What could be the advantages and disadvantages of a global multilateral benefit-sharing mechanism?
Ms. Kathryn Garforth,
Secretariat of the Convention on Biological Diversity#5079
Secretariat of the Convention on Biological Diversity#5079
13 years ago
The second set of indicative and additional questions for round 2 of the online discussions on Article 10 of the Nagoya Protocol is as follows:
What could be the advantages and disadvantages of a global multilateral benefit-sharing mechanism?
- As a provider of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
- As a user of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
- If there is no global multilateral benefit-sharing mechanism, what problems would remain?
What could be the advantages and disadvantages of a global multilateral benefit-sharing mechanism?
- As a provider of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
- As a user of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
- If there is no global multilateral benefit-sharing mechanism, what problems would remain?
Dear all,
I agree to that a GMBSM needs to be developed in a manner seeking to contribute to global functionality of ABS on a global level, thus the link to other concepts needs to be carefully explored. The main focus of the CBD is to make the users, companies, universities etc drawing commercial and other uses of GR and TK to contrinute to conservation and sustainable use of biological diversity.
Two main rationals for a GMBSM therefore become prominent: contributing to conservation and sustaianle use, and contributing to making the regular ABS system work.
Contributing to making ABS in general work leads to a need for careful drafting of the GMBSM so incentives are created for users to follow the regular system.
How a GMBSM best can create incentives for users to conservation and sustainable use is a tricky one - but as I see it at the core of the rational for the system.
Do you share my view that these would be the two core rationals?
Best reagrds,
Morten
I agree to that a GMBSM needs to be developed in a manner seeking to contribute to global functionality of ABS on a global level, thus the link to other concepts needs to be carefully explored. The main focus of the CBD is to make the users, companies, universities etc drawing commercial and other uses of GR and TK to contrinute to conservation and sustainable use of biological diversity.
Two main rationals for a GMBSM therefore become prominent: contributing to conservation and sustaianle use, and contributing to making the regular ABS system work.
Contributing to making ABS in general work leads to a need for careful drafting of the GMBSM so incentives are created for users to follow the regular system.
How a GMBSM best can create incentives for users to conservation and sustainable use is a tricky one - but as I see it at the core of the rational for the system.
Do you share my view that these would be the two core rationals?
Best reagrds,
Morten
The question assumes a bilateral approach which is unsettled in light of Article 10. An alternative is bounded openness which is advocated by diverse stakeholders on grounds of equity and efficiency. Hence, the advantages and disadvantages of a Global Multilateral Benefit-Sharing Mechanism should be identified for both the bilateral approach and for bounded openness. Moreover, the identification of advantages and disadvantages only makes sense in reference to the group of individuals being favored or harmed.
For whom is a bilateral approach an advantage?
1. Lawyers specializing in negotiating contracts
2. Public servants and academics who are committed to the bilateral approach since 1992
3. Ideologues invested in misinterpreting sovereignty as restricted to the bilateral approach
4. A small subset of the research community in Providing countries which receives overseas training, recycled equipment and so on for having been the first to consummate an MTA over a transboundary resource in the “race-to-the-bottom”
5. A small subset of the research community in User countries that pays an insignificant royalty rate for having comparison-shopped in megadiverse countries
6. The international bureaucracy that benefits from the transaction costs of the many unresolved contentious issues inherent to the bilateral approach
7. Other indirect beneficiaries of transaction costs (e.g., Convention Centers and the related tourism industry)
For whom is a bilateral approach a disadvantage?
1. Stewards of biological diversity in the Provider countries as insignificant royalties pale against the opportunity costs of conservation; protective areas are increasingly threatened by lucrative changes in land use
2. Stewards of biological diversity in other countries of origin (viz., the transboundary situations), who do not participate in any of the royalties from the bilateral MTAs, albeit paltry
3. The larger research community in Provider countries as access is thwarted by public resistance to the non-transparent and meager MTAs
4. The larger research community in User countries as access is thwarted by public resistance to the non-transparent and meager MTAs
5. Consumers who are denied biotechnologies which may have otherwise emerged had access not been thwarted
6. Individuals who derive use values (e..g, environmental services) and non-use values of biodiversity (e.g., existence value) in both present and future generations; insignificant royalties encourage changes in land use
7. Global public health as access to pathogens is encumbered by MTAs (see Abbott, http://ictsd.org/i/publications/89485/ )
8. Public science which faces “the taxonomic impediment” of ABS
9. Taxpayers
10. Advocates of fairness and equity in North-South relations
For whom is bounded openness an advantage?
1. The entire research community in the Provider countries who will face minimal transaction costs in ABS
2. The entire research community in the User countries who will face minimal transaction costs in ABS
3. Consumers of biotechnologies made possible through unencumbered ABS
4. Beneficiaries of the other use values (e..g, environmental services) and non-use values of biodiversity (e.g., existence value) in both present and future generations; the expectation of significant royalties will deter changes in land use
5. Public servants and academics who are committed to the implementation of scientifically sound policies since 1992
6. iBOL and other database inventories, which will be financed through royalties collected on ubiquitous natural information
7. Global public health as the delivery of pathogens is incentivized into the international medical research stream (see http://www.ccsenet.org/journal/index.php/ijb/article/view/22760 )
8. Taxpayers
9. Advocates of fairness and equity in North-South relations
For whom is bounded openness a disadvantage?
1. Lawyers specializing in negotiating contracts
2. Public servants who are committed to the bilateral approach since 1992
3. Ideologues invested in a misinterpretation of sovereignty as restricted to the bilateral approach
4. A small subset of the research community in Providing countries which receives overseas training, recycled equipment and so on for having been the first to consummate an MTA over a transboundary resource in the “race-to-the-bottom”
5. A small subset of the research community in User countries that pays an insignificant royalty rate for having comparison-shopped in megadiverse countries
6. All transnationals from a non-Party that utilize transboundary natural information accessed in the jurisdiction of the non-Party, for which a patented biotechnology is exported to the jurisdiction of a Party
7. The international bureaucracy which no longer benefits from the transaction costs of ABS as almost all the contentious issues are resolved
8. Other indirect beneficiaries of the transaction costs associated with the COPs and preparatory meetings (Convention Centers and the related tourism industry).
For whom is a bilateral approach an advantage?
1. Lawyers specializing in negotiating contracts
2. Public servants and academics who are committed to the bilateral approach since 1992
3. Ideologues invested in misinterpreting sovereignty as restricted to the bilateral approach
4. A small subset of the research community in Providing countries which receives overseas training, recycled equipment and so on for having been the first to consummate an MTA over a transboundary resource in the “race-to-the-bottom”
5. A small subset of the research community in User countries that pays an insignificant royalty rate for having comparison-shopped in megadiverse countries
6. The international bureaucracy that benefits from the transaction costs of the many unresolved contentious issues inherent to the bilateral approach
7. Other indirect beneficiaries of transaction costs (e.g., Convention Centers and the related tourism industry)
For whom is a bilateral approach a disadvantage?
1. Stewards of biological diversity in the Provider countries as insignificant royalties pale against the opportunity costs of conservation; protective areas are increasingly threatened by lucrative changes in land use
2. Stewards of biological diversity in other countries of origin (viz., the transboundary situations), who do not participate in any of the royalties from the bilateral MTAs, albeit paltry
3. The larger research community in Provider countries as access is thwarted by public resistance to the non-transparent and meager MTAs
4. The larger research community in User countries as access is thwarted by public resistance to the non-transparent and meager MTAs
5. Consumers who are denied biotechnologies which may have otherwise emerged had access not been thwarted
6. Individuals who derive use values (e..g, environmental services) and non-use values of biodiversity (e.g., existence value) in both present and future generations; insignificant royalties encourage changes in land use
7. Global public health as access to pathogens is encumbered by MTAs (see Abbott, http://ictsd.org/i/publications/89485/ )
8. Public science which faces “the taxonomic impediment” of ABS
9. Taxpayers
10. Advocates of fairness and equity in North-South relations
For whom is bounded openness an advantage?
1. The entire research community in the Provider countries who will face minimal transaction costs in ABS
2. The entire research community in the User countries who will face minimal transaction costs in ABS
3. Consumers of biotechnologies made possible through unencumbered ABS
4. Beneficiaries of the other use values (e..g, environmental services) and non-use values of biodiversity (e.g., existence value) in both present and future generations; the expectation of significant royalties will deter changes in land use
5. Public servants and academics who are committed to the implementation of scientifically sound policies since 1992
6. iBOL and other database inventories, which will be financed through royalties collected on ubiquitous natural information
7. Global public health as the delivery of pathogens is incentivized into the international medical research stream (see http://www.ccsenet.org/journal/index.php/ijb/article/view/22760 )
8. Taxpayers
9. Advocates of fairness and equity in North-South relations
For whom is bounded openness a disadvantage?
1. Lawyers specializing in negotiating contracts
2. Public servants who are committed to the bilateral approach since 1992
3. Ideologues invested in a misinterpretation of sovereignty as restricted to the bilateral approach
4. A small subset of the research community in Providing countries which receives overseas training, recycled equipment and so on for having been the first to consummate an MTA over a transboundary resource in the “race-to-the-bottom”
5. A small subset of the research community in User countries that pays an insignificant royalty rate for having comparison-shopped in megadiverse countries
6. All transnationals from a non-Party that utilize transboundary natural information accessed in the jurisdiction of the non-Party, for which a patented biotechnology is exported to the jurisdiction of a Party
7. The international bureaucracy which no longer benefits from the transaction costs of ABS as almost all the contentious issues are resolved
8. Other indirect beneficiaries of the transaction costs associated with the COPs and preparatory meetings (Convention Centers and the related tourism industry).
Problems a GMBSM would CREATE for PROVIDERS:
- A portion of the benefits that could be going to individual providers will necessarily go to the administration of the GMBSM.
- Benefits would go to global conservation rather than provider communities.
- Relinquishes providers’ ability to negotiate benefit sharing to a global body whose interests may not necessarily aligned be aligned with their own.
- Providers with “more valuable” GRs may be giving up value to other providers (to global conservation via the GBMSM).
- At the end of the day does a GMBSM really answer the tough questions or solve the challenges related to unclear situations or those situations that do not meet the definition of “transboundary”? Or does it just defer them to global body?
- Provides a disincentive to creating working national ABS frameworks?
- Unclear standard for determining when the GMBSM would assert jurisdiction and when benefit-sharing should be left to individual providers, potentially resulting in a situation where the GMBSM seeks to override a provider’s claim.
Not necessarily problems but questions that a GMBSM raises for PROVIDERS:
- How to handle the prerogative of governments that elect NOT to require benefit-sharing? If the GMBSM is global then would it disrespect the ability of those governments to opt out?
- In situations where, say, two countries are involved then might the GMBSM make things more difficult because it would involve more than just those two countries?
- Dispute resolution mechanism for allocating benefits between several providers?
- Dispute resolution mechanism for resolving jurisdictional disagreements between providers and the GMBSM?
Problems a GMBSM would SOLVE for PROVIDERS:
- Provides national governments with limited capacity (i.e., few or no staff to negotiate benefit sharing terms and track compliance) with an alternative to creating their own system.
- Potentially reduces administrative costs by increasing efficiencies, reducing need for every country to maintain the same type of infrastructure at the national level.
Problems a GMBSM would CREATE for USERS:
- Removes users’ ability to negotiate benefit sharing directly with provider(s) involved or claims by transboundary parties that benefits were not shared appropriately.
- Reduces users’ ability to customize benefit-sharing arrangement directly with providers and therefore tailor benefit sharing to the needs of the provider.
- Increases likelihood that benefit sharing would focus on monetary benefits, which would be easiest for a GMBSM to distribute amongst several providers, rather than other non-monetary benefits that may be more relevant (i.e., capacity building).
- Users would be negotiating with a global body that likely does not have as much understanding of the value of the GR in question as the provider government(s).
- Would users need to negotiate more than one agreement (i.e., with a provider and with the GMBSM) for access to the same genetic resource?
- Would a GMBSM be motivated to negotiate as quickly and efficiently as a provider?
- Creates uncertainty for users regarding rights in the event of conflicting negotiations or jurisdictional claims between providers and the GMBSM.
- Conflicting jurisdiction of claims (between the GMBSM and providers) would leave users in limbo. Users would be required to either comply with two provisions for access to the same GR -- or to be subject to claims of violation despite complying with a provider’s PIC/MAT.
- The GMBSM’s lack of legal authority to enforce its jurisdictional claims on a national government leaves open the possibility that providers could require additional protections on top of a GMBSM. Users would face an additional level of bureaucracy, compliance costs and PIC/MAT requirements. This would increase uncertainty for users.
Problems a GMBSM would SOLVE for USERS:
- The GMBSM could make it easier for users to comply with the benefit sharing requirement, assuming users would only need to work with the GMBSM and not be subject to requirements at the individual provider level too, i.e., negotiate one benefit-sharing agreement).
- The GMBSM could reduce transaction costs by building a centralized expert resource for one standardized PIC/MAT negotiations rather than requiring users to negotiate with numerous different bodies who rely upon different templates and standards.
If there is no global multilateral benefit-sharing mechanism, what problems would remain?
- Again, at the end of the day does a GMBSM really answer the tough questions or solve the challenges related to unclear situations or those situations that do not meet the definition of “transboundary”? Or does it just defer them to global body?
- A portion of the benefits that could be going to individual providers will necessarily go to the administration of the GMBSM.
- Benefits would go to global conservation rather than provider communities.
- Relinquishes providers’ ability to negotiate benefit sharing to a global body whose interests may not necessarily aligned be aligned with their own.
- Providers with “more valuable” GRs may be giving up value to other providers (to global conservation via the GBMSM).
- At the end of the day does a GMBSM really answer the tough questions or solve the challenges related to unclear situations or those situations that do not meet the definition of “transboundary”? Or does it just defer them to global body?
- Provides a disincentive to creating working national ABS frameworks?
- Unclear standard for determining when the GMBSM would assert jurisdiction and when benefit-sharing should be left to individual providers, potentially resulting in a situation where the GMBSM seeks to override a provider’s claim.
Not necessarily problems but questions that a GMBSM raises for PROVIDERS:
- How to handle the prerogative of governments that elect NOT to require benefit-sharing? If the GMBSM is global then would it disrespect the ability of those governments to opt out?
- In situations where, say, two countries are involved then might the GMBSM make things more difficult because it would involve more than just those two countries?
- Dispute resolution mechanism for allocating benefits between several providers?
- Dispute resolution mechanism for resolving jurisdictional disagreements between providers and the GMBSM?
Problems a GMBSM would SOLVE for PROVIDERS:
- Provides national governments with limited capacity (i.e., few or no staff to negotiate benefit sharing terms and track compliance) with an alternative to creating their own system.
- Potentially reduces administrative costs by increasing efficiencies, reducing need for every country to maintain the same type of infrastructure at the national level.
Problems a GMBSM would CREATE for USERS:
- Removes users’ ability to negotiate benefit sharing directly with provider(s) involved or claims by transboundary parties that benefits were not shared appropriately.
- Reduces users’ ability to customize benefit-sharing arrangement directly with providers and therefore tailor benefit sharing to the needs of the provider.
- Increases likelihood that benefit sharing would focus on monetary benefits, which would be easiest for a GMBSM to distribute amongst several providers, rather than other non-monetary benefits that may be more relevant (i.e., capacity building).
- Users would be negotiating with a global body that likely does not have as much understanding of the value of the GR in question as the provider government(s).
- Would users need to negotiate more than one agreement (i.e., with a provider and with the GMBSM) for access to the same genetic resource?
- Would a GMBSM be motivated to negotiate as quickly and efficiently as a provider?
- Creates uncertainty for users regarding rights in the event of conflicting negotiations or jurisdictional claims between providers and the GMBSM.
- Conflicting jurisdiction of claims (between the GMBSM and providers) would leave users in limbo. Users would be required to either comply with two provisions for access to the same GR -- or to be subject to claims of violation despite complying with a provider’s PIC/MAT.
- The GMBSM’s lack of legal authority to enforce its jurisdictional claims on a national government leaves open the possibility that providers could require additional protections on top of a GMBSM. Users would face an additional level of bureaucracy, compliance costs and PIC/MAT requirements. This would increase uncertainty for users.
Problems a GMBSM would SOLVE for USERS:
- The GMBSM could make it easier for users to comply with the benefit sharing requirement, assuming users would only need to work with the GMBSM and not be subject to requirements at the individual provider level too, i.e., negotiate one benefit-sharing agreement).
- The GMBSM could reduce transaction costs by building a centralized expert resource for one standardized PIC/MAT negotiations rather than requiring users to negotiate with numerous different bodies who rely upon different templates and standards.
If there is no global multilateral benefit-sharing mechanism, what problems would remain?
- Again, at the end of the day does a GMBSM really answer the tough questions or solve the challenges related to unclear situations or those situations that do not meet the definition of “transboundary”? Or does it just defer them to global body?
- As a provider of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
FRENCH
Problèmes résolus
- Là où les Etats se reconnaissaient des intérêts communs, des stratégies coopératives, permettent de réduire les effets pervers de l'anarchie et de limiter les conflits.
- mécanismes efficace de contrôle de toutes les ressources génétiques où qu’elles se retrouvent.
-Favoriser une exploitation responsable offrant des possibilités économiques tout en assurant la conservation des RB/RG
-Les Etats ne seraient plus portés à gérer de façon unilatérale les ressources périphériques, sans tenir compte des intérêts des Etats voisins.
-Amélioration et mutualisation les politiques régionales de gestion des
ressources et renforcement des capacités techniques des Etats en matière de gouvernance des ressources périphériques.
Problèmes créés
Remplacement du rôle des Etats en matière de décisions par un Organisme extérieur qui pourraient facilement subir le pouvoir du lobbying des utilisateurs. Ceci sera la base de frustration et être à la base des contestations.
ENGLISH
FRENCH
Problèmes résolus
- Là où les Etats se reconnaissaient des intérêts communs, des stratégies coopératives, permettent de réduire les effets pervers de l'anarchie et de limiter les conflits.
- mécanismes efficace de contrôle de toutes les ressources génétiques où qu’elles se retrouvent.
-Favoriser une exploitation responsable offrant des possibilités économiques tout en assurant la conservation des RB/RG
-Les Etats ne seraient plus portés à gérer de façon unilatérale les ressources périphériques, sans tenir compte des intérêts des Etats voisins.
-Amélioration et mutualisation les politiques régionales de gestion des
ressources et renforcement des capacités techniques des Etats en matière de gouvernance des ressources périphériques.
Problèmes créés
Remplacement du rôle des Etats en matière de décisions par un Organisme extérieur qui pourraient facilement subir le pouvoir du lobbying des utilisateurs. Ceci sera la base de frustration et être à la base des contestations.
ENGLISH
As a provider of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
FRENCH
Problèmes résolus
- Là où les Etats se reconnaissaient des intérêts communs, des stratégies coopératives, permettent de réduire les effets pervers de l'anarchie et de limiter les conflits.
- mécanismes efficace de contrôle de toutes les ressources génétiques où qu’elles se retrouvent.
-Favoriser une exploitation responsable offrant des possibilités économiques tout en assurant la conservation des RB/RG
-Les Etats ne seraient plus portés à gérer de façon unilatérale les ressources périphériques, sans tenir compte des intérêts des Etats voisins.
-Amélioration et mutualisation les politiques régionales de gestion des
ressources et renforcement des capacités techniques des Etats en matière de gouvernance des ressources périphériques.
Problèmes créés
-Remplacement du rôle des Etats en matière de décisions par un Organisme extérieur qui pourraient facilement subir le pouvoir du lobbying des utilisateurs. Ceci sera la base de frustration et être à la base des contestations.
ENGLISH
Resolved Issues
- Where states recognize common interests, cooperative strategies, reduce the negative effects of anarchy and reduce conflict.
- Effective control mechanisms of all genetic resources where they are found.
-Encourage responsible development with economic opportunities while ensuring the conservation of RB / RG
-States would no longer likely to manage unilateral peripheral resources, regardless of the interests of neighboring states.
-Improving and sharing regional management policies
resources and technical capacity of States in the governance of peripheral resources.
Problems created
-Replacing the role of States in respect of decisions by an outside organization that could easily suffer the lobbying power users. This will be the basis of frustration and be the basis of the dispute.
FRENCH
Problèmes résolus
- Là où les Etats se reconnaissaient des intérêts communs, des stratégies coopératives, permettent de réduire les effets pervers de l'anarchie et de limiter les conflits.
- mécanismes efficace de contrôle de toutes les ressources génétiques où qu’elles se retrouvent.
-Favoriser une exploitation responsable offrant des possibilités économiques tout en assurant la conservation des RB/RG
-Les Etats ne seraient plus portés à gérer de façon unilatérale les ressources périphériques, sans tenir compte des intérêts des Etats voisins.
-Amélioration et mutualisation les politiques régionales de gestion des
ressources et renforcement des capacités techniques des Etats en matière de gouvernance des ressources périphériques.
Problèmes créés
-Remplacement du rôle des Etats en matière de décisions par un Organisme extérieur qui pourraient facilement subir le pouvoir du lobbying des utilisateurs. Ceci sera la base de frustration et être à la base des contestations.
ENGLISH
Resolved Issues
- Where states recognize common interests, cooperative strategies, reduce the negative effects of anarchy and reduce conflict.
- Effective control mechanisms of all genetic resources where they are found.
-Encourage responsible development with economic opportunities while ensuring the conservation of RB / RG
-States would no longer likely to manage unilateral peripheral resources, regardless of the interests of neighboring states.
-Improving and sharing regional management policies
resources and technical capacity of States in the governance of peripheral resources.
Problems created
-Replacing the role of States in respect of decisions by an outside organization that could easily suffer the lobbying power users. This will be the basis of frustration and be the basis of the dispute.
As a user of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
FRENCH
PROBLEMES CRES
Les ressources qui se situeraient hors des territoires de compétence des Etats rentrent d’office dans le mécanisme mondial. Ces ressources pourraient être considérées comme des patrimoines communs de l’humanité. Or les dispositions du Protocole s’adressent aux seuls Etats adhérents. Alors de quels droits ces Etats adhérents dicteraient –ils leur volonté aux autres non adhérents pour des ressources qui les concernent aussi en tant que patrimoine commun de l’humanité. (Cas d’un pays utilisateur qui n’a ni ratifié la CDB ni le Protocole)
PROBLEMES RESOLUS
Assurance d’une clarté et de certitude juridique des acquisitions.
Assurance d’une gestion durable de la RG
ENGLISH
PROBLEMS CREATED
Resources that would fall outside the jurisdictions of states returning from office in the GM. These resources could be considered as the common heritage of humanity. However, the provisions of the Protocol are intended only to members states. So what rights the acceding countries they dictate their will on other non-members to resources that also concern as the common heritage of humanity. (Case of a user countries who has not ratified the CBD and the Protocol)
RESOLVED ISSUES
Assurance of clarity and legal certainty acquisitions.
Ensuring a sustainable management of the RG
FRENCH
PROBLEMES CRES
Les ressources qui se situeraient hors des territoires de compétence des Etats rentrent d’office dans le mécanisme mondial. Ces ressources pourraient être considérées comme des patrimoines communs de l’humanité. Or les dispositions du Protocole s’adressent aux seuls Etats adhérents. Alors de quels droits ces Etats adhérents dicteraient –ils leur volonté aux autres non adhérents pour des ressources qui les concernent aussi en tant que patrimoine commun de l’humanité. (Cas d’un pays utilisateur qui n’a ni ratifié la CDB ni le Protocole)
PROBLEMES RESOLUS
Assurance d’une clarté et de certitude juridique des acquisitions.
Assurance d’une gestion durable de la RG
ENGLISH
PROBLEMS CREATED
Resources that would fall outside the jurisdictions of states returning from office in the GM. These resources could be considered as the common heritage of humanity. However, the provisions of the Protocol are intended only to members states. So what rights the acceding countries they dictate their will on other non-members to resources that also concern as the common heritage of humanity. (Case of a user countries who has not ratified the CBD and the Protocol)
RESOLVED ISSUES
Assurance of clarity and legal certainty acquisitions.
Ensuring a sustainable management of the RG
In my opinion...As a provider of genetic resources or associated traditional knowledge the GMBSM will obviously provide a platform to allow for some form of benefits which would otherwise not be available to the provider. However these benefits are limited in the sense that any further use of a particular resource is not open for use by the providers such as in cases where patents have been registered or products have been developed and there is no direct benefit from the user to the provider of the resource. In some cases the benefits awarded through the GMBSM may not necessarily be equitable nor fair in so far as the actual value of product or of the resource
Without the GMBSM the status quo shall remain. This will not enable for any sharing of benefits especially in situations where capacities to negotiate MAT or provide PIC are inadequate
Without the GMBSM the status quo shall remain. This will not enable for any sharing of benefits especially in situations where capacities to negotiate MAT or provide PIC are inadequate
Under the subtitle “Problems Created”, M BOSSOU Mensah Bienvenu Célestin, writes:
“[T]he provisions of the Protocol are intended only to members states. So what rights the acceding countries they dictate their will on other non-members to resources that also concern as the common heritage of humanity. (Case of a user countries who has not ratified the CBD and the Protocol).”
Although the CBD and the Nagoya Protocol are not binding on a non-party, one can apply the principle of “National Treatment” in GATT (Article III) to a biotechnology exported from the jurisdiction of a non-party to that of a party. A countervailing duty could be levied, equivalent to the royalty established by the Mechanism. For transboundary natural information, proceeds from the duty would be shared among Parties according to geographic share of habitat. For cases where the imported biotechnology derives from natural information that is endemic to the non-party, the proceeds would remit to the public good associated with the provision of national biotechnologies (e.g., iBOL). In terms of bounded openness, the duty mitigates the unfair competition arising from open access to natural information in the non-ratified party.
The presence of a non-ratified party which is megadiverse and also a “mega-user” is the first of sixteen distortions identified in Table 1 “Tilted playing field in the hyperspace of ABS” (p. 55), previously referenced in Comment #5053 and repeated below. Bounded openness corrects the distortion (#1) as well as twelve other distortions of the bilateral approach, including asymmetrical negotiation power (#4) mentioned by Dineo Oitsile Gaborekwe in Comment #5130 below. For the remaining four distortions, two are greatly diminished by bounded openness, one, diminished, and another still present but somewhat offset.
Paper in English appears on pages 47-74: http://data.iucn.org/dbtw-wpd/edocs/EPLP-067-3.pdf.
Paper in Spanish appears on pages 51-79: http://cmsdata.iucn.org/downloads/eplp_67_3_sp.pdf
Paper in French appears on pages 51-81: http://cmsdata.iucn.org/downloads/eplp_67_3_fr.pdf
“[T]he provisions of the Protocol are intended only to members states. So what rights the acceding countries they dictate their will on other non-members to resources that also concern as the common heritage of humanity. (Case of a user countries who has not ratified the CBD and the Protocol).”
Although the CBD and the Nagoya Protocol are not binding on a non-party, one can apply the principle of “National Treatment” in GATT (Article III) to a biotechnology exported from the jurisdiction of a non-party to that of a party. A countervailing duty could be levied, equivalent to the royalty established by the Mechanism. For transboundary natural information, proceeds from the duty would be shared among Parties according to geographic share of habitat. For cases where the imported biotechnology derives from natural information that is endemic to the non-party, the proceeds would remit to the public good associated with the provision of national biotechnologies (e.g., iBOL). In terms of bounded openness, the duty mitigates the unfair competition arising from open access to natural information in the non-ratified party.
The presence of a non-ratified party which is megadiverse and also a “mega-user” is the first of sixteen distortions identified in Table 1 “Tilted playing field in the hyperspace of ABS” (p. 55), previously referenced in Comment #5053 and repeated below. Bounded openness corrects the distortion (#1) as well as twelve other distortions of the bilateral approach, including asymmetrical negotiation power (#4) mentioned by Dineo Oitsile Gaborekwe in Comment #5130 below. For the remaining four distortions, two are greatly diminished by bounded openness, one, diminished, and another still present but somewhat offset.
Paper in English appears on pages 47-74: http://data.iucn.org/dbtw-wpd/edocs/EPLP-067-3.pdf.
Paper in Spanish appears on pages 51-79: http://cmsdata.iucn.org/downloads/eplp_67_3_sp.pdf
Paper in French appears on pages 51-81: http://cmsdata.iucn.org/downloads/eplp_67_3_fr.pdf
"If there is no global multilateral benefit-sharing mechanism, what problems would remain?"
- The absence of a global multilateral benefit-sharing mechanism would result in the loss of benefits where genetic resources or associated TK occurred in transboundary situations or for which it was not possible to grant or obtain PIC. This latter situation applies where the resource and/or associated TK were accessed well before the entry into force of the Protocol; or in respect of which a distinct holder cannot be identified. and in this regards it is important to highlight that The African group insisted throughout the negotiations that an international ABS regime that did not cover such situations would leave a huge gap in the Protocol as it would sanction and perpetuate historical injustices and biopiracy. The Nagoya Protocol seeks to deal with this situation and provides for parties to consider the need for establishing a multilateral mechanism to capture these benefits. The modalities will then have to be worked out.
O.A.ElKawy
- The absence of a global multilateral benefit-sharing mechanism would result in the loss of benefits where genetic resources or associated TK occurred in transboundary situations or for which it was not possible to grant or obtain PIC. This latter situation applies where the resource and/or associated TK were accessed well before the entry into force of the Protocol; or in respect of which a distinct holder cannot be identified. and in this regards it is important to highlight that The African group insisted throughout the negotiations that an international ABS regime that did not cover such situations would leave a huge gap in the Protocol as it would sanction and perpetuate historical injustices and biopiracy. The Nagoya Protocol seeks to deal with this situation and provides for parties to consider the need for establishing a multilateral mechanism to capture these benefits. The modalities will then have to be worked out.
O.A.ElKawy
Advantages and disadvantages could be clearer when an idea of the mechanism is established.
In general:
AS A PROVIDER
Advantages:
• It will be a solution for the cases impossible to solve through the bilateral system. In this way, more cases will have the possibility to be legal, and users of genetic resources will be committed to share the benefits.
• Countries with less installed capacity to apply a bilateral system (legislation and/or ability to negotiate PIC and MAT) will have an option to obtain benefits for the use of their genetic resources and time to develop capacities.
Disadvantages:
• Depending of the mechanism, the monetary benefits could be diluted, and some of them spent in administration issues of the GMBSM.
• How the benefits will be received by the provider? Will they be used to solve specific conservation problems in the country of origin?
• Monetary and non-monetary mechanism will not be directly received by the conservation areas, indigenous communities or local people who are making conservation efforts.
• Will countries with non/less installed capacity (to apply a bilateral system) use the multilateral mechanism for endemic species and share benefits in a global way?
• As is known, non-monetary benefits are the majority and are also very important (knowledge and technology transfer, training, research cooperation, direct contact with conservation areas, indigenous communities, local people, improvement of conservation efforts and strategies based in knowledge, etc, etc, etc). If the multilateral mechanism is focused on monetary benefits, non-monetary benefits could be disregarded. Or should be a bilateral mechanism for non-monetary benefits and a multilateral mechanism for the monetary ones?.... It will increase time and cost for users.
AS A USER
The user always will have an advantage when a mechanism takes less time, have less transaction costs and when it is less complicated. I think both of them (bilateral or multilateral) could be fast or time consuming, with less or more transaction cost and tedious or not, depending of how it is designed.
- If there is no global multilateral benefit-sharing mechanism, what problems would remain?
No benefits sharing when is not possible to apply the bilateral system
In general:
AS A PROVIDER
Advantages:
• It will be a solution for the cases impossible to solve through the bilateral system. In this way, more cases will have the possibility to be legal, and users of genetic resources will be committed to share the benefits.
• Countries with less installed capacity to apply a bilateral system (legislation and/or ability to negotiate PIC and MAT) will have an option to obtain benefits for the use of their genetic resources and time to develop capacities.
Disadvantages:
• Depending of the mechanism, the monetary benefits could be diluted, and some of them spent in administration issues of the GMBSM.
• How the benefits will be received by the provider? Will they be used to solve specific conservation problems in the country of origin?
• Monetary and non-monetary mechanism will not be directly received by the conservation areas, indigenous communities or local people who are making conservation efforts.
• Will countries with non/less installed capacity (to apply a bilateral system) use the multilateral mechanism for endemic species and share benefits in a global way?
• As is known, non-monetary benefits are the majority and are also very important (knowledge and technology transfer, training, research cooperation, direct contact with conservation areas, indigenous communities, local people, improvement of conservation efforts and strategies based in knowledge, etc, etc, etc). If the multilateral mechanism is focused on monetary benefits, non-monetary benefits could be disregarded. Or should be a bilateral mechanism for non-monetary benefits and a multilateral mechanism for the monetary ones?.... It will increase time and cost for users.
AS A USER
The user always will have an advantage when a mechanism takes less time, have less transaction costs and when it is less complicated. I think both of them (bilateral or multilateral) could be fast or time consuming, with less or more transaction cost and tedious or not, depending of how it is designed.
- If there is no global multilateral benefit-sharing mechanism, what problems would remain?
No benefits sharing when is not possible to apply the bilateral system
•If there is no global multilateral benefit-sharing mechanism, what problems would remain?
FRENCH
En l’absence du Mécanisme, les pays sous développés ne pourront pas tirer un profit ni jouer grand rôle dans l’exploitation et le contrôle des ressources transfrontalières. Le Protocole sera un processus inégal et inégalitaire flagrant qui produira des gagnants et perdants, dans le sens qu'à l'heure actuelle, les pays sous-développés dépourvus de moyens nécessaires (financiers, économiques, techniques et technologiques) ne pourront bénéficier de ces ressources.
Même parmi les pays développés, seules, la concurrence, la compétitivité, la puissance financière sont seront prises en compte.
Les uns marcheront sans inquiétude sur le droit des autres.
ENGLISH
In the absence of mechanism, underdeveloped countries can not make a profit or play major role in the operation and control of transboundary resources. The Protocol will be an uneven process and blatant inequality that will produce winners and losers, in the sense that at present, the lack of necessary underdeveloped countries (economic, financial, technical and technological) will not benefit from these resources.
Even among developed countries only, competition, competitiveness, financial strength will be taken into account.
Some walk without concern about the rights of others.
FRENCH
En l’absence du Mécanisme, les pays sous développés ne pourront pas tirer un profit ni jouer grand rôle dans l’exploitation et le contrôle des ressources transfrontalières. Le Protocole sera un processus inégal et inégalitaire flagrant qui produira des gagnants et perdants, dans le sens qu'à l'heure actuelle, les pays sous-développés dépourvus de moyens nécessaires (financiers, économiques, techniques et technologiques) ne pourront bénéficier de ces ressources.
Même parmi les pays développés, seules, la concurrence, la compétitivité, la puissance financière sont seront prises en compte.
Les uns marcheront sans inquiétude sur le droit des autres.
ENGLISH
In the absence of mechanism, underdeveloped countries can not make a profit or play major role in the operation and control of transboundary resources. The Protocol will be an uneven process and blatant inequality that will produce winners and losers, in the sense that at present, the lack of necessary underdeveloped countries (economic, financial, technical and technological) will not benefit from these resources.
Even among developed countries only, competition, competitiveness, financial strength will be taken into account.
Some walk without concern about the rights of others.
Dear colleagues and friends,
I must first thank you all for the extremely entertaining exchanges - I must confess it is one of the few times I witness very useful and open technical debate. I am learning a lot from you all.
I think how we look at advantages-disadvantages depends on whether or not we are convinced about the neet to reconsider what shared and transboundary resources are; the need to accept that genetic resources are (de facto and in reality) natural information, and that a whole new economic foundation lies under this "new" reality, for which we need to develop responsive policy and legal frameworks. IF we still believe sovereingty can only be expressed in biliateralism (PIC and MAT), that genetic resources are bet expressed as tangibles, and that equity and fairness can only respond to exiting practices, then a multilateral and global system may only be an additional burden to all and a very exceptional mechanism. As I have repeated before: it is ironic that we are discussing as "exceptional measures" articles 10 and 11, when what they address are rather the common place ... this has to tell us something.
My own take regarding multilateralism and a global mechanism, in terms of advantage is:
a) there is no need to distinguish between commercial or non commercial research EXCEPT at the point -ex post- when monetary benefits arise. Only then does the benefit sharing obligation kick in, based on a fixed, agreed royalty rate which is distributed according to spatial distribution of species.
b) there is no need to develop complex ABS frameworks - just a simple permitting or even contractual mechanism to agree on NON monetary benefits. Basically focus on "facilitating access" as part of a broader regulatory framework based on what Joe has described as "opened boundeness".
c) gross information assymetries in bilateral negotiations for royalties can be overcome or better confonted anyway.
d) the system would be based on a solid economic foundation (ie. information economics - well researched, well studied, proven) which ensures (at least to some degree) its success. In contrast with existing ABS approaches and trends, there seems to be at least some in depth and peer reviewed analysis of genetic resources as natural information and the political implications of this fact.
e) transaction costs are reduced.
In terms of disadvantages (and potential disadvantages) :
a) there is an overwhelming trend to maintain "classic ABS thinking" and obviate and overlook different approaches - which in fact are not new and have been making their point for a long time.
b) there is a political resistance to change - which is rather natural in similar processes- which would make even STARTING a discussion on new approaches, complicated at best (we need only review some of the comments from this forum which still refuse to ackowledge that some of our existing CBD definitions and ways we consider "sovereingty" are in my opinion, flawed and misguided (genetic resources are not "material" - this is essentially wrong, even if there is a legal definition in place).
c) a multilateral system would imply building a new institutional framework and developing or building on existing scientific (species distribution) databases. This also implies the need to ensure a multilateral approach to which ALL parties are binded - and recognize: the international certificate of origin, the agreed royalty rate (to be decided), a monies distribution scheme, and trigger points when patents or technologies start generating monetary benefits.
I have had an initial, relatively short period of continued work actually negotiating, and promoting contracts and bilateralism: however, I early on realized that if we want to ensure equity and fairness, support conservation and truly respond to (especially) megadiverse countries interests, we need to take another look at existing experiences and new better founded (in my modest view) approaches.
Thanks to all !
Manuel
I must first thank you all for the extremely entertaining exchanges - I must confess it is one of the few times I witness very useful and open technical debate. I am learning a lot from you all.
I think how we look at advantages-disadvantages depends on whether or not we are convinced about the neet to reconsider what shared and transboundary resources are; the need to accept that genetic resources are (de facto and in reality) natural information, and that a whole new economic foundation lies under this "new" reality, for which we need to develop responsive policy and legal frameworks. IF we still believe sovereingty can only be expressed in biliateralism (PIC and MAT), that genetic resources are bet expressed as tangibles, and that equity and fairness can only respond to exiting practices, then a multilateral and global system may only be an additional burden to all and a very exceptional mechanism. As I have repeated before: it is ironic that we are discussing as "exceptional measures" articles 10 and 11, when what they address are rather the common place ... this has to tell us something.
My own take regarding multilateralism and a global mechanism, in terms of advantage is:
a) there is no need to distinguish between commercial or non commercial research EXCEPT at the point -ex post- when monetary benefits arise. Only then does the benefit sharing obligation kick in, based on a fixed, agreed royalty rate which is distributed according to spatial distribution of species.
b) there is no need to develop complex ABS frameworks - just a simple permitting or even contractual mechanism to agree on NON monetary benefits. Basically focus on "facilitating access" as part of a broader regulatory framework based on what Joe has described as "opened boundeness".
c) gross information assymetries in bilateral negotiations for royalties can be overcome or better confonted anyway.
d) the system would be based on a solid economic foundation (ie. information economics - well researched, well studied, proven) which ensures (at least to some degree) its success. In contrast with existing ABS approaches and trends, there seems to be at least some in depth and peer reviewed analysis of genetic resources as natural information and the political implications of this fact.
e) transaction costs are reduced.
In terms of disadvantages (and potential disadvantages) :
a) there is an overwhelming trend to maintain "classic ABS thinking" and obviate and overlook different approaches - which in fact are not new and have been making their point for a long time.
b) there is a political resistance to change - which is rather natural in similar processes- which would make even STARTING a discussion on new approaches, complicated at best (we need only review some of the comments from this forum which still refuse to ackowledge that some of our existing CBD definitions and ways we consider "sovereingty" are in my opinion, flawed and misguided (genetic resources are not "material" - this is essentially wrong, even if there is a legal definition in place).
c) a multilateral system would imply building a new institutional framework and developing or building on existing scientific (species distribution) databases. This also implies the need to ensure a multilateral approach to which ALL parties are binded - and recognize: the international certificate of origin, the agreed royalty rate (to be decided), a monies distribution scheme, and trigger points when patents or technologies start generating monetary benefits.
I have had an initial, relatively short period of continued work actually negotiating, and promoting contracts and bilateralism: however, I early on realized that if we want to ensure equity and fairness, support conservation and truly respond to (especially) megadiverse countries interests, we need to take another look at existing experiences and new better founded (in my modest view) approaches.
Thanks to all !
Manuel
Dear all
This contribution takes a pragmatic approach and sets out from experiences of non-commercial, academic research with the status quo where bilateral negotiations between users (research institutions) and providers prevail. As explained in the first round, in this scenario there are presumably few situations where it is not possible to grant PIC and MAT. Nevertheless a GBSM could be beneficial as explained below.
To avoid misunderstandings, the below input is not a comment on the “open-bound” model. More thoughts on this approach that - as described by Manuel above - has the potential to benefit research, will follow.
Best
Susette
For ABS team of the Swiss Academy of Sciences
For users in academic, non-commercial research, a GMBSM has the potential to contribute to building trust of providers and to reduce administrative control pressure. Hence, it would contribute to facilitating research for conservation and sustainable use of biodiversity.
Academic non-commercial utilization of genetic resources is confronted with a series of ABS barriers that are basically linked to the anxiety of the providers. Providers fear that non-commercial research might move into the commercial research domain without their consent and that the resulting benefits will not be shared. There are various triggers for this: cases of biopiracy; but also the difficulty to work out what kind of results would be produced by the proposed research and their potential benefits. According to our experience this anxiety can lead to tight tracking and control measure requirements set up by providers that cause heavy administrative burdens and costs for research. This is specifically true in research projects that depend on exchange of genetic resources within the scientific peer network (e.g. for taxonomic identification; ex-situ collections). Here, exchanges are frequently based on bilateral MTAs and on trust and good practice within the network; but curators of the collections are not able to control compliance in each case.
There are other cases, where multiple resources from different origins contribute to an end product (breeding) or where resources are ubiquitous (micro-organisms). In these cases, the effort of negotiating multiple benefit-sharing agreements is disproportionate to the actual benefits resulting for each party.
In such cases the GMBSM has the potential to contribute to trust-building, thus would contribute to facilitating non-commercial biodiversity research and to avoiding disproportional transaction costs.
As a user of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism create?
The situations that would require the use of the GMBSM need to be clearly defined. Otherwise legal insecurity will increase!
This contribution takes a pragmatic approach and sets out from experiences of non-commercial, academic research with the status quo where bilateral negotiations between users (research institutions) and providers prevail. As explained in the first round, in this scenario there are presumably few situations where it is not possible to grant PIC and MAT. Nevertheless a GBSM could be beneficial as explained below.
To avoid misunderstandings, the below input is not a comment on the “open-bound” model. More thoughts on this approach that - as described by Manuel above - has the potential to benefit research, will follow.
Best
Susette
For ABS team of the Swiss Academy of Sciences
For users in academic, non-commercial research, a GMBSM has the potential to contribute to building trust of providers and to reduce administrative control pressure. Hence, it would contribute to facilitating research for conservation and sustainable use of biodiversity.
Academic non-commercial utilization of genetic resources is confronted with a series of ABS barriers that are basically linked to the anxiety of the providers. Providers fear that non-commercial research might move into the commercial research domain without their consent and that the resulting benefits will not be shared. There are various triggers for this: cases of biopiracy; but also the difficulty to work out what kind of results would be produced by the proposed research and their potential benefits. According to our experience this anxiety can lead to tight tracking and control measure requirements set up by providers that cause heavy administrative burdens and costs for research. This is specifically true in research projects that depend on exchange of genetic resources within the scientific peer network (e.g. for taxonomic identification; ex-situ collections). Here, exchanges are frequently based on bilateral MTAs and on trust and good practice within the network; but curators of the collections are not able to control compliance in each case.
There are other cases, where multiple resources from different origins contribute to an end product (breeding) or where resources are ubiquitous (micro-organisms). In these cases, the effort of negotiating multiple benefit-sharing agreements is disproportionate to the actual benefits resulting for each party.
In such cases the GMBSM has the potential to contribute to trust-building, thus would contribute to facilitating non-commercial biodiversity research and to avoiding disproportional transaction costs.
As a user of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism create?
The situations that would require the use of the GMBSM need to be clearly defined. Otherwise legal insecurity will increase!
For the half dozen participants who were also participants in the online ABS forum held in July 2010, Comment #5145 is “deja vu, all over again” (a quip from Yogi Berra, the baseball player who hails from The non-Party). Susette Biber-Klemm raised the same points in 2010 to which I responded with the following comment entitled “One screen response: Parsimony in Practice & Theory”:
I adhere to the parsimony principle and believe it should not be confined to science.
Other things being equal, a system that does not assume trust is better than one that does, a system that does not distinguish between commercial and non-commercial research is better than one that does, etc, etc. So, I am not persuaded that the emerging regime which addresses distortions piecemeal is better than a simpler comprehensive alternative. [As alluded to in a previous message, piecemeal reform can actually worsen efficiency as mathematically proved by Lipsey and Lancaster in “The General Theory of Second Best”, 1956]. The alternative I advocate can be stated in one sentence, albeit a long one: free flow of specimens, disclosure of the species in the patent application, levy of a fixed royalty should the patent become commercially successful, and distribution of the revenues to countries (plural) of origin (or to taxonomy initiatives if the species bioprospected is highly dispersed worldwide).
Alas, the essence of this simpler alternative would mean that the royalty rate would not be “confidential business information.” To borrow legalese, “therein” lies the resistance. And one thinks of The Edmonds Institute’s long struggle to obtain the percentage royalty of Diversa in the Yellowstone case and how the transaction costs of such secrecy are borne by the public [http://www.twnside.org.sg/title/plunder-cn.htm]
I adhere to the parsimony principle and believe it should not be confined to science.
Other things being equal, a system that does not assume trust is better than one that does, a system that does not distinguish between commercial and non-commercial research is better than one that does, etc, etc. So, I am not persuaded that the emerging regime which addresses distortions piecemeal is better than a simpler comprehensive alternative. [As alluded to in a previous message, piecemeal reform can actually worsen efficiency as mathematically proved by Lipsey and Lancaster in “The General Theory of Second Best”, 1956]. The alternative I advocate can be stated in one sentence, albeit a long one: free flow of specimens, disclosure of the species in the patent application, levy of a fixed royalty should the patent become commercially successful, and distribution of the revenues to countries (plural) of origin (or to taxonomy initiatives if the species bioprospected is highly dispersed worldwide).
Alas, the essence of this simpler alternative would mean that the royalty rate would not be “confidential business information.” To borrow legalese, “therein” lies the resistance. And one thinks of The Edmonds Institute’s long struggle to obtain the percentage royalty of Diversa in the Yellowstone case and how the transaction costs of such secrecy are borne by the public [http://www.twnside.org.sg/title/plunder-cn.htm]
Even putting aside the language of the CBD and NP, let's apply some of the ideas of a GMBSM to a real-life situation. In 1999, my company engaged in a collaboration with InBIO in Costa Rica. This has been written about extensively (see, for example, an article by Jorge Cabrera at: http://www.biopirateria.org/otrosdocs/04-b-%20IP%20Strategy.pdf). NO PRODUCT has ever been produced from that collaboration. But, it was successful nonetheless, as both monetary and non-monetary benefits were shared (payment for samples, but also extensive technology transfer and scientific collaboration). Under a GMBSM, as envisioned by some commentors to this forum, neither Costa Rica nor any country would realize any benefits, as some have said benefits need only be provided upon commercialization.
Now imagine if a product had been commercialized. Would it be fair to Costa Rica as the provider of the resource if the benefits of that commercialization were now dispersed among every country in which that GR was found? Would the countries really simply agree to share whatever monetary benefits arose, without question or dispute? Would the countries share less if the GR was widely dispersed around the world? Or would the user be required to pay more for a widely-available resource? Would the user find itself criticized as not having shared enough? Or would such negative publicity and legal uncertainty simply lead the user to forgo the research (in which case, there will certainly be no product and no benefits)?
Now imagine if a product had been commercialized. Would it be fair to Costa Rica as the provider of the resource if the benefits of that commercialization were now dispersed among every country in which that GR was found? Would the countries really simply agree to share whatever monetary benefits arose, without question or dispute? Would the countries share less if the GR was widely dispersed around the world? Or would the user be required to pay more for a widely-available resource? Would the user find itself criticized as not having shared enough? Or would such negative publicity and legal uncertainty simply lead the user to forgo the research (in which case, there will certainly be no product and no benefits)?
Comment #5147 deliberately “put[s] aside the language of the CBD and NP” and urges that participants “apply some of the ideas of a GMBSM to a real-life situation.” Such application is difficult inasmuch as the original agreements of INBio were consummated at the end of the 1980s, well before the ratification of the CBD. They were also bilateral in nature and never revealed the royalties negotiated. Nevertheless it is not impossible to apply some of the ideas of the GMBSM to this real-life situation.
Manisha Desai of the Eli Lilly and Company emphasizes in capital letters “NO PRODUCT has ever been produced from that collaboration. But, it was successful nonetheless, as both monetary and non-monetary benefits were shared (payment for samples, but also extensive technology transfer and scientific collaboration)”. Inasmuch as “NO PRODUCT” was ever produced, transaction costs were needlessly incurred by INBio and its partners in the bilateral Material Transfer Agreements, which could have been avoided under a system of “bounded openness over natural information.”
Desai continues “Under a GMBSM, as envisioned by some commentators to this forum, neither Costa Rica nor any country would realize any benefits, as some have said benefits need only be provided upon commercialization.” Due to the space limitation of this forum, all of the details of “bound openness over natural information” cannot be elaborated. For that reason, I have cited extensively the refereed literature. In the IUCN paper, cited below for the third time, specific consideration is given to any country that provides genetic material from which natural information is obtained. On page 58 of that paper: “The country that provides the physical samples negotiates an appropriate payment (whatever the market will bear) for the right to enter and collect the natural information bioprospected (usually ranging from 0.5-2%) above and beyond the rent.”
To answer Desai’s questions: “Now imagine if a product had been commercialized. Would it be fair to Costa Rica as the provider of the resource if the benefits of that commercialization were now dispersed among every country in which that GR was found?”
YES. The resource is an intangible and transboundary.
“Would the countries really simply agree to share whatever monetary benefits arose, without question or dispute?”
If there is a global multilateral sharing benefit mechanism which establishes bounded openness over natural information, YES.
“Would the countries share less if the GR was widely dispersed around the world?”
In such a scenario, they would get nothing as the royalties collected would go to the international taxonomy initiative (e.g., iBOL) that makes the system possible. One should also note well that if the natural information is “widely dispersed around the world”, then it is not threatened in the least.
“Or would the user be required to pay more for a widely-available resource?”
NO as the royalty rate would be invariant whether widely dispersed or endemic
“Would the user find itself criticized as not having shared enough?”
NO as the royalty would be standardized.
“Or would such negative publicity and legal uncertainty simply lead the user to forgo the research (in which case, there will certainly be no product and no benefits)?”
Again NO, the effect of bounded openness will be just the opposite. The user would have legal certainty and could avoid all the hassles of MAT and PIC as well as the negative publicity of having negotiated picayune royalty rates under secrecy with just one supplying country.
Paper in English appears on pages 47-74: http://data.iucn.org/dbtw-wpd/edocs/EPLP-067-3.pdf.
Paper in Spanish appears on pages 51-79: http://cmsdata.iucn.org/downloads/eplp_67_3_sp.pdf
Paper in French appears on pages 51-81: http://cmsdata.iucn.org/downloads/eplp_67_3_fr.pdf
Manisha Desai of the Eli Lilly and Company emphasizes in capital letters “NO PRODUCT has ever been produced from that collaboration. But, it was successful nonetheless, as both monetary and non-monetary benefits were shared (payment for samples, but also extensive technology transfer and scientific collaboration)”. Inasmuch as “NO PRODUCT” was ever produced, transaction costs were needlessly incurred by INBio and its partners in the bilateral Material Transfer Agreements, which could have been avoided under a system of “bounded openness over natural information.”
Desai continues “Under a GMBSM, as envisioned by some commentators to this forum, neither Costa Rica nor any country would realize any benefits, as some have said benefits need only be provided upon commercialization.” Due to the space limitation of this forum, all of the details of “bound openness over natural information” cannot be elaborated. For that reason, I have cited extensively the refereed literature. In the IUCN paper, cited below for the third time, specific consideration is given to any country that provides genetic material from which natural information is obtained. On page 58 of that paper: “The country that provides the physical samples negotiates an appropriate payment (whatever the market will bear) for the right to enter and collect the natural information bioprospected (usually ranging from 0.5-2%) above and beyond the rent.”
To answer Desai’s questions: “Now imagine if a product had been commercialized. Would it be fair to Costa Rica as the provider of the resource if the benefits of that commercialization were now dispersed among every country in which that GR was found?”
YES. The resource is an intangible and transboundary.
“Would the countries really simply agree to share whatever monetary benefits arose, without question or dispute?”
If there is a global multilateral sharing benefit mechanism which establishes bounded openness over natural information, YES.
“Would the countries share less if the GR was widely dispersed around the world?”
In such a scenario, they would get nothing as the royalties collected would go to the international taxonomy initiative (e.g., iBOL) that makes the system possible. One should also note well that if the natural information is “widely dispersed around the world”, then it is not threatened in the least.
“Or would the user be required to pay more for a widely-available resource?”
NO as the royalty rate would be invariant whether widely dispersed or endemic
“Would the user find itself criticized as not having shared enough?”
NO as the royalty would be standardized.
“Or would such negative publicity and legal uncertainty simply lead the user to forgo the research (in which case, there will certainly be no product and no benefits)?”
Again NO, the effect of bounded openness will be just the opposite. The user would have legal certainty and could avoid all the hassles of MAT and PIC as well as the negative publicity of having negotiated picayune royalty rates under secrecy with just one supplying country.
Paper in English appears on pages 47-74: http://data.iucn.org/dbtw-wpd/edocs/EPLP-067-3.pdf.
Paper in Spanish appears on pages 51-79: http://cmsdata.iucn.org/downloads/eplp_67_3_sp.pdf
Paper in French appears on pages 51-81: http://cmsdata.iucn.org/downloads/eplp_67_3_fr.pdf
Dear all,
In my opinion, both the bilateral as well as a multilateral benefit-sharing approach, have of course advantages and disadvantages. And in both cases, advantages and disadvantages certainly depend on how such systems will be designed and implemented. Moreover, advantages and disadvantages of such approaches also depend on the specific use of genetic resources (e.g. breeding, extraction, characterization, etc.) and might differ for specific sectors. Therefore, it makes it rather difficult to answer the questions of round 2 at this stage, before the bilateral approach of the Nagoya Protocol has been further implemented, and before Parties to the Nagoya Protocol will decide on whether there is a need for a GMBSM and how it would look like.
Nevertheless, many potential advantages and disadvantages of a GMBSM have already been listed in this round, and these reflections are certainly very useful for a first discussion on Article 10.
In my opinion, if there is a need for a GMBSM, the biggest advantage could be to tighter link benefit-sharing with conservation of biodiversity (e.g. monetary benefits could be directly used for real biodiversity conservation projects). This could be achieved fully in-line with the bilateral approach described in the Nagoya Protocol and without giving up sovereign rights. For instance, a user and a provider could determine based upon mutually agreed terms at the time of access to a genetic resource that all or a part of the benefits would flow to a GMBSM and used for conservation projects. The challenge might then be how to distribute the benefits from a GMBSM in a fair and equitable manner, i.e. how to select the conservation projects. Maybe the discussions in round 3 could provide some ideas in this regard.
A disadvantage of a GMBSM could be to deal with non-monetary benefits. The value of non-monetary benefits should not be underestimated. In particular in the context of scientific research, benefit-sharing is also about good scientific praxis, cooperation, training, technology transfer, etc. To me, Prof. Winters comment [#5143] seems interesting in this regard.
In my opinion, both the bilateral as well as a multilateral benefit-sharing approach, have of course advantages and disadvantages. And in both cases, advantages and disadvantages certainly depend on how such systems will be designed and implemented. Moreover, advantages and disadvantages of such approaches also depend on the specific use of genetic resources (e.g. breeding, extraction, characterization, etc.) and might differ for specific sectors. Therefore, it makes it rather difficult to answer the questions of round 2 at this stage, before the bilateral approach of the Nagoya Protocol has been further implemented, and before Parties to the Nagoya Protocol will decide on whether there is a need for a GMBSM and how it would look like.
Nevertheless, many potential advantages and disadvantages of a GMBSM have already been listed in this round, and these reflections are certainly very useful for a first discussion on Article 10.
In my opinion, if there is a need for a GMBSM, the biggest advantage could be to tighter link benefit-sharing with conservation of biodiversity (e.g. monetary benefits could be directly used for real biodiversity conservation projects). This could be achieved fully in-line with the bilateral approach described in the Nagoya Protocol and without giving up sovereign rights. For instance, a user and a provider could determine based upon mutually agreed terms at the time of access to a genetic resource that all or a part of the benefits would flow to a GMBSM and used for conservation projects. The challenge might then be how to distribute the benefits from a GMBSM in a fair and equitable manner, i.e. how to select the conservation projects. Maybe the discussions in round 3 could provide some ideas in this regard.
A disadvantage of a GMBSM could be to deal with non-monetary benefits. The value of non-monetary benefits should not be underestimated. In particular in the context of scientific research, benefit-sharing is also about good scientific praxis, cooperation, training, technology transfer, etc. To me, Prof. Winters comment [#5143] seems interesting in this regard.
The disadvantages of the bilateral approach are overwhelming, as evidenced by any perusal of Comment #5087. However, unmentioned in that comment are the problems of fungibility and earmarking, which become apparent in Comment #5150 by Marco D’Allessandro, albeit inadvertently.
Fungibility concerns the financing of projects which would have been funded anyway, to some degree. To avoid the problem of fungibility, a benefit identified in an ABS agreement would have to possess some quality that previously frustrated government funding; otherwise the apparent value of the agreement does not represent the incremental benefit. To my knowledge, the criterion of non-fungibility does not appear in the literature pro the bilateral approach.
Earmarking is even more problematic. It assumes that the project earmarked has the highest social return among a large array of candidates. “Most economists…have been skeptical about earmarking…in general, it has not worked very well” (McCleary, W. 1991. The earmarking of government revenue: a review of some World Bank experience. World Bank Research Observer, 6(1), 81-104, p. 81 http://wbro.oxfordjournals.org/content/6/1/81.short)
The inefficiencies and inequities of fungibility and earmarking are additional disadvantages for the bilateral approach. Will they too be studiously ignored?
Fungibility concerns the financing of projects which would have been funded anyway, to some degree. To avoid the problem of fungibility, a benefit identified in an ABS agreement would have to possess some quality that previously frustrated government funding; otherwise the apparent value of the agreement does not represent the incremental benefit. To my knowledge, the criterion of non-fungibility does not appear in the literature pro the bilateral approach.
Earmarking is even more problematic. It assumes that the project earmarked has the highest social return among a large array of candidates. “Most economists…have been skeptical about earmarking…in general, it has not worked very well” (McCleary, W. 1991. The earmarking of government revenue: a review of some World Bank experience. World Bank Research Observer, 6(1), 81-104, p. 81 http://wbro.oxfordjournals.org/content/6/1/81.short)
The inefficiencies and inequities of fungibility and earmarking are additional disadvantages for the bilateral approach. Will they too be studiously ignored?
Thanks everyone for the opportunity to continue to participate in these interesting discussions.
I guess at the outset of this question it is important to reflect that the various potential advantages and disadvantages are closely linked to the scope and modalities of any GMBSM. From the first round of discussion, and repeated on various occasions in this round, there were a wide range of views about the types of situations that the mechanism could apply. In particular, it seems clear that there is a significant divergence of views on the application of national legislation, bilateral and regional agreements, and how these would interact with any mechanism. I had always thought there seemed to be a natural hierarchy here: 1) national legislation; 2) bilateral negotiations, and 3) a potential multilateral mechanism for situations not able to be addressed in 1 and 2. It seems important that these systems should not overlap. At the same time other contributors have argued that it is time to fundamentally revisit the “bilateral system” of ABS (and by implication the CBD and Nagoya Protocol). So in light of these diverging views and perspectives about application of a GMBSM, it is possible to identify a wide-range of potential disadvantages with a mechanism.
Before identifying specific concerns, I do acknowledge that many of these could be mitigated if we could clearly delineate the role of the mechanism as an option that might apply in specific limited circumstances to address issues within the scope of the Nagoya Protocol that cannot be addressed in national legislation or bilateral/plurilateral alternatives. In this sense I agree with Mr. Marco D‘Alessandro that it perhaps too early to be able to assess the gaps (if any) in the Nagoya Protocol system given the early stages of its implementation. If a need for a mechanism is established in the future then the major potential advantage is that we might be able to generate additional benefits to contribute toward the conservation and sustainable use of biodiversity.
First - problems potentially created for providers may include:
- Uncertainty – A GMBSM would potentially create uncertainty around rights and applicable processes for providers
- Reduced benefits – provider countries may receive reduced benefits if there is a need to also provide benefits to a multilateral mechanism.
- Multiple processes – there may not be clarity about which mechanism applies (e.g. is it national legislation, bilateral agreements, or the GMBSM).
- Undermine sovereign rights and incentivise non-compliance with national requirements – might be seen as alternative process that applies when national legislative requirements are not met by users.
Second - problems potentially created for users may include
Uncertainty – A GMBSM would potentially create uncertainty around rights and applicable processes for users. Some users might be concerned that additional obligations are placed on them in the future that were not included in the mutually agreed terms (art 6 of the Protocol).
Delay – users, that have followed the appropriate processes established in national legislation, may face delay that could have commercial implications if there is an additional process under a GMBSM.
Multiple processes – if a truly complex transboundary situation exists, there may not be clarity about which mechanism applies (e.g. is it national legislation, bilateral agreements, or the GMBSM).
Lack of clarity around compliance obligations for users – might be seen as additional process to the compliance articles.
I guess at the outset of this question it is important to reflect that the various potential advantages and disadvantages are closely linked to the scope and modalities of any GMBSM. From the first round of discussion, and repeated on various occasions in this round, there were a wide range of views about the types of situations that the mechanism could apply. In particular, it seems clear that there is a significant divergence of views on the application of national legislation, bilateral and regional agreements, and how these would interact with any mechanism. I had always thought there seemed to be a natural hierarchy here: 1) national legislation; 2) bilateral negotiations, and 3) a potential multilateral mechanism for situations not able to be addressed in 1 and 2. It seems important that these systems should not overlap. At the same time other contributors have argued that it is time to fundamentally revisit the “bilateral system” of ABS (and by implication the CBD and Nagoya Protocol). So in light of these diverging views and perspectives about application of a GMBSM, it is possible to identify a wide-range of potential disadvantages with a mechanism.
Before identifying specific concerns, I do acknowledge that many of these could be mitigated if we could clearly delineate the role of the mechanism as an option that might apply in specific limited circumstances to address issues within the scope of the Nagoya Protocol that cannot be addressed in national legislation or bilateral/plurilateral alternatives. In this sense I agree with Mr. Marco D‘Alessandro that it perhaps too early to be able to assess the gaps (if any) in the Nagoya Protocol system given the early stages of its implementation. If a need for a mechanism is established in the future then the major potential advantage is that we might be able to generate additional benefits to contribute toward the conservation and sustainable use of biodiversity.
First - problems potentially created for providers may include:
- Uncertainty – A GMBSM would potentially create uncertainty around rights and applicable processes for providers
- Reduced benefits – provider countries may receive reduced benefits if there is a need to also provide benefits to a multilateral mechanism.
- Multiple processes – there may not be clarity about which mechanism applies (e.g. is it national legislation, bilateral agreements, or the GMBSM).
- Undermine sovereign rights and incentivise non-compliance with national requirements – might be seen as alternative process that applies when national legislative requirements are not met by users.
Second - problems potentially created for users may include
Uncertainty – A GMBSM would potentially create uncertainty around rights and applicable processes for users. Some users might be concerned that additional obligations are placed on them in the future that were not included in the mutually agreed terms (art 6 of the Protocol).
Delay – users, that have followed the appropriate processes established in national legislation, may face delay that could have commercial implications if there is an additional process under a GMBSM.
Multiple processes – if a truly complex transboundary situation exists, there may not be clarity about which mechanism applies (e.g. is it national legislation, bilateral agreements, or the GMBSM).
Lack of clarity around compliance obligations for users – might be seen as additional process to the compliance articles.
Regarding “[Providers] Multiple processes – there may not be clarity about which mechanism applies (e.g. is it national legislation, bilateral agreements, or the GMBSM)”
[Users] Multiple processes – if a truly complex transboundary situation exists, there may not be clarity about which mechanism applies (e.g. is it national legislation, bilateral agreements, or the GMBSM).
(Comment #5161)
Techniques from species distribution modeling can estimate whether the natural information accessed in R&D belongs to a species that is transboundary or endemic thereby assisting the identification of Provider(s), i.e., country(ies) of origin.
See:
http://biodiversityinformatics.amnh.org/index.php?section_id=7
[Users] Multiple processes – if a truly complex transboundary situation exists, there may not be clarity about which mechanism applies (e.g. is it national legislation, bilateral agreements, or the GMBSM).
(Comment #5161)
Techniques from species distribution modeling can estimate whether the natural information accessed in R&D belongs to a species that is transboundary or endemic thereby assisting the identification of Provider(s), i.e., country(ies) of origin.
See:
http://biodiversityinformatics.amnh.org/index.php?section_id=7
The administration of a single flat royalty rate would be short sighted, as it does not take into consideration different industry cost structures or market prices. The imposition of a flat rate, or the wrong flat rate, for example, could well determine which industries undertake R&D on genetic resources and which do not, and which products they develop, and which they do not.
Re #5164: Flat or standard royalty rates are found across large swaths of the economy, as a quick Google search will reveal (580,000 hits at 11:00 PM GMT). The economic justification for a flat rate lies in a simple question: Are the transaction costs of negotiating royalties case by case less than the value of deals that would have only been consummated below that rate? The scarcity of MTAs negotiated case by case demonstrates that the transaction costs of the bilateral approach are so high as to be prohibitive (for empirical evidence, see Santiago Carrisoza et al “Accessing Biodiversity and Sharing Benefits: Lessons from Implementing the Convention on Biological Diversity” http://era-mx.org/biblio/Carrizosa_et_al_2004.pdf). A standard royalty under “bounded openness over natural information” would greatly reduce these costs and thereby facilitate R&D. Contrary to Ripley’s assertion, such a flat rate is far-sighted.
I share the views of the comments from post #5079 and share similar concerns as those mentioned in post #5139. I believe that a GMBSM will help to strengthen the work of not only underdeveloped but developing countries and small island states who lack the capacity to ensure that all the necessary systems are in place to monitor the access and the sharing of benefits from GRs. In some cases, it may actually help to fill the gap by providing the services of a "middle man" for those countries that may come to such agreement in an effort to help in monitoring certain aspects of the ABS process when it is impossible to do so locally.
For enterprises engaged in a competitive industry with a tight cost structure, R&D money is often limited. A percentage point or two can make the difference between a project making the threshold for capital or missing it, would it not? Further, more than one genetic resource from more than one country may be utilized to develop a product. Each country exacting the same royalty could result in an aggregate royalty of some multiple of the flat rate.
In listing advantages and disadvantages, it may be necessary to also to clearly identify our assumptions. It may be that the underlying argument lies with our assumptions.
Whether intended or not, criticisms of “prior informed consent” and the “bilateral approach” are criticisms of the Protocol itself, and thus contribute to the uncertainty surrounding how the Protocol will ultimately function, and how a GMBSM would operate under the Protocol.
In response to Comment #5176 by Joe Ripley “A percentage point or two can make the difference between a project making the threshold for capital or missing it, would it not? “ The answer: it would not make a difference between a project making the threshold. Monopoly intellectual property prevents razor-thin profit margins. For empirical evidence, see Geoffrey Heal’s work on the returns of various industries “When principles pay: corporate social responsibility and the bottom line” (Columbia University Press, 2008). The drug-makers come out on top (http://cup.columbia.edu/media/3663/heal-table5.1.pdf).
Regarding the second half of Ripley’s comment: “Further, more than one genetic resource from more than one country may be utilized to develop a product. Each country exacting the same royalty could result in an aggregate royalty of some multiple of the flat rate.” If distinct sets of natural information are utilized in the development of a single product, then the proceeds from a flat royalty would be divvied among the providing countries.
In contrast to bounded openness, users under a bilateral approach would have to negotiate multiple MTAs with multiple countries when “more than one genetic resource [was] utilized to develop a product.” Stephen B. Brush of the University of California-Davis has explained just how much harm has been wrought through the bilateral approach: “The failure to achieve a genuine ABS [under bilateral MTAs] is dwarfed by an even greater failure: the obstacles generated by ABS in the flow of genetic resources among countries that have ratified the CBD. (p. 64)” (“The Anti-Commons Threat to Farmer’s Rights: The Case of Crop Germplasm” in “The Museum of Bioprospecting, Intellectual Property and the Public Domain “ http://www.anthempress.com/the-museum-of-bioprospecting-intellectual-property-and-the-public-domain-pb).
Regarding the second half of Ripley’s comment: “Further, more than one genetic resource from more than one country may be utilized to develop a product. Each country exacting the same royalty could result in an aggregate royalty of some multiple of the flat rate.” If distinct sets of natural information are utilized in the development of a single product, then the proceeds from a flat royalty would be divvied among the providing countries.
In contrast to bounded openness, users under a bilateral approach would have to negotiate multiple MTAs with multiple countries when “more than one genetic resource [was] utilized to develop a product.” Stephen B. Brush of the University of California-Davis has explained just how much harm has been wrought through the bilateral approach: “The failure to achieve a genuine ABS [under bilateral MTAs] is dwarfed by an even greater failure: the obstacles generated by ABS in the flow of genetic resources among countries that have ratified the CBD. (p. 64)” (“The Anti-Commons Threat to Farmer’s Rights: The Case of Crop Germplasm” in “The Museum of Bioprospecting, Intellectual Property and the Public Domain “ http://www.anthempress.com/the-museum-of-bioprospecting-intellectual-property-and-the-public-domain-pb).
If it is fair to say that the primary customers of genetic resources are researchers, then it is also fair to say that there are many kinds of research. By forcing everyone under the same blanket ABS arrangement, in this case through a GMBSM, without differentiating purpose or realistically appraising market sector potential, any ABS arrangement or GMBSM catchall may disrupt well-established practices for collaborative research. The case of agriculture, where the margins are low and the value to society is high, may be worthy of closer examination.
When there is a commercial return to biological research, we must realize that not all returns are created equal. The microbial example given in Round 1 illustrates the difficulty in taking a one-size-fits-all approach. It also illustrates how imperfect is the information that surrounds such a “market,” and how imperfect our scientific knowledge is at this time.
In agriculture, to take another example, most innovations are incremental in nature and introduced into markets that are quite competitive and with product substitutes. Thus, the returns are marginal. Driving up research and development costs could keep some discoveries off the market – affecting the ability of farmers to respond to the spread of diseases or to adjust to climate change. In the end, consumers will pay more and our collective ability to ensure global food security will be diminished. Inhibiting research today in hopes for a large payoff tomorrow may yield a quite different result than people expect. What is being done has never been tried before, at least on this scale. Early experiences are not encouraging.
Should agricultural research not under the Multilateral System be subject to a blanket GMBSM, and thus to the same mutually agreed terms as other forms of biological/genetic research? Would this be a disincentive to global food security?
In the end, of course, we are all users of genetic resources. Adding to the cost of research will mean that society will have fewer options with which to solve its problems.
When there is a commercial return to biological research, we must realize that not all returns are created equal. The microbial example given in Round 1 illustrates the difficulty in taking a one-size-fits-all approach. It also illustrates how imperfect is the information that surrounds such a “market,” and how imperfect our scientific knowledge is at this time.
In agriculture, to take another example, most innovations are incremental in nature and introduced into markets that are quite competitive and with product substitutes. Thus, the returns are marginal. Driving up research and development costs could keep some discoveries off the market – affecting the ability of farmers to respond to the spread of diseases or to adjust to climate change. In the end, consumers will pay more and our collective ability to ensure global food security will be diminished. Inhibiting research today in hopes for a large payoff tomorrow may yield a quite different result than people expect. What is being done has never been tried before, at least on this scale. Early experiences are not encouraging.
Should agricultural research not under the Multilateral System be subject to a blanket GMBSM, and thus to the same mutually agreed terms as other forms of biological/genetic research? Would this be a disincentive to global food security?
In the end, of course, we are all users of genetic resources. Adding to the cost of research will mean that society will have fewer options with which to solve its problems.
Dear all
I think both the bilateral as well as a multilateral benefit-sharing approaches should complement each other to ensure greater legal certainty and transparency for both providers and users of genetic resources by:
• Establishing more predictable conditions for access to genetic resources.
• Helping to ensure benefit-sharing when genetic resources leave the contracting party providing the genetic resources
By helping to ensure benefit-sharing, the Nagoya Protocol creates incentives to conserve and sustainably use genetic resources, and therefore enhances the contribution of biodiversity to development and human well-being.
Regards,
O.A.ElKawy
I think both the bilateral as well as a multilateral benefit-sharing approaches should complement each other to ensure greater legal certainty and transparency for both providers and users of genetic resources by:
• Establishing more predictable conditions for access to genetic resources.
• Helping to ensure benefit-sharing when genetic resources leave the contracting party providing the genetic resources
By helping to ensure benefit-sharing, the Nagoya Protocol creates incentives to conserve and sustainably use genetic resources, and therefore enhances the contribution of biodiversity to development and human well-being.
Regards,
O.A.ElKawy
Dear all
A global multilateral benefit-sharing mechanism approach based on promotes market contracts and implementation of processes of mercantilization of genetic resources favoring transnational private companies and the concentration of wealth in the natural heritage of the states and people of developing countries. This only serves to strengthen the global capitalist system, the approach to the green economy or green capitalism and deepen poverty.
A multilateral global mechanism for access to genetic resources and the fair and equitable sharing of benefits must ensure to solve the problematic of eradicating extreme poverty of people from developing countries through the establishment of modalities that promote solidarity and complementarity in the market place and capitalist accumulation.
This process must be associated with the transfer of finance, technology and capacity building to the states and people with heritage and genetic resources that contribute to the solution of basic problems such as priority health and nutrition, among others.
Regards,
Sorka Copa Romero
A global multilateral benefit-sharing mechanism approach based on promotes market contracts and implementation of processes of mercantilization of genetic resources favoring transnational private companies and the concentration of wealth in the natural heritage of the states and people of developing countries. This only serves to strengthen the global capitalist system, the approach to the green economy or green capitalism and deepen poverty.
A multilateral global mechanism for access to genetic resources and the fair and equitable sharing of benefits must ensure to solve the problematic of eradicating extreme poverty of people from developing countries through the establishment of modalities that promote solidarity and complementarity in the market place and capitalist accumulation.
This process must be associated with the transfer of finance, technology and capacity building to the states and people with heritage and genetic resources that contribute to the solution of basic problems such as priority health and nutrition, among others.
Regards,
Sorka Copa Romero
In our message #5145 we answered the questions based on the experiences of non-commercial academic research and therefore from a “traditional” viewpoint, setting out from a bilateral approach; the decoupled GMBSM serving as a fall-back solution in cases where it is not possible to grant PIC and in transboundary situations respectively.
As we mentioned in the first round, the “open-bound” model as proposed by some participants is attractive for research, the free flow of specimens facilitating the necessary exchange between researchers and solving problems worrying in particular the ex-situ collections; eliminating the non-commercial/commercial distinction (all research would be facilitated, I fully agree) and a lot of difficulties.
Yet, some important questions – in particular with regard to the providers - remain:
Dr. Vogel in # 5146 describes the models as follows: free flow of specimens, disclosure of the species in the patent application, levy of a fixed royalty should the patent become commercially successful, and distribution of the revenues to countries (plural) of origin (or to taxonomy initiatives if the species bioprospected is highly dispersed worldwide).
The main point – as also mentioned by Eli Lily (#5147), D’Allessandro (# 5150) - is that research (in both non-commercial and commercial context) typically generates non-monetary benefits too. These benefits are not just a nice side-effect, but as described in message # 5147 may even be more certain, important and valuable than potential future monetary benefits. (By the way, the Eli Lily example is no exception here). The question is how to integrate these benefits in the model? They typically accrue in research cooperation, i.e. in a bilateral environment and are only to a small part apt to be integrated into a model of decoupled benefit sharing. In our view, the “pure” model, as described above, would be a disadvantage (for both providers and users, as there is profit for both in research cooperation) as there is no incentive for cooperation and sharing of non-monetary benefits.
In this context the question of access is another point not appearing in the model. In our view, this would have to be more clearly elaborated upon. Does this mean that also resources in-situ can be freely accessed (with the risk that limitations are then implemented by export restrictions)?
(Further, not all products based on utilization of GR or TK generating benefits in the commercial value chain are patented. Beside the fact that agreement on the disclosure of origin still seems to be far away, other triggers would necessarily have to be agreed upon.)
We agree that easy access and flow of resources may trigger a renewed interest in utilizing genetic resources and TK for commercial ends. Yet, the amount of possible benefits in our view is highly unclear. Rather than opting for a global solution, we therefore support a pragmatic, step by step approach (yes, the same as in the first round…) setting out from a narrow interpretation and clear definition of “transboundary” and “no PIC available” (the GBMSM serving as fall back); combined with or followed by the evaluation of more decoupled solutions for specific organisms (micro-organisms) or defined situations (ex-situ).
As we mentioned in the first round, the “open-bound” model as proposed by some participants is attractive for research, the free flow of specimens facilitating the necessary exchange between researchers and solving problems worrying in particular the ex-situ collections; eliminating the non-commercial/commercial distinction (all research would be facilitated, I fully agree) and a lot of difficulties.
Yet, some important questions – in particular with regard to the providers - remain:
Dr. Vogel in # 5146 describes the models as follows: free flow of specimens, disclosure of the species in the patent application, levy of a fixed royalty should the patent become commercially successful, and distribution of the revenues to countries (plural) of origin (or to taxonomy initiatives if the species bioprospected is highly dispersed worldwide).
The main point – as also mentioned by Eli Lily (#5147), D’Allessandro (# 5150) - is that research (in both non-commercial and commercial context) typically generates non-monetary benefits too. These benefits are not just a nice side-effect, but as described in message # 5147 may even be more certain, important and valuable than potential future monetary benefits. (By the way, the Eli Lily example is no exception here). The question is how to integrate these benefits in the model? They typically accrue in research cooperation, i.e. in a bilateral environment and are only to a small part apt to be integrated into a model of decoupled benefit sharing. In our view, the “pure” model, as described above, would be a disadvantage (for both providers and users, as there is profit for both in research cooperation) as there is no incentive for cooperation and sharing of non-monetary benefits.
In this context the question of access is another point not appearing in the model. In our view, this would have to be more clearly elaborated upon. Does this mean that also resources in-situ can be freely accessed (with the risk that limitations are then implemented by export restrictions)?
(Further, not all products based on utilization of GR or TK generating benefits in the commercial value chain are patented. Beside the fact that agreement on the disclosure of origin still seems to be far away, other triggers would necessarily have to be agreed upon.)
We agree that easy access and flow of resources may trigger a renewed interest in utilizing genetic resources and TK for commercial ends. Yet, the amount of possible benefits in our view is highly unclear. Rather than opting for a global solution, we therefore support a pragmatic, step by step approach (yes, the same as in the first round…) setting out from a narrow interpretation and clear definition of “transboundary” and “no PIC available” (the GBMSM serving as fall back); combined with or followed by the evaluation of more decoupled solutions for specific organisms (micro-organisms) or defined situations (ex-situ).
With respect to Comment #5188, non-monetary benefits often accompany market transactions. An analogy may be illustrative. In considering several job offers, the candidate may ask: What is the physical environment? The retirement plan? The medical insurance? and so on. Although the non-monetary benefits may even become decisive when the salaries quoted are the same, the point of reference is the salary from which the tradeoffs are then made. In a GBSM with “bounded openness over natural information”, the non-monetary benefits could remit to the country of origin (singular) that supplies the “material” which harbors natural information that is transboundary. So, in the case of Costa Rica, INBio would be the primary beneficiary of the non-monetary benefits. Each provider country would have to decide whether the tradeoffs of the non-monetary benefits are worth the costs of being the Provider of the genetic “material”. If the country decides against being the Provider of the genetic material, it would not expunge its claim to the rent, expressed in monetary terms, from the transboundary natural information. In the case of bilateral MTAs, those rents are eliminated due to perfect competition, an elementary lesson of economics which is well captured by Simon West in “Institutionalised Exclusion: The Political Economy of Benefit Sharing and Intellectual Property” (http://www.lead-journal.org/content/12019.pdf )
I agree on several points already made on this discussion. A GMBSM will certainly add transparency and help to ensure the sharing of benefits, especially when those derive from new uses. It is very important now to concentrate on how to ensure that it is widely understood that sovereignty is not affected but specially, than benefits derived from the use of genetic resources are shared.
The strongest advantage will be that it will lower transactions costs. As long as PIC and MAT procedures would not be straightforward and negotiations kept as simple as possible, a multilateral system will be (theoretically) more doable. It could be that there are countries that have not established ABS procedures, and may (voluntarily) turn to the GMBSM to implement ABS agreements.
A multilateral system could probably work better for commercial users than for providers. In cases for instance of research and development, when a product is developed upon a genetic resource (and TK associated) that is shared by a number of countries and there is no PIC clearly identified.
For non-commercial users (basic or applied research without product commercialization intentions) there is experience in particular on the sharing of non-monetary benefits (benefits that are transmitted not in monetary terms, which does not mean that they do not have a cost). This sharing, has been mainly on capacity building and cooperation (art. 11 of the NP), less than in technology transfer, but has been operating in a bilateral way, and can undoubtedly be improved. In the other hand, monetary benefits (from basic research) are immediate and are easily operated in bilateral ways. There will only be in cases of (basic) research projects that operate in several countries, that a pool of countries may agree on a “unique or common ABS agreement”, through the multilateral system, for research and cooperation. However, technology transfer (equipments) to every country may be too costly and will need cooperation also among provider countries.
Disadvantages:
If there is no multilateral system, there will be cases where no benefit sharing will be possible. For instance, any developments and commercialization of products derived from genetic resources in the Sea, where it may be argued that they come from beyond national jurisdiction (and beyond the NP, like in Oceans and the Antarctica).
There will be no option for BS when there is no clear origin, for new uses of resources accessed before the CBD. Although the timeframe for the application of the NP in these cases is an open discussion yet, this will provide a solution for providers expecting benefits from new uses.
How might the operation of a global multilateral benefit-sharing mechanism co-exist with the underlying principles, objective and scope upon which the Nagoya Protocol is based?
This will depend greatly, I believe, on the governance and transparency of the MS. Again, putting into operation, both the bilateral and the multilateral systems, will be necessary to proof their effectiveness to implement the NP. Still, it will also depend on the willingness of companies to participate in ABS.
Now, although the search of new approaches for ABS (not based in markets) might be an interesting topic for research, it will still take quite a bit of time; but moreover, it will mean a different scenario, a change of paradigm in the global economy. Meanwhile, we must realize that the scope of the NP and the CBD is about equity and fairness and that we should be able to come up with practical solutions to implement the NP under the current conditions, as soon as possible. How do we move from the current situation? How do we engage companies on sharing benefits?
The strongest advantage will be that it will lower transactions costs. As long as PIC and MAT procedures would not be straightforward and negotiations kept as simple as possible, a multilateral system will be (theoretically) more doable. It could be that there are countries that have not established ABS procedures, and may (voluntarily) turn to the GMBSM to implement ABS agreements.
A multilateral system could probably work better for commercial users than for providers. In cases for instance of research and development, when a product is developed upon a genetic resource (and TK associated) that is shared by a number of countries and there is no PIC clearly identified.
For non-commercial users (basic or applied research without product commercialization intentions) there is experience in particular on the sharing of non-monetary benefits (benefits that are transmitted not in monetary terms, which does not mean that they do not have a cost). This sharing, has been mainly on capacity building and cooperation (art. 11 of the NP), less than in technology transfer, but has been operating in a bilateral way, and can undoubtedly be improved. In the other hand, monetary benefits (from basic research) are immediate and are easily operated in bilateral ways. There will only be in cases of (basic) research projects that operate in several countries, that a pool of countries may agree on a “unique or common ABS agreement”, through the multilateral system, for research and cooperation. However, technology transfer (equipments) to every country may be too costly and will need cooperation also among provider countries.
Disadvantages:
If there is no multilateral system, there will be cases where no benefit sharing will be possible. For instance, any developments and commercialization of products derived from genetic resources in the Sea, where it may be argued that they come from beyond national jurisdiction (and beyond the NP, like in Oceans and the Antarctica).
There will be no option for BS when there is no clear origin, for new uses of resources accessed before the CBD. Although the timeframe for the application of the NP in these cases is an open discussion yet, this will provide a solution for providers expecting benefits from new uses.
How might the operation of a global multilateral benefit-sharing mechanism co-exist with the underlying principles, objective and scope upon which the Nagoya Protocol is based?
This will depend greatly, I believe, on the governance and transparency of the MS. Again, putting into operation, both the bilateral and the multilateral systems, will be necessary to proof their effectiveness to implement the NP. Still, it will also depend on the willingness of companies to participate in ABS.
Now, although the search of new approaches for ABS (not based in markets) might be an interesting topic for research, it will still take quite a bit of time; but moreover, it will mean a different scenario, a change of paradigm in the global economy. Meanwhile, we must realize that the scope of the NP and the CBD is about equity and fairness and that we should be able to come up with practical solutions to implement the NP under the current conditions, as soon as possible. How do we move from the current situation? How do we engage companies on sharing benefits?
Dear all,
Tracking a genetic resource when it is taken abroad (when crossed the border of a country) -indeed the biological resource containing the genetic resource- is a difficult area of control. Moreover, if this access was without the knowledge of the country, either because it was without complying with national regulation or because the country has not yet regulated the way to access these materials. This could be a case of Article 10, of Round 1.
Thus an advantage of Nagoya Protocol and GMBSM is that it will allow all the providers countries, developed or developing countries, to support and facilitate the monitoring of a genetic resource that has crossed the border of a country, and establishing clear rules, could share the benefit arising from the use of this genetic resource.
We have to consider that there are situations of access to genetic resources in which is not known specifically the material to which is accessing, given that, not always is a known list of species. More over, in some countries, not all biodiversity is known, is not described, in particular species of invertebrates and microorganisms. In these situations, if a product is developed based on these GR or its derivatives, the user might argue multiple arguments for not benefit-sharing with the country which provide the genetic resource or its derivative, so for these situations would be an advantage to have the GMBSM.
In the "evolution" of the understanding and knowledge of the legal definition of genetic resources, there are cases that there is no physical access to the biological resource for obtain the genetic resource or its derivative (databases, synthetic production of biochemical components, among others), so the GMBSM could address these cases and share the benefits arising from their use.
It is not intended that Article 10 of the Protocol solve this kind of national gaps but it will be a mechanism for sharing benefits in these situations.
Without the GMBSM we would not receive the benefit sharing of using GR in these and others situations that colleagues have described in round 1.
Tracking a genetic resource when it is taken abroad (when crossed the border of a country) -indeed the biological resource containing the genetic resource- is a difficult area of control. Moreover, if this access was without the knowledge of the country, either because it was without complying with national regulation or because the country has not yet regulated the way to access these materials. This could be a case of Article 10, of Round 1.
Thus an advantage of Nagoya Protocol and GMBSM is that it will allow all the providers countries, developed or developing countries, to support and facilitate the monitoring of a genetic resource that has crossed the border of a country, and establishing clear rules, could share the benefit arising from the use of this genetic resource.
We have to consider that there are situations of access to genetic resources in which is not known specifically the material to which is accessing, given that, not always is a known list of species. More over, in some countries, not all biodiversity is known, is not described, in particular species of invertebrates and microorganisms. In these situations, if a product is developed based on these GR or its derivatives, the user might argue multiple arguments for not benefit-sharing with the country which provide the genetic resource or its derivative, so for these situations would be an advantage to have the GMBSM.
In the "evolution" of the understanding and knowledge of the legal definition of genetic resources, there are cases that there is no physical access to the biological resource for obtain the genetic resource or its derivative (databases, synthetic production of biochemical components, among others), so the GMBSM could address these cases and share the benefits arising from their use.
It is not intended that Article 10 of the Protocol solve this kind of national gaps but it will be a mechanism for sharing benefits in these situations.
Without the GMBSM we would not receive the benefit sharing of using GR in these and others situations that colleagues have described in round 1.
It is hard to see any serious disadvantages to a GMBSM. Even the practical implementation challenges that would arise can relatively easily be addressed through a flexible, phased process to evolve its modalities.
Advantages could include:
- capturing a much wider (but not necessarily higher) share of benefits and directing them towards supporting conservation and sustainable use of biodiversity
- providing a (discretionary) way to lower transaction costs involved in negotiating PIC and MAT
- serving as a framework on which to build more specialised sectoral ABS systems
- mobilising new, additional and innovative financial flows for conservation and sustainable develpment, based on the “user pays” principle
- creating a vehicle for dealing with projects that are already at advanced stages of the R&D pipeline but got there without PIC and MAT (grandfathering, possibly under some form of amnesty).
• As a provider of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
a) The GMBSM is not anticipated to create any new problems for providers of GR or ATK, because it will not provide a “surrogate PIC” but instead focus on capturing benefits from a wider range of uses (and users).
b) A GMBSM would help providers to avoid a “race to the bottom” to provide PIC. It would also give providers a practical way to quickly and amicably resolve potential conflicts with neighbouring countries and other resource owners or knowledge holders, at reasonable transaction cost. By ensuring that all forms of utilisation resulting in private benefits attract an obligation to share some of those benefits, the GMBSM would prevent “debasing the currency” of ABS by flooding the market with resources for which benefit sharing is not required.
• As a user of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
a) The GMBSM is not anticipated to create any new problems for users of GR or ATK, or at least not for users who are willing to support conservation and sustainable use.
b) The GMBSM would provide users with a quick, simple and predictable way to settle obligations that go beyond bilateral MAT. By increasing the level of confidence among providers that utilisation will be followed by benefit sharing (if benefits are indeed created) the GMBSM will increase the likelihood that providers facilitate speedy and easy access and actually put in place simplified ABS procedures for non-commercial research.
• If there is no global multilateral benefit-sharing mechanism, what problems would remain?
Without a GMBSM all of the borderline cases that are not comfortably covered by the bilateral model alone will either become bogged down in administrative paralysis or lead to endless recriminations. Research and development efforts and investments will flow to opportunities unencumbered by benefit-sharing obligations, undermining the bilateral system, severely reducing benefit flow to support conservation and sustainable use, and fuelling mistrust and adversarial (as opposed to collaborative) relations between providers and users.
Advantages could include:
- capturing a much wider (but not necessarily higher) share of benefits and directing them towards supporting conservation and sustainable use of biodiversity
- providing a (discretionary) way to lower transaction costs involved in negotiating PIC and MAT
- serving as a framework on which to build more specialised sectoral ABS systems
- mobilising new, additional and innovative financial flows for conservation and sustainable develpment, based on the “user pays” principle
- creating a vehicle for dealing with projects that are already at advanced stages of the R&D pipeline but got there without PIC and MAT (grandfathering, possibly under some form of amnesty).
• As a provider of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
a) The GMBSM is not anticipated to create any new problems for providers of GR or ATK, because it will not provide a “surrogate PIC” but instead focus on capturing benefits from a wider range of uses (and users).
b) A GMBSM would help providers to avoid a “race to the bottom” to provide PIC. It would also give providers a practical way to quickly and amicably resolve potential conflicts with neighbouring countries and other resource owners or knowledge holders, at reasonable transaction cost. By ensuring that all forms of utilisation resulting in private benefits attract an obligation to share some of those benefits, the GMBSM would prevent “debasing the currency” of ABS by flooding the market with resources for which benefit sharing is not required.
• As a user of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
a) The GMBSM is not anticipated to create any new problems for users of GR or ATK, or at least not for users who are willing to support conservation and sustainable use.
b) The GMBSM would provide users with a quick, simple and predictable way to settle obligations that go beyond bilateral MAT. By increasing the level of confidence among providers that utilisation will be followed by benefit sharing (if benefits are indeed created) the GMBSM will increase the likelihood that providers facilitate speedy and easy access and actually put in place simplified ABS procedures for non-commercial research.
• If there is no global multilateral benefit-sharing mechanism, what problems would remain?
Without a GMBSM all of the borderline cases that are not comfortably covered by the bilateral model alone will either become bogged down in administrative paralysis or lead to endless recriminations. Research and development efforts and investments will flow to opportunities unencumbered by benefit-sharing obligations, undermining the bilateral system, severely reducing benefit flow to support conservation and sustainable use, and fuelling mistrust and adversarial (as opposed to collaborative) relations between providers and users.
Posted on behalf of Marwan al Bassatneh, Arab Centre for the Studies of Arid Zones and Dry Lands (posted late as original message was mis-directed):
Dear All,
It is hard to see any serious disadvantages to a GMBSM.
We think, Advantages could include:
- Poviding a (discretionary) way to lower transaction costs involved in negotiating PIC and MAT
- Serving as a framework on which to build more specialised sectoral ABS systems
- Mobilising new, additional and innovative financial flows for conservation and sustainable develpment, based on the “user pays” principle.
-As a provider of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
a) A GMBSM would help providers to avoid a “race to the bottom” to provide PIC. It would also give providers a practical way to quickly and amicably resolve potential conflicts with neighboring countries and other resource owners or knowledge holders, at reasonable transaction cost. By ensuring that all forms of utilization resulting in private benefits attract an obligation to share some of those benefits, the GMBSM would prevent “debasing the currency” of ABS by flooding the market with resources for which benefit sharing is not required.
b) The GMBSM is not anticipated to create any new problems for providers of GR or ATK
-As a user of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
The GMBSM is not anticipated to create any new problems for users of GR or ATK, or at least not for users who are willing to support conservation and sustainable use.
-If there is no global multilateral benefit-sharing mechanism, what problems would remain?
Without a GMBSM all of the borderline cases that are not comfortably covered by the bilateral model alone will either become bogged down in administrative paralysis or lead to endless recriminations.
Dear All,
It is hard to see any serious disadvantages to a GMBSM.
We think, Advantages could include:
- Poviding a (discretionary) way to lower transaction costs involved in negotiating PIC and MAT
- Serving as a framework on which to build more specialised sectoral ABS systems
- Mobilising new, additional and innovative financial flows for conservation and sustainable develpment, based on the “user pays” principle.
-As a provider of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
a) A GMBSM would help providers to avoid a “race to the bottom” to provide PIC. It would also give providers a practical way to quickly and amicably resolve potential conflicts with neighboring countries and other resource owners or knowledge holders, at reasonable transaction cost. By ensuring that all forms of utilization resulting in private benefits attract an obligation to share some of those benefits, the GMBSM would prevent “debasing the currency” of ABS by flooding the market with resources for which benefit sharing is not required.
b) The GMBSM is not anticipated to create any new problems for providers of GR or ATK
-As a user of genetic resources or associated traditional knowledge, what problems would a global multilateral benefit-sharing mechanism (a) create and (b) solve?
The GMBSM is not anticipated to create any new problems for users of GR or ATK, or at least not for users who are willing to support conservation and sustainable use.
-If there is no global multilateral benefit-sharing mechanism, what problems would remain?
Without a GMBSM all of the borderline cases that are not comfortably covered by the bilateral model alone will either become bogged down in administrative paralysis or lead to endless recriminations.
