Ending Unauthorised Access To Genetic Resources (aka Biopiracy): Bounded Openness

By Joseph Henry Vogel, Manuel Ruiz Muller, Klaus Angerer, and Omar Oduardo-Sierra

[Note: translations are available in French (here), Portuguese (here), Russian (here) and Spanish (here).]

“Access to genetic resources” and “the fair and equitable sharing of benefits arising from their utilization” have beleaguered all thirteen Conferences of the Parties to the 1993 United Nations Convention on Biological Diversity (CBD). The expression in quotes constitutes the third objective of the Convention and is intertwined with the first two, conservation and sustainable use. It goes by the acronym “ABS”. Despite 25 years of efforts and an annual bio-economy of nearly one trillion dollars, [1] few contracts have ever been concluded.[2] And of those very few, the monetary benefits are so low that contracting parties are loathe to disclose them. The “Brazilian ABS Law” of 2015, which came into effect on 6 November 2017, even allows royalties on net sales to be as low as one tenth of one percent.[3] In the words of one distinguished legal scholar, Users are paying “peanuts for biodiversity.”[4]

‘Naked Mole-Rat Genome Resource’ epitomizes unauthorized access

The failure to achieve fairness and equity is usually attributed to the general failure of Provider governments. Although authorizing access to genetic resources can be cumbersome, bureaucracy does not explain the peanuts. Economics does. Genetic resources are not matter, as widely misinterpreted by Parties to the CBD, but information. Economics teaches that competition will drive the price of anything down to the marginal costs of production, be it for matter or for information. Efficiency ensues for the former but for the latter, bankruptcy. So economists have long justified monopoly intellectual property as the legal mechanism to recover the fixed costs of creating artificial information.[5] The analogous argument for natural information is oligopoly protection through Article 10 of the Nagoya Protocol to the Convention,[6]  which contemplates a Global Multilateral Benefit-Sharing Mechanism.[7]

Biotechnology is putting the relevant economics into high relief. Scientists can carry out R&D without ever having to touch any genetic resource or even disclose that they are so engaged.[8] Peruse, for example, The Naked Mole-Rat Genome Resource,[9] which boasts that “[t]here are no restrictions on the use of our portal or the genome data.” To avoid the obligation of benefit sharing, Users can argue that no “genetic material” was accessed, as long as “material” is misinterpreted as matter. However, Providers will insist that “material” is not synonymous with matter and that the sequence was simply disembodied.[10] The predictable rejoinder is as cynical as it is dispiriting: regardless of how “material” is interpreted, the disembodiment may have occurred in one of the two non-Parties where the CBD does not bind, viz. the Holy See or the United States of America.[11]

Conservationists need not despair. “Digital sequence information on genetic resources” is now center stage in the Conference of the Parties (COP), a parliamentary-like system to rule on the framework treaty. From 13-16 February 2018, twenty-five experts convened at the UN Secretariat to the CBD to thrash out the issue, in preparation for COP14 that will meet from 10-22 November 2018.[12] After itemizing conflicting positions over several pages, the Report closes with the suggestion that “‘bounded openness over natural information’ may merit consideration’.”[13] Indeed, much common ground can be found in the position of the African Group to replace “digital sequence information on genetic resources” with “natural information” and seek robustness for ABS policy.[14] The twenty-second Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) will meet from 2-7 July 2018 and make a recommendation to COP14. Will the economics of information—the only relevant economics–inform the Parties to SBSTTA? Or will stare decisis prevail?  The legal term in italics is Latin for “stand by the decision”, even if it is knowingly wrong!

Getting things by their right name is the counsel of E.O. Wilson, the famed Harvard naturalist.[15] Once genetic resources are interpreted as “natural information”, the policy implication is bounded openness. Genetic resources would continue to flow freely (the openness) but would no longer be free (the boundedness). Royalties on intellectual property over the value added would be levied ex post utilization. The income would then be distributed to the countries of origin, proportional to habitat, thus achieving the fairness and equity which has so long alluded the Parties. And when the resources are ubiquitous? Or when the sums collected are too low to be worth distributing? In such cases, the income would finance the requisite infrastructure to make the whole thing work.

Happily what is fair and equitable can also be efficient. Biopiracy can end.

[Note: This is the first in a trilogy of essays on “bounded openness” as the solution to “access to genetic resources” and the “fair and equitable sharing of benefits”. Presentation of the arguments will be made at the Fourteenth Conference of the Parties to the Convention on Biological Diversity, in a Side Event sponsored by the Peruvian Society of Environmental Law and the International Centre for Trade and Sustainable Development. The other two essays are available here (second) and here (third).]

About the Authors:

Joseph Henry Vogel is professor of economics at the University of Puerto Rico-Río Piedras, Manuel Ruiz Muller is an environmental lawyer with the Peruvian Society of Environmental Law, Klaus Angerer is a Lecturer at the Justus-Liebig-University Giessen and Omar Oduardo-Sierra is a recent graduate from the University of Puerto Rico-Río Piedras with a Masters in Linguistics.

[1] ten Brink P. Chapter 5: rewarding benefits through payments and markets. The economics of ecosystems and biodiversity for national and international policy makers. 2009: 34. Available at www.cbd.int/doc/case-studies/inc/cs-inc-teeb.Chapter%205-en.pdf. Accessed on 4 April 2018.

[2] Pauchard N. Access and benefit sharing under the Convention on Biological Diversity and its Protocol: what can some numbers tell us about the effectiveness of the regulatory regime?” 2017; Resources 6(11). Available at http://www.mdpi.com/2079-9276/6/1/11/htm. Accessed on 4 April 2018.

[3] Brazil: Law No. 13.123 of May 20, 2015. Article 20. http://www.wipo.int/edocs/lexdocs/laws/pt/br/br161pt.pdf. See also Brown M. “New Brazilian law on genetic heritage gives one year companies to report on their past activities having used Brazilian heritage”.  7 December 2017.  Available at https://www.lexology.com/library/detail.aspx?g=3f8fb766-b4f0-437d-80ee-ae2ee742f360. Accessed on 4 April 2018.

[4] Drahos P. Intellectual property, indigenous people and their knowledge; 2014. Cambridge University Press, Cambridge.

[5] Samuelson PA and Nordhaus WD. ECONOMICS, 2010. McGraw-Hill Irwin, New York, 224.

[6] Convention on Biological Diversity. Available at https://www.cbd.int/abs/. Accessed on 4 April 2018.

[7] Vogel JH. On the Silver Jubilee of ‘Intellectual property and information markets: preliminaries to a new conservation policy’ in MR Muller, Genetic resources as natural information: policy Implications for the Convention on Biological Diversity; 2015. Routledge, London,: xxi-xxv. Available at https://s3-us-west-2.amazonaws.com/tandfbis/rt-files/docs/9781138801943_foreword.pdf. Accessed on 4 April 2018.

[8] Oldham P. Global status and trends in intellectual property claims: genomics, proteomics and biotechnology; 2014. Submission to the Executive Secretariat of the CBD. CESAGEN, United Kingdom. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1331514. Accessed on 4 April 2018.

[9] The Naked Mole-Rat Genome Resource. Available at http://naked-mole-rat.org. Accessed on 4 April 2018.

[10] Ministry of Foreign Affairs of Brazil – Environmental Division. Available at https://www.cbd.int/abs/DSI-views/Brazil-DSI.pdf. Accessed on 4 April 2018.

[11] UNCBD. List of Parties. Available at https://www.cbd.int/information/parties.shtml. Accessed on 4 April 2018.

[12] UNCBD. Available at https://www.cbd.int/doc/notifications/2017/ntf-2017-109-abs-en.pdf. Accessed on 4 April 2018.

[13] UNCBD. Report of the ad hoc Technical Expert Group on Digital Sequence Information on Genetic Resources. CBD/DSI/AHTEG/2018/1/4, 20 February 2018. Available at https://www.cbd.int/doc/c/4f53/a660/20273cadac313787b058a7b6/dsi-ahteg-2018-01-04-en.pdf. Accessed on 4 April 2018.

[14] UNCBD. Available at https://www.cbd.int/abs/DSI-views/Ethiopia-AU-DSI.pdf. Accessed on 4 April 2018.

[15] Wilson EO. Consilience; 1998.  Knopf, New York, 4.

Image Credits: Roman Klementschitz, Wien