This post has been contributed by Dr Michelle Rourke, CSIRO Fellow and a member of the Law Futures Centre.
I thought I didn’t care about non-fungible tokens (NFTs) and cryptocurrency, but then Jimmy Fallon showed off his ~US$221,000 JPEG of a cartoon ape to Paris Hilton and his late-night television audience, and that indifference turned into active distaste. There’s something off here.
I research a policy known as access and benefit-sharing (ABS), short for access to genetic resources and the fair and equitable sharing of benefits associated with their use in research and development. It’s essentially about ensuring the nations of the Global South get a fair share of the benefits of biotechnological research conducted in the Global North using their biodiversity (or “genetic resources”). At the international level, ABS is a policy that sits under the United Nations’ Convention on Biological Diversity and its supplementary Nagoya Protocol, and implemented at the national level through domestic legislation. There are also more specialised international agreements like the Plant Treaty and the Pandemic Influenza Preparedness Framework, and there are currently negotiations to manage the genetic resources found in areas beyond national jurisdiction under the UN Convention on the Law of the Sea. This all creates a very confusing patchwork of international and national legal obligations for academic research scientists and scientists in commercial industries like cosmetics, pharmaceuticals and agriculture. Access to genetic resources and the sharing of benefits associated with their use is usually mediated by a contract between providers and users, and contract negotiations can be expensive and time consuming for all parties involved.
In 2018, I started hearing blockchain floated as a possible technological solution to the high transaction costs associated with ABS. If you’re after a good explanation of blockchain, I highly recommend this video by the “Folding Ideas” YouTube channel, but briefly put, blockchain is a:
“Distributed electronic ledger that uses cryptographic software algorithms to record and confirm immutable transactions and/or assets with reliability and anonymity. It has no central authority and allows for automated contracts that relate to those assets and transactions (smart contracts).” (World Economic Forum, 2018)
The idea is that each time assets representing genetic resources are created or smart contracts containing benefit-sharing terms are executed, a new block of information is added to the ABS blockchain. Superficially, blockchain seems capable of streamlining and modernising the ABS transaction.
Blockchain has attracted a lot of hype about its disruptive potential, and while I’m usually wary of anything purporting to be the solution to just about every problem, I had simply assumed there was something to this. In 2020, I coauthored an article in which I uncritically relayed claims that a largescale genetic sequencing project called the Earth BioGenome Project would be using blockchain to track the use of genetic sequences in downstream research to ensure that users shared benefits in a fair and equitable way. It sounded plausible enough and we concluded that:
“While the operational details are still unclear, technologies like Blockchain hold real potential to transform the ABS landscape, making what has been a very flawed concept more workable.” (Rourke et al., 2020)
But later that year I read the Secretariat of the CBD’s Combined Study on Digital Sequence Information in Public and Private Databases and Traceability which found that in the space of a year the Bitcoin blockchain consumed as much energy as Austria! I dismissed the application of blockchain for ABS outright; there is absolutely no way we should even consider using a technology that’s so environmentally destructive in order to implement the provisions of an environmental conservation treaty!
More importantly, the problems with ABS are not limited to the high transaction costs. Most of its problems lie with the very concept itself. There is no technology that can determine the scope of the term “genetic resources”, make decisions about accessing resources from transboundary situations, or determine the temporal scope of international ABS legal instruments. There is no smart contract that can decide what to do about disputed sovereignty claims, and no computer code that can decide how different a genetic resource has to be from another genetic resource before it’s treated as separate for the purposes of ABS. The existence of a blockchain doesn’t stop cheats from conducting transactions “off chain” or swapping the labels on a sample so that the block’s “hashcode” no longer points to the correct genetic resource. No computer code can decide whether it’s okay to use an historical sample that was collected unethically. There is no technology that can understand and interpret the shifting concept of state sovereignty, decide what a “fair and equitable” share of the benefits might be, or help us think through whether creating a market in genetic resources is even an appropriate way to deal with the issue of extreme biodiversity loss. These are legal, political and social issues that require legal, political and social solutions. No blockchain, algorithm or artificial intelligence can deal with such conceptual ambiguities, at least not yet anyway.
More recently, NFTs have become something of a cultural phenomenon and it is near impossible to escape being exposed to the Bored Ape Yacht Club, news of artists minting NFTs, and Matt Damon telling us we’re all soft if we don’t invest in cryptocurrency. Now there is more information than ever about blockchain and some of the hype is giving way to more sober assessments of this technology.
My greatest concern is that, for all the talk of blockchain being a decentralized system, there are still embedded power disparities. Those with the money control the computing infrastructure, can afford the massive energy requirements and have the power to determine the path forward when there are disputes, and there will inevitably be disputes. The blockchain does little to disrupt the existing power imbalances responsible for large scale wealth extraction from countries of the Global South by countries of the Global North that precipitated the CBD and the concept of ABS in the first place. And now as blockchain is sold as a potential solution for ABS beyond the Earth BioGenome Project, I can no longer think of a single ABS question for which blockchain would be the appropriate answer.