underlying ABS regimes that will be useful to various types of research and access situations has been presented in detail elsewhere (2).
Foresight, focus and leadership Irrespective of the specific legislation and international regime, any approach aimed at preserving and protecting biological resources and traditional knowledge require clear and transparent procedures. The ultimate goal for policymakers must be to develop practical solutions within workable (i.e. established) legal frameworks that encourage indigenous communities both to sustain their traditions and to equitably share their knowledge with the wider world so that all may benefit.
Advice for COP-9
Policymakers ought to formulate methods for equitable access to TK held by indigenous societies and for compensating the TK’s owners. However, this issue involves a delicate balance: access should be granted only via authorized permission, yet the price that is assessed for permission to bioprospect should not be so high that it dissuades companies and individuals from seeking access.
Countries should consider implementing an access and benefit sharing (ABS) regime that balances equitable access to biological resources, as well as related TK, with opportunities arising from R&D expertise of potential foreign partners in development. Such policies should be grounded in, and consistent with, the CBD.
ABS regimes, including the process for obtaining permits, should be transparent and easily available to any scientist or institution that wishes to enter into biodiversity prospecting or collection activities. A complex system discourages foreign bioprospectors and may inhibit national researchers in their activities.
Successful international regimes are marked by foresight, focus and leadership. They must be followed with a political will at the national level to establish programs to identify, organize, and optimize talent and resources, making the most of community support and entrepreneurial networks, be they national, regional or global. Thus, the regimes need to consider business practices if a bridge is to be built that benefits many.
is Research Professor Arizona State University, Adjunct Professor at Cornell Unviersity and Chairman, bioDevelopments-International Institute.
http://sols.asu.edu/faculty/akrattiger.php
(1) This text is based on Krattiger A, RT Mahoney, L Nelsen, JA Thomson, AB Bennett, K Satyanarayana, GD Graff, C Fernandez, and SP Kowalski. 2007. Executive Guide to Intellectual Property Management in Health and Agricultural Innovation: A Handbook of Best Practices. MIHR: Oxford, PIPRA: Davis, bioDevelopments-International Institute: Ithaca, and FIOCRUZ: Rio de Janeiro. Available online at www.ipHandbook.org.
(2) See Thornström CG., 2007. Access and Benefit Sharing: Understanding the Rules for Collection and Use of Biological Materials, p. 1461. In Krattiger et al (see Chapter 16.2 in www.ipHandbook.org) and Thornström CG and L Björk, 2007. Access and Benefit Sharing: Illustrated Procedures for the Collection and Importation of Biological Materials, p. 1469. In Krattiger et al (see Chapter 16.3 in www.ipHandbook.org).
