Transcript Patenter innenfor den marine sektoren i Norge og EPO/EU

Common Pools in
Aquaculture – Sui Generis and Other
Options for Benefit Sharing
Morten Walløe Tvedt and Ane Jørem
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

Freedom and flag state

Access legislation

Open access

Contracts


Genetic resources as an
undefined object
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 pools could imply that there is a
resources which in one way or another are kept in
a non-exclusive or partially exclusive manner
among a more or less defined group of legal
persons.

Sui generis – undefined general concept, and will
necessarily be subject for a more profound
analysis and application to the particular features
of the aquatic sector.

Open source as a legal concept historizes from
the branch of software development and
production, as an alternative to strict exclusive
patent rights and copyrights.
common pool:
Topics to deal with if a pool is to be established:
entry into the pool: raw material or innovation and
results of innovation?

•
ABS relevant genetic resources
•
IP protected inventions
the pool-participants

•
Open to all
•
Club-thinking

conditions for removing objects from the pool

drawing economic benefits from the pool
common pool:
Is the International Treaty on
Plant Genetic Resources a
good example of a 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 GRresearch 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:
Challenge: the marriage of MPA and benefit sharing
from GR
A problem or a possibility?
Bridge between conservation to sustainable use and
benefit sharing
Ex situ and in situ as conservation strategies
Perhaps: ABS could be the ex situ and MPA be the in
situ strategy?
CG centre for global deposit of marine genetic
resources – living samples and dead samples
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)
Thank you for the attention!
[email protected]
www.fni.no