Access and Benefit Sharing of Genetic Resources, Information and Traditional Knowledge

This post has been contributed by Professor Charles Lawson, Griffith Law School and a member of the Law Futures Centre.

Debates about access and benefit sharing of genetic resources (ABS) have moved on in recent years. An initial focus on the legal obligations established by international agreements like the United Nations’ Convention on Biological Diversity and the form of obligations for collecting physical biological materials are now a more complex series of disputes and challenges about the ways ABS should be implemented and enforced: digital sequence information (DSI), repatriation of resources, technology transfer, traditional knowledge and cultural expressions, open access to information and knowledge, naming conventions, farmers’ rights, new schemes for accessing pandemic viruses and sharing DNA sequences, and so on. Unfortunately, most of this debate is now crystallised into apparently intractable discussions. To contribute to breaching this state of affairs, thought leaders were brought together at Griffith University’s Law Futures Centre to examine what are some of the intractable problems, what has been changing, what might be changed in response to the growing acceptance and prevalence of ABS of genetic resources, and most importantly, solutions to these problems.

An online workshop was held on 26 October 2021 based from the Gold Coast in Queensland, Australia and structured to fit time zones around the globe. The outcome from the workshop is an edited collection to be published by Routledge in 2022. More immediately, the contributors’ presentations to the workshop were recorded and they are presented here with links to the recordings:

Session	Title and presenter(s)
1.1	Finding Solutions to the Intractable Problems about ABS – Introduction Charles Lawson, Fran Humphries and Michelle Rourke Griffith University and the Queensland University of Technology, Australia This presentation introduces the workshop in the context of the Kunming Declaration to step up efforts to ensure the fair and equitable benefit sharing from utilizing genetic resources, traditional knowledge associated with genetic resources and digital sequence information on genetic resources. The presentation concludes that at a time of new impetus in the CBD and Nagoya Protocol forums looking to the Post-2020 Global Biodiversity Framework this is an opportune time to identify and speculate about some of these intractable issues.   Available at: https://youtu.be/QwrWrfdKmmY
1.2	Biological Resources as Cultural Property and Cultural Heritage: Repatriation? Charles Lawson, Fran Humphries, Michelle Rourke Griffith University and the Queensland University of Technology, Australia This presentation set out to consider how modern-day biological materials like bacteria, plants and animals are cultural property and heritage objects and whether there are credible claims to the repatriation of these biological materials. This addresses both the physical biological materials including information in those materials, such as DNA sequences, and information about those physical biological materials. The presentation shows that there is a broad framework in place to address biological materials as cultural property and heritage objects including under the CBD and Nagoya Protocol, and that the repatriation of biological materials as either cultural and heritage objects is likely including avenues for claiming compensation.   Available at: https://youtu.be/Hw8T4KKeS-4
1.3	ABS from the perspective of a US Government Research Institution Mukul Ranjan National Institute of Allergy and Infectious Diseases (NIH), US   This presentation considers the United States’ NIH as an organization involved in early-stage, basic (non-commercial) research addressing ABS and the common perception that ‘benefits’ accrue from commercial exploitation of samples or knowledge derived from them. Despite this, the presentation shows that the NIH has been in the forefront of developing sustainable collaborations in countries where it carries out research based on long term relationships and capacity building. The presentation concludes that the NIH’s experience demonstrates that it is possible to conduct international research, if it is done in a way that is equitable and incorporates training and capacity building as core components, and that successes all build on long-term relationships that take time and funding to realize. There remain, however, unresolved fault lines in the CBD, a requirement for more engagement by scientists in the CBD discussions, and a rethink of the CBD’s objectives.   Available at: https://youtu.be/veAXerCC5H0
1.4	Access and Benefit Sharing in a Pandemic Treaty and Future International Public Health Agreements Sam Halabi Georgetown University, US   This presentation addresses the development of a Pandemic Treaty to address the inadequacy of existing international public health agreements, and specifically, the incorporation of ABS into the fabric of agreements otherwise focused on specific health threats, the constellation of international organizations that will need to cooperate in areas of mutual and or overlapping authority, and the digitization of access as implicating international laws protecting the flow of information, speech and ideas. The presentation speculates about some possible resolutions incorporating ABS mechanisms based on the text of the Nagoya Protocol, establishing a standing multilateral committee on ABS measures comprised of all specialized United Nations agencies with observer status available to stakeholders and civil society, and a copyright-based protection approach to protecting benefit sharing as the value of genetic resources is increasingly digitized.   Available at: https://youtu.be/YQnnh8p1hoE
1.5	Recognising Indigenous Customary Law – Biocultural Rights and Biocultural Community Protocols Margaret Raven and Daniel Robinson University of New South Wales, Australia   This presentation provides an overview of the implementation of the Nagoya Protocol in Pacific Island countries Vanuatu and the Cook Islands and the possibility for ABS and biocultural protocols as possible ameliorative measures for the misappropriations of biological resources and Indigenous knowledge. The presentation concludes that protocols are useful tools for allowing communities to self-express their rules, beliefs and to manage access processes to community resources and knowledge. However, biocultural protocols are also somewhat experimental and are not without a range of challenges that need further consideration, monitoring, evaluation, reporting, and discussion with the relevant communities, governments, researchers and enterprises working with biological resources and associated knowledge.   Available at: https://youtu.be/g9HtHOoxOvw
1.6	The CBD’s terms ‘Sovereign Right’ and ‘Sovereign Rights’ does not necessarily mean you have Sovereignty Todd Berry Griffith University, Australia   This presentation explores the term ‘sovereign rights’ in the CBD and Nagoya Protocol through the lenses of theorists Hans Kelsen and Carl Schmitt. After setting out their theoretical perspectives, the presentation traces the origins of ‘sovereign rights’ and its uses in the CBD and Nagoya Protocol. The Kelsen lens posits States ought to obey the rules and regulations while the Schmitt lens rests on the (political) power to decide. The presentation concludes that it is one thing to have sovereign (juridical/legal) rights over genetic resources under the CBD and Nagoya Protocol, and quite another to have any ability to act on and enforce those sovereign (juridical/legal) rights.   Available at: https://youtu.be/JwHrwWGcPIA
1.7	Monitoring Compliance under the Nagoya Protocol: Building Techno-legal Infrastructures in an Effort to Regulate the Circulation of South Asian Genetic Resources Allison Fish University of Queensland, Australia   The twinned issues of compliance and enforcement have long plagued international law and this is true for the Nagoya Protocol, a key international agreement aiming to ensure benefits arising around the use of genetic resources and associated knowledge are shared with source communities in an equitable manner. This presentation analyses the Indian government’s approach to resolving this challenge through the development of a bespoke techno-legal infrastructure, dubbed the IT Monitoring Tool, aimed at monitoring the usage of South Asian genetic resources. To do this the Tool employs a machine learning approach that builds upon both new software and processes, as well as pre-existing databases and tools to identify instances of South Asian resource utilization, assess whether usage is in compliance with Nagoya Protocol provisions, and flag suspected instances of non-compliance for follow-up. In doing so, the Tool joins a longer history in which the Indian central government develops novel technological approaches to resolve the gaps in patent law that allow the unauthorized usage of Indian bio-cultural heritage to occur.   Available at: https://youtu.be/Lt61fU7jSEo
1.9	Message in a bottle: DNA computers challenge access and benefit sharing regulation Fran Humphries, Michelle Rourke and Charles Lawson Griffith University and the Queensland University of Technology, Australia   This presentation explores whether uses of biomolecular computing are likely to fall within subject matter and scope of activities captured by the CBD’s and Nagoya Protocol’s ABS concept. Thought experiments considering a molecular tic-tac-toe automaton that uses a series of Boolean logic-gates to respond to the moves of its human opponent and a DNA hybridisation image search highlights some unique challenges and implications for users and providers of the genetic resources behind these new technologies if their activities fall within scope. The presentation concludes that DNA computers test the limits of the ABS concept and the extent to which biomolecular computers fit within the ABS concept.   Available at: https://youtu.be/chRPAiK8xbA
1.10	The Torres Strait Eight: Climate Litigation, Biodiversity, Human Rights, and Indigenous Intellectual Property Matthew Rimmer Queensland University of Technology, Australia   This presentation addresses the international action by the Torres Strait Eight climate litigation raising existential questions about the values of the CBD highlighting the need for concerted action under the CBD to better protect Indigenous Peoples’ genetic resources, biological diversity and cultural knowledge from the ravages of climate change and global warming.   Available at: https://youtu.be/M4I6f_WlD8k

Session	Presenter(s) and title
2.1	DSI and Open Access Amber Scholz, Rodrigo Sara and Andrew Hufton Leibniz-Institute DSMZ German Collection of Microorganisms and Cell Cultures, Germany This presentation makes the argument that the inherent value of DSI lies in its ability to be freely combined and shared and so any solution addressing benefit sharing from DSI should safeguard this open access. The presentation concludes that de-coupled benefit sharing mechanisms for DSI are the most compatible with open access practices and, in general, multilateral mechanisms are the most suited for benefit sharing if fully de-coupled mechanisms become politically unrealistic.   Available at: https://youtu.be/C5g7u-4tteE
2.2	Which Nagoya Protocol? Confusion, Restricted Access and Impacting the Collection of Genetic Resources Brad Sherman University of Queensland, Australia   This presentation addresses the expanding reach of ABS under the Nagoya Protocol, the proliferation of different ABS schemes among States and the development of non-State institutions developing their own ABS schemes with the effect that the access, transfer and use of genetic resources is complicated creating confusion, restricted access and having a negative impact on the collection of genetic resources. The presentation concludes that these are challenging issues but the stakes are too high not to attempt to find a solution, and that there is potential for researcher driven solutions to the legal uncertainty created by the Nagoya Protocol.   Available at: https://youtu.be/e91TWSZ0XlE
2.4	Is ABS Policy and Law Missing the Point? Experiences from a Selection of African Countries Rachel Wynberg and Sarah Laird University of Cape Town, South Africa and People and Plants International This presentation re-engages with the core objectives of the CBD and Nagoya Protocol for conservation and sustainable use. Based on document analysis and interviews, and as part of a wider research initiative to explore the integration of conservation and sustainable use in benefit sharing, the presentation reports on working with ABS, genetic resource use and biotrade, primarily in Cameroon, Madagascar, Namibia and South Africa, exploring the evolution of conservation in ABS governance, the review of related national laws and their implementation, and an examination of the challenges of implementing conservation commitments through ABS. The presentation concludes with suggestions for strengthening conservation in ABS policy and practice.   Available at: https://youtu.be/PROORTV-XI0
2.5	Value Judgements and the Management of Digital Sequence Information Under the International Access and Benefit-Sharing Regime Michelle Rourke Griffith University, Australia This presentation examines the assumption that some types of property rights over some R&D inputs encourage innovation, while property rights over other inputs can hinder scientific innovation, and how to determine the difference between the two. Applying ‘the romantic vision of authorship’ lens of James Boyle in his book Shamans, Software, & Spleens: Law and the Construction of the Information Society and drawing parallels between the decision in Moore v Regents of the University of California and the DSI debate, the presentation concludes that the logic to justify some forms of (intellectual) property over information because it promotes innovation, and deny sovereign rights over information because it retards innovation, is shaky. The presentation calls for enhanced opportunities to capitalise on open access so it truly is beneficial for all.   Available at: https://youtu.be/nCFXU27hCcQ
2.6	Access and Benefit-Sharing and Digital Sequence Information in Africa: A Critical Analysis of Contemporary Concerns in Regional Governance Titilayo Adebola and Daniele Manzella University of Aberdeen, United Kingdom and Food and Agriculture Organisation of the United Nations, Italy This presentation considers the DSI debates from an African perspective. The presentation reviews regional instruments and the role of the African Union implementing international obligations and refining legal instruments to accommodate new emerging issues, such as DSI. The presentation concludes that the wide-ranging economic, ethical, cultural and social implications alongside the complex realities of the ABS systems, mean the African Union could practically facilitate the institution of legislative, regulatory, administrative and policy measures for ABS and DSI at national and sub-regional levels in Africa, in harmony with macro-level policy decisions taken in ABS global fora.   Available at: https://youtu.be/wpMxdRh2ZHk
2.7	What Should We Mean by “Open Access”? Marcel Jaspars and Abbe Brown University of Aberdeen, United Kingdom   This presentation asks what is, and should be, open access? After considering the meaning of ‘information’ and ‘open’, the extent to which the term ‘open access’ could have different meanings, and a focus on open access and information about resources (biological, genetic and in silico), with particular emphasis on marine bioprospecting and regimes in the areas beyond national jurisdiction, the presentation seeks to begin a conversation about how there can be further challenges to limiting access and a new combined approach to how open access is understood under treaty obligations, scientific practice and private ordering.   Available at: https://youtu.be/UqytaKqaH-0
2.8	Common Heritage or Sovereign Resource? The World Health Organisation’s Inconsistent Approach to Pathogen Sharing Mark Eccleston-Turner and Michelle Rourke King’s College London, United Kingdom and Griffith University, Australia This presentation explores the development of the common heritage of humankind, common concern of humankind and sovereign genetic resources in the context of pathogen sharing and the tension inherent with trying to comply with the CBD and Nagoya Protocol while also attempting to encourage multilateralism for dealing with pathogens and global public health. The presentation concludes that a new Pandemic Treaty is an opportune time to start thinking creatively about how the international community ought to treat pathogenic genetic resources.   Available at: https://youtu.be/tDBnwbF613A
2.9	Traditional knowledge in Biocultural Protocols: Culture in Access and Benefit-sharing? Louisa Parks, Christine Frison and Elsa Tsioumani University of Trento, Italy and Catholic University of Louvain, Belgium   This presentation addresses biocultural community protocols and their potential to enable IPLCs’ political and legal empowerment for community-based implementation of ABS provisions and development aspirations. The presentation concludes that the attributes of BCPs include their outward-facing character to inform external stakeholders, their forward-looking or proactive potential to outline a communities’ visions and their inward-looking potential to contribute to community building and the construction of collective action beyond the legal realm mean that BCPs can contribute to create legal spaces for ensuring IPLCs’ rights.   Available at: https://youtu.be/jpC2gztRaQg
2.10	Access and Benefit-sharing and Digital sequence Information: Unravelling the Knot Christine Frison and Elsa Tsioumani Catholic University of Louvain, Belgium and University of Trento, Italy This presentation traverses the broad legal and political interface posed by finding resolution to the DSI impasse, touching normative issues, legal interpretations, policy constraints, intellectual property, open access, development capabilities ideals, situated knowledge and decolonisation. The presentation concludes that to resolve the DSI impasse there needs to be a focus on the deep-rooted conflicts, a preferred legal interpretation of the CBD and Nagoya Protocol, recognition of the legitimate perspectives and concerns of others, and a responsibility to acknowledge the imbalances resulting from colonial history.   Available at: https://youtu.be/zDFdhD-8yCU

*Sessions 1.8 and 2.3 have not been included as there was no free, prior and informed consent to their sharing.