Common Pools in

Aquaculture – Sui Generis and Other

Options for Benefit Sharing

Senior research fellow, lawyer, and researcher

Fridtjof Nansen Institute

Seminar on Conservation and Sustainable Use of Marine Biodiversity beyond

National Jurisdiction, Bonn, 1.-3. December 2011

FNI’s ABS Project Team FNI political science and law

• Studied biological diversity policy and law for almost 20

years

• Private independent Norwegian research institute

• Competence centre on biodiversity policy and law

• Capacity builiding and implementation consultations for

countries: latest Bhutan 2011 and portugues-speaking

African counties

• Looking at international law in a high number og foras:

Patent law, IPR, WIPO, FAO, ITPGRFA, CGR etc

•Team of 7 researchers: Peter Johan Schei, Regine Andersen,

Kristin Rosendal, Ole Kristian Fauchald, Morten Walløe Tvedt,

Tone Winge, Ane Jørem

FNI’s ABS Project Team

FNI’s role in ABS: reseach in political science and law

• Studied biological diversity policy and law for almost 20

years

• Private independent Norwegian research institute

• Competence centre on biodiversity policy and law

• Capacity builiding and implementation consultations for

countries: latest Bhutan 2011

• Looking at international law in a high number og foras:

Patent law, IPR, WIPO, FAO, ITPGRFA, CGR etc

•Team of 7 researchers:

Peter Johan Schei, Regine Andersen, Kristin Rosendal, Ole

Kristian Fauchald, Morten Walløe Tvedt, Tone Winge, Ane Jørem

Components of the project:

The first research area is international regulation of bioprospecting: What are the options for regulating rights and access to genetic material from the high seas, which is the area beyond national jurisdiction, the exclusive economic zone and in Antarctica, south of 60 degrees South.

The second research area for this project is open source for marine-based innovation: the research question is how innovation may be stimulated and balanced in the marine sector by the use of an open source-based legal system for innovation.

The third research area is to look at potential regulations of collections of marine genetic resources by discussing the particular situation of Marbank and research projects in bioprospecting: How to regulate access to and use of marine genetic resources from such collections in a manner that stimulates research, innovation and investment in this field?

Topic for today:

Concept of common pools

The multilateral approach of the ITPGRFA

Concept of farmers’ rights under the ITPGRFA

ABS licensing

Topic for today:

Applicability of ABS as we know it from the CBD

Concept of common pools

The multilateral approach of the ITPGRFA

Concept of farmers’ rights under the ITPGRFA

ABS licensing

Some ideas on institutions

Applicability of ABS as we know it from

the CBD:

Rational for ABS: Counter-balance the IPR/ privatisation tendency of plant sector

Create a revenue for conservation and sustainable use

Stop privatisation from the global common of PGR

Developing countries quid pro quo for conservation

Searching a rational for ABS in the ABNJ: Need for a revenue?

Fairness? Equitable?

Formally open to all – de facto possible to the few ones

Applicability of ABS as known from CBD:

Character of ABS in CBD and NP Sovereign rights

Access legislation

Contracts

Genetic resources as an undefined object

Freedom and flag state

Open access

No obvious contracting partner

Activity rather than object

Regulatory ‘freedom’ – learning from others Scope of activity and Clear trigger points

Developed rational (convince counties that status quo should be altered) for A and/or BSh

Patent system:

Invention eligible for patent protection Novel – in the technical sense

Inventiveness

Technical effect

Cover the same use by others even found in nature

Relevant to establish private exclusive rights to objects found in the oceans

Concept of common pools: Theoretical explainations

common pool:

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common pool:

The multilateral approach of the

ITPGRFA: The MLS applies to a group of genetic resources

The MLS applies to material in the public domain and under the control of the parties

The MLS applies for specific uses.

The MLS applies in a group of countries.

The multilateral approach of the

ITPGRFA: The MLS applies to a group of genetic resources

Specified to be certain defined species of food and feed

The MLS applies to material in the public domain and under the control of the parties

Public collections and what is brought thereto The MLS applies for specific uses.

Food and agriculture – not other uses The MLS applies in a group of countries.

Should a national from a non-member country access?

Concept of farmers’ rights under the

ITPGRFA:

Not very suited for securing the rights of an inventor

Lack of legal certainty

Lack of exclusivity

ABS licensing:

Who shall issue the ABS license?

Incentives to get a license

Certification of equity or sustainability

NP ART 10 GLOBAL MULTILATERAL

BENEFIT-SHARING MECHANISM:

Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilisation of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally.

(FNI Report 10/2011 http://www.fni.no/doc&pdf/FNI-R1011.pdf)

NP ART 10 GLOBAL MULTILATERAL

BENEFIT-SHARING MECHANISM:

Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilisation of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally.

(FNI Report 10/2011 http://www.fni.no/doc&pdf/FNI-R1011.pdf)

NP ART 10 GLOBAL MULTILATERAL

BENEFIT-SHARING MECHANISM:

Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilisation of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally.

(FNI Report 10/2011 http://www.fni.no/doc&pdf/FNI-R1011.pdf)

sui generis:

How can access to marine GR be secured also for the future?

How can the investments put into products from marine bioprospecting be secured in a fair manner?

open source system:

Learning from software

(huge differences as number of developers larger than in GR-research discussion)

The previous contributors to the state

What should be subject to openness) Genetic material, knowledge and innovation

How to capture relative contribution

IP: the patentee takes it all – is it possible to establish a system being ‘fair and equitable’ based on caculating contributions

open source system:

Clear copying – high degree of payment back

Technological difficulties in assessing dependence

Factual problems

Legal challenges

International aspects

Challenge to all open source systems: the chance of free riders and even more severe persons appropriating from the pool

Who will control?

Some ideas - Challenges in ABNJ:

Some ideas on institutions:

ABNJ challenges: Freedom of the high seas – quite difficult to amend

Introduce jurisdiction at a level above flag state jurisdiction

There are a some challenges which requires global solutions • Bioprospecting

• Protect particular areas

• Pollution

A non-binding safeguarder of the common interest (ombundsmann or learning from the Brazilian system of ‘procurador’)

• Recommendations biology, law and sustainability

• Non-binding but autonomous – outside the scope of nations

• Initiative: own, by others (states, privates and organisations)

mailto:mwt@fni.no