Bridges Trade BioRes • Volume 3 • Number 20 • 11th November 2003
FACILITATING ACCESS AND BENEFIT-SHARING AMONG USERS OF GENETIC RESOURCES
FACILITATING ACCESS AND BENEFIT-SHARING AMONG USERS OF GENETIC RESOURCES
At the initiative of the United Nations University’s Institute for Advanced Studies and the Institut du Développement Durable et des Relations Internationales (IDDRI), government officials and experts met on 6-7 November in Paris, France, to discuss ways of implementing access and benefit-sharing (ABS) objectives of the Convention on Biological Diversity (CBD) among users of genetic resources, particularly developed countries and the private sector.
International ABS governance
Participants noted that there already exists an extensive body of hard and soft law instruments, which together constitute the existing system of international ABS governance. These include the CBD, the CBD’s Bonn Guidelines on ABS for genetic resources, intellectual property, human rights and health and phytosanitary instruments, as well as national and regional ABS and intellectual property regulations. Many participants highlighted the need for developing measures to ensure compliance with existing ABS obligations under the CBD, in particular with relation to technology transfer to providers of genetic resources. Participants also recognised the need for complementarity between ‘user’ and ‘provider’ measures to encourage countries where the genetic resources are located — usually in the developing world — to facilitate access to their resources while ensuring that users observe their ABS obligations.
Disclosure of origin
Requiring the disclosure of origin of genetic resources in patent applications was one of the possible user measures discussed — a measure that has attracted increasing support at the WTO and the World Intellectual Property Organization (WIPO) from a range of developing countries and, more cautiously, from the EC and Switzerland (see BRIDGES Trade BioRes, 13 June 2003). Many participants welcomed the Swiss proposal to the WTO, which suggested an amendment to WIPO’s Patent Cooperation Treaty that would enable countries to implement a disclosure requirement for the source of both genetic resources and traditional knowledge. It was noted that the Swiss proposal would not require compulsory disclosure of origin or of evidence of prior informed consent and the limitations of such a voluntary approach was also debated. Several questions arose during the discussion regarding the practicality of such a disclosure requirement, including its legal status (voluntary or mandatory), the appropriate legal instrument, how to determine the "origin" of a genetic resource, and consequences of non-compliance. Some noted that the answers to these questions would depend on the objective behind disclosure, which could include information provision, legal certainty or compliance with the CBD’s ABS objectives.
Participants also considered the relative merits of a system of ‘certificates of origin’ and discussed whether such a system should focus on the origin, source or legal provenance of genetic material. It was recognised that further investigation of the practicality and feasibility of such a system would require investigation of its utility in different industry sectors.
In the EU, Directive 98/44/EC on the legal protection of biological inventions encourages member states to require patent applicants to include information on the geographical origin of biological material (Recital 27). However, only Denmark has so far implemented this requirement, with Germany, Sweden, Belgium, Portugal, Switzerland and Norway in the process of setting up their regulations. The Norwegian proposal goes one step further by also requiring the provider country to be specified (if it is different from the country of origin) and evidence of prior informed consent. The country is also in the process of developing rules to govern the access to genetic resources in Norway.
Other user measures: Technology transfer, access to justice
Participants stressed the need to broaden the debate around user measures beyond disclosure requirements, in particular for genetic resources that would not be covered by intellectual property rights. Other possible measures comprise the transfer of technology, including through non-market mechanisms, such as the movement of persons, imitations and spill-overs of activities of foreign companies. Participants stressed the importance of broader policies and the appropriate enabling environment to support technology transfer, including incentives for users of genetic resources to transfer the technology, measures to support the commercialisation of research in developing countries, and market access opportunities for the recipients of the technology. Participants noted the absence of guidelines on technology transfer in the Bonn Guidelines and some suggested that such guidelines might prove a useful tool in particular for enhancing compliance with the technology transfer obligations of the CBD set out in Articles 16(3) and 19(1).
Participants also raised the as yet little discussed issue of access to justice (i.e. the ability to seek redress in the event of infringement of ABS obligations). One speaker noted the need for a comprehensive approach, which covered access to information, opportunity for participation, capacity building and access to legal redress. Possible measures discussed included arbitration — possibly within the CBD context — or the designation of an ombudsman to investigate potential infringements.
Additional resources
For further information on the UNU-IAS project on ABS, click here.
ICTSD reporting.