An Industry Perspective on
Access & Benefit Sharing
Tom Jacob,
Senior Advisor - Global Affairs, DuPont
Chair, ICC Task Force on ABS
[email protected]
WTO
26 May 2004
The CBD Context

CBD is dealing with legitimate issues
– But range of potential issues is vast

Those issues go well beyond environmental
concerns
– But, as MEA, many countries delegate to environment
ministries

Role of indigenous/local communities is
huge
– But very ill-defined

Broad support among nations
– But non-environment matters deliberated
by environment-focused delegates creates
potential for “venue shopping”
ABS From Our Perspective…

There is reason to hope for sustainable
development benefits
– Direct linkage of resources to in-country
stakeholders, with expectation of benefits
– Recognition of the linkages of development
to ecological and social/cultural impacts

Nowhere are the agendas more complex
– New obligations for countries --> new
obligations for industry
– We’re all trying to figure this out

We need time and country-level
experience to find the right balance
– Few countries with experience with ABS
or PIC regulations
A New CBD ABS Negotiation
Should be encouraging new regimes
and experience, using Bonn Guidelines, but…
 We now have new, broad negotiating mandate

– Everything is on the table
– Lock-in decisions with limited experience?

Danger to parallel processes
– FAO International Treaty
– WIPO Committee
– WTO TRIPS Council
Conceptual Model of CBD ABS
In-situ Resource
Pursuant to National Regime
Consultation w.
Sovereign State
Consultation w.
Indigenous/Local Communities
Bioprospecting
Mutually Agreed Terms/PIC
Ex-situ R&D
Development of Commercial Product
Patenting of Commercial Product
Sharing or Proceeds per MAT
Complication: No National
Regime
In-situ Resource
Pursuant to National Regime
Consultation w.
Sovereign State
Consultation w.
Indigenous/Local Communities
Bioprospecting
?
Mutually Agreed Terms/PIC
Ex-situ R&D
Development of Commercial Product
Patenting of Commercial Product
?
Sharing or Proceeds per MAT
Complication: Pre-CBD
Extraction
In-situ Resource
Pursuant to National Regime
Consultation w.
Sovereign State
Consultation w.
Indigenous/Local Communities
Bioprospecting
?
Mutually Agreed Terms/PIC
Ex-situ R&D
Development of Commercial Product
Patenting of Commercial Product
?
Sharing or Proceeds per MAT
Complication: Pre-CBD w.
“Country of Origin”
In-situ Resource
Pursuant to National Regime
Consultation w.
Sovereign State
Consultation w.
Indigenous/Local Communities
Bioprospecting
?
Mutually Agreed Terms/PIC
Ex-situ R&D
Development of Commercial Product
Patenting of Commercial Product
Sharing or Proceeds per MAT
Complications: Non-Patent GR
Use – Patent-Linked System
In-situ Resource
Pursuant to National Regime
Consultation w.
Sovereign State
Consultation w.
Indigenous/Local Communities
Bioprospecting
?
Mutually Agreed Terms/PIC
Ex-situ R&D
Development of Commercial Product
Patenting of Commercial Product
?
Sharing or Proceeds per MAT
Complications: Burden of
Transaction Costs
In-situ Resource
Pursuant to National Regime
Consultation w.
Sovereign State
Consultation w.
Indigenous/Local Communities
Bioprospecting
Expected
Value
of GR
Mutually Agreed Terms/PIC
Ex-situ R&D
Development of Commercial Product
Patenting of Commercial Product
Sharing or Proceeds per MAT
Complications: Lower Expected
Value
In-situ Resource
Pursuant to National Regime
Consultation w.
Sovereign State
Consultation w.
Indigenous/Local Communities
Bioprospecting
Expected
Value
of GR
Mutually Agreed Terms/PIC
Ex-situ R&D
Development of Commercial Product
Patenting of Commercial Product
Sharing or Proceeds per MAT
Differing Perceptions of Value?

Reference case for many is “blockbuster” drug
discovery from natural GR
– Dependence of pharma on natural GR

Increased reliance upon new technologies for
“drug design”
– Less dependence upon natural GRs
– Many major pharma firms reducing or
eliminating natural product research

Remaining industries less likely to
have “blockbuster” yields
– Plant breeding, agrochemicals, flavours &
fragrances, industrial enzymes, herbals, etc.
Challenges Shaping ABS
Evolution

Country ABS regimes
– Bonn Guidelines + learn from our experience

FAO Standardized MTA
– A useful model?

Disclosure of PIC/Origin proposals
– Limited coverage and legal complications

Certificate of Origin/Source/Legal
Provinance proposals
– Workable or will it collapse of own
weight?
Challenges Shaping ABS
Evolution

Traditional Knowledge and Indigenous & Local
Communities obligations
– TK very complex IPR challenge
– Countries must sort this out consultative relations

Codes of Conduct among Commercial, Public and
Non-Profit Institutions
– Important, but too few as yet
Bye, Now...
Negotiating Boundary Conditions
 Trading
system
– Evolved over hundreds of years
 “Environmental”
system
– Evolved in past several decades
– Not yet institutionalized
– Quite undisciplined
Convention on Biological
Diversity (CBD)

An environmental treaty…
– Biological diversity, ecosystem integrity

But also an economic/social treaty
– rights to genetic resources and traditional knowledge
– rights of indigenous and local communities
– equity concerns, and sharing of benefits

There is reason to hope for sustainable
development benefits
– Direct linkage of resources to in-country
stakeholders, with expectation of benefits
– Recognition of the linkages of development
to ecological and social/cultural impacts
Bonn Guidelines -- A Major Step

A broad “inventory” of potential measures and
ideas
– Workable if used selectively

Needed: Countries to gain experience
implementing regimes
– Few countries with experience with ABS
or PIC regulations
– Need experience to learn implications of
potential elements of ABS regimes

Should be encouraging new regimes
and experience, using Bonn Guidelines
Complication: Exemption for
Academic Research
In-situ Resource
Pursuant to National Regime
Consultation w.
Sovereign State
Consultation w.
Indigenous/Local Communities
Bioprospecting
Mutually Agreed Terms/PIC
Ex-situ R&D
Development of Commercial Product
Patenting of Commercial Product
Sharing or Proceeds per MAT
Complication: Exemption for
Academic ResearchProducts
In-situ Resource
Pursuant to National Regime
Consultation w.
Sovereign State
Consultation w.
Indigenous/Local Communities
Bioprospecting
Mutually Agreed Terms/PIC
Ex-situ R&D
Development of Commercial Product
Patenting of Commercial Product
Sharing or Proceeds per MAT