Discussion forum on DSI policy options

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Discussion forum on policy options for digital sequence information (DSI) on genetic resources.

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3. Policy options feasibility and appropriateness (April 24-May 2) [#2044]

Considering the previous discussion threads on the policy options and the criteria, participants are invited to share reflections on how the policy options fare vis a vis the proposed criteria framework. Additionally, it is important to consider the option(s) that will help find common ground and enable a way forward for digital sequence information and access and benefit sharing. 

Questions to guide the discussion

1. Considering the policy options, the key criteria, and the proposed criteria framework, while recognizing the need to find common ground, what are your views on the feasibility and appropriateness of the policy options?  

2. Are there any other elements that should be taken into consideration?
(edited on 2021-04-21 14:10 UTC by Mr. Matthew DIAS)
posted on 2021-04-15 15:56 UTC by Mr. Matthew DIAS, Afghanistan
This is a reply to 2044 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2054]
The postponed activation of Thread 3 on 24 April 2021 makes sense. The Secretariat solicits opinions on the "Feasibility and Appropriateness of Policy Options" in light of those on the "Criteria Framework" and "Policy Option Categories" in Threads 1 and 2  (21-23 April 2021).  However, only three participants posted an opinion in Threads 1 and 2. More than 150 people are registered.

How could opinions be so few? Some 40 authors are cited in the twelve references of Webinar #4. Over the last four years, roughly 300 participants have attended workshops related to DSI in Mexico, Europe and South Africa. There have been 5 multi-authored commissioned studies since the misnomer was first uttered in a workshop on Synthetic Biology in 2015.

An explanation for the silence is the "fallacy of sunk costs", to which I refer in my first posting [#2047]. Stakeholders and Parties have continuously invested in bilateral ABS, largely because they have so invested. Multilateral ABS? The question is dismissed. Lawyers solemnly intone "stare decisis", which means "stand by the decision"---even if it's wrong! The boat has sailed. Die Würfel sind gefallen. El pájaro está suelto. The homily endears no matter the language. Sympathies are aroused. Even those uninvested in the mistake go silent. The sunk-cost effect is not only intra-personal but also interpersonal.

To move forward on ABS, we must look this Gorgon in the face.

(cc) 2021. Joseph Henry Vogel

"The Tragedy of Unpersuasive Power: The Convention on Biological Diversity as Exemplary,” Joseph Henry Vogel. International Journal of Biology, 2013. Vol 5, No. 4 (December 2013): 44-54.

English: http://www.ccsenet.org/journal/index.php/ijb/article/view/30097/18019

Spanish: “La tragedia del poder no persuasivo: La Convención sobre la Diversidad Biológica como ejemplar”, Joseph Henry Vogel, Pages 185-210 in Santiago Roca (ed) Biodiversidad y propiedad intelectual en disputa: situación, propuesta y políticas públicas  (Peru: CEPIC/ESAN 2016), trans. Jorge R. Figueroa-Quintana.
posted on 2021-04-24 03:36 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2054 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2055]
Webinar #3 "Policy Options for DSI" presented "bounded openness" clearly and impartially (52:00-56:00, 11 February 2021). Several weeks later, the Executive Secretary "not[ed] that there may be other [options]  that have not yet been captured" and "look[ed] forward to active participation" in the Discussion Forum scheduled for 21 April to 2 May 2021 (Notification No. 2021-025).

The opportunity to capture the other options has gone unseized. Hanging back are the authors cited in the References to the Forum. As of Tuesday 27 April 2021, only three participants posted anything. By comparison, some 94 messages had been posted in the Synthetic Biology Forum by the end of its sixth day (3 - 8 March 2019).

What do the authors think? Will we find out by 2 May 2021 (and hopefully not at the 11th hour)? My crystal ball is cloudy.

Non-participation in this Forum coheres with studied ignorance, which was the strategy to preserve the bilateral approach from COP1 through COP12. But at COP13 the needle moved. Digital Sequence Information (DSI) took center stage. In the musings since, foundational questions also arose. How should we interpret "material" in the definition of "genetic material"? The only reasonable interpretation invites the relevant economics.

Advocates of bilateral ABS can no longer safely ignore "bounded openness over natural information". Something similar can also be said of multilateral approaches that are not "bounded openness".  Advocates of compensatory liability regimes, common pools, Mare Geneticum and the WiLDSI Option #2 [Pretoria #3] can no longer safely ignore "economic rents".

Below please find a refereed article about studied ignorance and a submitted view which deduces the futility of the bilateral approach and the centrality of rents to the correct multilateral approach.

(cc) 2021. Joseph Henry Vogel.

“The Economics of Information, Studiously Ignored in the Nagoya Protocol on Access and Benefit Sharing” Joseph Henry Vogel, Nora Álvarez-Berríos, Norberto Quiñones-Vilche, Jeiger L. Medina-Muñiz, Dionisio Pérez-Montes, Arelis I. Arocho-Montes, Nicole Vale-Merniz, Ricardo Fuentes-Ramirez, Gabriel Marrero-Girona, Emmanuel Valcárcel Mercado, Julio Santiago-Rios, 7/1 Law Environment and Development (LEAD) Journal (2011), p. 51-65

English : http://www.lead-journal.org/content/11052.pdf
Arabic: http://www.lead-journal.org/content/11052d.pdf
Chinese: http://www.lead-journal.org/content/11052e.pdf
French: http://www.lead-journal.org/content/11052b.pdf
Portuguese: http://www.lead-journal.org/content/11052c.pdf
Spanish: http://www.lead-journal.org/content/11052a.pdf

"Even the best case for bilateralism supports need for a Global Multilateral Benefit-Sharing Mechanism: Common ground in ‘bounded openness over natural information’ as the modality for ABS”  In response to NOTIFICATION for Submission of views and information further to decisions NP-3/13 on Article 10 of the Nagoya Protocol  (SCBD/NPU/DC/VN/KG/RKi/87805). Sociedad Peruana de Derecho Ambiental.

English: https://www.cbd.int/abs/submissions/Art10/2019/SPDA-EN.pdf
French: https://www.cbd.int/abs/submissions/Art10/2019/SPDA-FR.pdf
Portuguese: https://www.cbd.int/abs/submissions/Art10/2019/SPDA-PT.pdf
Spanish: https://www.cbd.int/abs/submissions/Art10/2019/SPDA-ES.pdf
posted on 2021-04-27 04:12 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2055 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2059]
Hello, my name is Diego Macall, I am a Research Assistant at the University of Saskatchewan, I am co-author of the paper: Implications of biological information digitization: Access and benefit sharing of plant genetic resources. Our paper is open access and can be read at: https://onlinelibrary.wiley.com/doi/full/10.1111/jwip.12151

Your work, and pretty much all of the discussions look at and consider only terrestrial species. I have reviewed the references embedded in your comments in all three threads.  Bounded openness to me seems to refer only to terrestrial species. 

But  what about the marine species, especially those that move about the entire ocean?

There are certain species considered plants, but that are not sessile (plankton for example). What about these species?

Much bioprospecting occurs at sea.  Many marine species are ubiquitous, migratory or not-sessile. How would bounded openness  work for marine species?

Do you have thoughts on this?
posted on 2021-04-27 22:49 UTC by Mr. Diego Macall, University of Saskatchewan
This is a reply to 2059 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2060]
Thank you for the discerning question.

"Bounded openness over natural information" is robust. The modality focusses on the leading driver of extinction, which is not the same for terrestrial and marine species. For the former, the order of the drivers is captured in the mnemonic HIPPO: H (habitat loss), I (invasive species), P (pollution), P (human population growth) and O (over-harvesting). Because H leads for terrestrial species, participation in royalty income varies with the geographic extension of the land conserved. "Bounded openness" makes regulation of land use more politically viable by offsetting some of the opportunity costs of land conservation. For marine species, CO2 pollution leads through the acidification of the ocean. Because P is the leading driver of marine extinction, royalty income would be directed toward emissions reduction.

You may rejoin: But policies for emissions reduction are already underway through the UNFCCC. The extent of their success means that "bounded openness" for marine species must address fungibility [#2051]. In other words, the modality must not finance emissions reductions that would have occurred anyway. Royalty income should only be distributed among the Parties which reduce emissions beyond their commitments under the UNFCCC.

Economics is largely deductive (detractors will say "armchair"). Imagine two countries X and Z. Country X establishes a marine park but does not reach its National Determined Contributions (NDC) under the 2016 Paris Agreement. Country Z is landlocked but reduces emissions beyond the NDC. Country X would not receive any royalty income and Z would, despite the latter having no outlet to the sea. The policy implication is efficient to the extent that the threat to marine species is primarily P and not H (if you relax that assumption, the implication will change).

Higher-level abstractions are less self-evident despite the integration of easy-to-comprehend statistics. For example, one reads that global marine biotechnology is estimated at $3.5 billion in 2017 with expected growth to $6.5 billion in 2024 (CISTON PRnewswire 2019). From these intelligible estimates, we need two economic abstractions that are essential for ABS policymaking: estimates of the elasticity of the demand of marine biotechnology products; application of the Ramsey Rule of Public Finance, by which royalty percentages vary inversely with elasticities of demand, thus minimizing "excess burden" (a measure of consumer welfare loss due to diminished consumption).

The above paragraph may not make sense to anthropologists, biologists and lawyers, unfamiliar with elasticity, the Ramsey Rule or excess burden. I repeat the comment from my introductory posting: economics is difficult even for economists [#2047]. Unfortunately, much of ABS policymaking takes place as if economics were not necessary. Yet the fairness, equity and efficiency of the Ramsey Rule is hardly intuitive. Neither is fungibility. The list could go on.

My co-authors and I explain the above economics step by step in an extensive study to be published shortly, open-access:

Sociedad Peruana de Derecho Ambiental / Peruvian Society of Environmental Law. (2021, forthcoming). Fairness, Equity and Efficiency for the Convention on Biological Diversity and the Nagoya Protocol: Analysis of a Rodent, a Snail, a Sponge and a Virus. Report. Eschborn, Germany: The ABS Capacity Development Initiative. http://www.abs-initiative.info/about-us/

(cc) 2021. Joseph Henry Vogel
(edited on 2021-04-28 11:28 UTC by Mr. Joseph Henry Vogel)
posted on 2021-04-28 04:12 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2060 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2072]
Thanks for the illustrative explanation professor Vogel.
Based on your microeconomics explanation, will your upcoming work be showing the microeconomics/ econometrics to obtain said elasticity of demand?
posted on 2021-04-30 02:03 UTC by Mr. Diego Macall, University of Saskatchewan
This is a reply to 2072 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2073]
Thanks for the follow-up. Interest must be keen in marine bioprospecting as I fielded a similar question by email just today.

Below I cut and paste a relevant passage from "Fairness, Equity and Efficiency for the Convention on Biological Diversity and the Nagoya Protocol: Analysis of a Rodent, a Snail, a Sponge and a Virus" (Sociedad Peruana de Derecho Ambiental / The ABS Capacity Development Initiative, Report, forthcoming 2021, http://www.abs-initiative.info/about-us/).

"Price elasticity of the final product reflects market conditions as well as the quantity currently traded. For example, high-end apparel in a market awash with clothes will exhibit elastic demand. Not only do cheaper substitutes exist, but many customers can do without an expansion of their wardrobe. Hence, a significant percentage royalty for, say bionic fibers will create heavy excess burden. In such cases, economics implies that the percentage royalty be low, perhaps only a fraction of one percent. Life-saving drugs, on the other hand, exhibit inelastic demand. Few who need a drug and have the financial means, will choose to do without. The royalty would create little excess burden. Economics implies that the royalty percentage be high. A counterintuitive deduction emerges: the imposition of the same royalty percentage regardless of the price elasticity is inefficient.

Two tasks are of primary importance: identification of the classes of utilization; estimation of the elasticities for each of the most revenue-generating utilizations for both marine and terrestrial species. Should the percentages implemented by the COP violate the Ramsey Rule (Box 9), knowledge of the elasticities will reveal how far Users and Providers deviate in their negotiations over percentages. Correction is always possible in a framework convention."

The last sentence above implies the answer to your question about microeconomics and econometrics. The answer becomes explicit in the subsequent subtitle of the Report: "5.3.2 Valuation and Monetary Benefits: Scale Obviates Need for Precision". 

Under "bounded openness", economists give their best estimates of the elasticities and then they bow out. Representatives of Users and Providers negotiate the royalty percentages for each class of utilization. The elasticities only inform. Estimates can and should be re-visited at intervals determined by the amendment.

(cc) 2021. Joseph Henry Vogel.
posted on 2021-04-30 04:09 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2044 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2083]
A problem that is rather challenging in this discussion is that the criteria under consideration are very high level. One might consider them principles. Some, such as ‘open access’ and ‘fair and equitable’, are undefined and can be interpreted in different ways, with different implications for a modality, as has been seen in discussion so far. In contrast, the various options on the table (and those not clearly on the table but also under consideration by some stakeholders) have been subject to much more detailed scrutiny in the reports where they have been described, and it is at this level that discussion might also usefully be held, because it is at this level that killer assumptions become clear. As indicated by Akio Yamamoto [#2081] policy options have important technical considerations, which may limit their potential.
A very simple flow chart of the process under discussion (omitting options 0, 3.2, 4, 5) has the following elements (not necessarily in this order):
1.    Deposition of DSI unit in a 3rd party database (the key point being that there is no signed contract between the next user and the country of origin of the GR, so the legal chain is broken). There may be an argument for application of NP Art 5(1) here but to my understanding the implications of this have not been explored.  At this point there are options for registration, and for attaching terms and conditions, but also challenges for databases in how to deal with these, as pointed out by Guy [#2074]. There are also discussions to be had about what core data are required (e.g. country tag and date of access of original GR, which might be relevant to geographical and temporal scope), and whether the databases would / could reject deposition if these data were not added.
2.    View or download of DSI unit by user (machine or individual). “View” (i.e. a record is touched in the process of comparison) should perhaps be dismissed as a use, although might be relevant if T&C are attached to the DSI record and the user is jurisdiction shopping.  After download the database has no further role, unless tools provided by the database are used. This download may or may not include T&C, and may or may not be subject to agreement with those T&C. If the latter, the same issues arise as discussed under registration.
3.    Identification of (human) user. If the user is expected to share benefits at some point then their identity may usefully be known (subject to decisions taken on regulatory oversight – see ‘6’ below). However, the point at which this identification takes place is determined by the model chosen. If download of data is by machine I assume that this carries the identity of the human user and could in principle transmit that (assuming there is an entity that is willing to receive the information and is prepared to do something with it). The necessity for user identification relates to a possible regulatory requirement. If FAIR principles are employed there presumably would have to be a registration facility somewhere for subsequent users? This brings us back to the issue of registration. If the identification of the user is at the point of commercialisation there are different issues, partially (potentially) covered by the patent system, but not all uses are covered by patents, even commercial uses. One might opt for self-identification, as for utilisation of genetic resources under the EU ABS regulation or the Brazilian registration system.
4.   Acceptance of obligation to share benefits by user. If this is a legal responsibility (i.e. within the State of the user) then such an acceptance may not be required. This does raise the question of whether the model will form part of a legally binding treaty or not. However, the user will need to know the obligations. If this is not a legal responsibility under national legislation then how is the user to be informed of the obligations?
5   Sharing of monetary or non-monetary benefits by the user at pre-determined point in value chain. The point of payment may differ if the model allows different T&C.  There may also be differential financial contributions agreed, for example related to the geographical base of the user, the size of the private-sector company, product development costs etc. Depending on the model these may or may not be linked to the commercial value of the product. The concept of fair and equitable is of course very relevant here. Different models have different time scales for fund availability, either short term (e.g. microlevy) or longer term (linked to commercialisation) and predictability.
6  Regulatory oversight of benefit sharing.  This so far has not been explored, but is a contributing feature to assessing policy options. If a voluntary model is chosen then this may not be a big issue. If not, then compliance will be a part of the process. I can see two options: regulation is at country / jurisdiction level, in a similar model to the NP, or regulation will be a civil matter with providers looking for cases and pursuing them in the civil courts in the user country [cf NP art 18(2,3)].  In the former case, the regulator will need to know the identity of the user and their geographical location.
7    Distribution of funds.  The modality of benefit sharing (bilateral or multilateral; distribution by DSI used, proportion of DSI from countries in the database, project submission etc) is a separate discussion, but may influence consideration of the different options.
posted on 2021-04-30 16:21 UTC by Dr. Christopher Lyal, United Kingdom of Great Britain and Northern Ireland
This is a reply to 2044 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2088]
[This post is submitted on behalf of the USA Nagoya Protocol Action Group (USANPAG), a group of scientific researchers and biological collections managers who represent national and international scientific societies and inform membership about requirements of the Nagoya Protocol.  We submit these comments and views to this discussion forum as concerned individuals and citizens, and do not claim to represent the opinions, views, or policies of the organizations and institutions where we work or with which we formally affiliate.]

**Until further details are presented around how each of these policy options would be implemented, we propose that the default remain status quo (Option 0). ** A failure to do so could risk the institutional credibility of the CBD and have unintended consequences to international scientific research and to society, which benefits from knowledge and innovation generated by the scientific enterprise.

We would also support further consideration of Option 4, and welcome opportunities for the international scientific community to weigh in on what types of mechanisms may be most beneficial.
posted on 2021-04-30 18:39 UTC by Jyotsna Pandey, USA Nagoya Protocol Action Group, American Institute of Biological Sciences
This is a reply to 2044 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2090]
Few species have been sequenced so far, maybe less than 2 % of known organisms. There is a lot to be described yet, and the ABS community should find a way to keep this work unrestricted.
An ideal option would be the one combining Options 2.2 (Multilateral, no PIC for DSI use and with standard Mutually agreed terms at international level), with elements of option 2.1 (Benefit-sharing triggered at the commercialization of products based on DSI and channeled back to the countries of origin, when possible).
Open access under terms and conditions is a practical solution, and adopting a multilateral bounded openness option could keep DSI download, use, and exchange open, under terms and conditions that would guarantee benefit-sharing to conservation.
Instead of the monitoring of ideas or expectations from DSI use, a Multilateral Bounded Openness option would allow the monitoring of use to be focused on the outcomes of DSI use, such as scientific research publications (papers), Intellectual Property Rights claims (patents), and marketable products.
Users with such outcomes would be required to register in a Multilateral Registration System, to be governed by the Parties, and implemented by the Secretariat, through the ABS clearinghouse, for instance.
In such result declaration, Users would disclose information on the DSI use, the database, and the country of origin, when available.
In this sense, the ABS community may consider adopting a policy that focuses on DSI use -outcomes regularization, through a multilaterally governed system.
A one-stop-shop system for the registration of all results of DSI use, including those with country tags. Transparency would be enhanced by National focal points being able to collectively monitor those DSI registries.
Moreover, monetary benefit-sharing obligations should solely apply to the commercial use of products based on DSI, and those financial resources could be shared through a Global BS mechanism, also governed by Parties, built from Nagoya Protocol’s Article 10.
In this sense, even If the DSI used has a country tag or its origin is identifiable, the user would share the monetary benefit through the Global Mechanism, which would channel those resources to provider countries.
When the DSI used has no country tag, is cosmopolitan, or is distributed across jurisdictions and taxa, the global mechanism would collect the benefits and apply them to funding global, regional, or sub-regional conservation initiatives, or, as suggested by Vogel and Muller: to “finance the requisite infrastructure to make the whole thing work”.

It is time for innovative solutions as much as there is a need to change the ABS regulatory mindset. From my optimistic point of view, Practical solutions achieved by Mutual understanding and transparency will arise if the focus of regulation is on results …outcomes of DSI use… instead of processes (like downloading, comparing, using).
The processes used to extract the potential value of the genetic resources in the form of information will always be in constant evolution and change, one needs only to look at the rapid advances of quantum computing to know that sooner or later the D in DSI, may be replaced by a Q, and the digital will be quantum sequence information.
But, if there is something that always lasts regardless of the advancement of technologies, it is the way in which the biological information is translated into result indicators, such as papers, patents, and products ready to be marketed.
If we in the abs community continue to regulate processes based on techniques, we will always be chasing technological advances, and filling gaps in outdated systems.
If we regulate the products of the use of biodiversity components, in spite of how science advances, they will invariably be translated into papers, patents, and products, which can be quantified, monitored by checkpoints, and integrated with the Nagoya Protocol traceability system.
Finally, not taking into consideration the legal aspects, I would say that this multilateral system could host DSI use registries from biodiversity beyond national jurisdiction, for food and agriculture, from Antarctica, and so on.
In conclusion, my option would be a one-stop-shop multilateral electronic System, to register the outcomes of DSI use, regardless of jurisdiction or sector of use, with a Global mechanism that is capable of directing monetary benefits to conservation, including to countries of origin.
For that, Parties could adopt a Decision, in which Parties reaffirming their sovereign rights over their respective genetic resources and associated DSI would decide to grant their consent to all DSI use publicly available, making DSI open to use, provided that: terms and conditions regarding commercial and non-commercial uses are obeyed by users and enforced by Parties; that results of DSI use (Papers, patents, Products, etc.) are electronically regularized through a multilateral declaratory registration system, governed by Parties; and that benefit-sharing obligation are complied with through the establishment of a Global Multilateral BS Mechanism.
posted on 2021-04-30 19:50 UTC by Mr. Henry Novion, Adviser
This is a reply to 2090 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2091]
I think that DSI is being treated as the end all be all in these discussions. It is not. Without the corresponding phenotypic data, genomic information is largely meaningless. This is a fact for most crops. Perhaps that could factor in the course of actions taken. As more and more crop breeders lay the groundwork by researching functional genomics (understanding what genes actually do), attention should go into the specific benefits each individual (or group of) gene provides. For example, if there is a gene that is understood to increase yield, that could weigh in the calculation of benefits to be shared. Or if a gene, or group of genes has to do with drought tolerance, that could alter the calculation. For most crops, when crop breeders are developing new crop varieties, they edit of hundreds of genes at once. Perhaps the actual way in which genomic information is used should weigh more in the amount of benefits to be shared.
But as Vogel points out [#2073], microeconomic modelling needs to start permeating these discussions, otherwise we will be debating for years and years and not accomplishing anything. I agree with Lyal [#2083] that the current view is too birds’ eye, we need more granularity in these discussions. I do not agree with Pandey [#2088], if this was a true intention, it would have happened by now. Very few people know about this in developing countries, its even harder to explain what is happening and what is at stake. Are graduate students going to be trained? Will labs be equipped in developing countries?
Novion [#2090], the comment I would have for your suggestion is that needs are increasing around the world. People’s lives are not improving in most (if not all) megadiverse countries (Peru, Brazil, Indonesia, etc.), what incentive do they have to conserve nature if they have needs now? To a certain extent this DSI stuff is very abstract at this point and people have needs now, unless some incentive exists for them to address some of their needs, waiting for something to be commercialized could be too much time. Moreover, most R&D doesn’t result in commercially viable products for years, there is always a lag between basic R&D and commercialization in the private sector. The public sector’s main aim is to share knowledge, not commercialize. If a university publishes papers, would DSI providers get compensation for each paper?

Diego Macall
posted on 2021-04-30 22:55 UTC by Mr. Diego Macall, University of Saskatchewan
This is a reply to 2091 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2094]
Macall [# 2091] I share your opinion on the urgencies and the limited time we have to tackle them. ABS alone will not solve the problems, needs, and urgencies that you mention, but it can be implemented in a way that complements the policies that have this objective. I believe that ABS should lend itself to the purpose for which it was conceived, to be a legal and institutional instrument for States to exercise their sovereign rights over their own biological resources, through the adoption of legislative measures, which promote research, innovation, and the commercial use of the components of nature, allowing the capture of the intrinsic economic value of biological diversity by society while States, in a responsible manner, channel the benefits obtained to promote the conservation of biodiversity. ABS is a policy to amortize national costs of conservation and sustainable use, and not the only instrument for that.
ABS is rather an instrument to mobilize resources for the conservation of biodiversity: scientific resources (research publications); technological resources (DPI, i.e.), and financial resources (resulting from economic exploitation of products arising from the use of the components of biodiversity, for instance).
To share relevant scientific knowledge on biodiversity is to share benefits. So "If a university publishes papers, would DSI providers get compensation for each paper?" The scientific knowledge published and available to the public, including to the provider, is the compensation from my point of view.
In my simplified suggestion, depositing a DSI in a database could also be seen as a shared benefit. Instead of trying to anticipate the capture of unrealized benefits, prior to utilization, (from expectations of a paper, patent, or product), which refrains these activities to properly take place and to materialize the expected benefits, why not establish an ABS regulation focused on end-users under a Bounded Openness model? The monitoring of activities would be focused on fewer actors (only those that achieved results) and under goods that exist (papers, patents, and products). The researcher shares the benefit she/he generates, the knowledge, through its publication and also by registering in the referred ABS Multilateral System. A Multilateral System that could / should be created to regularize concluded activities through a declaratory registration made on a website, where the user would have his login and a profile to feed (with their papers, patents, and products), as appropriate.
posted on 2021-05-01 11:16 UTC by Mr. Henry Novion, Adviser
This is a reply to 2094 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2099]
Henry Novion asks "why not establish an ABS regulation focused on end-users under a Bounded Openness model?" [#2094].  The problem lies in the second indefinite article of his question. I interpret that Henry foresees the emergence of various models of "bounded openness". My co-authors and I have designed ours with features that cannot be deleted without upending its logic. Nor can our model be "mixed & matched" or "hybridized" with other options, as would be allowable in the WiLDSI Project "Finding Compromise" or the "Study for the EU Commission: Possible Ways to address DSI".  Deletion or hybridization would pervert "bounded openness over natural information", unrecognizably so.  For this reason, I am thankful that the highly similar WiLDSI Option #2 [Pretoria #3] in "Finding Compromise" did not reference our work. For a fuller explanation of my sentiment, search my surname in the lengthy yet page-unnumbered Addendum to that Report and then click the links embedded therein: https://www.dsmz.de/fileadmin/user_upload/Presse/WILDSI/WiLDSI_ADDENDUM_to_white_paper_Feb_2021.pdf).

Hybridization is good for polar bears and grizzlies as the Arctic melts, drop by drop, drip, drip, drip. But hybridization is horrendous for policymaking. The mathematics were worked out in a 1956 paper  titled "The General Theory of Second Best" by R.G. Lipsey and Kevin Lancaster.  For ABS, bounded openness without economic rents is inefficient, unfair and inequitable. Bounded openness with rents but "mixed & matched" with earmarking is self-defeating, whenever the conservation financed would have happened anyway (see the issue of fungibility addressed in [#2051, #2060, #2092]).

Cherry picking has an ignoble history in policymaking.  At the UN Monetary and Financial Conference of 1944, held in Bretton Woods, the brilliance of the proposal from the British head of delegation, John Maynard Keynes, was "mixed & matched" with proposals from much lesser hearts and minds. The Americans rejected the Bancor, which was Keynes' innovation for the long-term sustainability of the international financial system.  Bretton Woods collapsed in 1971. At the majestic conference site, Keynes must have sensed a certain déjà vu with the Hall of Mirrors at the Château de Versailles, some twenty-five years earlier. The then 36-year old Keynes served as the chief representative of the British Treasury for the Paris Peace Conference. He protested vigorously against the draconian terms of the Treaty, foreseeing perfectly the tragedy that would engulf Europe.

History is germane.

"The Consequences of the Peace". John Maynard Keynes 1919. London: Macmillan & Co., Limited.

"On Keynesian Economics and the Economics of Keynes". Axel Leijonhufvud. (New York and London: Oxford University Press, 1968

(cc) 2021. Joseph Henry Vogel.
posted on 2021-05-02 03:43 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2090 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2100]
Mr Novion (#2090), you have outlined a feasible and appropriate option that should be further worked on by the AHTEG though there are some further clarifications that may be needed to see fully how your suggestion will work out.

My query is on that Bounded Openness Mechanism, and perhaps here Mr. Vogel can help clarify - is this a facility with clear set of rules and are these rules integrated in the MATs or terms of use or during the registration of DSI in this Mechanism?

A related question is how will this multilateral mechanism being discussed here intersect with the concept of art. 10, NP, the Global Multilateral Benefit-Sharing Mechanism, are they the same, most likely they are not; would DSI also exhibit characteristics of the items enumerated in art. 10? It will be interesting for the AHTEG to clarify this item.  Would be good to elicit reactions on this also. Thank you.
posted on 2021-05-02 03:57 UTC by Mr. Elpidio Peria, Philippines
This is a reply to 2100 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2101]
Thank you for your enquiry.  Over the course of this forum, I have cited many publications related to "bounded openness over natural information". Please see the following postings and the references therein: Thread 1: [#2047],[#2050],[#2069], [#2071], [#2079];  Thread 2: [#2051],[#2053], [#2065], [#2068], [#2084], [#2092]; Thread 3: [#2054], [#2055], [#2060], [#2073], [#2099]

Whenever possible, I have sought open-access venues for publication and collaboration for translation into the UN languages plus Portuguese. However, open-access  is usually not possible with commercial book publishers. In such cases,  my co-authors and I forgo royalties on book sales to retain all foreign language rights. We then put the translated texts into the creative commons. Below please find some references not cited in the aforementioned postings.

“Bounded Openness as the Global Multilateral Benefit-Sharing Mechanism for the Nagoya Protocol” Joseph Henry Vogel, Klaus Angerer, Manuel Ruiz Muller and Omar Oduardo-Sierra. Pages in Charles R. McManis and Burton Ong (eds) Routledge Handbook on Biodiversity and the Law (London, Routledge, 2018), 377-394.

"Capítulo 26: Apertura Delimitada como la Modalidad del Mecanismo Mundial Multilateral de Participación en los Beneficios del Protocolo de Nagoya", Joseph Henry Vogel, Klaus Angerer, Manuel Ruiz Muller y Omar Oduardo-Sierra, https://biblioteca.spda.org.pe/biblioteca/catalogo/_data/20200329205706_Recursos%20genéticos%20como%20información%20ambiental%20implicancias%20para%20El%20Convenio%20sobre%20la%20Diversidad%20Biológica%20y%20el%20Protocolo%20de%20Nagoya.pdf#page=164. Or:  https://www.academia.edu/38388288/Apertura_Delimitada_como_la_Modalidad_del_Mecanismo_Mundial_Multilateral_de_Participación_en_los_Beneficios_del_Protocolo_de_Nagoya

Chinese  (available upon request): Generously translated  by Dr.  QIN Tianbao, Luojia Professor of Law Director, Research Institute of Environmental Law (RIEL). Vice Dean, School of Law, Wuhan University,  Secretary-General, China Society of Environmental and Resources Law (CSERL), Co-Editor-in-Chief, Chinese Journal of Environmental Law (Brill). Ava

“Economics Resolves ABS for Genetic Resources and Traditional Knowledge Once Both are Defined Accurately” Submissions on Article 10 of the Nagoya Protocol pursuant to decision NP-2/10. 4 April 2018. https://www.cbd.int/abs/submissions/np-2-10/joseph-henry-vogel-en.pdf

“La economía resuelve el problema de ABS una vez que se definan recursos genéticos y conocimientos tradicionales de forma precisa” Submissions on Article 10 of the Nagoya Protocol pursuant to decision NP-2/10. 4 April 2018.  https://www.cbd.int/abs/submissions/np-2-10/joseph-henry-vogel-es.pdf

(cc) 2021. Joseph Henry Vogel.
posted on 2021-05-02 05:06 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2044 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2102]
Policy options feasibility and appropriateness

Prioritizing firstly, options that will help find common ground and enable a way forward for DSI and ABS. This would appear to exclude the status quo (option 0) and also options at polar ends of the spectrum which treating DSI as either fully integrated or equivalent to GR and therefor requiring PIC & MAT (option 1) or fully disaggregated from GR and therefore do not merit benefit sharing (option 5). These options appear to be the least appropriate to yield a compromise/balance between open data on the one hand and fair and equitable benefit sharing on the other.

Turning next to bilateral options. Limited information is publicly available regarding monetary and non-monetary benefit sharing arrangements negotiated by contracting parties under CBD/Nagoya to date in relation to GR (given MAT tend to be negotiated on a confidential basis), however, anecdotally it seems that inadequate benefit sharing is a significant source of frustration under bilateral approaches. There is no reasonable basis to expect that a bilateral approach to DSI would be any different. Additionally, bilateral approaches appear to suffer from significant drawbacks. Firstly, they are inherently “leaky” as sequence conservation in nucleic acids and proteins across species, as well as the ability to access similar genetic resources across borders, provide alternative sources for GR/DSI and create opportunities for regulatory arbitrage. Also, ex-ante negotiations to strike a fair bargain are challenging with “providers” and “users” naturally perceiving differences in the intrinsic value as well as the potential commercial value (and value-add) resulting from the use of a particular GR/DSI in an innovation process. In light of these issues, bilateral options (such as option 2.1) may be less appropriate/attractive than multilateral options if they can be designed in a manner that find common ground. This would appear to be reinforced when transactions costs and regulatory complexity of bilateral options are taken into consideration.

Evaluating the feasibility and appropriateness of the various multilateral options 2.2, 3.2 and 3.2 merits a deeper dive. Open DSI on least restrictive terms appears to be most compatible with the needs of the scientific community. This appears to be a point of contention but it need not be. It is use by the scientific community that begets benefits for sharing so accommodating their needs is an indispensable part of an ABS compromise for DSI. The challenge is in leveraging access and use of open DSI through INSDC databases to also maximize benefit sharing in a virtuous cycle. The devil of course will be in the detail/design of the benefit sharing dimension, however, the multilateral option which can best minimize friction to open DSI (e.g. by minimizing associated transaction costs and regulatory complexity) and maximize its use and sharing of benefits, should be favoured as most appropriate. From this perspective options 3.1 and 3.2 which do not require a framework for MAT may be better suited than option 2.2 from the perspective of least friction and least restrictive terms. Further modelling is needed to evaluate the long term monetary benefit sharing potential under options 3.1 and 3.2 as well as the pros and cons associated with each.

On the elusive question of achieving an appropriate balance/compromise between open data and benefit sharing, payments under multilateral options 3.1 and 3.2 are only one part of the equation. These would  naturally be complemented by technical and scientific cooperation under Option 4. The capacity building and technology transfer objectives of the CBD provide a blank canvass to explore opportunities for compromise and the GBF provides a ready vehicle for operationalization. In a multiphase approach one could envision a comprehensive a program of technical and scientific cooperation targeting DSI being prioritised as part of the GBF with a commitment to further explore options for negotiation of a compromise solution.
posted on 2021-05-02 09:19 UTC by Rodrigo Sara, Leibniz Institute DSMZ
This is a reply to 2102 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2107]
Dear Rodrigo, the combined scoping study 2&3, in which DSMZ participated, stated that it was difficult to receive objective data for 'DSI' outside held outside INSDC. Would you see the proposed payments by available GBF as opportunity for further commitment for 'DSI' held outside INSDC – and how should this be handled by regulatory measures to ensure delivery of (monetary) benefits? These opportunities exist already, but it seems they have not been used successfully in the past. Has there been any evaluation on potential causes or reasons why these tools haven’t been as successful as expected? It surely would be useful to better understand current deficiancies to potentially improve these instruments for future use.
posted on 2021-05-02 12:09 UTC by Dirk Neumann, Consortium of European Taxonomic Facilities / Society for the Preservation of Natural History Collections
This is a reply to 2099 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2108]
In his response to Henry Novion's [#2090] proposal for a Multilateral Registration system, Joseph Vogel [#2099] argues that their construction of bounded openness over natural information is designed such that an element "cannot be deleted without upending its logic". In essence, in my understanding of the proposal, the system proposed by Vogel and Ruiz Muller would, in essence, hinge on royalty rates linked to a patent disclosure requirement (as originally articulated by Vogel in the 1994 Genes for Sale). This seems to me like a good idea and should be pursued further.

However, the original construction of "bounded openness" by Christopher May (see [#2077] and an accessible version below) in my view illustrates the desirability of options that can be mixed and matched or combined in various ways, such as those proposed by Henry. Thus, in discussing the concept of bounded openness May observes that "...rather than an either/or proposition, we can see a more fluid set of possibilities, reflecting pragmatic choices between property and openness, within the socio-economic relations of the growing (increasingly global) information society." (see [#2077] for citation and version below). Indeed, it was precisely this fluid set of possibilities that gave rise to the open source software industry in the modern knowledge economy.

Here, while recognising Joseph Vogel's observations, I would note that there is also a considerable risk in placing all eggs in one basket in terms of the benefit sharing options that have been presented. Thus, the benefit sharing model under the Plant Treaty involves a combination of contributions from Parties and income to be generated under the SMTA (from companies). I participated in the early phase of work (2011-2012) on the evaluation of the future of benefit sharing under the multilateral system where economists (in two studies) sought to model the likely income with one modelling exercise arriving at the view that "...even under favourable assumptions, the initial build-up of income will be slow: with current membership and availability, it will be 38 years before the current fund-raising target is reached." (in Moeller and Stannard (eds) 2013: 155). A key finding in that work was that companies would logically avoid the multilateral system. There is a great deal more that could be said on this, the point is that the assumptions that informed the benefit-sharing model at the time it was adopted in good faith by Parties would not, on the basis of economic modelling, hold true (and precipitating further studies and the debates under the Governing Body). Large scale patent analysis for Annex 1 (which I led) also revealed some of the challenges in patent focused approaches and options for quantifying non-monetary benefits using the scientific literature (in Moeller and Stannard 2013). 

My point here is to highlight the risks of adopting a single model - however attractive it may initially appear to be - in the absence of modelling the option under a variety of assumptions and constraints with a view to forecasting likely costs, revenue and other effects. On that basis, I would favour consideration of the various revenue generating approaches that have already been proposed combined with modelling (royalties, levies, licences, fees, cloud computing and so on).

A challenge for this kind of argument is that it can be deployed to argue for endless modelling or impact assessments as a pretext for avoiding actual action. This will typically form part of a wider avoidance strategy in which participants will seek to either absolutely minimise or completely avoid being affected by the policy (e.g. specific sectors should be excluded because they are 'special' for various reasons etc.).

I think it is here that recent work in economics can also come to the aid of this debate. The UK Treasury has recently published The Economics of Biodiversity: The Dasgupta Review by economist Partha Dasgupta. Dasgupta argues that the fundamental problem with existing economic models is a failure to take biodiversity into account as a set of assets comprising natural capital. In economics, and economic policy, biodiversity has been tended to be seen as "unnecessary luggage" in approaches that see humans and nature as separate. Dasgupta argues that biodiversity as natural capital now needs to be embedded in policy.

How does this help us? Viewed from this perspective, the application of the economics of information to natural information called for by Vogel (see also the work of Timothy Swanson) can be seen as a component in the wider economics of biodiversity. This approach also helps us to step outside the immediate privileging of an individual model (whatever its particular strengths or weaknesses) to focus on the question of why (raised by the ICC) and perhaps more importantly the 'what for' (Oldham 2020). That is, at least in my view, approaches to embedding biodiversity in models for DSI should aim to ensure that biodiversity is the primary beneficiary. As I have suggested in my own work on DSI, rather than thinking in somewhat amorphous terms of benefit sharing, the approach could be sharpened to focus on creating the conditions for the promotion of actual monetary investments in biodiversity. Such an approach, after due modelling, would involve multiple revenue generating streams in a wider framework (Oldham 2020).

To paraphrase Henry Novion in the recent ABS initiative panel discussion reflecting on the criteria presented by the co-chairs: Biodiversity is a stakeholder that has no voice in this debate. To borrow from Dasgupta: biodiversity is silent and invisible. Somebody needs to speak up for biodiversity in this debate: if not us then who? An approach grounded in the economics of biodiversity that recognises biodiversity as natural capital and as the primary object of investment from any measures on DSI will in my view be the most likely to succeed and be worth the effort involved. It will also I hope help stakeholders to recognise that minimisation and avoidance strategies are ultimately self-defeating because there will be no research and no innovation on a dead planet.

In closing I would note that while I fully agree with Joseph Vogel that much more attention is needed to economics, economics on its own is not a magic wand. Rather, what will be required, as in the insightful work of Elisa Morgera who draws parallels between compensatory - liability regimes (from the work of Jerome Reichmann) and natural information and bounded openness, is approaches that make sense across disciplines and recognise a range of disciplinary contributions.

Dasgupta, P (2021) The Economics of Biodiversity: The Dasgupta Review. UK HM Treasury. https://www.gov.uk/government/collections/the-economics-of-biodiversity-the-dasgupta-review

May C (2010) The Global Political Economy of Intellectual Property Rights: The new enclosures. Routledge. See chapter 5 on the challenge of openness.

May C (2010a) Bounded Openness: The future political economy of knowledge management. Oxford Intellectual Property Invited Speaker Series, St Peters College, 11 November 2010. Freely available after login from Academia.edu https://www.academia.edu/2612126/Bounded_Openness_The_future_political_economy_of_knowledge_management

Moeller N and Stannard C (2013) Identifying Benefit Flows: Studies on the Potential Monetary and Non-Monetary Benefits Arising from the International Treaty on Plant Genetic Resources for Food and Agriculture. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/962785/The_Economics_of_Biodiversity_The_Dasgupta_Review_Full_Report.pdf

Morgera E and Switzer S and Geelhoed M (2020) Study for the European Commission on 'Possible Ways to Address Digital Sequence Information - Legal and Policy Aspects.

Oldham P (2020) Digital Sequence Information - Technical Aspects. Study for the European Commission, February 2020. https://ec.europa.eu/environment/nature/biodiversity/international/abs/pdf/Final_Report_technical_aspects_of_DSI.pdf
posted on 2021-05-02 12:27 UTC by Paul Oldham, One World Analytics
This is a reply to 2044 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2109]
These comments are made in my personal capacity and should not be mistaken for official African negotiating positions, although they are partly based on views expressed by the African Group in the past.

Separate threads make understanding linkages harder, so I’m combining my thoughts in one intervention, for the sake of coherence.

Coming into the discussion late, it strikes me that most of the contributions made so far are essentially rehashing arguments from long ago, in some cases from before the CBD or Nagoya Protocol were agreed.

We cannot go on like this: science (or the IPBES, anyway) clearly says it is now or never, that we must bring about “transformative change” that will “bend the curve on biodiversity loss” and “lead to a new deal for people and nature” creating “a nature-positive world” where humanity is “living in harmony with nature” by 2050.

Let us be clear about what is at stake here: without a substantial agreement (not procedural, not just another AHTEG), including numerical targets that can be monitored and verified, on how to share the benefits of DSI:
- There will be no agreement adopted in Kunming on any Post-[2020][2021] GBF;
- Progress on enhancing the functioning of the multilateral system of ABS under the ITPGRFA will be further delayed;
- The FAO Commission on Genetic Resources for Food and Agriculture will be frustrated in its efforts to develop guidance for national ABS measures on the various sub-sectors of GRFA;
- The UNGA negotiations on a BBNJ instrument will face severe difficulties;
- Efforts at WHO to negotiate a “Pandemic Treaty”, or extend the PIP Framework to seasonal influenza, or generally improve ABS measures related to pathogens, will struggle to achieve effective implementation, even if the Covid-19 momentum could maybe be used to force through an agreement; and
- ABS will not make the potential contribution to resource mobilization that it is capable of, while developed countries preoccupied with post-Covid economic recovery will not cover the funding gap, and biodiversity will continue to decline, in many places probably beyond recovery.

Although JF Kennedy was wrong about the Chinese word for “crisis” being composed of the symbols for “danger” and “opportunity”, we nevertheless do face great dangers in the present crisis, but also have great opportunities to bring about global change, if we are prepared to go beyond a narrow conception of “DSI” and are brave enough to “rethink ABS”, as many have suggested we do.

Against this background and before going into finer details I have the following broad observations on the three threads in this discussion:

1. Policy options categories and other options
Policy, like politics, is the art of the possible. While I have great empathy for the unenviable position of the Secretariat, who must remain neutral and be seen to remain neutral at all times, it’s not really all that helpful to present policy options that have no chance of being agreed because they don’t meet the expectations of some (or any) of the stakeholder groups involved. It’s a good idea, as others have pointed out too, to bear in mind that some of the policy option categories are not mutually exclusive or incompatible (e.g. capacity development will probably form part of whatever solution is eventually agreed, not least because of CBD Articles 16, 17, 18 and 19; a multilateral system of benefit sharing can coexist with bilateral control of access in specific cases).

2. Criteria Framework for assessing policy options
In my view the most important criteria are that the agreed solution must:
- Guarantee substantial financial resources to support conservation and sustainable use through fair and equitable sharing of monetary benefits
- Avoid imposing additional bureaucracy, compliance burdens or transaction costs on non-commercial basic research and the DSI infrastructure that supports it
- Significantly improve ease and speed of access, and lower the associated transaction costs for both users and providers
- Encourage, facilitate, and reward innovation
- Respect sovereign rights of States and human rights of IPLCs
- Ensure legal certainty and predictable costs for users, to encourage investment
- Build on and be compatible with existing international, national, and customary ABS legal systems
- Transfer technical capacity and skills to developing countries to enable green and sustainable socio-economic development, to meet the SDGs
- Be fit for the post-2020, post-Covid 19, hyperconnected digitalised information-driven global economy
- Be future-proof against technological developments

3. Policy options feasibility and appropriateness
- Considering the urgency and time constraints, policy options are only feasible if they can be agreed and implemented immediately, without needing new international legal instruments to be negotiated, or requiring substantial changes to national ABS legal systems
- They are only appropriate if their benefits will clearly and unambiguously outweigh the cost of implementing them
- In addition to being feasible and agreeable, policy options must also be politically possible, i.e. must be of a form that can be adopted as part of the Post-2020 GBF by the decision makers gathered in Kunming, and later supported in other bodies like the ITPGRFA, FAO CGRFA, WHO, UNGA BBNJ etc.

Additional thoughts and comments

DSI is a placeholder term; regardless of whether it is eventually retained or not, or what agreed meaning is assigned to it, it will remain just one of the tools (albeit increasingly the most popular and versatile spanner in the toolbox) for “doing biology”, from taxonomy through environmental surveys to plant and animal breeding, genome editing, synthetic biology, industrial biotech, drug design etc. In the context of “utilization of genetic resources” however, DSI is not fundamentally different from ancient technologies such as the firestick, axe, net, bow and arrows, hoe, plough, sickle, scythe, or their more modern mechanised versions (chainsaws, rifles, humongous agricultural machines, feedlots, bioreactors, …) It would be a mistake to focus only on the tools and not on the work that is done with them, and their impacts on biodiversity and society.

Likewise Intellectual Property, including patents, are simply (policy) tools for incentivising and rewarding innovation. Yes, using patents as legal tools for biopiracy has been very contentious in the CBD, partly due to timing – the WTO TRIPS agreement bringing in patents on life in 1995, shortly after the CBD was adopted. But changes to the international IP system will not be brought about in the CBD and, judging by the 20 years of mostly fruitless deliberations in the WIPO IGC, will take a long time to achieve even in the proper forum. I would therefore suggest the best way to treat IP in the discussions about ABS for DSI is to see them as tools that (sometimes) add additional benefits to specific forms of GR utilization for a limited period. How these additional benefits be captured and shared to support conservation and sustainable use of biodiversity seems to me a more productive line of enquiry.

Exactly because patents only sometimes (and then quite randomly) result in increased benefits being generated, I do not agree with Vogel et al that they are the appropriate “boundary” (or trigger) to use in a bounded openness system (which I otherwise support, in most respects). It would be much easier, effective, durable (even expired patents can still generate substantial benefits, e.g. through generic products) and – importantly – far less divisive to set the boundary/trigger for benefit sharing at the level of commercial sales. To put this in a different way: it doesn’t really matter how a user generates monetary benefits (using DSI or not, using IP protection or not) as long as a fair and equitable share of those benefits is mobilised to support conservation. I will return to how this could best be done below.

Since I have now mentioned bounded openness, let me make some further comments on that concept, which I believe is key to reaching a workable agreement:

- Insights derived from the economics of information (especially the near-zero cost of copying) are obviously highly relevant to any discussion about governing natural information but cannot be transferred wholesale without some reflection on how natural information (in the genetic sense) is originally generated (through evolution) and reproduced (through ecosystem succession processes).

- If I understand the proposed model correctly, granted IP will trigger a 15% (negotiable for different sectors) royalty that will be allocated to countries of origin proportionately to their share of the habitat of the organism involved, as an incentive for maintaining that habitat (in earlier versions the relationship between the range states was also characterised as a “cartel”). Where this formula is impractical, for various reasons, the benefits will be used to cover the cost of administering the system and/or used to support global taxonomy. To be frank, I can’t see this working (in the sense of producing good conservation and sustainable use outcomes) except in a limited set of circumstances. If such a system had been implemented 30 years ago AND the promised technology transfer, capacity development, joint R&D and shared IP had also been put in place it might have worked. But considering the scale and intensity of the biodiversity crisis we face now I can’t see how tinkering with market corrections will translate into states (and IPLCs) agreeing to bear the opportunity costs of foregoing more lucrative exploitative uses of habitats.

– In my view we need a system that is both more direct, collecting money where it is made and spending it where biodiversity needs it, and at the same time more hands-off about what happens in the open part, before the boundary is reached. Another way to put this is that we need to decouple access from benefit sharing to the extent possible. If “rents” are to be extracted (I share Mariana Mazzucato’s intense dislike of the concept, even as I understand that most economists use it as a neutral term-of-art) then let those rents accrue to global biodiversity, through a project-based approach that funds verifiable activities selected according to a scientific process (e.g. through cyclical priority-setting by the IPBES), administered by established institutions (e.g. the GEF) and implemented by actual custodians of biodiversity on the ground (IPLCs, local governments, biodiversity-rich states, maybe even NGOs) . Such project-based approach to benefit-sharing has worked well enough in the ITPGRFA, despite its multilateral system of ABS having been woefully inadequate at generating benefits from user-based payments. Considering that the biodiversity funding gap runs to hundreds of billions of dollars, I don’t believe fungibility will be a serious impediment to such a system. 

Let me turn next to the small but important matters of access and open data. As Akio Yamamoto pointed out [#2081] the bilateral architecture of ABS under the CBD and NP is already baked in and would be very difficult to change in international law, without enormous upheavals and very substantial delays. We will therefore have to accept the existence of these bilateral instruments, as well as the reality that many countries will not compromise their sovereign rights over genetic resources in a wholesale way, and creatively design (an) improved ABS system(s) around them. One legal precedent for how this can be done is found in the ITPGRFA, where the Parties “in the exercise of their sovereign rights” agreed to establish a multilateral ABS system (Treaty-making being a qualified compromise of sovereignty anyway). 

In this regard it’s interesting to note that many states are ambiguous about bilateral ABS: in the context of Nagoya Article 10, for example, Switzerland adamantly opposes even talking about potential modalities for a global multilateral benefit sharing mechanism, but at the ITPGRFA they are the formal proponent of a decision to expand the multilateral system, and at WHO they have offered to host a bio-depository for pathogens under the proposed “pandemic treaty” (which has not yet settled on a multilateral ABS mechanism but is being pushed by the EU and others in the direction of a multilateral access system; benefit sharing can presumably wait).

The problem with bilateral ABS, as we have heard loudly and repeatedly from the ICC and some academic research sectors, is that national ABS measures can take a very long time or even be completely dysfunctional, preventing access, research and innovation. Stakeholders from the user end of the spectrum are understandably reluctant to see this situation replicated for DSI. Many are also keen to have easier access mechanisms for specific categories of GR (pathogens, GRFA). The problem here is that tightly controlling access through PIC and MAT is the ONLY way developing countries can hope to extract benefit sharing (even when it is often a forlorn hope of some unspecified benefits a long time hence). Unless this impasse can be broken more countries will seek to control the use of DSI through MAT at the time of access and, as legal capacities grow, more and more users will find themselves in court for violating legal or contractual provisions governing DSI. As Henry Novion pointed out [#2090] only a very small part of biodiversity has been sequenced and the ABS community should find a way to keep this work unrestricted – but not at the expense of foregoing benefit sharing.

There are many stakeholders in this discussion who seem to focus mainly on maintaining open access to the sequences already deposited in the INSDC system (and its polyps). Their case might be stronger if they added a call for private proprietary data to be openly available too. Adding new sequences to the collections will at some stage require PIC and MAT for access to new GR from countries with ABS laws in place. The outcome is likely to be contractually agreed restrictions on the sharing and use of sequences, just as is the case now with proprietary data.

So what can we do to improve access to GR, preserve open access to DSI already shared on the global system, and encourage more open sharing? I would suggest that it will take making providers an “offer you can’t refuse”: a global ABS system that also shares benefits from new and on-going utilisation of GR that has already been accessed, including from ex situ collections, and is collected on all commercial uses of biology, at retail level, to capture maximum value added, spread the burden lightly between billions of consumers, and remove the potential market-distorting (and wasteful) effects of businesses trying to find loopholes.

The benefit sharing target will need to be commensurate with the identified funding gap – say US$500-750 billion/a – and tied to global GDP so that it adjusts automatically for inflation (which might soon spiral out of control due to massive cash printing in response to Covid). Since we’re living in the age of soundbites, one way to phrase it could be “1% of global GDP/a for 30x30”. Another might be “one penny in the dollar for a nature-positive world”. It would certainly help immensely to raise public awareness about biodiversity, which could then be guided into local actions, funded from the global benefit sharing fund. Since this approach is based on the idea that everyone will cooperate enthusiastically and there will be no opportunities for free riding, a legally binding agreement is not required – a voluntary arrangement in the form of a CoP Decision will do nicely, enforced through markets and monitored by consumers and civil society. It will also apply to US firms, with no need for the non-Party to join the CBD. We don’t need another AHTEG or inter-governmental negotiating committee, and we certainly don’t need more studies. Attempting to make it legally binding will simply produce the same outcome as Nagoya: utmost efforts to water down provisions by some developed countries, who then fail to ratify the new instrument anyway.

To be attractive to users this new scheme must of course also generate legal certainty about their rights to utilise not only DSI, but any GR that is not explicitly protected by a sovereign and only made available through bilateral PIC and MAT. I am convinced that, once significant benefits are seen to be flowing into the system, and into on-the-ground conservation, very few states will bother with using access to extract benefits, and then only for endemic species of high cultural or economic value (the national genetic crown jewels, so to speak). For users the deal is straightforward: because the benefits are collected at retail level you can access anything you like and use it in any way you want, as long as it’s legal.

Where would such a system leave non-monetary benefit sharing? A few years ago I looked at this in some detail (and then spectacularly failed to write the final report, but that’s another story) and my impression was that non-monetary benefit sharing is almost exclusively confined to basic research collaborations, based on a collegial approach to scientific enquiry, often driven by the need of foreign researchers for in-country collaborators, guides, interpreters and cultural orientation, and just as often dependent on research grants and/or funding from development assistance. This kind of non-monetary benefit sharing will undoubtedly continue. In some cases the private sector claims that it is sharing non-monetary benefits, but I found very few examples and they were all either a form of in-kind philanthropy (drilling a well for people who harvest your raw material; funding a kindergarten for a community in your supply chain), or else involved respondents confusing societal benefits arising from their profit-making activities (new health products, better crop genetics)  for non-monetary benefit sharing.

If you think the amount mentioned above (US$500-750 billion/a, which is based on the funding gap as estimated by the Expert Panel) it unrealistic, consider that WWF estimates ecosystem services to be worth US$125 trillion/a, WEF estimates US$44 trillion of global GDP to be highly to moderately dependent on biodiversity and ecosystem services, and the potential economic opportunity in meeting the SDGs has been put at US$12 trillion. Biodiversity needs to be paid for, and there will be no profits on a dead planet.

In the last two weeks the OECD has announced that it is on the verge of agreeing on a global system for taxing digital businesses, while President Biden called for an agreement on a global minimum corporate tax rate to stop the neoliberal race to the bottom among governments. Maybe we are approaching a point in history where we can have another Bretton Woods, or a humane version of the Washington consensus, in which we change the ABS narrative away from the current zero-sum death-struggle between fiduciary duty seeking to limit costs and states restricting access to raise the resources needed to protect biodiversity.

Maybe one of the transformative changes we manage to make in Kunming will be to move towards an enthusiastic duty, shared by all, to support conservation through sharing the benefits of sustainable use. If we can make the required changes, we can solve not only the DSI issue, but the far more important one of how to live in harmony with a nature-positive world.

But if we don’t manage to change for the better, I guess we can expect to see more of this kind of misleading, counterfactual and downright dangerous misinformation:

International Business Times, 11 April 2021


by Thomas Cueni, director-general of the International Federation of Pharmaceutical Manufacturers Associations.

This International Agreement Could Lead To Pandemics Worse Than COVID-19

Imagine if China had refused to share Covid-19's genetic sequences with other countries. Vaccine development would have been delayed indefinitely. Monitoring the virus would have been next to impossible.
Thankfully, that didn't happen. Chinese scientists shared the full SARS-CoV-2 sequence on Jan. 10, 2020, thus kickstarting the development of multiple vaccines created in record time.
But such a nightmarish alternative scenario is not farfetched. China could have referred to an international agreement known as the Nagoya Protocol to indefinitely withhold this vital data, even as the death toll soared around the globe.
Just imagine if China had refused to share – someone somewhere else would have had to sequence the virus. Luckily we don’t have to imagine what would have happened if IFPMA had opposed a proposal at WTO to share its patents on vaccines, because that has actually happened, and vaccine production has actually been delayed, as the death toll soars around the world…

Seriously people, come on: we really are better than this.

Enjoy the rest of your weekend.
posted on 2021-05-02 14:57 UTC by Mr Pierre du Plessis, African Union
This is a reply to 2109 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2117]
Apologies for entering into this discussion so late.

I think that #2105 makes some very important points we should keep in mind when talking about benefit sharing, especially the discussion on who providers and users actually are and the implications for who would be entitled to benefits as a result. I would like to put emphasis on some further points which I think deserve more attention as well.

The first point concerns barriers to entry. R&D projects directly related to commercial applications would generally be the most likely to have sufficient access to legal support and other financial or logistical resources necessary to navigate permitting regimes and negotiate an acceptable agreement (though by no means always as pointed out in #2076). I would be surprised if, within the private sector, new or small and medium enterprises weren't less able to muster such support than already-established larger corporations. To an even greater extent, this will be a problem for noncommercial research, especially in fields related to taxonomy and conservation which are often relatively poorly funded even within wealthy countries. In particular, we should not forget that personal collections made or curated by individual specialists are important resources for many species-rich but poorly-researched groups (particularly within insects), with those specialists often working on a volunteer basis without receiving public research funding or institutional support from museums and academia. In current terminology, this is a sort of high end citizen science, and given the rapidly decreasing cost of genetic research (for example, barcode sequencing as a service is offered for less than €10/specimen in some German museums, putting it well within reach of private specialists or dedicated hobbyists, and I've seen transcriptome sequencing done as part of a high school student's science fair project) it is inevitable that private specialists will become users of genetic resources under even the most restrictive definitions of the term. It is worth emphasising that, for non-lawyers, even standardised permitting processes can be intimidating and present an unintended barrier to access. There needs to be a path forward for such 'small' users to access other countries' genetic resources both in the context of DSI but also more generally for all uses of genetic resources.

The second point is about the feasibility of assigning benefits to one or more provider countries. If, as discussed in many previous posts in this discussion, we wish to achieve a mechanism where all provider countries which have the relevant resource can claim part of the benefits, we must obviously know in which countries the organism representing that genetic resource occurs. Given the poor state of faunistic, floristic, microbiological etc. knowledge for many taxa and regions, it will likely be impossible to do this outside of extremely well-researched large animals and plants. Records of relevant organisms will be made after the fact, either through new collections or through sorting of old (often decades-old, possibly pre Nagoya or even pre CBD!) unidentified collection material which may be located in another country. New records may even show the user country itself has the relevant organisms, meaning no international collaboration or access of a provider country's genetic resources would have been necessary in the first place. How would we deal with these cases, where a country's right to claim a share of the benefits (especially financial benefits) may only become obvious only after patents have expired or commercially viable products have become defunct? As an additional point, what would be done in the case of genetic resources present within the user country (and collected there), and in a limited number of other countries? Would there be any point in discussing benefit sharing here?

The third point is about two aspects of predictability. From the provider country perspective: while we can look at the successful commercialisation of biologically-derived products such as TAXOL in medicine or Taq polymerase for PCR, we must keep in mind that such examples are relatively rare. Provider countries would essentially have to gamble that paying for the additional bureaucratic apparatus necessary to track and/or control access to their genetic resources will result in a windfall of high income at an unspecified and likely unpredictable point in the future. I'm sure we're all aware that unforeseeable one-off (or limited-time) injections of cash would be inferior for domestic capacity building compared to a predictable funding stream that allows for long term planning in the development of research, education etc. facilities. From the user perspective - especially considering 'small' users: there is also a need for predictability in what users need to do to be allowed access, and especially so if they wish to visit multiple provider countries.

As a result of these considerations, I very strongly advocate for an approach where DSI is 1) openly available and free at the point of use, and 2) benefit sharing should ideally follow a multilateral 'subscription' model or general aid for capacity building and biodiversity conservation along the lines of options 3.2 and 4. This would allow providers to receive predictable and continuous benefits from allowing access while user activity would not be unneccessarily disrupted. Ideally, this would also provide a framework which could be extended to other aspects of genetic resource use in the future.

Even under other options, unless commercialisation occurs, the user's obligations absolutely must not extend beyond reporting/registering the results of their use of DSI (ideally in line with something like the FAIR guidelines + additional openness which should be promoted anyway).

PS: #2109 was posted after I wrote most of my comment, but I wish to say that I think many valuable points were made there - especially that we need solutions given the urgent need to prevent further biodiversity loss, that DSI/patents/etc should be seen merely as tools and in the context of more generalised concepts, and that decoupling access and benefit sharing with the latter taking place through a generalised worldwide fund would be a good idea.
(edited on 2021-05-02 22:06 UTC by Simon Chen)
posted on 2021-05-02 21:29 UTC by Simon Chen, University of Cambridge
This is a reply to 2044 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2118]
Preserving open access to DSI will not be seen as a success if some of those who will be able to access the data cannot or do not know how to use it.
Option 4 on scientific and technical cooperation will be a necessary complement to any other option, as a colleague has already written in this forum (I apologise for not being able to cite her/his post).
posted on 2021-05-02 21:57 UTC by Mr. Jean-Louis PHAM, French National Research Institute for Sustainable Development (IRD)
This is a reply to 2118 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2121]
I agree with Jean-Louis  [#2118], there is already many organisms that are freely accessible (the entire bread wheat genome) and it is not making a difference for developing countries. Maybe DSI should be segmented by organism or by kingdom and then demand functions derived for these types of DSI.

I agree with Jean-Louis  [#2118], there is already many organisms that are freely accessible (the entire bread wheat genome) and it is not making a difference for developing countries. Maybe DSI should be segmented by organism or by kingdom and then demand functions derived for these types of DSI.

Option 4 needs to be part of any soultion.

-Diego Macall
posted on 2021-05-03 01:24 UTC by Mr. Diego Macall, University of Saskatchewan
This is a reply to 2121 RE: 3. Policy options feasibility and appropriateness (April 24-May 2) [#2123]
#2121 I fully agree that we must ensure every country can make use of whatever biotechnological and scientific developments it chooses. A benefit sharing mechanism like in option 4 would ensure that all interested countries can work to overcome financial, technical and scientific hurdles without falling further behind during an unknown (and potentially very long) waiting period if benefit sharing were mainly tied to bilateral agreements.

In this context I would also suggest that active outreach (e.g. through funding streams for long term collaboration and research capacity building offered by wealthy countries' research funders) should be made a part of such a benefit sharing mechanism.
(edited on 2021-05-03 09:09 UTC by Simon Chen)
posted on 2021-05-03 09:06 UTC by Simon Chen, University of Cambridge