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COP 5 Decision V/26
Retired sections: A, paragraph 15.

Access to genetic resources

A. Access and benefit-sharing arrangements

The Conference of the Parties,

1. Requests Parties to designate a national focal point and one or more competent national authorities, as appropriate, to be responsible for access and benefit-sharing arrangements or to provide information on such arrangements within its jurisdiction;

2. Requests Parties to notify the Executive Secretary of the names and addresses of its focal points and competent authorities;

3. Urges Parties to ensure that national biodiversity strategies as well as legislative, administrative or policy measures on access and benefit-sharing contribute to conservation and sustainable-use objectives;

4. Recognizing the importance for Parties to promote trust-building and transparency in order to facilitate the exchange of genetic resources, particularly with regard to the implementation of Article 15 of the Convention:

(a) Urges Parties to pay particular attention to their obligations under Articles 15, 16 and 19 of the Convention, and requests them to report to the Conference of the Parties on the measures they have taken to this effect; (b) Notes that legislative, administrative or policy measures for access and benefit-sharing need to promote flexibility, while recognizing the need for sufficient regulation of access to genetic resources to promote the objectives of the Convention; (c) Notes that all countries are providers and recipients of genetic resources, and urges recipient countries to adopt, appropriate to national circumstances, legislative, administrative or policy measures consistent with the objectives of the Convention that are supportive of efforts made by provider countries to ensure that access to their genetic resources for scientific, commercial and other uses, and associated knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity, as appropriate, is subject to Articles 15, 16 and 19 of the Convention, unless otherwise determined by that provider country; (d) Recognizing the complexity of this issue, with particular consideration of the multiplicity of prior informed consent considerations, invites Parties to cooperate further to find practical and equitable solutions to this issue;

5. Notes that the promotion of a comprehensive legal and administrative system may facilitate access to and use of genetic resources and contribute to mutually agreed terms in line with the aims of the Convention;

6. Notes that, in the absence of comprehensive legislation and national strategies for access and benefit-sharing, voluntary measures, including guidelines, may help ensure realization of the objectives of the Convention, and to that end invites the Parties to consider promotion of their use;

7. Stresses that it is important that, in developing national legislation on access, Parties take into account and allow for the development of a multilateral system to facilitate access and benefit-sharing in the context of the International Undertaking on Plant Genetic Resources, which is currently being revised;

8. Notes the report of the Chairman of the Commission on Genetic Resources for Food and Agriculture of the Food and Agriculture Organization of the United Nations (UNEP/CBD/COP/5/INF/12) and urges the Commission to finalize its work as soon as possible. The International Undertaking is envisaged to play a crucial role in the implementation of the Convention on Biological Diversity. The Conference of the Parties affirms its willingness to consider a decision by the Conference of the Food and Agriculture Organization of the United Nations that the International Undertaking become a legally binding instrument with strong links to both the Food and Agriculture Organization of the United Nations and the Convention on Biological Diversity, and calls upon Parties to coordinate their positions in both forums;

9. Notes the common understandings of the Panel of Experts on Access and Benefit-sharing with respect to prior informed consent and mutually agreed terms as contained in paragraphs 156 to 165 of its report (UNEP/CBD/COP/5/8);

10. Decides to reconvene the Panel of Experts on Access and Benefit-sharing with a concrete mandate and agenda. The Panel will conduct further work on outstanding issues from its first meeting, especially:

(a) Assessment of user and provider experience in access to genetic resources and benefit-sharing and study of complementary options; (b) Identification of approaches to involvement of stakeholders in access to genetic resources and benefit-sharing processes; and will include additional expertise. The Panel will submit its report to the Ad Hoc Open-ended Working Group on Access and Benefit-sharing referred to in paragraph 11 below;

11. Decides to establish an Ad Hoc Open-ended Working Group, composed of representatives, including experts, nominated by Governments and regional economic integration organizations, with the mandate to develop guidelines and other approaches for submission to the Conference of the Parties and to assist Parties and stakeholders in addressing the following elements as relevant to access to genetic resources and benefit-sharing, inter alia: terms for prior informed consent and mutually agreed terms; roles, responsibilities and participation of stakeholders; relevant aspects relating to in situ and ex situ conservation and sustainable use; mechanisms for benefit-sharing, for example through technology transfer and joint research and development; and means to ensure the respect, preservation and maintenance of knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity, taking into account, inter alia, work by the World Intellectual Property Organization on intellectual property rights issues. The above-mentioned elements should, in particular, serve as inputs when developing and drafting:

(a) Legislative, administrative or policy measures on access and benefit-sharing; and (b) Contracts or other arrangements under mutually agreed terms for access and benefit-sharing.

The results of the deliberations of the Working Group, including draft guidelines and other approaches, shall be submitted for consideration by the Conference of the Parties at its sixth meeting. The work of the Working Group shall take into account the reports of the Panel of Experts on Access and Benefit-sharing and other relevant information. The Working Group will be open to the participation of indigenous and local communities, non-governmental organizations, industry and scientific and academic institutions, as well as intergovernmental organizations. The Working Group shall maintain communication and exchange of information with the Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity. In order to build capacity for access and benefit-sharing, the Open-ended Working Group shall consider issues of capacity-building, including those needs identified in paragraphs 14 (a), (b), (c) and (d) below;

12. Notes that information is a critical aspect of providing the necessary parity of bargaining power for stakeholders in access and benefit-sharing arrangements, and that, in this respect, there is a particular need for more information regarding: (a) User institutions; (b) The market for genetic resources; (c) Non-monetary benefits; (d) New and emerging mechanisms for benefit-sharing; (e) Incentive measures; (f) Clarification of definitions; (g) Sui generis systems; and (h) "Intermediaries";

13. Requests the Executive Secretary to compile the information referred to in paragraph 12 above and disseminate it through the clearing-house mechanism and relevant meetings, and requests Parties and organizations to provide such information to assist the Executive Secretary;

14. Notes that further development of capacities regarding all aspects of access and benefit-sharing arrangements is required for all stakeholders, including local governments, academic institutions, and indigenous and local communities, and that key capacity-building needs include:

(a) Assessment and inventory of biological resources as well as information management; (b) Contract negotiation skills; (c) Legal drafting skills for development of access and benefit-sharing measures; (d) Means for the protection of traditional knowledge associated with genetic resources;

15. Noting that the Panel of Experts on Access and Benefit-sharing was not able to come to any conclusions about the role of intellectual property rights in the implementation of access and benefit-sharing arrangements, and that the Panel developed a list of specific issues that require further study (UNEP/CBD/COP/5/8, paras. 127-138):

(a) Invites Parties and relevant organizations to submit to the Executive Secretary information on these issues by 31 December 2000; (b) Requests the Executive Secretary, on the basis of these submissions and other relevant material, to make available for the second meeting of the Panel, or the first meeting of the Ad Hoc Open-ended Working Group, a report on these specific issues; (c) Recalls recommendation 3 of the Inter-Sessional Meeting on the Operations of the Convention, and requests the Executive Secretary to prepare his report in consultation with, inter alia, the Secretariat of the World Intellectual Property Organization; (d) Invites relevant international organizations, including the World Intellectual Property Organization, to analyse issues of intellectual property rights as they relate to access to genetic resources and benefit-sharing, including the provision of information on the origin of genetic resources, if known, when submitting applications for intellectual property rights, including patents; (e) Requests relevant international organizations, for example, the World Intellectual Property Organization and the International Union for the Protection of New Varieties of Plants, in their work on intellectual property rights issues, to take due account of relevant provisions of the Convention on Biological Diversity, including the impact of intellectual property rights on the conservation and sustainable use of biological diversity, and in particular the value of knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity; (f) Requests the Executive Secretary to explore experience and possibilities for synergistic interactions resulting from collaboration in research, joint development and the transfer of technology following access to genetic resources.

B. The relationship between intellectual property rights and the relevant provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights and the Convention on Biological Diversity

The Conference of the Parties,

Noting recommendation 3 of the Inter-Sessional Meeting on the Operations of the Convention, concerning the relationship between intellectual property rights and the relevant provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights and the Convention,

1. Reaffirms the importance of systems such as sui generis and others for the protection of traditional knowledge of indigenous and local communities and the equitable sharing of benefits arising from its use to meet the provisions of the Convention, taking into account the ongoing work on Article 8(j) and related provisions;

2. Invites the World Trade Organization to acknowledge relevant provisions of the Convention and to take into account the fact that the provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights and the Convention on Biological Diversity are interrelated and to further explore this interrelationship;

3. Requests the Executive Secretary to transmit the present decision to the secretariats of the World Trade Organization and the World Intellectual Property Organization, for use by appropriate bodies of these organizations, and to endeavour to undertake further cooperation and consultation with these organizations;

4. Renews its request to the Executive Secretary of the Convention to apply for observer status on the Council for the Trade-related Aspects of Intellectual Property Rights, and requests him to report back to the Conference of the Parties on his efforts.

C. Ex situ collections acquired prior to the entry into force of the Convention and not addressed by the Commission on Genetic Resources for Food and Agriculture

The Conference of the Parties 1. Decides to continue the information-gathering exercise on ex situ collections acquired prior to the entry into force of the Convention and not addressed by the Commission on Genetic Resources for Food and Agriculture of the Food and Agriculture Organization of the United Nations initiated by decision IV/8;

2. Requests the Executive Secretary to gather available information of the type described in the annexes to the present decision, as appropriate, from Parties, Governments and relevant organizations and forums through questionnaires;

3. Invites relevant organizations and forums already involved in consideration of these issues to provide this information to the Executive Secretary;

4. Invites Parties, Governments and other organizations to provide capacity-building and technology development and transfer for the maintenance and utilization of ex situ collections;

5. Requests the Executive Secretary to report to the Conference of the Parties at its sixth meeting on the implementation of the present decision.

ELEMENTS FOR A QUESTIONNAIRE ON EX SITU COLLECTIONS

A questionnaire to solicit the relevant information may contain the following elements:

1. Number, types and status, including legal status and institutional links, of relevant collections;

2. Approximate number of accessions acquired prior to the entry into force of, or not in accordance with, the Convention on Biological Diversity (<100; >100; >1000; other);

3. Whether the following information is likely to be available: country of origin; name of depositor; date of deposit; terms of access under which the material is available (All available; Some available; None available);

4. Any relevant policies regarding collections that are not addressed by the FAO Commission on Genetic Resources for Food and Agriculture, where appropriate, in particular those addressing the issue of access to the relevant collections, including matters relating to repatriation of information and repatriation of duplicates of germplasm collections;

5. Information regarding the number of requests for information and the exchange of germplasm;

6. Details of the benefits from shared germplasm and information on costs of maintaining such collections;

7. Any other relevant information.

QUESTIONNAIRE ON EX SITU COLLECTIONS

Objective To inform consideration of the implementation of the Convention on Biological Diversity by ex situ collections

1. Information on collections Number of accessions Pre-Convention on Biological Diversity Post-Convention on Biological Diversity Public Private Public Private

PLANT GENETIC RESOURCES

seed gene banks: field collections: (e.g. botanic gardens and arboreta) other: (e.g. DNA, pollen in cold storage, tissue cultures, herbaria ) ANIMAL GENETIC RESOURCES Whole animal collections: (e.g. zoological gardens; rare breed collections) other: (e.g. DNA, semen, ova in cold storage)

MICROBIAL GENETIC RESOURCES

culture collections: other:

2. Information on pre-Convention on Biological Diversity collections (Information to be differentiated between plant genetic resources, animal genetic resources and microbial genetic resources.) Is information available on: For all accessions For most accessions For some accessions For few accessions For no accessions country of origin name of depositor date of deposit user institution/ country

3. Conditions/restrictions on access and use (Information to be differentiated between plant genetic resources, animal genetic resources and microbial genetic resources.) (a) Description of the main conditions/restrictions (including those contained in national law, those set by the collections themselves and those set by depositors) on access to and use of genetic resources identified separately, if appropriate, for pre-Convention on Biological Diversity and post-Convention on Biological Diversity material. (b) What limitations, if any (legal or practical), are there on applying the provisions of the Convention on Biological Diversity to the supply of pre-Convention on Biological Diversity materials for collections in your country?

4. Use of collections (Information to be differentiated between plant genetic resources, animal genetic resources and microbial genetic resources.) Information on the number of requests for genetic resources and for information differentiated by type of collection (public/private) and by the source of the request (national/foreign; public/private).

5. Additional information (Information to be differentiated between plant genetic resources, animal genetic resources and microbial genetic resources.) Any additional relevant information on other key characteristics of collections, for example:

  • Focus on medicinal plants, certain families/genera/species, emphasis on economic importance, certain ecosystems (e.g. drylands);
  • Whether the accessions are duplicated elsewhere (for conservation purposes and to determine the genetic diversity of collections world-wide)

  • United Nations
  • United Nations Environment Programme