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Home > MEA Bulletin > List of Guest Articles > Guest Article No. 99a
MEA Bulletin - Guest Article No. 99a - Friday, 10 September 2010
Good reasons why the ABS Protocol should include simple access procedures for non-commercial public good research on biodiversity
By Sylvia I. Martinez and Susette Biber-Klemm
Full Article

The CBD Ad Hoc Open-Ended Working Group on Access and Benefit Sharing is currently elaborating and negotiating the Protocol to the CBD on Access and Benefit Sharing. It aims at regulating the access to genetic resources and the fair and equitable sharing of benefits derived from their utilization. It is an instrument to effectively implement the provisions on access to genetic resources (Article 15) and to traditional knowledge (Article 8(j)) of the Convention and its three objectives: the conservation of biodiversity, the sustainable use of its components and the fair and equitable sharing of benefits arising out the utilization of genetic resources. Genetic resources include plant, animals and micro-organisms. In accordance with the CBD, each State has the sovereign rights over all genetic resources found on its national territory. It can therefore regulate access to them.

Academic researchers are important players in the ABS system. A considerable part of access to genetic resources is carried out for non-commercial research that serves the goals of the CBD. Therefore, not only research for commercial purposes, but also this type of public good research is affected by ABS regulations.

In working with the scientific community on concrete cases, we recognized the complexities that the implementation of the ABS system can create for non-commercial academic researchers. Scientists are often confronted with the same procedures as those intended for commercial users. A survey among university institutes in Switzerland revealed that ABS procedures were often perceived as pointless, burdensome and requiring additional, time-consuming paper-work with authorities who were difficult to locate. Interviews with researchers revealed the need to promote or to include specific, simple access procedures for non-commercial research into the ongoing international negotiations for specific, simple access procedures for non-commercial research.

Yet, the implementation of the ABS system for non-commercial, public good research implies specific difficulties and concerns for all stakeholders involved. In order to lead this debate in a constructive way, it is essential to better understand the underlying problems of both providers and users of genetic resources and to take account of the solutions proposed by them.

Users encounter specific difficulties in accessing genetic resources. Besides the lack of operational ABS systems in many countries, access procedures are geared primarily toward industrial product development. In industrial research and development (R&D) processes, benefits are usually realised only after a considerable time span. Therefore precise contractual agreements and possibly up-front payments are the rule. These are conditions that academic research cannot afford. In contrast to industrial research, academic research takes place under different conditions, and with different goals. Much of academic research generates information important for the conservation and sustainable use of biodiversity, and/or is designed to serve the interests of the providers. Other benefits for providers, such as scientific cooperation, education and training of students, and technology transfer, occur in parallel to the research so, in comparison to commercial R&D, there is little time-lag between access and the generation of potential benefits. Controlling the sharing of benefits that result from non-commercial public funded research is therefore easier.

Academic research has neither the financial nor the organizational flexibility for lengthy negotiations; resources are relatively scarce, acquisition is highly competitive and based on publishing success. Scientists need easy access to the resources, legal security through an efficient access administration, transparency and predictability of procedures.

Non-commercial public good research is essential to achieve conservation and sustainable use of biological diversity, the first two goals of the CBD. Moreover it generates non-monetary benefits that may contribute to education, advancement of science and technology transfer.

If access to genetic resources is excessively burdened by complex ABS procedures, this type of research is at risk.

In the negotiations on the ABS Protocol, delegations of countries providing genetic resources have made it clear that facilitated access systems for research would be acceptable only if measures are in place to ensure that these resources are not transferred to commercial use without consent of the providers. This concern is due to the difficulty of controlling the use made of resources once they have left the country.

Whether the resources will be used in a non-commercial or commercial context depends on the intention of the researcher. Provider countries fear that resources accessed under a non-commercial label may flow into the commercial value chain and that they would lose the economic benefits resulting from their utilisation.

One of the challenges for the providers consists in controlling the flow of the resources throughout the value chain, especially in the user country. Of greatest concern is the risk that the resources and related information accessed under the conditions for non-commercial research could enter the R&D sector without Mutually Agreed Terms for potential commercial developments.

Administrative authorities, recognizing this possibility, and lacking knowledge about scientific methods and goals, may evaluate scientific research proposals submitted for ABS access requirements more rigorously than others. They fear that if they issue simple access permits, they risk being charged with allowing biopiracy. This mistrust and fear of abuse fosters the trend toward tight contract conditions and increased control of resources.

Providers are concerned that simple procedures are a Trojan horse introducing easy access for commercial research.

Establishing mutual trust between providers and users is an essential element in ABS relations.

In order to clarify the possible pathways of genetic resources from the non-commercial to commercial research realm we analysed research activities from the perspective of sensitive ABS issues such as the use made of the resources, their storage, their transfer to third parties, as well as the products of the research. The analysis revealed that different fields of research have various degrees of probability that the resources and/or related research results flow, intentionally or unintentionally, into the commercial value chain. Some fields of research show a very low probability, such as biodiversity inventories or ecological studies. In such cases, the provider could require fewer control measures over the uses. Simple access procedures could be made available for cases with a low probability of uncontrolled transfer to commercial R&D. Control measures could be tailored according to the given scenarios. Avoiding excessive transaction costs is, in all cases, essential.

Therefore we argue that the criterion for granting simple access should not be whether the utilization of genetic resources may ever lead to a commercial product – in the sense of a yes or no -, but the degree of probability of this happening. Simple access should be granted in cases with a small probability of commercialization.

Based on the findings of the ABS program of the Swiss Academy of Sciences, we strongly recommend the insertion of a clause into the International ABS Protocol of the Convention for Biological Diversity to:

1) Encourage Contracting Parties to create conditions to facilitate, promote and encourage public, non-commercial research on biological diversity;
2) Oblige the Contracting Parties to provide for easy access with simple procedures to genetic resources for public non-commercial research on biological diversity; 
3) Stimulate initiatives by the Contracting Parties to create supportive instruments such as framework contracts and certification schemes;
4) Implement adequate and practical measures by the Contracting Parties to control the sharing of benefits resulting from non-commercial public research.

The arguments backing these recommendations can be summarized as follows:

Research provides the basic knowledge for conservation and sustainable use of biological diversity and innovation based on genetic resources. Without research, there would be neither monetary nor non-monetary benefits.
Public non-commercial research typically aims at providing public goods; it supplies knowledge and information that is necessary for the conservation and sustainable use of biodiversity. It is indispensable to the CBD`s goal to conserve biological diversity.
Research by public institutes should not be hampered by complicated access procedures that are not adapted to their specific needs.
Fundamental and ABS-relevant differences exist between research performed by public and private institutions.
Academic researchers generally work in a highly competitive environment, on a tight time-schedule and with restricted economic resources. They need to produce results within a given time frame and with the means allocated or the success of the research project may be compromised.
Patterns and cultures of public and private research differ. Public research is transparent by its nature, creating benefits that are predictable and directly linked to on-going research. Non-commercial, public research as a rule leads to non-monetary benefits. These benefits accrue during the execution of the research. Accordingly, they are shared in parallel to – or integrated into – the research. This means that the time gap between research and the possible generation of benefits that is typical for commercial research does not exist. Consequently, the sharing of benefits can more easily be controlled by providers.
It is important to recognize the provider-specific concerns regarding the control of the use of the genetic resources once they have left the country and the difficulties in monitoring the benefits resulting from research. Stricter access procedures for non-commercial academic research, however, will not solve these problems.
It is a major concern of academia that an overly restrictive ABS system for non-commercial public research will be counter-productive. We fear that such a system based on fear of abuse and mistrust will lead to the abandonment of non-commercial public good research in many providing countries. This would negatively affect the generation of urgently needed knowledge for the conservation and sustainable use of biological diversity, and would diminish the opportunities to share benefits in the fields of education and technology transfer.

We suggest the following measures to address the concerns of provider countries:

Voluntary schemes to foster confidence, transparency and cooperative approaches, such as the certification of user institutions, or framework contracts between research institutes and governments in providing countries.
Arrangements for compensation in cases where commercial benefits occur from resources and/or information originally accessed for non-commercial academic research and that were deposited in the public domain (such as ex- situ resources in genebanks and microbial collections; publication of traditional knowledge), taking account of other international instruments. Collections and free access to collections for scientific and educational work are essential for the progress of science and must be safeguarded.
Creation of simple access procedures for non-commercial publicly funded research, to be balanced by adequate and practical control measures by users that are adapted to the situation in the user country, and efficient without creating additional administrative costs/efforts.

We advocate the use of model ABS contracts developed for non-commercial research purposes, especially in those situations where no national legislation is yet in place. It could expedite the ABS requirements for non-commercial research.
We promote long-lasting partnerships between research institutes and providers creating transparency and confidence, in order to increase trust between providers and users of genetic resources.

Based on our conclusions that simple access and simple procedures for non-commercial research are possible, we have developed a sample ABS agreement that contains model clauses. It is adapted to the specific situation of non-commercial research sponsored by public funding and provides a tool-box for composing a contract on mutually agreed terms tailored to accommodate the needs of all stakeholders. The agreement will be presented at COP10 and will be freely available to all interested parties.

Sylvia I. Martinez (sylvia.martinez@unibas.ch)
Swiss Biodiversity Forum, Swiss Academy of Sciences, Bern, Switzerland and Institute of Botany, University of Basel, Switzerland

Susette Biber-Klemm, SCNAT (Susette.Biber-Klemm@unibas.ch)
Department of Philosophy, Program Sustainability Research, University of Basel, Switzerland

Sylvia Martinez and Susette Biber-Klemm have been working since 2003 on the ABS program at the Swiss Academy of Sciences. More information about their work is available at: http://abs.scnat.ch. The model ABS agreement for non-commercial research will be posted to this website soon.
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