Workshop Report Sectoral Linkages and Lessons Learnt on Access and Benefit Sharing (ABS): Moving the ABS Agenda Forward 28 November, 2008, Tokyo Report Writers 1 : Joerg Schmidt, Chia Hsin and Miguel Esteban Introduction The year 2010 marks a significant milestone in the history of biodiversity conservation and policy formulation on the occasion of the 10th Conference of Parties (COP-10) to the Convention on Biological Diversity (CBD), which will be held in Nagoya, Japan. At the same time, two major agenda items facing global policy makers in the year 2010 are the finalization of negotiations on an international regime on Access to genetic resources and Benefit Sharing (ABS) and preparation of a plan for strategic implementation of the CBD beyond 2010. International negotiations on ABS are now at a critical stage with a tightening time frame to finalize the scope, objectives, elements and implementation provisions of the regime. For the past nine years, the Japan Bioindustry Association (JBA) and United Nations University-Institute of Advanced Studies (UNU-IAS) have been jointly organizing international workshops, highlighting various ABS issues. In line with this, the one-day workshop Sectoral Linkages and Lessons Learnt on Access and Benefit Sharing (ABS): Moving the ABS Agenda Forward was held to address the links between ABS and sectoral issues. This involved gathering experiences from other related processes such as the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and from the work of the World Intellectual Property Organization (WIPO) related to ABS and Traditional Knowledge (TK). It was also intended to explore how ex-situ collections such as the World Federation for Culture Collections (WFCC) are dealing with ABS issues to discuss the way forward on the negotiation process, and to produce outcomes which facilitate future discussions and negotiations on ABS and its mechanisms for an effective COP-10. The workshop commenced with brief introductions to the subject by UNU-IAS Director Prof. A.H. Zakri, Dr. Seizo Sumida on behalf of JBA, and Dr. Balakrishna Pisupati, UNEP. Speakers emphasised the importance of ABS as a contentious issue for the CBD process, but also the necessity to find solutions within the timeframe available. They recalled the mandates set at previous high level international conferences to develop a regime on ABS before COP-10, ranging from the WSSD to COP-9 decision on the Roadmap to Nagoya. Despite the adoption of Bonn Guidelines on ABS, limited progress has been achieved so far in using the set of voluntary guidelines that were discussed through the CBD and adopted in 2002. Hope was expressed by all 1 The report writers are Postdoctoral and JSPS Fellows at the United Nations University Institute of Advanced Studies 1
speakers that case studies following a sectoral approach, as presented in the workshops, would help to facilitate the difficult discussions. Workshop sessions The first session was chaired by Dr. Geoff Burton, UNU-IAS. Dr. David Smith, President, World Federation for Culture Collections (WFCC), introduced the approach taken by the microbial culture collections sector, in his presentation entitled Experiences of sharing ex-situ collections of genetic resources to ABS discussions. He argued in favour of a simple and workable system on access to resources, where benefit sharing is triggered by end-use, and described how culture collections exchange material through Material Transfer Agreements (MTA) of PIC (Prior Informed Consent). Standard MTAs, including clear responsibilities connected to the material, identified benefits and intellectual property values associated with the organisms are required. While materials and information for research were exchanged freely within WFCC for decades, common MTAs based on the Bonn Guidelines, including an operational framework for exchange of specimens with unique identifiers, are now developed. Dr. Smith introduced the concept of the Global Biological Resource Centre Network (GBRCN), and a demonstration project developed by Germany for the operation of microbial resources centres: Its members are required to follow particular rules (CBD and others) on use, handling, distribution and disposition of material. Benefits include knowledge necessary to protect the environment. A brief discussion focussed on technical aspects of the system such as serendipitous discoveries, inclusion of non-oecd member states into the consortium, and whether other biological materials should be included into GBRCN to achieve wider coverage. In the second session chaired by Mr. Tony Gross, UNU-IAS, Ms. Marie Schloen, Treaty officer, ITPGRFA secretariat, gave a presentation Providing Access and Sharing Benefits: Experiences from the International Treaty on Plant Genetic Resources for Food and Agriculture. She introduced ITPGRFA as the first fully operational, internationally legally binding multilateral ABS system. With its objectives to conserve and sustainably use Plant Genetic Resources for Food and Agriculture (PGRFA) and share benefits from the use, and its Multilateral System (MLS) for ABS on 64 crops enforced through the Third Party Beneficiary (FAO), ITPGRFA seems to pave the way for a multilateral but simple way to achieve ABS principles. Ms. Schloen explained the MLS, which treats resources as a pooled good, while a Standard MTA applying for all users has been adopted. Material is included and exchanged, while recipients must continue to make materials available for other users. If a product from MLS material is commercialized, mandatory or voluntary payments are made depending on the level of restriction to further availability. Benefits are shared through e.g., providing 1.1% of the net sales of a commercialized product. Payments and voluntary contributions are pooled in a Benefit-sharing Fund and will be used to finance projects in developing countries to facilitate conservation and sustainable use of PGRFA. The discussion addressed linkages between ITPGRFA and the CBD discussion on ABS. It was not clear whether all experiences from ITPGRFA will be relevant in this context. Questions on the expansion of the 2
ITPGRFA to other resources beyond PGRFA, operation costs of the MLS, the decision making process on projects to support implementation of the ITPGRFA (by the Governing Body), planned capacity building programs on the national level (focus on the implementation of the MLS, the operation of the SMTAs, and on information technology for collections), and on control mechanisms of the MLS (control functions of the Third Party Beneficiary) were also discussed. The afternoon session was chaired by Mr. Gross. Ms. Begoña Venero, WIPO, gave her presentation entitled WIPO s progress towards linking ABS and TK agendas. Through three examples she illustrated that, when an invention is based on a genetic resource and TK, the contribution of the inventor has to be recognized through the patent. In cases where TK is involved, rights of TK holders should be protected by benefit sharing, and the country that had provided the genetic resource should be compensated. WIPO had shown the richness and diversity of TK on a global scale, both in terms of its inherent creativity and as a potential subject matter for protection, but the IP (intellectual Property) system cannot respond to all the needs of TK holders. While working on capacity building and practical tools, WIPO has created the Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore as a discussion forum for countries, which also focuses on ABS and TK issues. A number of extensive and comprehensive studies 2 on genetic resources and TK were conducted which could provide content for international instruments, should WIPO Member States decide to move forward in that direction. Elaborated draft provisions on objectives and principles for the protection of TK provide a consistent policy framework, general guiding principles to ensure consistency, valence and effectiveness of substantive principles, and principles which could define the legal essence of protection. Not all of the policy objectives have to be included at the international or national legislation, but can be used as a basis for discussion. Cooperation with other international and regional instruments and processes and protection against misappropriation are relevant, in particular. The discussion included aspects of TK as prior art, approaches to protect TK from misappropriation or patenting and questions regarding TK conservation through documentation or inclusion into education curricula. With regard to rights of TK holders, CBD has to consider that some TK holders do not subscribe to the use of their knowledge for technological innovation, but consider it an exclusive part of their socio-cultural identity. Dr. Suneetha M. Subramanian, UNU-IAS, gave her presentation Benefit Sharing under the ABS of CBD on options for provider countries when developing benefit sharing guidelines during the subsequent session of the workshop chaired by Prof. Zakri. She summarized aspects to be considered for access (ownership of resources and knowledge), by-products, benefit sharing (circumstances, terms for use), third party transfers, and intellectual property issues (joint ownerships, certificates of origin). Key questions for ABS also include mechanisms of benefit sharing; timing (milestones during the value addition process); practical models; trans-boundary jurisdiction and international obligations (also referring to multiple/shared ownerships), and the role of the civil society in creating more awareness. Following this presentation, Dr. Balakrishna 2 The original documents can be found on the WIPO website (www.wipo.int/tk/en). 3
Pisupati opened the plenary discussion by asking participants to identify key lessons from the presentations that can feed into the discussions about an international regime on ABS. General discussion Dr. Sumida, in a brief presentation, suggested that governments could delegate their authority to determine access to genetic resources to ex-situ collections: while government agencies could observe and control the process, ex-situ collections could enhance compliance with CBD and facilitate exchange. In responses to this presentation, it was agreed that the importance of ex-situ collections should be considered more in the negotiations of an international regime as a system to facilitate the utilization of genetic resources and ensure compliance with CBD, linking scientific and economic activities to conservation. Collections could be a starting point for many issues; therefore, a global operational framework for collections needs to be established to comply with CBD and other regulations. This might be valuable for collections and also for countries without infrastructure to manage their natural resources. Reflections of participants focussed on common sets of practice, which must be established for each sector to demonstrate to the negotiations what is do-able. For the sectors, this helps to promote compliance to clear guidelines. It was also stressed that without use, there is no benefit sharing and no conservation. Hence, any general framework has to be flexible and practical for potential users, considering specific needs, practices of use and types of genetic resources within the sectors, without putting too much bureaucracy on the exit side. Participants felt that even though many issues from the different international instruments and discussions in various forums are very relevant to the current ABS discussions, it is, however, important to assess the use of such instruments and process within the context of CBD for taking forward the ABS agenda on the international regime. Some participants communicated their opinions on the feasibility of including other organisations, such as TRIPS (Agreement on Trade Related Intellectual Property Rights), WIPO or WTO (World Trade Organization), in the discussions. Others warned that failure in adopting a draft ABS regime before COP-10 could be a serious setback for the CBD, because of growing frustration in many countries about the lack of progress on the third objective of the Convention. It was pointed out, that a high level of residual incomprehension and genuine fears still exist, while negotiations are now part of a wider trade related context. Poor capacities and poor capacity building measures prior to ABS negotiations were identified as weaknesses, which need to be addressed urgently. Conclusion 4
In conclusion, the workshop was successful in highlighting the need to consider sectoral peculiarities and synergies in the ongoing negotiations towards an international regime on ABS. Suggestions for practical and feasible options for effective implementation using existing institutions and infrastructure such as ex-situ collections and sector specific instruments were also made. Considering the immediate relevance of these discussions to the negotiations, it was decided that the highlights of the discussions will be circulated widely in appropriate forums. 5